Ordinance No. 13,855ORDINANCE NO. 13,855
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO
ATTEST TO THE PROJECT UTILITY ADJUSTMENT AGREEMENT AND A
UTILITY ADJUSTMENT AGREEMENT AMENDMENT WITH GRAND PARKWAY
INFRASTRUCTURE, LLC, THROUGH THE TEXAS DEPARTMENT OF
TRANSPORTATION FOR SH99 GRAND PARKWAY SEGMENTS H, I-1 AND I-2;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN ACCORDANCE
THEREWITH IN THE AMOUNT OF THREE HUNDRED TWENTY-ONE
THOUSAND SEVEN HUNDRED FIFTY-SEVEN AND 501100 DOLLARS
($321,757.50); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute and the City Clerk to attest to the Project Utility Adjustment Agreement and a Utility
Adjustment Agreement Amendment with Grand Parkway Infrastructure, LLC, through the Texas
Department of Transportation for SH99 Grand Parkway Segments H, I-1 and I-2. Copies of said
agreement and amendment are attached hereto as Exhibits "A" and `B" and incorporated herein for all
intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment in the amount
of THREE HUNDRED TWENTY-ONE THOUSAND SEVEN HUNDRED FIFTY-SEVEN AND
501100 DOLLARS ($321,757.50) pursuant to the agreement and amendment authorized in Section 1
hereof.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of FIFTY THOUSAND AND N0/100 DOLLARS
($50,000.00) or less; however, the original contract price may not be increased by more than twenty-five
percent (25%) or decreased by more than twenty-five percent (25%) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediately fromd after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote f e City Council of the City of
Baytown this the 23`d day of August, 2018.
A ST:
A.
LETICIA BRYSCH, Cityerk
APPROVED AS TO FORM:
6 �
ACIO RAMIREZ, SR., Ci ttorney
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Texas Department of Transportation Exhibit "A"
Form ROW-U-DBA-PUAA-DM
Page 1 of 15 Rev. 1217
County. Montgomery, Harris,
Liberty, Chambers
ROW CSJ No.: 3510-07-008, 3510-
08-003, 3510-09-003,
3510-09-004,3510-
10-017, 3187-01-012,
3187-02-012
Const. CSJ No.: 3510-07-003, 3510-
08-001, 3510-09-002,
3510-09-001,3510-
10-001, 3187-01-011,
3187-02-011, 3510-
10-016
Highway: SH 99 Grand
Parkway Segments H,
1-1,1-2
Limits: From US 59/I-69 to
Harris C/L, From
Montgomery C/L to
Liberty C/L, From
Harris C/L to US 90,
From US 90 to
Chambers C/L, From
Liberty C/L to IH -10,
Hams County,
Chambers County
Fed. Proj. No.:
PROJECT UTILITY ADJUSTMENT AGREEMENT
(DB Contractor Managed)
Agreement No.: SH99-U-0516
THIS AGREEMENT, by and between Grand Parkway Infrastructure, LLC, hereinafter identified as the
"DB Contractor" and City of Baytown, hereinafter identified as the "Owner", is as follows:
WITNESSETH
WHEREAS, the STATE OF TEXAS, acting by and through the Texas Department of Transportation,
hereinafter identified as "TxDOT", is authorized to design, construct, operate, maintain, and improve
projects as part of the state highway system throughout the State of Texas, all in conformance with the
applicable provisions of Chapters 201, 203, 222, 223, 224 and 228 of the Texas Transportation Code, as
amended; and
WHEREAS, the TxDOT proposes to construct a project identified as SH 99 Grand Parkway Segments H,
I-1 and I-2 the "Project") and classified as either Interstate, Toll or Traditional (meaning eligibility based
on existing compensable interest in the land occupied by the facility to be relocated within the proposed
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 2 of 15 Rev. 12/17
highway right of way limits) as indicated below (check one (1) box). Reimbursement will be authorized by
the type of project selected below in conformance with §203.092 of the Transportation Code,
❑ Interstate
® Toll
❑ Traditional
; and
WHEREAS, pursuant to that certain Design -Build Agreement (the "DBA") by and between TxDOT and
the DB Contractor with respect to the Project, the DB Contractor has undertaken the obligation to design,
construct, fmance, operate and maintain the Project and adhere to all requirements in the DBA; and
WHEREAS, the DB Contractor's duties pursuant to the DBA include causing the relocation, removal or
other necessary adjustment of existing Utilities impacted by the Project (collectively, "Adjustment"),
subject to the provisions herein; and
WHEREAS, the Project may receive Federal funding, financing and/or credit assistance; and
WHEREAS, the DB Contractor has notified the Owner that certain of its facilities and appurtenances (the
"Owner Utilities") are in locational conflict with the Project (and/or with the "Ultimate Configuration") of
the Project), and the Owner has requested that the DB Contractor undertake the Adjustment of the Owner
Utilities as necessary to accommodate the Project (and the Ultimate Configuration) and the Owner agrees
that the "Project" will be constructed in accordance with §203.092 of the Texas Transportation Code, as
amended, and 23 CFR 645 Subpart A (Utility Relocations, Adjustments and Reimbursement); and
WHEREAS, the Owner Utilities and the proposed Adjustment(s) of the Owner Utilities are to be described
in the plans, required specifications and cost estimates (collectively, the "Plans") included with one or more
Utility Adjustment Agreement Amendment ("UAAA") to this Agreement; and
WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated herein;
and
WHEREAS, the DB Contractor and the Owner desire to implement the Adjustment of the Owner Utilities
by entering into this Agreement.
1
NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of
the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being
hereby acknowledged, the DB Contractor and the Owner agree as follows:
1. Preparation of Plans. [Check one (1) box that applies:]
® The DB Contractor will hire engineering firm(s) acceptable to the Owner to perform all
engineering services needed for the preparation of the Plans for the proposed Adjustment
of the Owner Utilities. The Plans are part of the associated UAAA under this Agreement.
The DB Contractor represents and warrants that the Plans are to conform to the most recent
Utility Accommodation Rules issued by the Texas Department of Transportation
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 3 of 15 Rev. 12117
("TxDOT"), as set forth in 43 Tex. Admin. Code Part 1, Chapter 21, Subchapter C, et seq.
(the "UAR"). By signing of the Plans, the Owner hereby approves and confirms that the
Plans are in compliance with the "standards" described in Paragraph 3(a)(4).
❑ The Owner will provide Plans for the proposed Adjustment of the Owner Utilities. The
Owner represents and warrants that the Plans will conform to the most recent Utility
Accommodation Rules issued by the Texas Department of Transportation ("TxDOT"), as
set forth in 43 Tex. Admin. Code Part 1, Chapter 21, Subchapter C, et seq. (the "UAW').
By their execution of the associated UAAA, the DB Contractor and the Owner hereby
approve the Plans. As part of the associated UAAA, the Owner will provide to the DB
Contractor a Utility plan view map illustrating the location of existing and proposed Utility
facilities on the DB Contractor's right of way map of the Project. With regard to its
preparation of the Plans, the Owner represents as follows [check one (1) box that applies]:
❑ The Owner's employees will be utilized to prepare the Plans, and the charges
therefore do not exceed the Owner's typical costs for such work.
❑ The Owner will utilize consulting engineers to prepare the Plans, and the fees for
such work are not based upon a percentage of construction costs. Further, such fees
encompass only the work necessary to prepare the Plans for Adjustment of the
Owner Utilities described in the associated UAAA, and do not include fees for
work done on any other project. The fees of the consulting engineers are reasonable
and are comparable to the fees typically charged by consulting engineers in the
locale of the Project for comparable work for the Owner.
2. Review by TxDOT. The parties hereto acknowledge and agree as follows:
(a) Upon execution of this Agreement by the DB Contractor and the Owner, the DB Contractor
will submit this Agreement to TxDOT for its review and approval. The DB Contractor will
prepare and submit this Agreement, the associated UAAA and the Plans as part of a
package referred to as a "Utility Assembly". The parties agree to cooperate in good faith
to modify this Agreement, the UAAA, and/or the Plans, as necessary and mutually
acceptable to all parties, to respond to any comments made by TxDOT thereon. Without
limiting the generality of the foregoing:
(i) The Owner agrees to respond (with comment and/or acceptance) to any modified
Plans included in the associated UAAA and/or the UAAA prepared by the DB
Contractor in response to TxDOT comments within 14 Business Days after receipt
of such modifications; and
(ii) If the Owner originally prepared the Plans, the Owner agrees to modify the Plans
included in the associated UAAA in response to TxDOT comments and to submit
such modified Plans to the DB Contractor for its comment and/or approval (and
re -submittal to TxDOT for its comment and/or approval) within 14 Business Days
after receipt of TxDOT's comments.
The Owner's failure to timely respond to any modified Plans submitted by the DB
Contractor pursuant to this paragraph shall be deemed the Owner's approval of same. If
the Owner fails to timely prepare modified Plans included in the associated UAAA which
are its responsibility hereunder, then the DB Contractor shall have the right to modify the
Plans for the Owner's approval as if the DB Contractor had originally prepared the Plans.
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 4 of 15 Rev. 12.17
The process set forth in this paragraph will be repeated until the Owner, the DB Contractor
and TxDOT have all approved this Agreement and the Plans included in the associated
UAAA.
(b) The parties hereto acknowledge and agree that TxDOT's review, comments and approval
of a Utility Assembly or any component thereof shall constitute TxDOT's approval of the
location and manner in which a Utility Assembly will be installed, adjusted, or relocated
within the State Highway right of way (the "ROW"), subject to the DB Contractor and the
Owner's satisfactory performance of the Adjustment work in accordance with the approved
Plans included in the associated UAAA. TxDOT has no duty to review Owner Utilities or
components for their quality or adequacy to provide the intended Utility service.
3. Design and Construction Standards.
(a) All design and construction performed for the Adjustment work which is the subject of this
Agreement shall comply with and conform to the following:
(1) All applicable local and State Laws, regulations, decrees, ordinances and policies,
including the UAR, the Utility Manual issued by TxDOT (to the extent its
requirements are mandatory for the Utility Adjustment necessitated by the Project,
as communicated to the Owner by the DB Contractor or TxDOT), the requirements
of the DBA, and the policies of TxDOT;
(2) All Federal Laws, regulations, decrees, ordinances and policies applicable to
projects receiving Federal funding, fmancing and/or credit assistance, including
without limitation, 23 CFR 645 Subpart A and B; and the Buy America provisions
of 23 U.S.C. §313 and 23 CFR 635.410. The Utility Owner shall supply, upon
request by the DB Contractor or TxDOT, proof of compliance with the
aforementioned Laws, rules and regulations prior to the commencement of
construction;
(3) The terms of all governmental permits or other approvals, as well as any private
approvals of third parties necessary for such work;
(4) The standard specifications, standards of practice, and construction methods
(collectively, "standards") which the Owner customarily applies to Utility facilities
comparable to the Owner Utilities that are constructed by the Owner or for the
Owner by its contractors at the Owner's expense, which standards are current at
the time this Agreement is signed by the Owner, and which the Owner has
submitted to the DB Contractor in writing; and
(5) Owner agrees that all service meters must be placed outside of the State ROW.
(b) Such design and construction also shall be consistent and compatible with:
(i) The DB Contractor's current design and construction of the Project;
(ii) The "Ultimate Configuration" for the Project; and
(iii) Any other Utilities being installed in the same vicinity.
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 5 of 15 Rev. 12/17
The Owner acknowledges receipt of Project plans and Ultimate Configuration documents
from the DB Contractor as necessary to comply with the foregoing. In case of any
inconsistency among any of the standards reference in this Agreement, the most stringent
standard shall apply.
(c) The plans, specifications, and cost estimates contained in each associated UAAA shall
identify and detail all Utility facilities that the Owner intends to abandon in place rather
than remove, including material type, quantity, size, age and condition. No facilities
containing hazardous or contaminated materials may be abandoned, but shall be
specifically identified and removed in accordance with the requirements of subparagraph
(a). It is understood and agreed that the DB Contractor shall not pay for the assessment and
remediation or other corrective action relating to soil and ground water contamination
caused by the Utility facility prior to the removal.
4. Responsibility for Costs of Adiustment Work. With the exception of any Betterment (hereinafter
defined), the parties shall allocate the cost of any Adjustment between themselves as identified in
the associated UAAA and in accordance with §203.092 of the Texas Transportation Code. An
allocation percentage may be determined by application of an eligibility ratio, if appropriate, as
detailed in the associated UAAA.
Construction by the DB Contractor.
(a) The Owner hereby requests that the DB Contractor perform the construction necessary to
adjust the Owner Utilities and the DB Contractor hereby agrees to perform such
construction. All construction work hereunder shall be performed in a good and
workmanlike manner, and in accordance with the Plans included in the associated UAAA
(except as modified pursuant to Paragraph 16).
(b) The DB Contractor shall retain such contractor or contractors as are necessary to adjust the
Owner Utilities.
(c) The DB Contractor shall obtain all permits necessary for the construction to be performed
by the DB Contractor hereunder, and the Owner shall cooperate in that process as needed.
6. Reimbursement of Owner's Indirect Costs.
(a) DB Contractor agrees to reimburse the Owner its share, if applicable, of the Owner's
indirect costs (e.g., engineering, inspection, testing, ROW) as set forth in the associated
UAAA. When requested by the Owner, monthly progress payments will be made. The
monthly payment will not exceed 80% of the estimated indirect work done to date. Once
the indirect work is complete, final payment of the eligible indirect costs will be made.
Intermediate payments shall not be construed as final payment for any items included in
the intermediate payment.
(b) All indirect costs charged to the DB Contractor by the Owner shall be reasonable and shall
be computed using rates and schedule not exceeding those applicable to similar work
performed by or for the Owner at the Owner's expense. The DB Contractor's performance
of the Adjustment work hereunder and payment of the DB Contractor's share of the
Owner's costs pursuant to this Agreement, if applicable, shall be full compensation to the
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 6 of 15 Rev. 12,17
Owner for all costs incurred by the Owner in adjusting the Owner Utilities (including
without limitation, costs of relinquishing and/or acquiring right of way).
Advancement of Funds by Owner for Construction Costs.
(a) Advancement of Owner's share, if any, is to be outlined in Paragraph 1.3 of the associated
UAAA.
Invoices. On invoices prepared by either the Owner or the DB Contractor, all costs developed using
the "Actual Cost" method described in the associated UAAA shall be itemized in a format allowing
for comparisons to the approved estimates, including listing each of the service performed, the
amount of time spent and the date on which the service was performed. The original and three (3)
copies of each invoice, together with (i) such supporting information to substantiate all invoices as
reasonably requested, and (ii) such waivers and releases of liens as the other party may reasonably
require, shall be submitted to the other party at the address for notices stated in Paragraph 21, unless
otherwise directed pursuant to Paragraph 22.
The Owner and the DB Contractor shall make commercially reasonable efforts to submit final
invoices no later than 120 days after completion of work. The Owner and the DB Contractor hereby
acknowledge and agree that any costs submitted to the other party within 12 months following
completion of all Adjustment work to be performed by the parties pursuant to this Agreement shall
be deemed to have been abandoned and waived.
9. Betterment and Salvage.
(a) For purposes of this Agreement, the term "Betterment" means any upgrading of an Owner
Utility being adjusted that is not attributable to the construction of the Project and is made
solely for the benefit of and at the election of the Owner, including but not limited to an
increase in the capacity, capability, efficiency or function of the adjusted Utility over that
provided by the existing Utility or an expansion of the existing Utility; provided, however,
that the following are not considered Betterments:
(i) Any upgrading which is required for accommodation of the Project;
(ii) Replacement devices or materials that are of equivalent standards although not
identical;
(iii) Replacement of devices or materials no longer regularly manufactured with the
next highest grade or size;
(iv) Any upgrading required by applicable Laws, regulations or ordinances;
(v) Replacement devices or materials which are used for reasons of economy (e.g.,
non -stocked items that may be uneconomical to purchase); or
(vi) Any upgrading required by the Owner's written "standards" meeting the
requirements of Paragraph 3(a)(4).
Any upgrading required by the Owner's written "standards" meeting the requirements of
Paragraph 3(a)(4) shall be deemed to be direct benefit to the Project.
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 7 of 15 Rev. 12/17
For fiber optic Utility Owners only: Extension of an adjustment to the nearest splice boxes
shall not be considered a Betterment if required by the Owner in order to maintain its
written telephony standards.
(b) It is understood and agreed that the DB Contractor shall not pay for any Betterments and
that the Owner shall be solely responsible therefor. No Betterment may be performed
hereunder which is incompatible with the Project or the Ultimate Configuration or which
cannot be performed within the other constraints of applicable Law, any applicable
governmental approvals, including without limitation the scheduling requirements
thereunder.
(c) Refer to Paragraph 1.5 in the associated UAAA for any identified Betterments and the
terms related to those Betterments.
(d) If the associated UAAA identifies Betterment, the amount allocable to Betterment in the
Owner's indirect costs shall be determined by applying the percentage of the Betterment
calculated in the associated UAAA to the Owner's indirect costs. The Owner's invoice to
the DB Contractor for the DB Contractor's share of the Owner's indirect costs, shall credit
the DB Contractor with any Betterment amount determined pursuant to this Paragraph 9.
(e) For any Adjustment from which the Owner recovers any materials and/or parts and retains
or sells the same, after application of any applicable Betterment credit, the Owner's invoice
to the DB Contractor for its costs shall credit the DB Contractor with the salvage value for
such materials and/or parts.
(f) The determination and calculations of Betterment described in this Paragraph 9 shall
exclude right of way acquisition costs. Betterment in connection with right of way
acquisition is addressed in Paragraph 15.
10. Management of the Adiustment Work. The DB Contractor will provide project management
during the Adjustment of the Owner Utilities.
11. Utility Investigations. At the DB Contractor's request, the Owner shall assist the DB Contractor
in locating any Utilities (including appurtenances) which are owned and/or operated by the Owner
and may be impacted by the Project. Without limiting the generality of the foregoing, in order to
help assure that neither the adjusted Owner Utilities nor existing, unadjusted Utilities owned or
operated by the Utility Owner are damaged during construction of the Project, the Owner shall
mark in the field the location of all such Utilities horizontally on the ground in advance of Project
construction in the immediate area of such Utilities.
12. Inspection and Acceptance by the Owner.
(a) Throughout the Adjustment construction hereunder, the Owner shall provide adequate
inspectors for such construction. The work shall be inspected by the Owner's inspector(s)
at least once each working day, and more often if such inspections are deemed necessary
by Owner. Further, upon request by the DB Contractor or its Subcontractors, the Owner
shall furnish an inspector at any reasonable time in which construction is underway
pursuant to this Agreement, including occasions when construction is underway in excess
of the usual 40 hour work week and at such other times as reasonably required. The Owner
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 8 of 15 Rev. 1217
agrees to promptly notify the DB Contractor of any concerns resulting from any such
inspection.
(b) The Owner shall perform a final inspection of the adjusted Owner Utilities, including
conducting any test as are necessary or appropriate, within five (5) Business Days after
completion of construction hereunder. The Owner shall accept such construction if it is
consistent with the performance standards described in Paragraph 3, by giving written
notice of such acceptance to the DB Contractor within said five (5) day period. If the
Owner does not accept the construction, then the Owner shall, not later than the expiration
of said five (5) day period, notify the DB Contractor in writing of its grounds for non-
acceptance and suggestions for correcting the problem, and if the suggested corrections are
justified, the DB Contractor will comply. The Owner shall re -inspect any revised
construction (and retest if appropriate) and give notice of acceptance, no later than five (5)
Business Days after completion of corrective work. The Owner's failure to inspect and to
give any required notice of acceptance or non-acceptance within the specified time period
shall be deemed accepted.
(c) From and after the Owner's acceptance (or deemed acceptance) of an adjusted Owner
Utility, the Owner agrees to accept ownership of, and full operation and maintenance
responsibility for, such Owner Utility.
13. Design Changes. The DB Contractor will be responsible for additional Adjustment design and
construction costs necessitated by design changes to the Project, upon the terms specified herein.
14. Field Modifications. The DB Contractor shall provide the Owner with documentation of any field
modifications, including Utility Adjustment Field Modifications as well as minor changes
described in Paragraph 16(b), occurring in the Adjustment of the Owner Utilities.
15. Real Property Interests.
(a) The Owner has provided, or upon execution of the associated UAAA shall promptly
provide to the DB Contractor, documentation acceptable to TxDOT indicating any right,
title or interest in real property claimed by the Owner with respect to the Owner Utilities
in their existing location(s). Such claims are subject to TxDOT's approval as part of its
review of the DB Contractor Utility Assembly as described in Paragraph 2. Claims
approved by TxDOT as to rights or interests are referred to herein as "Existing Utility
Property Interests".
(b) If acquisition of any new easement or other interest in real property ("Replacement Utility
Property Interest") is necessary for the Adjustment of any Owner Utilities, then the
Owner shall be responsible for undertaking such acquisition. The Owner shall implement
each acquisition hereunder expeditiously so that related Adjustment construction can
proceed in accordance with the DB Contractor's Project schedules. The DB Contractor
shall be responsible for its share (as specified in Paragraph 4) of the actual and reasonable
acquisition costs of any such Replacement Utility Property Interest (including without
limitation the Owner's reasonable overhead charges and reasonable legal costs as well as
compensation paid to the landowner), excluding any costs attributable to Betterment as
described in Paragraph 15(c), and subject to the provisions of Paragraph 15(e); provided,
however, that all acquisition costs shall be subject to the DB Contractor's prior written
approval. Eligible acquisition costs shall be segregated from other costs on the Owner's
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 9 of 15 Rev. 12/17
estimates and invoices. Any such Replacement Utility Property Interest shall have a written
valuation and shall be acquired in accordance with applicable Law.
(c) The DB Contractor shall pay its share only for a replacement in kind of an Existing Utility
Property Interest (e.g., in width and type), unless a Replacement Utility Property Interest
exceeding such standard:
(i) Is required in order to accommodate the Project or by compliance with applicable
Law; or
(ii) Is called for by the DB Contractor in the interest of overall Project economy.
Any Replacement Utility Property Interest which is not the DB Contractor's responsibility
pursuant to the preceding sentence shall be considered a Betterment to the extent that it
upgrades the Existing Utility Property Interest which it replaces, or in its entirety if the
related Owner Utility was not installed pursuant to an Existing Utility Property Interest.
Betterment costs shall be solely the Owner's responsibility.
(d) For each Existing Utility Property Interest located within the Project right of way, upon
completion of the related Adjustment work and its acceptance by the Owner, the Owner
agrees to execute a quitclaim deed or other appropriate documentation relinquishing such
Existing Utility Property Interest to TxDOT, unless the affected Owner Utility is remaining
in its original location or is being reinstalled in a new location within the area subject to
such Existing Utility Property Interest. If the Owner's facilities are remaining within the
existing property interest, a Utility Joint Use Acknowledgement will be required. All
quitclaim deeds or other relinquishment documents shall be subject to TxDOT's approval
as part of its review of the Utility Assembly as described in Paragraph 2. For each such
Existing Utility Property Interest relinquished by the Owner, the DB Contractor shall do
one (1) of the following to compensate the Owner for such Existing Utility Property
Interest, as appropriate:
(i) If the Owner acquires a Replacement Utility Property Interest for the affected
Owner Utility, the DB Contractor shall reimburse the Owner for the DB
Contractor's share of the Owner's actual and reasonable acquisition costs in
accordance with Paragraph 15(b), subject to Paragraph 15(c); or
(ii) If the Owner does not acquire a Replacement Utility Property Interest for the
affected Owner Utility, the DB Contractor shall compensate the Owner for the DB
Contractor's share of the market value of such relinquished Existing Utility
Property Interest, as mutually agreed between the Owner and the DB Contractor
and supported by a written valuation.
The compensation, if any, provided to the Owner pursuant to either subparagraph (i) or (ii)
above shall constitute complete compensation to the Owner for the relinquished Existing
Utility Property Interest and any Replacement Utility Property Interest, and not further
compensation shall be due to the Owner from the DB Contractor or TxDOT on account of
such Existing Utility Property Interest or Replacement Utility Property Interest.
(e) All Utility Joint Use Acknowledgments (UJUA) or Utility Installation Requests, Form
1082 shall be subject to TxDOT approval as part of its review of the Utility Assembly as
described in Paragraph 2. A Utility Joint Use Acknowledgment is required where an
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 10 of 15 Rev. 12/17
Existing Utility Property Interest exists and the existing or proposed Utility will remain or
be adjusted within the boundaries of the Existing Utility Property Interest. All other
accommodations not located on Existing Utility Property Interests will require a Utility
Installation Request, Form 1082.
16. Amendments and Modifications. This Agreement may be amended or modified only by a written
instrument executed by the parties hereto, in accordance with Paragraph 16(a) or Paragraph 16(b)
below:
(a) Except as otherwise provided in Paragraph 16(b), any amendment or modification to this
Agreement shall be implemented by a Utility Adjustment Agreement Amendment
("UAAA") using form ROW-DBA-U-UAAA-DM. The UAAA form can be used for a new
scope of work with concurrence of the DB Contractor and TxDOT as long as the design
and construction responsibilities have not changed. Each UAAA is subject to the review
and approval of TxDOT, prior to its becoming effective for any purpose and prior to any
work being initiated thereunder. The Owner agrees to keep and track costs for each UAAA
separately from other work being performed.
(b) For purposes of this Paragraph 16(b), "Utility Adjustment Field Modification" shall
mean any horizontal or vertical design change from the Plans included in a Utility
Assembly previously approved by TxDOT, due either to design of the Project or to
conditions not accurately reflected in the approved Utility Assembly (e.g., shifting the
alignment of an 8 inch water line to miss a modified or new roadway drainage structure).
A Utility Adjustment Field Modification agreed upon by the DB Contractor and the Owner
does not require a UAAA, provided that the modified Plans have been submitted to TxDOT
for its review and comment. A minor change (e.g., an additional water valve, an added
Utility marker at a ROW line, a change in vertical bend, etc.) will not be considered a
Utility Adjustment Field Modification and will not require a UAAA, but shall be shown in
the documentation required pursuant to Paragraph 14.
(c) This Agreement does not alter and shall not be construed in any way to alter the obligations,
responsibilities, benefits, rights, remedies, and claims between the DB Contractor and
TxDOT to design and construct the Project, including the Adjustment.
17. Entire Agreement. This Agreement and any associated UAAA embodies the entire agreement
between the parties and there are no oral or written agreements between the parties or any
representation made which are not expressly set forth herein.
18. Assignment; Binding Effect; TxDOT as Third -Party Beneficiary. Neither the Owner nor the
DB Contractor may assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party and of TxDOT, which consent may not be
unreasonably withheld or delayed; provided, however, that the DB Contractor may assign any of
its rights and/or delegate any of its duties to TxDOT or to any other entity engaged by TxDOT to
fulfill the DB Contractor's obligations, at any time without the prior consent of the Owner.
This Agreement and any associated UAAA shall bind the Owner, the DB Contractor and their
successors and permitted assigns, and nothing in this Agreement nor in any approval subsequently
provided by any party hereto shall be construed as giving any benefits, rights, remedies, or claims
to any other person, firm, corporation or other entity, including, without limitation, any contractor
or other party retained for the Adjustment work or the public in general; provided, however, that
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 11 of 15 Rev. 12.17
the Owner and the DB Contractor agree that although TxDOT is not a party to this Agreement,
TxDOT is intended to be a third -party beneficiary to this Agreement.
19 Breach by the Parties.
(a) If the Owner claims that the DB Contractor has breached any of its obligations under this
Agreement or any associated UAAA, the Owner will notify the DB Contractor and TxDOT
in writing of such breach, and the DB Contractor shall have 30 days following receipt of
such notice in which to cure such breach, before the Owner may invoke any remedies which
may be available to it as a result of such breach; provided, however, that both during and
after such period TxDOT shall have the right, but not the obligation, to cure any breach by
the DB Contractor. Without limiting the generality of the foregoing:
(i) TxDOT shall have no liability to the Owner for any act or omission committed by
the DB Contractor in connection with this Agreement, including without limitation
any claimed defect in any design or construction work supplied by the DB
Contractor or by its Subcontractors; and
In no event shall TxDOT be responsible for any repairs or maintenance to the
Owner Utilities adjusted pursuant to this Agreement.
(b) If the DB Contractor claims that the Owner has breached any of its obligations under this
Agreement, the DB Contractor will notify the Owner and TxDOT in writing of such breach,
and the Owner shall have 30 days following receipt of such notice in which to cure such
breach, before the DB Contractor may invoke any remedies which may be available to it
as a result of such breach.
20. Traffic Control. The DB Contractor shall provide traffic control or shall reimburse the Owner for
the DB Contractor's share (if any, as specified in Paragraph 4) of the costs for traffic control made
necessary by the Adjustment work performed by either the DB Contractor or the Owner pursuant
to this Agreement, in compliance with the requirements of the Texas Manual on Uniform Traffic
Control Devices. Pursuant to Paragraph 9, Betterment percentages calculated in the associated
UAAA shall also apply to traffic control costs.
21. Notices. Except as otherwise expressly provided in this Agreement, all notices or communications
pursuant to this Agreement shall be sent or delivered to the following:
Owner: City of Baytown Texas
ATTN: Richard L. Davis, ICMA-CM
2401 Market Street
Baytown, Texas 77522
Phone: (281) 420-6500
DB Contractor: 8811 FM 1960 Bypass Rd. West
Suite 400
Humble, TX
Phone: (832) 412-4633
Fax: (832) 412-3513
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 12 of 15 Rev. 12.17
A party sending notice of default of this Agreement to another party shall also send a copy of such
notice to TxDOT and the DBA Utility Manager at the following addresses:
TxDOT: Texas Department of Transportation
Attention: Bill Brudnick
Director of Transportation Planning and Development
P.O. Box 1386
Houston, TX 77251-1386
(713)802-5745
TxDOT DBA Utility Manager: Texas Department of Transportation
Attention: Thien Nguyen
Project Manager
P.O. Box 1386
Houston, TX 77251-1386
(713) 802-5745
Any notice or demand required herein shall be given (a) personally, (b) by certified or registered
mail, postage prepaid, return receipt requested, or (c) by reliable messenger or overnight courier to
the appropriate address set forth above. Any notice served personally shall be deemed delivered
upon receipt, and any notice served by certified or registered mail or by reliable messenger or
overnight courier shall be deemed delivered on the date of receipt as shown on the addressee's
registry or certification of receipt or on the date receipt is refused as shown on the records or
manifest of the U.S. Postal Service or such courier. Any party may designate any other address for
this purpose by written notice to all other parties; TxDOT may designate another address by written
notice to all parties.
22. Approvals. Any acceptance, approval, or any other like action (collectively "Approval") required
or permitted to be given by the DB Contractor, the Owner or TxDOT pursuant to this Agreement:
(a) Must be in writing to be effective (except if deemed granted pursuant hereto);
(b) Shall not be unreasonably withheld or delayed; and if Approval is withheld, such
withholding shall be in writing and shall state with specificity the reason for withholding
such Approval, and every effort shall be made to identify with as much detail as possible
what changes are required for Approval; and
(c) Except for approvals by TxDOT, and except as may be specifically provided otherwise in
this Agreement, shall be deemed granted if no response is provided to the party requesting
an Approval within the time period prescribed by this Agreement (or if no time period is
prescribed, then 14 calendar days), commencing upon actual receipt by the party from
which an Approval is requested or required, of a request for Approval form the requesting
party. All requests for Approval shall be sent out by the requesting party to the other party
in accordance with Paragraph 21.
23. Time.
(a) Time is of the essence in the performance of this Agreement.
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 13 of 15 Rev. 1217
(b) All references to "days" herein shall be construed to refer to calendar days, unless
otherwise stated.
(c) No party shall be liable to another party for any delay in performance under this Agreement
from any cause beyond its control and without its fault or negligence ("Force Majeure"),
such as acts of God, acts of civil or military authority, fire, earthquake, strike, unusually
severe weather, floods or power blackouts.
24. Continuing Performance. In the event of a dispute, the Owner and the DB Contractor agree to
continue their respective performance hereunder to the extent feasible in light of the dispute,
including paying billings, and such continuation of efforts and payment of billings shall not be
construed as a waiver of any legal right.
25. Equitable Relief. The DB Contractor and the Owner acknowledge and agree that delays in
Adjustment of the Owner Utilities will impact the public convenience, safety and welfare, and that
(without limiting the parties' remedies hereunder) monetary damages would be inadequate to
compensate for delays in the construction of the Project. Consequently, the parties hereto (and
TxDOT as well, as a third -party beneficiary) shall be entitled to specific performance or other
equitable relief in the event of any breach of this Agreement which threatens to delay construction
of the Project; provided, however, that the fact that specific performance or other equitable relief
may be granted shall not prejudice any claims for payment or otherwise related to performance of
the Adjustment work hereunder.
26. Authority. The Owner and the DB Contractor each represent and warrant to the other party that
the warranting party possesses the legal authority to enter into this Agreement and that it has taken
all actions necessary to exercise that authority and to lawfully authorize its undersigned signatory
to execute this Agreement and to bind such party to its terms. Each person executing this Agreement
on behalf of a party warrants that he or she is duly authorized to enter into this Agreement on behalf
of such party and to bind it to the terms hereof.
27. Cooperation. The parties acknowledge that the timely completion of the Project will be influenced
by the ability of the Owner (and its contractors) and the DB Contractor to coordinate their activities,
communicate with each other, and respond promptly to reasonable requests. Subject to the terms
and conditions of this Agreement, the Owner and the DB Contractor agree to take all steps
reasonably required to coordinate their respective duties hereunder in a manner consistent with the
DB Contractor's current and future construction schedules for the Project.
28. Termination. If the Project is canceled or modified so as to eliminate the necessity of the
Adjustment work described herein, then the DB Contractor shall notify the Owner in writing and
the DB Contractor reserves the right to thereupon terminate this Agreement. Upon such
termination, the parties shall negotiate in good faith an amendment that shall provide mutually
acceptable terms and conditions for handling the respective rights and liabilities of the parties
relating to such termination.
29. Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party
pursuant to this Agreement that such party shall not discriminate on the grounds of race, color, sex,
national origin or disability in the selection and/or retention of contractors and consultants,
including procurement of materials and lease of equipment.
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 14 of 15 Rev. 12/17
30. Applicable Law. Jurisdiction and Venue. This Agreement shall be governed by the Laws of the
State of Texas, without regard to the Conflict of Laws principles thereof. Venue for any action
brought to enforce this Agreement or relating to the relationship between any of the parties shall
be the District Court of Harris County, Texas [or the United States District Court for the Western
District of Texas (Austin)].
31. Relationship of the Parties. This Agreement does not in any way, and shall not be construed to,
create a principal/agent or joint venture relationship between the parties hereto and under no
circumstances shall the Owner or the DB Contractor be considered as or represent itself to be an
agent of the other.
32. _Waiver of Consequential Damages. No party hereto shall be liable to any other party to this
Agreement, whether in contract, tort, equity, or otherwise (including negligence, warranty,
indemnity, strict liability, or otherwise) for any punitive, exemplary, special, indirect, incidental,
or consequential damages, including, without limitation, loss of profits or revenues, loss of use,
claims of customers, or loss of business opportunity.
33. Captions. The captions and headings of the various paragraphs of this Agreement are for
convenience and identification only, and shall not be deemed to limit or define the content of their
respective paragraphs.
34. Counterparts. This Agreement may be executed in any number of counterparts. Each such
counterpart hereof shall be deemed to be an original instrument but all such counterparts together
shall constitute one (1) and the same instrument.
35. Effective Date. This Agreement shall become effective upon the later of (a) the date of signing by
the last party (either the Owner or DB Contractor) signing this Agreement, and (b) the date of
TxDOT's approval as indicated by the signature of TxDOT's representative below.
[SIGNATURES APPEAR ON NEXT PAGE]
Texas Department of Transportation
Form ROW-U-DBA-PUAA-DM
Page 15 of 15 Rev. 12!17
APPROVED BY7
TEXAS DEPARTMENT OF
TRANSPORTATION
By:
[Printed Name]
By:
Authorized Signature
[Title]
Texas Department of Transportation
Date:
OWNER
LM
LIM
[Print Owner Name]
Duly Authorized Representative
[Title]
[Company]
Date:
DB CONTRACTOR
By:
[Print Name]
By:
Duly Authorized Representative
Date:
[Title]
[Company]
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM Exhibit T"
Page 1 of 6 Rev. 12/17
County:
Chambers, Harris
Highway:
SH 99 Grand Parkway
Segments I-2
Limits:
From Harris C/L to
FM 1405; From BS
146 West to SH 146
Fed. Proj. No.:
ROW CSJ No.:
3187-02-012,3187-01-
012
Const. CSJ No.:
3187-02-011, 3187-01-
011
UTILITY ADJUSTMENT AGREEMENT AMENDMENT
(DB Contractor Managed)
(Amendment No. 01 to Agreement No.: SH99-U-0516)
THIS AMENDMENT TO PROJECT UTILITY ADJUSTMENT AGREEMENT (this
"Amendment"), by and between Grand Parkway Infrastructure, LLC., hereinafter identified as the "DB
Contractor" and City of Baytown, hereinafter identified as the "Owner", is as follows:
WITNESSETH
WHEREAS, the STATE of TEXAS, acting by and through the Texas Department of Transportation,
hereinafter identified as "TxDOT", proposes to construct the project identified above (the "Project", as
more particularly described in the "Original Agreement", defined below); and
WHEREAS, pursuant to that certain Design -Build Agreement (the "DBA") by and between TxDOT and
the DB Contractor with respect to the Project, the DB Contractor has undertaken the obligation to design,
construct, and potentially maintain the Project, including causing the removal, relocation, or other necessary
adjustment of existing Utilities impacted by the Project (collectively, "Adjustment"); and
WHEREAS, the Owner and DB Contractor are parties to that certain executed Project Utility Adjustment
Agreement designated by the "Agreement No." indicated above, as amended by previous amendments, if
any (the "Original Agreement"), which provides for the Adjustment of certain Utilities owned and/or
operated by the Owner (the "Utilities"); and
WHEREAS, the parties are required to utilize this Amendment form in order to modify the Original
Agreement to add the Adjustment of Owner Utilities facilities not covered by the Original Agreement; and
WHEREAS, the parties desire to amend the Original Agreement to add Additional Owner Utility
facility(ies), on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements contained herein, the parties hereto agree as
follows:
1. Amendment. The Original Agreement is hereby amended as follows:
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM
Page 2 of 6 Rev. 12/17
1.1 Plans.
(a) The Owner Utilities and the proposed Adjustment(s) of the Owner Utilities are
described as follows: [insert below a description of the affected facilities (by type,
size and location) as well as a brief description of the nature of the Adjustment
work to be performed (e.g., "adjust 12 " waterline from approximately Highway
Station 100+00 to approximately Highway Station 200+00)j: 1. The existing 8"
water line west of Wyoming Street at approximately station 75+49 to station 85+51
is in conflict with the proposed frontage road and will be relocated along the
existing south ROW of the Grand Parkway. 2. The existing 6" force main crossing
at Wyoming Street at approximately station 87+07 is in conflict with the proposed
drainage and frontage roads and will be relocated deeper than the proposed
drainage with casing. 3. The existing 12" water line crossing at Wyoming Street
at approximate station 87+79 is in conflict with the proposed drainage and frontage
roads and will be relocated deeper than the proposed drainage with casing. 4. The
existing 12" water line east of Wyoming Street at approximately station 87+82 to
station 88+96 is in conflict with the proposed frontage road and will be relocated
along the existing north ROW of the Grand Parkway. 5. The existing 10" water
line west of Lee Drive at approximately station 119+18 to station 136+21 is in
conflict with the proposed frontage road and will be relocated along the existing
north ROW of the Grand Parkway. 6. The existing 12" water line west of Koppel
Road at approximately station 280+17 to station 291+59 is in conflict with the
proposed frontage road and will be relocated along the proposed south ROW of
the Grand Parkway. The proposed water line will cross the Grand Parkway at
station 280+21. 7. The existing 4" force crossing on Koppel Road at
approximately station 292+59 is in conflict with the proposed Grand Parkway
roadway and will be relocated under the proposed pavement with casing..
(b) The Plans, as defined in Paragraph 1 of the Original Agreement, mean and include
the plans, specifications, and cost estimates attached hereto as Exhibit A; and
(c) The Plans attached hereto as Exhibit A, along with this Amendment, shall be
submitted upon execution to TxDOT in accordance with Paragraph 2 of the
Original Agreement, and Paragraph 2 shall apply to this Amendment and the Plans
attached hereto in the same manner as if this Amendment were the Original
Agreement. If the Owner claims an Existing Utility Property Interest for any of the
Owner Utilities, documentation with respect to such claim shall be submitted to
TxDOT as part of this Amendment and the attached Plans, in accordance with
Paragraph 15(a) of the Original Agreement.
1.2 Reimbursement of Owner's Indirect Costs. For purposes of Paragraph 6 of the Original
Agreement, the following terms apply to the Owner Utilities and proposed Adjustment:
(a) DB Contractor agrees to reimburse the Owner its share of the Owner's indirect
costs (e.g., engineering, inspection, testing, ROW) as identified in Exhibit A.
When requested by the Owner, monthly progress payments will be made. The
monthly payment will not exceed 80% of the estimated indirect work done to date.
Once the indirect work is complete, final payment of the eligible indirect costs will
be made. Intermediate payments shall not be construed as final payment for any
items included in the intermediate payment.
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM
Page 3 of 6 Rev. 12,17
(b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall
be developed pursuant to the method checked and described below [check only one
(1) box]:
❑ (1) Actual related indirect costs accumulated in accordance with:
(i) A work order accounting procedure prescribed by the
applicable Federal or State regulatory body; or
(ii) Established accounting procedure developed by the
Owner and which the Owner uses in its regular
operations;
(either (i) or (ii) referred to as "Actual Cost') or,
® (2) The agreed sum of ,O ("Agreed Sum") as supported by the
analysis of the Owner's estimated costs attached hereto as part of
Exhibit A.
1.3 Advancement of Funds by Owner for Construction Costs.
(a) Advancement of Owner's Share, if any, of estimated costs. Exhibit A shall identify
all estimated engineering and construction -related costs, including labor, material,
equipment and other miscellaneous construction items. Exhibit A shall also
identify the Owner's and DB Contractor's respective shares of the estimated costs.
The Agreed Sum of $321,757.50 for design and construction shall be the Owner's
share as described in Exhibit A.
The Owner shall advance to the DB Contractor its allocated share, if any, of the
estimated costs for construction and engineering work to be performed by DB
Contractor, in accordance with the following terms:
® The Adjustment of the Owner's Utilities does not require advancement of
funds.
❑ The Adjustment of the Owner's Utilities does require advancement of
funds and the terms agreed to between the DB Contractor and Owner are
listed below.
[Insert terms of advance funding to be agreed between DB Contractor and
Owner.]
(b) Adjustment Based on Actual Costs or Agreed Sum.
[Check the one (1) appropriate provision, if advancement of funds is required]:
❑ The Owner is responsible for its share of the DB Contractor actual cost for
the Adjustment, including the identified Betterment. Accordingly, upon
completion of all Adjustment work to be performed by both parties
pursuant to this Amendment:
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM
Page 4 of 6 Rev. 12/17
(i) The Owner shall pay to the DB Contractor the amount, if any, by
which the actual cost of the Betterment (as determined in
Paragraph 9(b)) plus the actual cost of Owner's share of the
Adjustment (based on the allocation set forth in Exhibit A
exceeds the estimated cost advanced by the Owner, or
(ii) The DB Contractor shall refund to the Owner the amount, if any,
by which such advance exceeds such actual cost, as applicable.
® The Agreed Sum is the agreed and final amount due for the Adjustment,
including any Betterment, under this Amendment. Accordingly, no
adjustment (either up or down) of such amount shall be made based on
actual costs.
1.4 Responsibility for Costs of Adjustment Work. For purposes of Paragraph 4 of the
Original Agreement, responsibility for the Agreed Sum or Actual Cost, as applicable, of
all Adjustment work to be performed pursuant to this Amendment shall be allocated
between the DB Contractor and the Owner as identified in Exhibit A hereto and in
accordance with § 203.092 of the Texas Transportation Code. An allocation percentage
may be determined by application of an eligibility ratio, if appropriate, as detailed in
Exhibit A; provided however, that any portion of an Agreed Sum or Actual Cost
attributable to Betterment shall be allocated 100% to the Owner in accordance with
Paragraph 9 of the Original Agreement.
1.5 Betterment.
(a) Paragraph 9(b) (Betterment and Salvage) of the Original Agreement is hereby
amended to add the following [Check the one (1) box that applies, and complete if
appropriate]:
® The Adjustment of the Owner Utilities, pursuant to the Plans herein, does
not include any Betterment.
❑ The Adjustment of the Owner Utilities, pursuant to the Plans herein,
includes Betterment to the Additional Owner Utilities by reason of [insert
explanation, e.g. "replacing 12" pipe with 24" pipe]:
The DB Contractor has provided to the Owner comparative estimates for
(i) all work to be performed by the DB Contractor pursuant to this
Amendment, including work attributable to the Betterment, and (ii) the
cost to perform such work without the Betterment, which estimates are
hereby approved by the Owner. The estimated cost of the DB Contractor
work under this Amendment which is attributable to Betterment is $ ,
calculated by subtracting (ii) from (i). The percentage of the total cost of
the DB Contractor work under this Amendment which is attributable to
Betterment is %, calculated by subtracting (ii) from (i), which
remainder is divided by (i).
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM
Page 5 of 6 Rev. 121-1
(b) If the above Paragraph 1.5(a) identifies Betterment, the Owner shall advance to the
DB Contractor, at least 14 days prior to the date scheduled for commencement of
construction for Adjustment of the Owner Utilities, the estimated cost attributable
to Betterment as set forth in Paragraph 1.5(a) of this Amendment. If the Owner
fails to advance payment to the DB Contractor on or before the foregoing deadline,
the DB Contractor shall have the option of commencing and completing (without
delay) the Adjustment work without installation of the applicable Betterment.
[Check the one (1) appropriate provision]:
❑ The estimated cost stated in Paragraph 1.5(a) of this Amendment is the
agreed and final amount due for Betterment under this Amendment, and
accordingly no adjustment (either up or down) of such amount shall be
made based on actual costs.
❑ The Owner is responsible for the DB Contractor Actual Cost for the
identified Betterment. Accordingly, upon completion of all Adjustment
work to be performed by both parties pursuant to this Amendment, (i) the
Owner shall pay to the DB Contractor the amount, if any, by which the
actual cost of the Betterment (determined as provided below in this
paragraph) exceeds the estimated cost advanced by the Owner, or (ii) the
DB Contractor shall refund to the Owner the amount, if any, by which
such advance exceeds such actual cost, as applicable. Any additional
payment by the Owner shall be due within 60 days after the Owner's
receipt of the DB Contractors invoice therefor, together with supporting
documentation; any refund shall be due within 60 days after completion
of the Adjustment work under this Amendment. The Actual Cost of
Betterment incurred by the DB Contractor shall be calculated by
multiplying (i) the Betterment percentage stated in Paragraph 1.5(a) of this
Amendment, by (ii) the Actual Cost of all work performed by the DB
Contractor pursuant to this Amendment (including work attributable to the
Betterment), as invoiced by the DB Contractor to the Owner.
(c) The determinations and calculations of Betterment described in this Amendment
shall exclude right of way acquisition costs. Betterment in connection with right
of way acquisition is addressed in Paragraph 15 of the Original Agreement.
1.6 NUseellaneous.
(a) The Owner and the DB Contractor agree to refer to this Amendment, designated
by the "Amendment No." and "Agreement Number" indicated on page 1 above,
on all future correspondence regarding the Adjustment work that is the subject of
this Amendment and to track separately all costs relating to this Amendment and
the Adjustment work described herein.
(b) [Include any other proposed amendments allowed by applicable Law.]
2. General.
(a) All capitalized terms used in this Amendment shall have the meanings assigned to them in
the Original Agreement, except as otherwise stated herein.
Texas Department of Transportation
Form ROW-U-DBA-UAAA-DM
Page 6 of 6 Rev. 12/17
(b) This Amendment may be executed in any number of counterparts. Each such counterpart
hereof shall be deemed to be an original instrument but all such counterparts together shall
constitute one (1) and the same instrument.
(c) Except as amended hereby, the Original Agreement shall remain m full force and effect.
In no event shall the responsibility, as between the Owner and the DB Contractor, for the
preparation of the Plans and the Adjustment of the Owner Utilities be deemed to be
amended hereby.
(d) This Amendment shall become effective upon the later of (a) the date of signing by the last
party (either the Owner or the DB Contractor) signing this Amendment, and (b) the
completion of TxDOT's review and approval as indicated by the signature of TxDOT's
representative below.
APPROVED BY:
TEXAS DEPARTMENT OF
TRANSPORTATION
By:
[Printed Name]
By:
Authorized Signature
[Title]
Texas Department of Transportation
Date:
OWNER
By:
[Print Name]
By:
Duly Authorized Representative Signature
[Title]
[Company]
Date:
DB CONTRACTOR
By:
[Print Name]
By:
Duly Authorized Representative
[Title]
[Company]
Date: