Subsurface Information: WSDOT has made subsurface investigation of the Site of the proposed Work and has provided the results in the GBR, GDR [geotechnical data report], and SGDR [supplemental geotechnical data report] (if any). However, WSDOT makes no representation or warranty expressed or implied that:

1. The Design-Builderʼs interpretations from the boring logs are correct; or
2. The ground at the location of the borings has not been physically disturbed or altered after the boring was made.

The GBR describes the baseline geotechnical and Hazardous Materials conditions that the Design-Builder should expect to encounter during subsurface construction Work. In the event the GBR is silent with respect to a particular geotechnical condition, Design-Builder may rely upon the GDR and/or SGDR (if any) as describing such geotechnical condition. Whenever there is an inconsistency between geotechnical conditions described in the GBR and the geotechnical conditions described in the GDR or SGDR (if any), then the geotechnical conditions described in the GBR shall take precedence and shall be the geotechnical conditions against which actual geotechnical conditions encountered are compared for the purpose of determining if a Differing Site Condition exists.

Design-Builder acknowledges that the Contract Price and the Contract Schedule were developed with full consideration given to the contents of the GBR, GDR, and SGDR (if any), and that it shall not be entitled to an adjustment in the Contract Price or Contract Time as the result of encountering conditions consistent with those described.

During the progress of the Work, if subsurface or latent physical conditions are encountered at the Site differing materially from those indicated by the Authority for specific locations where the Authorityʼs tests were taken and to the degree of accuracy indicated in the Contract—or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract are encountered at the Site—the party discovering such conditions shall promptly notify the other party to the Contract in writing of the specific differing conditions within 10 days of the discovery and before they are disturbed, or as soon as practicable thereafter, and before the affected Work continues.

1. Grounds for a differing site condition claim exist when the information indicated in the geotechnical borings and/or tests provided by the Authority in Part 7 – Engineering Data is established to be materially inaccurate at the specific location(s) of those borings or tests, to the extent that correct boring data would have resulted in accurate assumptions regarding site conditions by the Design-Builder, and provided Design-Builder had no actual or constructive knowledge of such conditions as of the Proposal Date.
2. Grounds for a differing site condition claim also exist in the event of discovery of manmade physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the type of work provided for in the Contract, provided Design-Builder had no actual or constructive knowledge of such conditions as of the Proposal Date, and Design-Builder would not have discovered the condition by making a reasonable site investigation, exploration and desktop documentary study during the preconstruction phase.

Upon written notification, the Authorityʼs Project Manager shall, within a reasonable time, investigate the conditions. If the Authorityʼs Project Manager determines that a differing site condition exists that causes an increase in the cost required for the performance of any Work under the Contract for which a claim may be made pursuant to either (A) or (B), above, and/or has delayed a critical path, an adjustment that excludes anticipated profit but includes cost of critical path delays will be made, and the Contract will be modified in writing, in accordance with DB §109-15. The Authorityʼs Project Manager shall notify the Design-Builder of the determination and whether or not an adjustment of the Contract is warranted.

Except as otherwise expressly provided in this Agreement, the Department makes no warranties or representations as to any surveys, data, reports or other information provided by the Department or other Persons, including the data and other information set forth in the Baseline Asset Condition Report attached as Exhibit O, the Known Site Conditions Baseline Report attached as Exhibit P and the Known Pre-Existing Hazardous Substances Report attached as Exhibit Q concerning surface or subsurface conditions, the existing condition of the roadway and other Assets, drainage, the presence of Utilities,

Hazardous Substances, contaminated ground water, archeological, paleontological and cultural resources, and endangered and threatened species, affecting the Project Right of Way or surrounding locations. The Concessionaire acknowledges that such information is for the Concessionaireʼs reference only and has not been verified by the Department, and that the Concessionaire will be responsible for conducting all surveys, studies and assessments as it deems appropriate for the Project; provided, that the foregoing will not limit the Concessionaireʼs rights with respect to Compensation Events and Delay Events.

Except as otherwise expressly provided in this Agreement, the Concessionaire will bear the risk of all conditions occurring on, under or about the Project Right of Way on which the Work is performed, including:

1.  (i) Physical conditions of an unusual nature that differ materially from those ordinarily encountered in the area;
2. (ii) Changes in surface topography;
3. (iii) Variations in subsurface moisture content;
4. (iv) Utility facilities;
5. (v) Hazardous Substances, including contaminated groundwater;
6. (vi) Any archeological, paleontological or cultural resources; and
7. (vii) Any species listed as threatened or endangered under Federal or State endangered species Law; provided, that the foregoing will not limit the Concessionaireʼs rights with respect to Compensation Events and Delay Events.

5.1.3 Geotechnical Data

Proposers are responsible for reviewing and analyzing the Preliminary Geotechnical Data Report (GDR). The Preliminary GDR is available for download at the project website: https://digitalmaine.com /mdot_docs/3042/. Rock cores that were not submitted for laboratory testing are available for viewing. Arrangements for viewing should be made through the Departmentʼs Contract Representative. Interpretation and interpolation of site conditions between boring locations and between samples shall be at the sole risk of the Proposer.

5.1.4 Additional Geotechnical Data

The Department will contract the services of an independent geotechnical engineering firm, test boring contractor, and testing laboratory to conduct additional geotechnical investigations based on requests by the Proposers to be known as the “Supplemental Boring Program”. The Supplemental Boring Program will consist of a limited number of borings, soil and bedrock samples, and laboratory testing, and is described in Section 6.10.3.

6.10.3 Supplemental Boring Program

The Department recognizes that additional geotechnical information is necessary to finalize the Project designs. Therefore, the Department will conduct a Supplemental Boring Program as part of the procurement process that will allow the Proposers to request additional borings and geotechnical testing. The results of the Supplemental Boring Program will be summarized in a Supplemental Geotechnical Data Report provided by the Department on or about the date specified in Section 1.6.

6.10.4 Use of Geotechnical Information

The use of the geotechnical information provided by or referenced in this document, or encountered elsewhere is at the sole risk of the Proposer. Interpretations and analyses based upon any geotechnical information are at the sole risk of the Proposer. By submitting a Proposal, the Proposer is acknowledging that it has viewed the site, has read and understood supporting documents, and is willing to rely upon its own site understanding in proceeding with the Project. Furthermore, by submitting a Proposal, each Proposer certifies that, if awarded the Contract, it will not seek recourse with the Department for changed or unforeseen subsurface conditions except as provided in Section 109.2 of the Design-Build General Conditions.

13.8.1 Differing Site Conditions

Subject to the restrictions and limitations set forth in this Section 13, DB Contractor shall be entitled to a Change Order for certain additional costs which are directly attributable to any Differing Site Conditions to the extent permitted in this Section 13.8.1. No time extension shall be available with respect to Differing Site Conditions, and no delay or disruption damages shall be recovered. To the extent that additional costs are incurred in connection with the Project due to changes in DB Contractorʼs obligations relating to the Work resulting from the existence of Differing Site Conditions and which are not reimbursed by insurance proceeds (except to the extent such non-reimbursement is due to DB Contractorʼs failure to maintain the insurance required to be maintained under the Agreement), TxDOT and DB Contractor shall share the risk as follows:

13.8.1.1 DB Contractor shall be fully responsible for, and thus shall not receive a Change Order with respect to, the first $150,000 in additional costs incurred directly attributable to changes in DB Contractorʼs obligations hereunder resulting from each separate occurrence of Differing Site Conditions, subject to an aggregate cap of $2,100,000 for such additional costs resulting from the $150,000 “deductible” amounts borne by DB Contractor.

13.8.1.2 TxDOT shall be fully responsible for any additional costs incurred in excess of (1) $150,000 directly attributable to changes in DB Contractorʼs obligations hereunder resulting from each separate occurrence of Differing Site Conditions, and (2) the $2,100,000 cap described in Section 13.8.1.1, and a Change Order shall be issued to compensate DB Contractor for such additional costs.

7.12.1.1 The Authority has allocated an allowance amount of $26,000,000 (“Unexpected Subsurface Condition Allowance”) with respect to the discovery of Unexpected Subsurface Conditions, which sum will be funded by GDOT (not financed by Developer) and made available to the authority to pay amounts that Developer has a right to draw from the Unexpected Subsurface Condition Allowance in accordance with the terms of this Section 7.12.1;

7.12.1.2 except to the extent set forth in Project Agreement (PA) Section 7.12.1.3 (Discovery of Unexpected Subsurface Conditions), the aggregate of any amounts that Developer shall have a right to draw under this PA Section 7.12 (Discovery of Unexpected Subsurface Conditions) shall not exceed the Unexpected Subsurface Condition Allowance; and

7.12.1.3 Developerʼs right to draw under the Unexpected Subsurface Condition Allowance under this PA Section 7.12 (Discovery of Unexpected Subsurface Conditions) is separate from Developerʼs right to claim any compensation or relief under clause (f) of the definition of “Authority-Caused Delay”, clause (e), clause (j), clause (m), or clause (t) of the definition of “Compensation Event”, or clause (g), clause (h),

clause (q), clause (t), or clause (z) of the definition of “Relief Event” in accordance with PA Article 13 (Relief Events; Compensation Events).

The term “Scope Validation Period” is the period of time that begins on Design-Builderʼs receipt of Departmentʼs Notice to Proceed and extends for one hundred twenty (120) days from such date of receipt, unless otherwise stated in Exhibit 1. During the Scope Validation Period, Design-Builder shall thoroughly review and compare all of the then-existing Contract Documents, including without limitation the RFP Documents and the Proposal, to verify and validate Design-Builderʼs proposed design concept and identify any defects, errors, or inconsistencies in the RFP Documents that affect Design-Builderʼs ability to complete its proposed design concept within the Contract Price and/or Contract Time(s)(collectively referred to as “Scope Issues”). The term “Scope Issue” shall not be deemed to include items that Design-Builder should have reasonably discovered prior to the Agreement Date.

2.2.2 Scope Validation Period for Non-Accessible Areas of the Site

The Parties recognize that Design-Builder may be unable to conduct the additional investigations contemplated by Section 4.2.2 below because it will not have access to certain areas of the Site within the Scope Validation Period set forth in Section 2.2.1 above. Design-Builder shall notify Department at the meeting set forth in Section 2.1.2 of all such non-accessible areas and the dates upon which such areas are expected to become accessible. If Department agrees that such areas are non-accessible, then, for the limited purpose of determining Scope Issues that directly arise from geotechnical evaluations for such areas, the term “Scope Validation Period” shall be deemed to be the thirty (30) day period after the date the specified area becomes accessible for purposes of conducting the geotechnical evaluation. If Department does not agree that such areas are non-accessible, then the Scope Validation Period shall not be extended.

2.2.3 Submission Requirements for Scope Issues (If Design-Builder intends to seek relief)

For a Scope Issue, it shall promptly, but in no event later than the expiration of the Scope Validation Period, simultaneously provide Department and the APDD Point of Contact in writing with a notice (“General Notice”) of the existence of such Scope Issue, which General Notice shall generally explain the basis for such Scope Issue. Within twenty-one (21) days of the General Notice, Design-Builder shall provide Department and the APDD Point of Contact with documentation that specifically explains its support for the Scope Issue (“Supporting Documentation”). The Supporting Documentation shall include, among other things: (a) the assumptions that Design-Builder made during the preparation of its proposal that form the basis for its allegation, along with documentation verifying that it made such assumptions in developing its proposal; (b) an explanation of the defect, error or inconsistency in the RFP Documents that Design-Builder could not have reasonably identified prior to the Agreement Date: and (c) the specific impact that the alleged Scope Issue has had on Design-Builderʼs price and time to perform the Work.

3.13 UTILITIES AND THIRD-PARTY AGREEMENTS

Affected Utilities. The Utility Companies listed in Appendix I (Subsurface Utility Information) have been contacted concerning the project and are believed to be the only Utilities within the Project limits.

Costs. TThe Private Utility Companies are responsible for relocation construction costs according to Utah Code, Section 72-6-116, Regulation of Utilities-Relocation of Utilities. The Department has Reimbursement Agreements in place with each Private Utility Company and will reimburse each Utility directly. Also, the Department has Acceptance Agreements in place with each Public Utility. In general, the Department is responsible to the Utility for 100% of relocation costs of Utilities associated with political subdivisions (public utilities) and for 50% of relocation costs of Utilities associated with private companies, except those whose facilities are located on private ROW or easements which will be reimbursed at 100%. The Design-Builder shall be responsible for all costs associated with relocating any Public Utilityʼs facilities.

Department-Supplied Information.

Utility Investigations: The Department has investigated the Utilities likely to be affected by the Project. Note that:

• All Utility information shown in this RFP has had a Subsurface Utility investigation performed and is to be considered reliable information. All other utility information is for information only.
• Accuracy. All utility information supplied as part of the Departmentʼs Subsurface Utility Investigation is to be considered accurate to a SUE [subsurface utility engineering] Quality Level “B”, except where noted.

Relief for Unknown Utility Conflicts

3.13.1.3.5 Existing Utilities Not Previously Known

General. If the Design-Builder discovers any existing Utility (excluding service lines) that is not shown in Appendix I (Utilities and SUE Information) or elsewhere in the contract documents, but will be affected by the Project, notify the Department. Cooperate with the Department in identifying and notifying the Utility Company, and discontinue Work in the immediate vicinity of the conflict until the Department and the Utility Company approve a course of action. Justifiable cost and schedule impacts will be addressed in accordance with Section 2.5.3, Differing Site Conditions

VI. Utilities and Railroads

1. As part of the Project Scope, Contractor shall have the responsibility of coordinating the Project construction with all public utilities and railroads that may be affected. Contractor shall be responsible for

1. the costs of utility coordination and the costs attributable to the Relocation (as the term “Relocation” is defined in 23 C.F.R. §645.105(i)) of utility facilities. Contractor shall be responsible for coordination of the work with any affected railroad companies, and any cost related to compliance with railroad requirements.
2. Contractor shall have the responsibility for identifying the location of all utilities and railroads affected by the construction of the Project; shall establish whether the State has prior rights to each location; and shall obtain necessary utility agreements using DOTʼs standard utility agreement and railroad agreements.

Section 7.5.1 Design-Builderʼs General Responsibilities

Design-Builder shall:

7.5.1.1 coordinate, facilitate and cause all Utility Adjustments necessary: (a) to accommodate the Project in accordance with the Project Schedule; and (b) in order to comply with its obligations under this Design-Build Agreement, including TP [Technical Provision] Section 7 (Utility Adjustments);

7.5.1.2 comply, in all respects, with the GDOT UAM, abide by the results of the processes implemented pursuant to the GDOT UAM, and otherwise coordinate, monitor, and otherwise undertake the necessary efforts to coordinate with Utility Owners performing Utility Adjustment Work, in coordination with the Work and in compliance with the standards of design and construction, Good Industry Practice, and other applicable requirements specified in this Design-Build Agreement, under any applicable Law, any Governmental Approval, any applicable Utility MOU and any applicable Standard Utility Agreement;

7.5.1.3 ensure that all Utility Adjustment Work that Design-Builder performs complies with this Design-Build Agreement, applicable Law, all Governmental Approvals, and any applicable Utility MOU;

7.5.1.4 perform Utility Adjustment Work (and Betterments, as applicable) only with and through Contractors or Subcontractors that, where required (e.g., water and sewer work), are prequalified (and remain prequalified for the duration they are performing the Work) under the Manual of Instructions for Prequalification of Prospective Bidders, as and when required under the Technical Provisions, and, where a Utility Owner may require performance by a Utility-approved Contractor or Subcontractor, through such Utility-approved Contractor or Subcontractor, it being understood that as between GDOT and Design-Builder, Design-Builder bears all of the risk of noncompliant, nonconforming, or non-performance of Utility Adjustment Work (and Betterments, as applicable);

7.5.1.5 use reasonable efforts to provide any assistance that GDOT reasonably requires to perform GDOTʼs obligations under any Utility MOU;

7.5.1.6 perform its obligations under this Design-Build Agreement in a manner that does not cause GDOT to breach (directly or indirectly) the provisions of any Utility MOU; and

7.5.1.7 Comply with all requirements of Georgia 811 during performance of the Work.

7.5.2 Utility Adjustments Required.

7.5.2.1 If a Utility Adjustment is required for the Project, then Design-Builder shall perform the Utility Adjustment Work or cause the Utility Owner to perform the Utility Adjustment Work in accordance with this DBA Section 7.5 (Utility Adjustments).

7.5.2.2 GDOT will accept all Utility Adjustments in accordance with this DBA Section 7.5 (Utility Adjustments) and TP Section 7 (Utility Adjustments), including through GDOTʼs acceptance of the Utility Adjustment Plan, Utility Work Plan, and Standard Utility Agreement(s) (and subsequent amendments). Design-Builder shall coordinate with all applicable Governmental Entities and other Persons and shall procure and maintain all Governmental Approvals required for any Utility Adjustments in accordance with DBA

7.5.1.5 use reasonable efforts to provide any assistance that GDOT reasonably requires to perform GDOTʼs obligations under any Utility MOU;

7.5.1.6 perform its obligations under this Design-Build Agreement in a manner that does not cause GDOT to breach (directly or indirectly) the provisions of any Utility MOU; and

7.5.1.7 Comply with all requirements of Georgia 811 during performance of the Work.

7.5.2 Utility Adjustments Required.

7.5.2.1 If a Utility Adjustment is required for the Project, then Design-Builder shall perform the Utility Adjustment Work or cause the Utility Owner to perform the Utility Adjustment Work in accordance with this DBA Section 7.5 (Utility Adjustments).

7.5.2.2 GDOT will accept all Utility Adjustments in accordance with this DBA Section 7.5 (Utility Adjustments) and TP Section 7 (Utility Adjustments), including through GDOTʼs acceptance of the Utility Adjustment Plan, Utility Work Plan, and Standard Utility Agreement(s) (and subsequent amendments). Design-Builder shall coordinate with all applicable Governmental Entities and other Persons and shall procure and maintain all Governmental Approvals required for any Utility Adjustments in accordance with DBA Section 6.2 (Governmental Approvals and Third Party Agreements).

7.5.2.3 Regardless of any arrangements made with the Utility Owners, Design-Builder shall continue to be the responsible party to GDOT for timely performance of all Utility Adjustment Work so that, upon Substantial Completion, all Utilities that impact or might be impacted by the Project are compatible with the Project.

7.5.3 Utility MOUs.

7.5.3.1 Design-Builder acknowledges that: (a) GDOT has entered into the Utility MOUs with Utility Owners as relates to this Project, and Design-Builder represents and warrants that it has reviewed all such Utility MOUs, is familiar with, and has satisfied itself as to, the terms and conditions in all Utility MOUs. (b) If the Utility Owner has claimed a prior right and has elected to self-perform the design or construction services (or both) in the Utility MOU, then GDOT and the Utility Owner are parties to a Standard Utility Agreement, the terms and conditions of which may impose requirements, conditions, constraints, or other obligations that inform Design-Builderʼs obligations under DBA Section 7.5.3 (Utility MOUs).

7.5.3.2 For each Utility requiring Adjustment, the Design-Builder will refer to the relevant Utility MOU to discern which entity/ies the Utility Owner has elected to perform design or construction services (or both) for the Adjustment and the allocation of costs for such services.

7.5.3.3 Design-Builder shall perform all Utility Adjustments that are identified in any Utility MOU as to be performed by Design-Builder.

7.5.3.4 Design-Builder shall cause to be performed all Utility Adjustments that are identified as to be performed by Contractors identified in the applicable Utility MOU, for which the Design-Builder is responsible to have performed.

7.5.3.5 Design-Builder shall otherwise cooperate with Utility Owners self-performing the Utility Adjustment Work and timely pursue processes, remedies, and recourse available to GDOT (delegated to Design-Builder) or to the Design-Builder directly under the GDOT UAM.

7.5.3.6 Design-Builder acknowledges GDOTʼs statutory right to enforce Utility Owner obligations, as expressed in the UAM.

6.8.1.2 Unidentified Utilities.

1. (a) DB Contractor shall be entitled to an increase in the Price in connection with certain increases in the cost of the Work due to Unidentified Utilities within the Preliminary ROW. Such increase shall be determined on a facility-by-facility basis and shall apply for a particular Unidentified Utility facility only if the Basic Costs for the Utility Adjustment for that facility are greater than $50,000. The amount of the Price increase in any Change Order issued under this Section 6.8.1.2 for each such Unidentified Utility facility shall be equal to the Basic Costs for that facility, less $50,000 (which amount shall be the DB Contractorʼs sole responsibility). Notwithstanding the foregoing, an aggregate cap of $1,000,000 shall apply to the total amount of such $50,000 “deductibles” that are DB Contractorʼs responsibility. In determining whether the aggregate cap has been reached, Utility Adjustments of Unidentified Utilities with Basic Costs of less than $50,000 shall not be counted towards the aggregate $1,000,000 cap and such amounts shall be the DB Contractorʼs sole responsibility. If the $1,000,000 aggregate cap is reached, the amount of the Price increase in any Change Order thereafter issued under this Section 6.8.1.2 for a Utility Adjustment of any Unidentified Utility for which the Basic Costs are in excess of $50,000 shall be equal to the Basic Costs for that facility. In no event shall DB Contractor be entitled to a Change Order for increased costs due to Utility Adjustments for Unidentified Utilities for which the Basic Costs are $50,000 or less, regardless of whether the aggregate cap is reached. DB Contractorʼs rights to recover additional costs as specified in this Section 6.8.1.2(a) shall not include delay and disruption damages.
2. (b) All Basic Costs calculations submitted by DB Contractor shall be supported by detailed cost proposals and supporting documentation (for all estimates used in such calculations) meeting the requirements of Section 13.6. TxDOT shall have the right to require that any or all of the information submitted by DB Contractor in the EPDs [escrowed proposal documents] be used in evaluating the cost proposals.

6.8.1.3 Time Extension for Unidentified Utilities. If DB Contractor encounters one or more Unidentified Utilities for which DB Contractor is entitled to compensation pursuant to Section 6.8.1.2, and the performance of the Utility Adjustments for such Unidentified Utilities results in delays to the Critical Path, then DB Contractor shall be entitled to an extension of the applicable Completion Deadlines up to an aggregate amount of 90 days for all such delays. If aggregate delays to the Critical Path resulting from Unidentified Utilities exceed 90 days, then the risk of delays resulting from Unidentified Utilities in excess of 90 days shall be borne by DB Contractor. If a delay as described in this Section 6.8.1.3 is concurrent with another delay which is DB Contractorʼs responsibility hereunder, then the delay shall be borne 100% by DB Contractor. If a delay due to the discovery of an Unidentified Utility is concurrent with another delay for which DB Contractor is entitled to a time extension, the period of TxDOTʼs responsibility for the delays shall run concurrently. The foregoing shall not preclude DB Contractor from obtaining a time extension with respect to New Utilities in accordance with Section 6.8.1.1. Except as otherwise expressly provided in this Section 6.8.1, no time extension will be allowed on account of: (a) any delays attributable to any inaccuracy(ies) in the Utility Strip Map; or (b) the performance of Utility Adjustments for Unidentified Utilities.

Section 2.4 State Proposed/State Acquired ROW

2.4.1 The Parties acknowledge that as of the date of this Design-Build Agreement:

2.4.1.1 GDOT has acquired a right of access to, or interest in, each State Proposed/State Acquired Right of Way for which the Parcel Availability Date is on or prior to the Effective Date; and

2.4.1.2 GDOT has not acquired a right of access to, or interest in, the State Proposed/State Acquired Right of Way for which the Parcel Availability Date is after the Effective Date.

2.4.2 At any time from the Effective Date, but prior to the date of issuance of NTP3, and as a condition to NTP3, Design-Builder shall notify GDOT with respect to each Parcel of State Proposed/State Acquired Right of Way (Design Contingent) whether the acquisition of such Parcel is required for the Project. If Design-Builder notifies GDOT that:

2.4.2.1 a Parcel of State Proposed/State Acquired Right of Way (Design Contingent) is not required for the Project, such Parcel shall be removed from DBA Exhibit 4 (Parcel Acquisition Table) and shall no longer constitute State Proposed/State Acquired Right of Way; or

2.4.2.2 a Parcel of State Proposed/State Acquired Right of Way (Design Contingent) is required for the Project, the Parcel Availability Date with respect to such Parcel shall be the later of: (a) the date specified in DBA Exhibit 4 (Parcel Acquisition Table) with respect to such Parcel; and (b) the date that is 24 months after GDOTʼs receipt of Design-Builderʼs notice under this DBA Section 2.4.2 (State Proposed/State Acquired Right of Way).

2.4.3 Subject to DBA Section 2.4.4 (State Proposed/State Acquired Right of Way), if Design-Builder notifies GDOT that a Parcel of State Proposed/State Acquired Right of Way (Design Contingent) is required in accordance with DBA Section 2.4.2 (State Proposed/State Acquired Right of Way) and, based on the RFC [Ready for Construction] Design Documents, such Parcel is not required for the Project, to the fullest extent permitted by applicable Law, Design-Builder shall release, protect, defend, indemnify and hold harmless GDOT and each GDOT-Related Entity on demand from and against any and all Losses that GDOT (or any such GDOT Related Entity) incurs as a result of the filing of an inverse condemnation of such Parcel. Design-Builder shall pay to GDOT the amount of such Losses within 10 Business Days following receipt of GDOTʼs invoice and, in the event of any non-payment, GDOT may deduct any unpaid amount from the next applicable Project Payment in accordance with DBA Section 17.3.3.2 (Damages; Offset).

2.4.3.1 DBA Section 2.4.3 (State Proposed/State Acquired Right of Way shall not apply to the extent the Parcel of State Proposed/State Acquired Right of Way (Design Contingent) is not required due to a GDOT-Caused Delay or a GDOT Change, which in either case is documented in a Supplemental Agreement.

2.4.3.2 GDOT will provide Design-Builder with updated information on the State Proposed/State Acquired Right of Way referred to in DBA Section 2.4.1.2 (State Proposed/State Acquired Right of Way) as such information becomes available and confirm once GDOT has acquired each Parcel.

2.4.3.3 Design-Builder shall perform the Post-Acquisition Services for the State Proposed/State Acquired Right of Way in accordance with TP Section 6.5 (Post-Acquisition Services).

2.4.3.4 If GDOT fails to acquire a right of access to, or interest in, a Parcel that is State Proposed/State Acquired Right of Way by the relevant Parcel Availability Date, Design-Builder shall have a right to assert a claim for relief and compensation in accordance with DBA Article 13 (Relief Events; Compensation Events).

2.4.4 GDOT will be responsible for, and shall not have a right to claim from Design-Builder any payment or reimbursement for, all costs and expenses associated with acquiring each Parcel of State Proposed/State Acquired Right of Way, including:

2.4.4.1 the purchase prices, court awards or judgments, for all Parcels required for the Project or the Work;

2.4.4.2 the cost of condemnation proceedings required by the Office of the Attorney General, through jury trials and appeals, including attorneysʼ and expert witness fees, and all fees and expenses for exhibits, transcripts, photos and other documents and materials production; and

2.4.4.3 closing costs associated with Parcel purchases, including applicable property taxes, in accordance with the Uniform Act and GDOT policies; and

2.4.4.4 relocation assistance payments and costs, in accordance with the Uniform Act.

ALDOT will identify certain ROW to be used for permanent improvements included in the Project (the “ROW Drawings”), which will be provided at a later date. ALDOT will provide access to the ROW identified on the ROW Drawings in accordance with a ROW Schedule to be agreed by the parties, which is expected to be based on the Design-Builderʼs preliminary designs for the Project and proposed approach to phased delivery of the Project through Usable Segments. If ALDOT at any time determines it will be unable to provide access to a particular parcel in accordance with the ROW Schedule, ALDOT shall notify the Design-Builder regarding the revised projected date for delivery of access. The Design-Builder shall take appropriate action to minimize any cost and time impact and shall work around such parcel until access can be provided, including rescheduling and resequencing Work so as to avoid any delay to the Project. It is anticipated that, to the extent ALDOTʼs failure to provide access to a parcel in accordance with the ROW Schedule causes an unavoidable delay to the critical path for any Completion Deadlines guaranteed by the Design-Builder, it will be a Relief Event for which the Design-Builder may bring a Claim under the terms of the DBA.

TxDOT has [begun or completed] ROW acquisition for the Project and [will continue the acquisition effort until execution of the DBC or does not anticipate the need for ROW acquisition services from the DB Contractor]. If [the ROW acquisition is not completed by such time, the DB Contractor must acquire the remaining Project ROW or any ROW is needed after execution of the DBC, the DB Contractor must acquire such ROW], including real property within the boundaries included in the NEPA schematics (“Schematic ROW”) and any additional real property needed for the Project outside the Schematic ROW, in accordance with the Contract Documents, the approved Right of Way Acquisition Management Plan and all applicable Laws. All Project ROW must be acquired by the DB Contractor in the name of the State. The scope of DB Contractorʼs ROW acquisition services includes condemnation support services and the provision of expert witnesses for condemnation proceedings.

For any real property needed for ROW within the Schematic ROW, TxDOT is responsible for the purchase price of the real property, market rental consideration paid for possession and use agreements, relocation assistance payments, title insurance, and reimbursing the DB Contractor for its reasonable out-of-pocket costs for condemnation support services for such property. The reimbursement for condemnation support services costs is subject to a cap of $10,000 per parcel plus expert witness fees. DB Contractor is responsible for all costs and expenses in connection with acquiring real property, improvements and fixtures outside of the Schematic ROW that DB Contractor determines is necessary or advisable to be acquired for the Project and which acquisition is approved by TxDOT. DB Contractor is responsible for the cost of any temporary construction easements or other temporary property interests.

DB Contractor shall be entitled to a Change Order for delays to the Critical Path due to failure of TxDOT to make available a portion of the Schematic ROW, or any Additional Properties that must be acquired due to a TxDOT-Directed Change, Force Majeure Event, or a Necessary Basic Configuration Change, described, TxDOT in a condemnation packet within [___][insert number of days from 180 to 365 for TxDOT to make parcels available] days after approval of the Condemnation Package (“Eminent Domain Delay”), only to the extent provided in Sections 4.4.5.3 and 4.6.9.5 of the General Conditions and subject to the requirements of Section 4.6 of the General Conditions. The risk of any such Eminent Domain Delay, on an individual parcel basis, shall be borne equally by each Party for the first [insert number of days of equal risk sharing up to 100] days thereafter (i.e., for each parcel, DB Contractor shall be entitled to one day of time extension for every two days of delay). After the first [__] [insert number of days from previous sentence] days following the [180–365]-day period, DB Contractor shall be entitled to one day of time extension for each day of eligible delay.

Except as provided in Section 6.2.5, DB Contractor shall be entitled to a Change Order in accordance with Section 13.8.5 for delays to the Critical Path due to failure of TxDOT to make available the portion of the Preliminary ROW, or any Additional Properties that must be acquired due to a TxDOT-Directed Change, Force Majeure Event, or a Necessary Basic Configuration Change, described in a condemnation packet within 365 days after approval of the Condemnation Package, excluding any delay caused in whole or in part by an act, omission, negligence, intentional misconduct, or breach of applicable Law, contract or Governmental Approval by any DB Contractor-Related Entity in performing the services required under the Contract Documents. The risk of delay following the expiration of such 365-day period, on an individual parcel basis, shall be borne equally by each Party for the first 100 days thereafter (i.e., for each parcel, DB Contractor shall be entitled to one day of time extension for every two days of delay). Following the expiration of the first 100 days after the initial 365-day period, DB Contractor shall be entitled to one day of time extension for each day of eligible delay. The term “make available”, as used herein, shall mean to make available for: (a) relocation of occupants and personal property, for occupied parcels, (b) demolition, for unoccupied, improved parcels, or (c) construction, for unoccupied, unimproved parcels. The DB Contractor through due diligence shall initiate, cooperate and be responsible for all costs and all efforts necessary for the processing of the administrative portion of the condemnation action, up to and including the deposit of the award of Special Commissioners.

For Environmental Approvals to be obtained by the Commission pursuant to Section 6.3 and Book 2, Section 5, upon Contractorʼs fulfillment of all applicable requirements of Section 13 and subject to the limitations contained therein and Section 12, the Commission shall be responsible for and will issue a Change Order to compensate the Contractor for additional costs and/or delay directly attributable to any additional Work or mitigation measures necessitated by the terms of the finally issued Environmental Approvals to the extent such Work or mitigation measure constitute material changes or additions from the Contract requirements and are the result of any material change occurring after Contract Execution in the terms, interpretation or administration of the relevant Environmental Laws. The Contractor shall be responsible for proving the Environmental Laws have substantially changed and such change causes an impact to their pricing.

MDOT shall obtain all initial MDOT-Provided Approvals for the Section (and provide copies to the Section Developer) by the Commercial Closing Date. The “MDOT-Provided Approvals” are:

1. a)  environmental decision documents approved under NEPA covering the limits of the applicable Section; b) USACE permit under Section 404 of the Clean Water Act and accompanying Section 401 Water Quality Certification with respect to the Section; c) designation of the Section (or the P3 Program) by the Maryland Transportation Authority Board as a “transportation facilities project” for the purposes of Title 4 of the Transportation Article of the Annotated Code of Maryland; and d) National Park Service special use permits for Maryland and (if applicable) Virginia.

The Section P3 Agreement will include “Relief Events” addressing the following matters, among others:

1. h)  a delay in obtaining any Major Governmental Approval due to delays in receiving responses from the relevant permitting agency that exceed the applicable Major Governmental Approval Period to the extent that such delay is beyond the reasonable control of any Section Developer-Related Entity

The Design-Builder shall be responsible to obtain all Governmental Approvals except for those that the Contract Documents expressly make the responsibility of ALDOT, and shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the Work

The Section Developer will be solely responsible for obtaining all governmental approvals (other than MDOT-Provided Approvals) or modifying MDOT-Provided Approvals as necessary, including any changes in the MDOT-Provided Approvals resulting from differences between the Section Developerʼs design and that which was used to obtain any MDOT-Provided Approval. The Section Developer must ensure that the Work and its design complies with any MDOT-Provided Approvals and any modifications required to the MDOT-Provided Approvals shall be entirely the risk and responsibility of the Section Developer. MDOT shall provide reasonable assistance to the Section Developer in relation to any application for a governmental approval.

TxDOT has obtained or will obtain the following permits and governmental approvals as specified in the Contract Documents: _______________ [List TxDOT-Provided Approvals]. The DB Contractor will be responsible for obtaining all other permits and government approvals.

The DB Contractor is responsible for obtaining all new environmental approvals or changes to existing approvals. If a new or revised environmental approval becomes necessary for any reason other than for a TxDOT-Directed Change or Other Relief Event, the DB Contractor will bear full responsibility for all costs and delays.

2.10.1 Subtask 8.1 Environmental Documentation and Permitting Strategy

After the environmental documentation and permitting strategy workshop is completed, the Design-Builder shall develop an Environmental Documentation and Permitting Strategy for each Culvert Bundle, broken down by each Culvert Site that defines all the deliverables necessary to complete the environmental documentation and permitting for that particular Culvert Bundle. The strategy shall be submitted and comments addressed prior to the start of any environmental documentation. The “Environmental Documentation and Permitting Strategy” shall identify all documentation or tasks necessary to complete NEPA/SEPA processes including those needing to be completed by WSDOT, all Government Approvals necessary to complete the Project, all deliverables required for Government Approvals, timing of Governmental Approval

The DB Contractor may request a Change Order to extend a Completion Deadline for a delay directly attributable to discovery of Hazardous Materials that changes the duration of a Critical Path. DB Contractor is not entitled to an extension of any Completion Deadline for any delays resulting from the discovery of Hazardous Materials prior to submission of a notice. The DB Contractor may request a Change Order to increase the Price for Hazardous Materials Management for Pre-existing Hazardous Materials as follows: DB Contractor is entitled to an increase in the Price as compensation for (a) 50% of DB Contractorʼs Reimbursable Hazardous Materials Management Costs for Pre-existing Hazardous Materials encountered by DB Contractor that exceed $[•] but do not exceed $[•], (b) 100% of Reimbursable Hazardous Materials Management Costs for Preexisting Hazardous Materials encountered by DB Contractor that exceed $[•], and (c) 100% of Reimbursable Hazardous Materials

Management Costs for Pre-existing Hazardous Materials encountered on Additional Properties acquired as a result of a Necessary Basic Configuration Change or TxDOT-Directed Change. DB Contractor shall be responsible for all other costs related to Pre-existing Hazardous Materials. Such reimbursement is limited to the incremental reasonable, out-of-pocket Direct Costs incurred for Phase II site assessment costs conducted in accordance with the DBC and the handling, transport, removal and disposal of Pre-existing Hazardous Materials after completion of the testing process to determine whether Pre-existing Hazardous Materials are present.

If DB Contractor encounters Hazardous Materials for which DB Contractor is entitled to compensation, and Hazardous Materials Management of such Hazardous Materials results in delays to the Critical Path, DB Contractor bears 100% of the risk of such Hazardous Materials Delay up to an amount of 30 days per location and up to an aggregate amount of 120 days for all locations on the Project. If the DB Contractor is prohibited from working at a particular location due to the discovery of Hazardous Materials for which the DB Contractor is entitled to a Change Order during the last 12 months prior to a Completion Deadline, then the DB Contractor is entitled to an extension of the applicable Completion Deadline for any Critical Path delays resulting from such discovery of Hazardous Materials. Except for Project Overhead to be calculated in accordance with the DBC for each day that a Completion Deadline is extended, delay and disruption damages are not recoverable.