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Item 4BCITY OF SOUTHLAKI MEMORANDUM (November 16, 2010) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Public Works Director Subject: Approve Master Utility Adjustment Agreement with Texas Department of Transportation and North Gate Constructors for relocation of City utilities adjacent to the DFW Connector Project Action Requested: Approve Master Utility Adjustment Agreement with Texas Department of Transportation and North Gate Constructors for relocation of City utilities adjacent to the DFW Connector Project Background Information: The Master Utility Adjustment Agreement with Texas Department of Transportation (TxDOT) and North Gate Constructors is a contract with the City to oversee the relocation of city utilities for the DFW Connector Project. Similar to the city's requirement that franchise utilities relocate their lines for city construction projects, TxDOT is requiring the city to relocate our public water and sanitary sewer lines outside of the newly acquired TxDOT right -of- way to accommodate their construction improvements. The Comprehensive Development Agreement for the DFW Connector project allows for the state to pay 50% of the cost of engineering and construction of the utility relocations. The remaining 50% is the responsibility of the city. A supplemental Utility Adjustment Agreement Amendment will follow with the estimated costs of design and construction, and will require Council approval. Final reimbursement from the city will be based on the actual costs incurred during construction. Financial Considerations: Funding is available for the relocation of the utilities adjacent to the DFW Connector project in the FY 2010 Public Works CIP budget. Strategic Link: The relocation of city utilities adjacent to the DFW Connector Project links to the City's strategy map relative to the focus area of Mobility. The specific corporate objective that is met by this agreement is: Providing travel convenience within city and region. Citizen Input/ Board Review: None Legal Review: The Master Utility Adjustment Agreement has been reviewed by the City attorney. Alternatives: The City Council may approve or deny this agreement. Supporting Documents: Location Map Master Utility Adjustment Agreement Staff Recommendation: Approve Master Utility Adjustment Agreement with Texas Department of Transportation and North Gate Constructors for relocation of City utilities Adjacent to the DFW Connector Project Staff Contact: Robert H. Price, P.E., Public Works Director Gordon Mayer, Deputy Director of Public Works Cheryl Taylor, P.E., Civil Engineer DFW connector =! II'l X 21 C �igrlrw se�. -_,_�. p p ny ivr- . 114 t i m - 0� Grapevine F 1 0 e a..ks s 114 I lk 1 14 y 12i D4u rbon Imul F ( — C. F ,PRr� County: Tarrant ROW CSJ No.: 0353 -03 -088 Const. CSJ No.: 0353 -03 -059 Highway: SH114 Limits: Business 114L (Northwest Hwy) to SH 121 Fed. Proj. No.: NH 2009 (843) MASTER UTILITY ADJUSTMENT AGREEMENT (Developer Managed) Agreement No.: DFW -M -0502 THIS AGREEMENT, by and between NorthGate Constructors, JV , hereinafter identified as the "Developer ", and City of Southlake, TX , 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 turnpike projects as part of the state highway system throughout the State of Texas, all in conformance with the provisions of Chapter 203, Texas Transportation Code, as amended; and WHEREAS, TxDOT proposes to construct, a turnpike project identified as the DFW Connector (the "Project "), a tolled highway along SH 114 from Business 114L (Northwest Highway to International Parkway and SH 121 from SH 360 to FM 2499; and WHEREAS, pursuant to that certain Comprehensive Development Agreement by and between TxDOT and the Developer with respect to the Project (the "CDA "), the Developer has undertaken the obligation to design and construct the Project; and WHEREAS, the Developer's duties pursuant to the CDA include causing the removal, relocation, or other necessary adjustment of existing utilities impacted by the Project ( "Adjustment," "Adjust," "Adjusting," or "Adjusted" or such other form as context requires) pursuant to § 203.092, Texas Transportation Code, as amended, Rule 21.23 of Title 43, Texas Administrative Code, and other applicable state and federal law ( "Utility Relocation Law "); and WHEREAS, TxDOT may request Federal participation in payment of costs incurred in Adjustment of the Owner's facilities to accommodate the Project; and WHEREAS, the Developer has notified the Owner that certain of its facilities and appurtenances (the "Owner Utilities ") are in conflict with the Project, and the Owner has requested that the Developer undertake the Adjustment of the Owner Utilities as necessary to accommodate the Project; and WHEREAS, the Owner Utilities and the proposed Adjustment to the Owner Utilities will be identified and described in a series of Utility Adjustment Agreement Amendments to this Master Agreement on a form prepared by Developer (Utility Adjustment Agreement Amendment's are referred to as "UAAA's "). This Master Agreement contains terms and conditions applicable to all Utility Adjustment work for the Project, but no specific Utility Adjustment work is identified herein or required by this Master Agreement. The specific Utility Adjustment work will be added to this Master Agreement through one or more executed UAAA(s); and WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated herein; and WHEREAS, the Developer and the Owner desire to implement the Adjustment of the Owner Utilities by entering into this Agreement for all Owner Utilities and a separate UAAA for each Utility Assembly. Master Utility Adjustment Agreement City of Southlake Page 1 of 13 AGREEMENT 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 Developer and the Owner agree as follows: 1. Preparation of Plans Either the Developer or Owner may undertake the drawings, plans, required specifications, cost estimates, including any services required to prepare them, needed to accomplish the proposed Adjustment to the Owner Utilities (collectively, the "Plans ") as set forth in this Paragraph [Check one box that applies: ] ❑ If the Parties have not yet determined who will be responsible for providing the Plans, then each UAAA signed in connection with this Master Agreement will designate which Party is to provide the Plans for the Adjustment under such UAAA. If the Parties have determined who will be responsible for providing the Plans, check one of the following boxes: ® The Developer's engineering firm(s) is acceptable to the Owner to provide the Plans. The Developer will warrant that the Plans conform to the most recent Utility Accommodation Rules issued by TxDOT, as set forth in 43 Tex. Admin. Code, Part 1, Chapter 21, Subchapter C, et seq. (the "UAR "). Owner will approve the Plans if they conform to the UAR and comply with Owner's "standards" described in Paragraph 3(c). ❑ The Owner will provide the Plans on or before the time set forth in the applicable UAAA. The Owner will warrant that the Plans conform to the UAR. Developer will approve the Plans if they conform to the UAR and reflect a reasonable approach to accomplishing the Adjustment. The Owner will provide to the Developer a utility plan view map illustrating the location of existing and proposed utility facilities on the Developer's right of way map of the Project. With regard to its preparation of the Plans, the Owner will represent one of the following in the applicable UAAA: The Owner's employees were utilized to prepare the Plans, and the charges therefore do not exceed the Owner's typical costs for such work. The Owner utilized 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 herein, 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. The parties will exercise best efforts to complete all Utility Adjustments governed by this Master Agreement without delaying the Developer's planned construction of the Project. Without limiting the generality of the foregoing, (i) the party approving the Plans agrees to respond (with comment and /or acceptance) to the party preparing the Plans within 10 business days after receipt of such Plans; and (ii) the party preparing the Plans agrees to modify the Plans in response to the approving party's comments and to submit such modified Plans to the approving party for its further comments or approval within 10 business days after receipt of the approving party's comments. If the Owner fails to timely prepare the Plans which are its responsibility hereunder, then the Developer may prepare the Plans (at the Owner's cost) for the Owner's approval as if the Developer had originally been responsible to prepare the Plans. The process set forth in this paragraph will be repeated until the Plans are prepared and mutually approved. Master Utility Adjustment Agreement City of Southlake Page 2 of 13 2. Review by TxDOT The parties hereto acknowledge and agree as follows: (a) Upon execution of this Agreement by both the Developer and the Owner, pursuant to the CDA the Developer will submit this Agreement to TxDOT for its review and approval. Developer will submit each Utility Assembly, which includes a corresponding UAAA and all corresponding Plans, to TxDOT for its review and approval. The parties will exercise best efforts to modify any Utility Assembly as necessary to address 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 modifications made to any Utility Assembly in response to TxDOT comments within 10 business days after receipt of such modifications; and (ii) if the Owner originally prepared the Plans for the Utility Assembly, the Owner agrees to modify the Plans in response to TxDOT comments and to submit such modified Plans to the Developer for its comment and /or approval (and re- submittal to the TxDOT for its comment and /or approval) within 10 business days after receipt of TxDOT's comments. The Owner's failure to timely respond pursuant to this paragraph shall be deemed the Owner's approval of same. If the Owner fails to timely prepare modified Plans which are its responsibility hereunder, then the Developer shall have the right to modify the Plans for the Owner's approval as if the Developer had originally prepared the Plans. The process set forth in this paragraph will be repeated until the Owner, the Developer, and TxDOT have all approved the Utility Assembly. (b) The parties hereto acknowledge and agree that TxDOT's review, comments, and /or approval of a Utility Assembly or any component thereof is solely for the purpose of ascertaining matters of particular concern to TxDOT, and TxDOT has, and by its review, comments and /or approval of such Utility Assembly or any component thereof undertakes, no duty to review the Utility Assembly or its components for their quality or for the adequacy of Adjusted facilities (as designed) for the purposes for which they are intended to be used or for compliance with law or applicable standards (other than TxDOT requirements). 3. Design and Construction Standards All design and construction performed for the Adjustment work which is the subject of this Agreement shall comply with and conform to the following: (a) All applicable local, state and federal laws, regulations, decrees, ordinances and policies, including the UAR, the Utility Manual issued by TxDOT (to the extent its requirements are mandatory for Utility Adjustments necessitated by the Project, as stated in the CDA and communicated to the Owner by the Developer or TxDOT), the requirements of the CDA, and the policies of TxDOT; (b) The terms of all governmental permits or other approvals, as well as any private approvals of third parties necessary for such work; and (c) The standard specifications, standards of practice, and construction methods (collectively, "standards ") which the Owner customarily applies to 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 Developer in writing. Such design and construction also shall be consistent and compatible with (i) the Developer's current design and construction of the Project and (ii) any other utilities being installed in the same vicinity. The Owner acknowledges receipt from the Developer of Project plans as necessary to comply with the foregoing. In case of any inconsistency among any of the standards referenced in this Agreement, the most stringent standard shall apply. Master Utility Adjustment Agreement City of Southlake Page 3 of 13 4. Construction by the Developer (a) The Owner hereby requests that the Developer perform the construction necessary to adjust the Owner Utilities and the Developer 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 (except as modified pursuant to Paragraph 14). (b) The Developer shall retain such contractor or contractors as are necessary to adjust the Owner Utilities through the Developer's normal procedures. (c) The Developer shall obtain all permits necessary for the construction to be performed by the Developer hereunder, and the Owner shall cooperate in that process as needed. 5. Responsibility for Costs of Work With the exception of any Betterment (hereinafter defined), the parties shall allocate the cost of any Adjustment between themselves in accordance with § 203.092, Texas Transportation Code, under which the costs will be shared equally, unless the Utility is located on a compensable property interest, in which case the Developer shall bear the entire cost of any Adjustment, or unless some other allocation percentage is determined by application of the appropriate Eligibility Ratio. Accordingly and for the purposes of determining the Developer and Owner's respective rights and duties under this Master Agreement the Developer is responsible for performing only those tasks that TxDOT is legally authorized to perform and is obligated to pay the utilities only the amount of compensation that TxDOT is legally authorized to pay under TEX. TRANSP. CODE § 203.092 and other applicable Utility Relocation Law. All payments related to an Adjustment shall be paid for by Developer and Owner, not TxDOT. Owner shall provide to Developer Owner's share of the estimated Adjustment cost under an applicable UAAA and according to a payment arrangement acceptable to Developer and Owner. All costs charged to the Developer by the Owner shall be reasonable and shall be computed using rates and schedules not exceeding those applicable to the similar work performed by or for the Owner at the Owner's expense. The costs paid by the Developer pursuant to this Agreement shall be full compensation to the 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), and TxDOT shall have no liability to the Owner for any such costs. Owner expressly acknowledges that it shall only be entitled to compensation for any Adjustment(s) covered by this Agreement, including costs with respect to real property interests (either acquired or relinquished), from the Developer to the extent set forth in this Agreement, and specifically acknowledges that Owner shall not be entitled to compensation or reimbursement from TxDOT or the State of Texas. The Owner agrees that the timely progress of any Adjustment made under this Agreement serves an important public purpose by allowing the timely completion of the Project. Therefore, the Owner will not delay, hinder, or otherwise impede the progress of any Utility Relocation due to a payment dispute with the Developer. 6. Costs of the Work. (a) The costs for Adjustment of the Owner Utilities shall be derived from (i) the accumulated total of costs incurred by the Developer for design and construction of such Adjustments ( "direct costs "), plus (ii) the Owner's related costs ( "indirect costs "), including without limitation the engineering and inspection costs incurred by the Owner for design or design review prior to and after execution of this Agreement (to the extent permitted pursuant to Paragraph 6(c)), plus (iii) the Owner's right of way acquisition costs, if any, which are reimbursable pursuant to Paragraph 13. (b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall be developed pursuant to one of the following methods, to be designated in the applicable UAAA: Master Utility Adjustment Agreement City of Southlake Page 4 of 13 (1) Actual related indirect costs accumulated in accordance with a work order accounting procedure prescribed by the applicable Federal or State regulatory body; or (2) Actual related indirect costs accumulated in accordance with an established accounting procedure developed by the Owner and which the Owner uses in its regular operations; or (3) An agreed sum, as supported by an analysis of estimated costs. (c) Eligible Owner indirect costs shall include only those authorized under 23 C.F.R. Part 645, Subpart A. The Owner agrees that costs referenced in 23 C.F.R. Section 645.117(d)(2) are not eligible for reimbursement. These regulations can be found at: http: / /www. access. gpo. gov /nara/cfr /waisidx_O3 /23 cfr645_O3 .html (d) Attached to this Master Utility Adjustment Agreement "Attachment A" is Developer's estimated unit pricing and estimated quantities to perform all work covered by this Master Utility Adjustment Agreement. Quantities are approximate and subject to change but unit prices are final. 7. 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 facility or an expansion of the existing Utility facility; 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 econom (e.g., non - stocked items may be uneconomical to purchase): (vi) any upgrading required by the Owner's written "standards" meeting the requirements of Paragraph 3(c); or (vii) Any discretionary decision by a Utility Owner that is contemplated within a particular standard described in clause (vi) above. (b) It is understood and agreed that the Developer will not pay for any Betterments and that the Owner shall not be entitled to payment therefor. No Betterment may be performed in connection with the Adjustment of the Owner Utilities which is incompatible with the Project or the Project Design or which cannot be performed within the other constraints of applicable law, any applicable governmental approvals, and the requirements imposed on the Developer by the CDA, including without limitation the scheduling requirements thereunder. Accordingly, the Owner will certify to one of the following statements regarding betterments on any UAAA made hereunder: Master Utility Adjustment Agreement City of Southlake Page 5 of 13 The Adjustment of the Owner Utilities pursuant to the Plans does not include any Betterment. The Adjustment of the Owner Utilities pursuant to the Plans includes Betterment to the Owner Utilities by reason of [insert explanation, e.g. "replacing 12" pipe with 24" pipe]: . The Developer has provided to the Owner comparative estimates for (i) all costs for work to be performed by the Developer pursuant to this Agreement, 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 amount of the Developer's costs for work hereunder which is attributable to Betterment is $ , calculated by subtracting (ii) from (i). The percentage of the total cost of the Developer's work hereunder which is attributable to Betterment is %, calculated by subtracting (ii) from (i), which remainder shall be divided by (i). (c) If any Adjustment includes a Betterment, the Owner shall provide payment to the Developer for said Betterment on a payment structure mutually agreed upon in the applicable UAAA. The Owner is responsible for the Developer's actual cost including both Direct and Indirect Costs for the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Developer the amount, if any, by which the actual cost of the Betterment (determined as provided below in this paragraph) exceeds the estimated cost by the Owner, or (ii) the Developer shall refund to the Owner the amount, if any, by which such payment exceeds such actual cost, as applicable. Any additional payment by the Owner shall be due within sixty (60) calendar days after Owner's receipt of the Developer's invoice thereof, together with supporting documentation; any refund shall be due within sixty (60) calendar days after completion of the Adjustment work hereunder. The actual cost of Betterment incurred by the Developer shall be calculated by multiplying (i) the Betterment percentage stated in Paragraph 7(b), by (ii) the actual cost of all work performed by the Developer pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Developer to the Owner. (d) In the event of a Betterment, the parties shall mutually determine the appropriate portion, if any, of the Owner's indirect costs which were increased by such Betterment. Neither party shall unreasonably withhold or delay its approval of a proposal in this regard made by the other party. Owner's invoice to the Developer for its indirect costs shall credit the Developer with any Betterment amount determined by the parties pursuant to this Paragraph 7(d). (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 Developer for its indirect costs shall credit the Developer with the salvage value for such materials and /or parts, determined in accordance with 23 C.F.R. Section 645.1050). 8. Proiect Management The Developer will provide project management during the Adjustment of the Owner Utilities. 9. Utility Investigations At the Developer's request, the Owner shall assist the Developer in locating any Utilities (including appurtenances) which are owned and/or operated by 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 Owner are damaged during construction of the Project, the Owner shall mark in the field the location Master Utility Adjustment Agreement City of Southlake Page 6 of 13 of all such utilities horizontally on the ground in advance of Project construction in the immediate area of such utilities. 10. 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. The Owner agrees to promptly notify the Developer within one (1) business day of any concerns resulting from any such inspection. (b) The Owner shall perform a final inspection of the Adjusted Owner Utilities, including conducting any tests 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 Developer 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 Developer in writing of its grounds for non- acceptance and suggestions for correcting the problem, and if the suggested corrections are justified, the Developer will comply. The Owner shall re- inspect any revised construction (and re -test if appropriate) and give notice of acceptance, not later than five (5) business days after completion of corrective work. (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. 11. Design Changes The Developer will be responsible for additional Adjustment design and /or construction costs necessitated by design changes to the Project, upon the terms specified herein. 12. Field Modifications The Developer shall provide the Owner with documentation of any field modifications, including Utility Adjustment Field Modifications as well as minor changes described in Paragraph 14(b), occurring in the Adjustment of the Owner Utilities. 13. Real Property Interests. (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Developer, 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 Utility Assembly as described in Paragraph 2. Claims approved by TxDOT as to rights or interests are referred to herein as "Existing Interests ". (b) If acquisition of any new easement or other interest in real property ( "New 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 Developer's Project schedules. The Developer shall be responsible for the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner's reasonable overhead charges and legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 13(c), and subject to the provisions of Paragraph 13(e); provided, however, that all acquisition costs shall be subject to the Developer's prior written approval. Eligible acquisition costs shall be invoiced by the Owner and paid by the Developer pursuant to this Agreement, as a segregated component of the Owner's indirect costs described in Master Utility Adjustment Agreement City of Southlake Page 7 of 13 Paragraph 6. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law. (c) The Developer shall pay only for replacement in kind of an Existing Interest (e.g., as to width and type), unless a New 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 Developer in the interest of overall Project economy. Any New Interest which is not Developer's cost responsibility pursuant to the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner's responsibility. (d) For each Existing Interest located within the final 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 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 Interest. For each such Existing Interest relinquished by the Owner, the Developer shall do one of the following to compensate the Owner for such Existing Interest, as appropriate: (e) (i) If the Owner acquires a New Interest for the affected Owner Utility, the Developer shall reimburse the Owner for its actual and reasonable acquisition costs in accordance with Paragraph 13(b); or (ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Developer shall compensate the Owner for the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Developer and supported by written valuation. The compensation provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest, and no further compensation shall be due to the Owner from either the Developer or TxDOT on account of such Existing Interest. (f) The Owner shall execute a Utility Joint Use Acknowledgment (ROW -U- JUAA -DFW Connector) for each Adjusted Owner Utility where required pursuant to TxDOT policies. 14. Amendments and Modifications This Agreement may be amended or modified only by a written instrument executed by the parties hereto, in accordance with Paragraph 14(a) or Paragraph 14(b) below. (a) Except as otherwise provided in Paragraph 14(b), any amendment or modification to this Agreement shall be implemented by a UAAA. The UAAA form can be used for a new scope of work with concurrence of the Developer 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 separate from other work being performed. (b) For purposes of this Paragraph 14(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 in. water line to miss a roadway drainage structure). A Utility Adjustment Field Modification agreed upon by the Developer and the Owner does not require a UAAA, provided that the modified Plans have been submitted to TxDOT for its review and Master Utility Adjustment Agreement City of Southlake Page 8 of 13 comment, and the process for such review and comment has been completed as specified in the CDA. 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; however, the Developer shall provide the Owner with documentation of any field modifications, including Utility Adjustment Field Modifications as well as minor changes as described in this section. 15. 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 Developer be considered as or represent itself to be an agent of the other. 16. Entire Agreement This Agreement embodies the entire agreement between the parties and there are no oral or written agreements between the parties or any representations made which are not expressly set forth herein. 17. Assignment; Binding Effect; Department as Third Party Beneficiary Neither the Owner nor the Developer 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 Developer may assign any of its rights and /or delegate any of its duties to: (a) a design -build contractor engaged by Developer to design and construct the Project and /or related Utility Adjustments, or (b) to TxDOT or to any other entity engaged by TxDOT to fulfill the Developer's obligations under the CDA, at any time without the prior consent of the Owner. This Agreement shall bind the Owner, the Developer, and their successors and permitted assigns, and nothing in this Agreement nor in any approval subsequently provided by either 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 the Owner and the Developer agree that although TxDOT is not a party to this Agreement, TxDOT is intended to be a third -party beneficiary to this Agreement. Master Utility Adjustment Agreement City of Southlake Page 9 of 13 18. Breach by the Developer If the Owner claims that the Developer has breached any of its obligations under this Agreement, the Owner will notify the Developer and TxDOT in writing of such breach, and the Developer 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 Developer. Without limiting the generality of the foregoing, (a) TxDOT shall have no liability to the Owner for any act or omission committed by the Developer in connection with this Agreement, including without limitation any reimbursement owed to the Owner hereunder and any claimed defect in any design or construction work supplied by the Developer or by its contractors, and (b) in no event shall TxDOT be responsible for any repairs or maintenance to the Owner Utilities Adjusted pursuant to this Agreement. 19. Traffic Control The Developer shall provide traffic control or reimburse the Owner for traffic control made necessary by the Adjustment work performed by either the Developer or the Owner pursuant to this Agreement, in compliance with the requirements of the Texas Manual on Uniform Traffic Control Devices. Betterment percentages calculated in Paragraph 10 may also apply to traffic control costs where mutually agreed upon by Owner and Developer in applicable UAAA. 20. 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: The Owner: Cheryl Taylor, PE Civil Engineer City of Southlake 1400 Main Street, Suite 320 Phone: 817- 748 -8100 The Developer: John T. Schulte CSJ Engineering Associates, LLC 7651 Esters Blvd, Suite 150 Irving, TX 75063 Phone: 972 -536 -8620 Fax: 972 - 692 -6727 A party sending a notice of default of this Agreement to the other party shall also send a copy of such notice to TxDOT, to the attention of the Program Management Team, CDA Utility Manager, at the following address: TxDOT: 125 E 11 Street Austin, Texas 78701 -2483 Phone: 512- 936 -0980 Fax: 512- 936 -0970 TxDOT's Utility Manager: 3301 West Airport Freeway Bedford, Texas 76021 Phone: 817 -508 -7653 Fax: 817 - 685 -7561 Any notice or demand required herein shall be given (a) personally, (b) by certified or registered mail, postage prepaid, return receipt requested, (c) by confirmed fax, or (d) by reliable messenger or overnight courier to the appropriate address set forth above. Any notice served personally shall be deemed delivered upon receipt, served by facsimile transmission shall be deem delivered on the date of receipt as shown on the received facsimile, and 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. Either Master Utility Adjustment Agreement City of Southlake Page 10 of 13 party may from time to time designate any other address for this purpose by written notice to the other party; TxDOT may designate another address by written notice to both parties. 21. Aoorovals Any acceptance, approval, or any other like action (collectively "Approval ") required or permitted to be given by either the Developer, 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 fourteen (14) calendar days), commencing upon actual receipt by the party from which an Approval is requested or required, of a request for Approval from the requesting party. All requests for Approval shall be sent out by the requesting party to the other party in accordance with Paragraph 20. 22. Time (a) Time is of the essence in the performance of this Agreement. (b) All references to "days" herein shall be construed to refer to calendar days, unless otherwise stated. (c) Neither the Owner nor the Developer shall be liable to the other 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. Master Utility Adjustment Agreement City of Southlake Page 11 of 13 23. Continuine Performance In the event of a dispute, the Owner and the Developer 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. 24. Equitable Relief The Developer 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. Nothing contained in this Agreement shall be construed as a waiver of Owner's governmental immunity except to the extent expressly provided or necessarily implied herein. 25. Authority The Owner and the Developer each represents and warrants 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. 26. Cooperation The parties acknowledge that the timely completion of the Project will be influenced by the ability of the Owner and the Developer 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 Developer agree to take all steps reasonably required to coordinate their respective duties hereunder in a manner consistent with the Developer's current and future construction schedules for the Project. 27. Termination If the Project is canceled or modified so as to eliminate the necessity of the Adjustment work described herein, then the Developer shall notify the Owner in writing and the Developer 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. 28. 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 leases of equipment. 29. 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 contest of their respective paragraphs. 30. 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 and the same instrument. 31. Effective Date Except for the provisions of Paragraph 2(a) (which shall become effective immediately upon execution of this Agreement by both the Owner and the Developer without regard to TxDOT's signature), this Agreement shall become effective upon the later of (a) the date of signing by the last party (either the Owner or the Developer) signing this Agreement, and (b) the completion of TxDOT's review as indicated by the signature of TxDOT's representative, below. Master Utility Adjustment Agreement City of Southlake Page 12 of 13 REVIEWED BY: TXDOT OWNER Citv of Southlake, Texas Date Master Utility Adjustment Agreement City of Southlake Page 13 of 13 Authorized Signature Duly Authorized Representative Printed Printed Name: Donald C. Toner, Jr., SR/WA Name: Title: Director — Turnpike Right of Way Title: Texas Turnpike Authority Date: Texas Department of Transportation _ Date: DEVELOPER NorthGate Constructors, JV By: Duly Authorized Representative Printed Name: Keith N. Sasich Title: DFW Connector Protect Director Date Master Utility Adjustment Agreement City of Southlake Page 13 of 13