[_____] PROJECT

DESIGN-BUILD CONTRACT TERM SHEET

This document provides background information and summarizes the major terms of the Design-
Build Contract (“DBC”) for the design and construction of the [_____] (“Project”), which may be
entered into by the Texas Department of Transportation (“TxDOT”) and a firm (“DB Contractor”)
to be selected based on responses to a Request for Proposals (“RFP”). The DBC is comprised of
the Design-Build Agreement (“DBA”) and the DBA General Conditions Items 1-9. This document
is intended as a general description of the anticipated major contract terms of the DBC (which
terms are subject to change by TxDOT in its sole discretion during the procurement process), and
is not a restatement or interpretation of the DBC requirements. There are numerous details,
exceptions and qualifications associated with the anticipated provisions described below that can
only be ascertained by reviewing the DBC itself.

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 CONTRACT OVERVIEW

DB Contractor & DB Contractor to be determined.

Design-Build
TxDOT currently anticipates executing the DBC in [_____].
Contract Date

Contract The Contract Documents include the Design-Build Agreement and

Documents exhibits; DBA General Conditions Items 1-9; Design-Build
Specifications Items 10-[28] and __; and all amendments to the
foregoing and all Change Orders issued.

Proposal The Proposal will also be a Contract Document to the extent that it
Commitments exceeds the requirements of the other Contract Documents, such
that commitments made by the DB Contractor in the Proposal
relating to the Work will be binding to the extent TxDOT
determines such commitments are advantageous to TxDOT.

Reference The Reference Information Documents (“RIDs”) are provided with

Information the RFP. Portions of the RIDs are explicitly referenced in the
Documents Contract Documents for the purpose of defining requirements of
the Contract Documents. Such portions are deemed incorporated
in the Contract Documents solely to the extent that they are so
referenced. The DB Contractor may rely on the RIDs only to the
extent expressly set forth in the DBA.

Scope of Work Except as otherwise specified, all work for design and
construction of the Project (the “Work”) will be the responsibility of
the DB Contractor. The Work includes all design, engineering,
procurement, construction and other services and items that are
necessary or appropriate to design, construct, execute and
complete the Project in conformance with the Basic Configuration
as set forth in the Schematic Design and otherwise in accordance
with the requirements of the Contract Documents.
See the RFQ for further details regarding the Scope of Work.

Alternative If the Contract Documents incorporate any approved ATCs and

Technical either: (a) the DB Contractor does not comply with one or more
Concepts (“ATC”) TxDOT conditions applicable to the ATC; or (b) the DB Contractor
does not obtain a third-party approval that may be required for the
ATC, then the DB Contractor must comply with the Contract
Document requirements that would have applied but for the ATC,
including acquiring DB Contractor-Designated ROW necessary to
comply with the Contract Documents, without any increase in the
Price, extension of the Completion Deadlines, or any other
Change Order.

Notices to TxDOT anticipates issuing two Notices to Proceed (“NTP”). Notice

Proceed to Proceed 1 (“NTP1”) is expected to be issued concurrently with

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 execution of the DBC.
Issuance of NTP1 authorizes the DB Contractor to perform the
portion of the Work necessary to obtain TxDOT’s approval of the
Project Management Plan, Quality Management Plan and Project
Baseline Schedule 2; to enter the Project Right of Way (“ROW”)
that TxDOT owns in order to conduct surveys and site
investigations, including geotechnical, Hazardous Materials and
Utilities investigations; to perform certain ROW acquisition
services; and to commence negotiating and entering into Utility
Agreements with Utility Owners.
TxDOT anticipates issuing Notice to Proceed 2 (“NTP2”)
concurrently with:
(a) TxDOT’s approval of the Project Management Plan and
Quality Management Plan, and
(b) TxDOT’s approval of the Project Baseline Schedule 2.
Issuance of NTP2 authorizes the DB Contractor to perform all
other Work and activities pertaining to the Project.
If NTP1 is not issued within [180] days after the Proposal Due
Date and the DB Contractor does not, in whole or in part, cause
the delay, the Price will be subject to adjustment (based on the
ENR Construction Cost Index) until issuance of NTP1. If NTP1 is
not issued within [365] days from the Effective Date, the DB
Contractor may terminate the DBC.
If NTP2 is not issued within [270] days after the Proposal Due
Date or [90] days after the issuance of NTP1 and the DB
Contractor does not, in whole or in part, cause the delay, the Price
will be subject to escalation (based on the ENR Construction Cost
Index) that will begin to apply on the date of issuance of NTP2.

PRICE, SECURITY & PAYMENTS

Price This is a fixed price, lump sum contract, to be paid based on

progress and subject to a Maximum Payment Schedule. The Price
will remain valid without adjustment until [180] days after the
Proposal Due Date. Except in the case of adjustment due to
delays to NTPs, the Price is only subject to adjustment via
Change Order.

Payment TxDOT will make payments based on Work progress as

Obligations & evidenced by a monthly Draw Request submitted by the DB
Progress Contractor in the form attached to the DBC.
Payment
A Maximum Payment Schedule provided with the Proposal
Limitations
establishes a cap on the aggregate amount of progress payments
that may be paid to the DB Contractor each month over the term
of the DBC. The Maximum Payment Schedule is subject to
change to account for any changes in the Price due to Change

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 Orders or amendments.
If the DB Contractor falls behind schedule, no progress payments
will be paid until a recovery schedule is approved by TxDOT.

Proposal, A Proposal Bond in the amount of $[●] million will remain in place
Performance, as security for performance of the DB Contractor’s obligations.
Payment & Upon receipt of Payment and Performance Bonds meeting the
Warranty Bonds requirements of the DBC (and other documents required for
NTP1), the Proposal Bond will be released.
Payment and Performance Bonds in the amount of $[●] million will
be required as security for the DB Contractor’s obligations as a
condition for issuance of NTP1.
Upon issuance of NTP2, the amount of the Payment and
Performance Bonds will increase to an amount equal to the
portion of the Price allocable to Construction Work less the cost of
Construction Work performed by Utility Owners, in accordance
with the rider forms included in the DBC.
The Performance Bond will be released after Final Acceptance if
DB Contractor is not in default under the Contract Documents and
TxDOT has received the Warranty Bond.
The Payment Bond will be released upon: (a) receipt of (i)
evidence that all Persons eligible to file a claim against the
Payment Bond have been fully paid, and (ii) unconditional
releases of Liens and stop notices from all Subcontractors who
filed a preliminary notice of a claim against the Payment Bond; or
(b) expiration of the statutory period for Subcontractors to file a
claim against the Payment Bond if no claims have been filed.
After Final Acceptance, DB Contractor may obtain a release of the
Performance Bond by satisfying certain conditions, including
providing a Warranty Bond in the amount of 10% of the Price,
which will guarantee performance of the Work required to be
performed during the Warranty Term. The Warranty Bond will be
released upon: (a) expiration of the Warranty Term; (b) receipt of
(i) evidence that all Persons eligible to file a claim against the
Warranty Bond have been fully paid, and (ii) unconditional
releases of Liens and stop notices from all Subcontractors who
filed preliminary notice of a claim against the Warranty Bond; and
(c) expiration of the statutory period for Subcontractors to file a
claim against the Warranty Bond if no claims have been filed.
If the Price is increased in connection with a Change Order,
TxDOT may, in its sole discretion, require a corresponding
proportionate increase in the amount of each bond.

Guaranty Each guaranty assures performance of DB Contractor’s

obligations under the Contract Documents and must be
maintained in full force and effect so long as DB Contractor has

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 any obligations under the Contract Documents.
Guaranties may be required pursuant to the terms of the RFQ and
RFP.
In addition, if at any time the total combined net worth of DB
Contractor, its equity members (as applicable) and any
Guarantors, is less than $[●], DB Contractor must provide one or
more guarantees from a Guarantor acceptable to TxDOT so that
the combined net worth is at least $[●].
DB Contractor must report the net worth of DB Contractor, its
equity members and Guarantors, if any, to TxDOT, every year by
means of audited financial statements and on a quarterly basis by
means of certifications by the CFOs of the DB Contractor, its
equity members and any Guarantors.

Mobilization The DB Contractor is entitled to payment for mobilization in

installments in an amount equal to the bid item price for
mobilization, not to exceed 10% of the Price.

COMPLETION DEADLINES, SCHEDULE AND DELAY

Completion Time is of the essence. DB Contractor commits to develop the

Deadlines Project in accordance with the time periods set forth in the
Contract Documents.
[If the project is tolled, include the following language here: The
deadline for Toll Zone Completion is the earlier of (a) the date of
Substantial Completion minus [●] days or (b) the Substantial
Completion Deadline minus [●] days.]
The deadline for Substantial Completion of the Project will be the
date set forth in the Proposal (which may be constrained in
accordance with the RFP). The entire Project must be opened to
traffic [If the project is tolled, include the following language here:
and ready for toll collection] on or before such deadline.
The deadline for Final Acceptance is [__] days after Substantial
Completion.
TxDOT has no obligation to extend the Completion Deadlines,
except as specifically provided. (See Change Order section
below.)

Schedule The DB Contractor must perform the Work in accordance with an

approved comprehensive critical path schedule. The baseline
schedule will be the schedule submitted with the Proposal and
any changes must be approved by TxDOT as a condition to
NTP2. The schedule will be updated monthly during the Work
and used for payment, planning and monitoring progress of the
Work. If the DB Contractor falls behind schedule, a recovery

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[Date] Version 4.0 – September 4, 2020
 schedule to regain lost time is required.

Delay Liquidated damages may be assessed for delays in meeting the

deadlines for Substantial Completion [If the project is tolled,
include the following language here:, Toll Zone Completion] and
Final Acceptance. (See Liquidated Damages section below.)
TxDOT has the right to terminate the DBC if Substantial
Completion is delayed beyond 365 days after the Substantial
Completion Deadline [If the project is tolled, include the following
language here: , Toll Zone Completion is delayed beyond [180]
days after the Toll Zone Completion Deadline] or Final
Acceptance is delayed beyond 180 days after the Final
Acceptance Deadline.

Toll Zone [If the project is tolled, include the following language:
Completion
TxDOT will issue a written Certificate of Toll Zone Completion when
Toll Zone Completion occurs.
DB Contractor shall provide written notice to TxDOT prior to Toll
Zone Completion, after which TxDOT shall conduct (i) an inspection
of the Toll Zone Work and its components, (ii) a review of the
applicable Final Design Documents and Construction Documents
and (iii) such other investigation as may be necessary to evaluate
whether Toll Zone Completion is achieved.]

Substantial TxDOT will issue a written Certificate of Substantial Completion

Completion when Substantial Completion occurs.
The DBC provides certain criteria that TxDOT may consider and
require satisfaction of in determining whether Substantial
Completion has occurred:
 whether all major safety features, all required illumination, and
required signs and signals are installed and functional
 whether the need for temporary traffic controls or for Lane
Closures at any time has ceased
 whether all lanes of traffic set forth in the Released for
Construction Documents are in their final configuration and
available for public use
 whether the DB Contractor has otherwise completed the Work
in accordance with the Contract Documents and Released for
Construction Documents
 [Add any project-specific conditions to Substantial Completion]
 any additional conditions set forth in the DBC are fulfilled

Final Acceptance Promptly after Substantial Completion, the DB Contractor must

perform all remaining Work, including: (a) completion of all Punch

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 List items, (b) all landscaping, and (c) aesthetic features.
DB Contractor must prepare and adhere to a timetable for planting
and establishing the landscaping, which will provide for landscaping
to be planted prior to Final Acceptance.
TxDOT will issue a Certificate of Final Acceptance at such time as
certain conditions are satisfied.
These conditions include, but are not limited to:
 TxDOT has issued the Certificate of Substantial Completion
 all Punch List items have been completed and delivered to the
reasonable satisfaction of TxDOT
 TxDOT has received the as-built drawings
 all manufacturers’ warranties, guarantees, instruction sheets,
parts lists, and other product data have been submitted to
TxDOT
 the DB Contractor has delivered to TxDOT a certification
representing there exists no uncured DB Contractor Default
 no uncured DB Contractor Defaults exist
 all of the DB Contractor’s other obligations under the Contract
Documents have been satisfied in full or waived

Early Opening Prior to Substantial Completion, TxDOT has the right to open to
traffic portions of the Project, to the extent such portions are safe
and necessary or advisable, in TxDOT’s sole determination, for
traffic circulation. Early openings do not constitute Substantial
Completion or Final Acceptance of the Project or waive any
requirements.

CONTRACT RIGHTS & RESPONSIBILITIES

Control of Work The DB Contractor is solely responsible for and will have control
over Project safety, the construction, and the Site, and shall be
solely responsible for coordinating all portions of the Work under
the Contract Documents, subject, however, to all requirements
contained in the Contract Documents. [If the project is tolled,
include the following language here: DB Contractor shall
coordinate the performance of the Work with the work to be
performed by the Systems Integrator.]
The DB Contractor shall take all reasonable precautions and be
solely responsible for the safety of, and shall provide protection to
prevent damage, injury, or loss to, all persons on the Site or who
would reasonably be expected to be affected by the Work.
The DB Contractor must ensure that all of its activities are
undertaken in a manner that will minimize the effect on
surrounding property and the traveling public to the maximum

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 extent practicable.

Prevailing Wages DB Contractor must pay, or cause to be paid, to all applicable

workers employed by it or its Subcontractors performing the Work
not less than the prevailing rates of wages, as provided in the
DBA and in the statutes and regulations applicable to public works
contracts, including Chapter 2258 of the Texas Government Code
and the Davis-Bacon Act.

Right of Way TxDOT has begun ROW acquisition for the Project and will
continue the acquisition effort until execution of the DBC. If the
ROW acquisition is not completed by such time, the DB
Contractor must acquire the remaining Project 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 Contractor’s ROW acquisition
services includes condemnation support services and the
provision of expert witnesses for condemnation proceedings.
For 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.

Design and The DB Contractor is responsible for the design and construction
Construction of the Project in accordance with the Contract Documents.

Design Liability The DB Contractor assumes full responsibility and liability with
respect to design of the Project, including correction of any errors,
omissions, inconsistencies or other defects in the Schematic
Design affecting constructability.

Quality DB Contractor is responsible for all quality assurance and quality

control activities necessary to fulfill all of its obligations under the

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 Management Contract Documents. DB Contractor must undertake all aspects
of quality assurance and quality control for the Project and Work
in accordance with the approved Quality Management Plan and
Good Industry Practice.

Oversight TxDOT and its Authorized Representative have the right at all
times to monitor, inspect, sample, measure, attend, observe or
conduct tests and investigations, and conduct any other oversight
respecting any part or aspect of the Project or the Work, to the
extent necessary or advisable to: (a) comply with the Federal
Highway Administration (“FHWA”), U.S. Army Corps of Engineers
(“USACE”) or other applicable federal agency requirements, and
(b) verify the DB Contractor’s compliance with the Contract
Documents. The DB Contractor at all times must coordinate and
cooperate, and require its Subcontractors to coordinate and
cooperate, with TxDOT and its representatives to facilitate
TxDOT’s oversight activities.

Standards The DB Contractor must furnish all aspects of the Work and
construct the Project and Utility Adjustments included in the Work
as designed, free from defects and in accordance with (a) Good
Industry Practice, (b) the requirements, terms and conditions set
forth in the Contract Documents, (c) the Project Schedule, (d) all
Laws, (e) the requirements, terms and conditions set forth in all
Governmental Approvals, (f) the approved Project Management
Plan, Quality Management Plan and all component plans
prepared or to be prepared thereunder, and (g) the Released for
Construction Documents, in each case taking into account the
Project ROW limits and other constraints affecting the Project.
The DB Contractor may apply for TxDOT’s approval of Deviations
from applicable Design-Build Specifications regarding the Work in
accordance with the Contract Documents. (See Deviations
section below.)

Warranties DB Contractor warrants that: (a) all Work furnished pursuant to

the Contract Documents will conform to Good Industry Practice,
(b) the Project will be free of defects, including design Errors, (c)
the Project will be fit for use for the intended function, (d) materials
and equipment furnished under the Contract Documents will be of
good quality and new, and (e) the Work will meet all of the
requirements of the Contract Documents.
[Option 1: The Warranty Term extends from the date of
Substantial Completion until one year after Final Acceptance of
the Project, except that for elements of the Project that will be
owned by Persons other than TxDOT (such as Utility Owners), the
Warranty Period will be from the date of acceptance by such
Persons until one year thereafter.]
[Option 2: The Warranties commence at Substantial Completion

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 and include a general warranty for the Project that runs
concurrently with performance warranties for specified elements
of the Project. The Warranty Term for the general warranty
commences on the date of Substantial Completion and extends
until one year after Final Acceptance of the Project, except that for
elements of the Project that will be owned by Persons other than
TxDOT (such as Utility Owners), the Warranty Period will be from
the date of acceptance by such Persons until one year thereafter.
The Warranty Term for the performance warranties is five years.]
The Warranties apply to all Work re-done, repaired, corrected or
replaced pursuant to the terms of the DBC. Following acceptance
by TxDOT of re-done, repaired, corrected or replaced Work, the
Warranties as to each such element of the Work will extend
beyond the original Warranty Term.

Clayton Act DB Contractor assigns to TxDOT all right, title and interest in and
Assignment to all claims and causes of action it may have under Section 4 of
the Clayton Act (15 U.S.C. Sec. 15), arising from purchases of
goods, services or materials pursuant to the Contract Documents
or any Subcontract.
This assignment becomes effective at the time TxDOT tenders
Final Payment to DB Contractor, without further acknowledgment
by the Parties.

ENVIRONMENTAL & PERFORMANCE RISKS

Permits & TxDOT has obtained or will obtain the following permits and
Approvals 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.

New The DB Contractor is responsible for obtaining all new

Environmental environmental approvals or changes to existing approvals. If a
Approvals 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.

Environmental The DB Contractor is responsible for performance of all

Compliance environmental mitigation measures and compliance with all other
conditions and requirements of the Contract Documents and
Environmental Approvals, including TxDOT-Provided Approvals
and similar Governmental Approvals for the Project, other than
any mitigation requirements which TxDOT has expressly agreed
to perform.

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 CONTRACT CHANGES & COSTS OUTSIDE THE CONTRACT

Change Orders A Change Order or Directive Letter is required for any increase to
Price or time extension.
TxDOT may issue a unilateral Change Order at any time.
For each Request for Change Order, DB Contractor must prepare
a scope of work, cost estimate, time impact analysis and other
information.
If the DB Contractor requests a time extension, then TxDOT may
require DB Contractor to provide two alternative Requests for
Change Order, one that provides for a time extension and any
permitted additional costs, and another that shows all Acceleration
Costs associated with meeting the non-extended Completion
Deadlines, as well as any permitted additional costs.
Change Orders are subject to strict requirements (including notice
& delivery).
Any increase to the Price under any Change Order may not
include: (i) the amount of any insurance available to the DB
Contractor, (ii) any deductible or self-insured retention associated
with such insurance, or (iii) the amount of any insurance coverage
required under the DBC that is deemed to be self-insured by the
DB Contractor.

Differing Site Subject to the following limits, the DB Contractor is entitled to a

Conditions Change Order for certain additional costs resulting from the
existence of Differing Site Conditions. The DB Contractor is fully
responsible for costs up to the Differing Site Conditions Deductible
($[●]) incurred for changes in the Work resulting from each
separate occurrence of Differing Site Conditions, subject to the
Differing Site Conditions Aggregate Deductible Cap ($[●]).
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.
DB Contractor will be allowed a time extension for certain delays
to the Critical Path resulting from Differing Site Conditions. The
risk of such delays will be shared between DB Contractor and
TxDOT, provided DB Contractor’s responsibility for such delays is
capped, as set forth in the DBC. If DB Contractor is prohibited
from working at a particular location due to the discovery of
Differing Site Conditions for which DB Contractor is entitled to a
Change Order during the last 12 months prior to a Completion
Deadline, then DB Contractor shall be entitled to an extension of
the applicable Completion Deadline(s) for any Critical Path delays
resulting from such discovery of Differing Site Conditions.

Supply Chain DB Contractor is entitled to a Change Order extending the

Completion Deadlines for delays to the Critical Path resulting from

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 Disruptions unavailability of materials due to:
(a) Any earthquake, tornado, hurricane or other natural disaster
that (i) occurs in Texas and (ii) has been proclaimed a disaster or
state of emergency by the President of the United States, the
Governor of the State of Texas, or the Federal Highway
Administrator;
(b) Any epidemic in the State of Texas;
(c) Any blockade, rebellion, war, riot, act of sabotage, act of
terrorism or civil commotion, in each case that occurs on the soil
of the continental United States;
(d) Any other cataclysmic phenomena of nature, as determined
by TxDOT in its good faith discretion; and
(e) Any other national shortage of materials that is the subject of a
directive by the State of Texas or federal government.
The risk of such delays will be shared between DB Contractor and
TxDOT, provided DB Contractor’s responsibility for such delays is
capped, as set forth in the DBC. DB Contractor shall only be
entitled to a time extension for delays due to the foregoing events
if such events (and the effects of such events) are beyond the
control of the DB Contractor-Related Entities and are not due to
(1) an act, omission, negligence, recklessness or intentional
misconduct of or (2) breach of contract or Law or violation of any
Governmental Approval by, any of the DB Contractor-Related
Entities, and further provided that such events (or the effects of
such events) could not have been avoided by the exercise of
caution, due diligence, or reasonable efforts by any DB
Contractor-Related Entity. DB Contractor will be entitled to project
overhead to be calculated in accordance with the DBC for each
day that a Completion Deadline is extended. DB Contractor will
not be entitled to an increase in the Price for any other additional
costs incurred as a result of supply chain disruptions.

Special Events The DBC will include lane closure restrictions during special
Delays events in the region. DB Contractor will be entitled to a Change
Order extending the Completion Deadlines for certain delays to
the Critical Path due to changes in the dates or times of such
special events or the addition of a new special event.
DB Contractor will not be entitled an increase in the Price for
additional costs incurred by DB Contractor due to changes to the
special events.

Third Party DB Contractor is entitled to a Change Order (a) to compensate

Agreements DB Contractor for certain additional costs incurred and (b) to
extend the applicable Completion Deadlines as the result of any
delay in a Critical Path, directly caused by modifications to DB
Contractor’s obligations resulting from new third party agreements

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 or modifications to existing third party agreements. DB Contractor
shall not be entitled to any relief for any new third party
agreements or modifications to existing third party agreements
unless the delays and the effects of such delays are beyond the
control of the DB Contractor-Related Entities.
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.
(See Other Relief Events section below for relief for modifications
to draft third party agreements included in the RIDs as of the
proposal due date.)

Eminent Domain DB Contractor shall be entitled to a Change Order to extend the

Delays applicable Completion Deadlines as a result of any failure by
TxDOT to make available portions of the ROW (other than DB
Contractor designated parcels) described 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. The risk of any such eminent domain
delay will 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, DB
Contractor shall be entitled to one day of time extension for each
day of eligible delay. DB Contractor’s responsibility for such
delays is subject to an aggregate cap as set forth in the DBC.
DB Contractor will be entitled to project overhead to be calculated
in accordance with the DBC for each day that a Completion
Deadline is extended. DB Contractor will not be entitled to an
increase in the Price for any other additional costs incurred as a
result of eminent domain delays.

Railroads [insert if railroad agreements will be required for the Project]

[TxDOT is responsible for obtaining construction and maintenance
agreements with the railroad(s) on the Project, provided however,
DB Contractor is responsible for obtaining any modifications
required due to DB Contractor’s ATCs or design.
DB Contractor is entitled to a Change Order (a) increasing the
Price to compensate the DB Contractor for any increase in costs
incurred and (b) extending the applicable Completion Deadline as
a result of any delay in the Critical Path, directly attributable to
material changes to the terms and conditions in the railroad-
related documents that will be included in the RIDs prior to the
Proposal Due Date to the extent such changes are required by a
railroad. 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

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 recoverable.
[Option 1: Insert if a Preliminary Exhibit A will be included in the
RIDs prior to the Proposal Due Date] [DB Contractor shall be
entitled to a time extension for delays due to the failure of TxDOT
and a railroad to execute a construction and maintenance
agreement within [●] [insert number of days to be determined by
project team] days after the Effective Date. 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.
[Option 2: Insert if a Preliminary Exhibit A will not be included in
the RIDs prior to the Proposal Due Date] [DB Contractor shall be
entitled to a time extension for delays due to the failure of TxDOT
and a railroad to execute a construction and maintenance
agreement within [●] [insert number of days between 120 and 270
to be determined by project team] days after the Effective Date.
DB Contractor will be entitled to delay and disruption damages for
delays to the Critical Path.
DB Contractor is entitled to a Change Order (a) increasing the
Price to compensate the DB Contractor for any increase in costs
incurred and (b) extending the applicable Completion Deadline as
a result of any delay in the Critical Path, directly attributable to a
railroad’s railure to comply with a railroad agreement between
TxDOT and the railroad, provided such failure is not due to the
acts or omissions of DB Contractor. 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.]

Deviations The DB Contractor may apply for TxDOT’s approval of Deviations

from applicable technical requirements regarding the Work. All
applications must be in writing. TxDOT has no obligation to
approve any such application. No Deviation is deemed approved
or effective unless and until stated in writing signed by TxDOT’s
Authorized Representative.
TxDOT’s lack of issuance of a written approval for any Deviation
within 14 days after DB Contractor’s application is deemed a
disapproval of such application.
TxDOT’s denial or disapproval of a requested Deviation is final
and not subject to dispute resolution procedures.
Any material change in the Basic Configuration must be approved
by TxDOT and authorized by a Change Order.

Nonconforming TxDOT may, but is not obligated to, accept Nonconforming Work
Work without requiring it to be fully corrected, in which case TxDOT is
entitled to reimbursement of a portion of the Price in accordance

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 with the Contract Documents.
Nonconforming Work rejected by TxDOT must be removed and
replaced so as to conform to the requirements of the Contract
Documents, at DB Contractor’s cost and without any adjustment
to the Price or any Completion Deadline or any other relief, and
DB Contractor must promptly take all action necessary to prevent
similar Nonconforming Work from occurring in the future.

TxDOT-Directed The DB Contractor is entitled to a Change Order providing for

Changes Price adjustment and/or a time extension for:
 changes in the scope of the Work or terms and conditions of
the Contract Documents
 suspensions of the Work by TxDOT for more than 48 hours
per suspension or 96 hours total
 any changes in the Work due to Errors in the Signed and
Sealed Engineering Data, unless such Errors were known to
the DB Contractor prior to the Effective Date
 [If TxDOT will provide level A SUE, include the following
language: any material differences between the actual location
of a Utility and the location of the Utility shown on a level A
SUE report identified in Appendix 2 to Exhibit 3 of the DBA,
unless such Error was known to DB Contractor prior to the
Effective Date.]
 [Optional language: Notwithstanding the foregoing, TxDOT
shall not be liable for any changes in the Scope of Work that
result in less than $10,000 in increased costs and such
changes shall not be considered TxDOT-Directed Changes.]

Hazardous The DB Contractor is not entitled to any compensation or time

Materials extension with respect to: (a) immaterial quantities, (b) Hazardous
Materials that could have been avoided by reasonable design
modifications or construction techniques, (c) costs that could have
been avoided, (d) Hazardous Materials on Additional Properties
designated by the DB Contractor, (e) Hazardous Materials
encountered during the demolition of buildings, structures, fixtures
or other improvements within the Site, (f) Hazardous Materials
management costs resulting from DB Contractor’s acts or
omissions, or (g) Hazardous Materials brought onto the Site by
the DB Contractor.
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

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 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
Contractor’s 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 Pre-
existing 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 the handling, transport, removal and disposal of
Hazardous Materials after completion of the testing process to
determine whether Hazardous Materials are present.
The DB Contractor is not entitled to additional compensation or an
extension of any Completion Deadline for the investigation and
characterization of Hazardous Materials, regardless of the total
quantities.
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.
As between TxDOT and the DB Contractor, TxDOT will be
considered the generator of Hazardous Materials and assume
generator responsibility for Hazardous Materials except for DB
Contractor Releases of Hazardous Materials.

Utilities The DB Contractor is responsible for performing all necessary

utility adjustment work and is not entitled to a Change Order for
performance of adjustment work that was initially anticipated to be
performed by a Utility Owner.
The DB Contractor is entitled to a Change Order (a) increasing
the Price to compensate the DB Contractor for any increase in
costs incurred in performing the Utility Adjustment Work that is
directly attributable to a New Utility and (b) extending the

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 applicable Completion Deadline as a result of any delay in the
Critical Path directly attributable to performing the Utility
Adjustment Work directly attributable to a New Utility.
DB Contractor is entitled to an increase in the Price in connection
with certain increases in the cost of the Work due to Unidentified
Utilities within the Schematic ROW. The amount of the Price
increase in any Change Order issued for each such Unidentified
Utility facility is equal to the Basic Costs for that facility, less the
Unidentified Utilities Deductible ($[●]) (which deductible amount is
the DB Contractor’s sole responsibility). Notwithstanding the
foregoing, DB Contractor is not responsible for a total amount of
Unidentified Utilities Deductibles in excess of the Unidentified
Utilities Deductible Cap ($[●]).
DB Contractor will be allowed a time extension due to certain
delays resulting from the need to relocate Unidentified Utilities,
delays caused by uncooperative Utility Owners and delays caused
by each Utility Owner that fails to comply with any timelines for the
Utility Owner’s performance in the executed Utility Agreement.
The cumulative risk of such delays will be shared between DB
Contractor and TxDOT, provided DB Contractor’s responsibility for
such delays is capped, as set forth in the DBC. Except for project
overhead to be calculated in accordance with the DBC for certain
days that a Completion Deadline is extended, delay and disruption
damages are not recoverable for such delays.
Subject to the limitations set forth in the DBC, DB Contractor may
request a Change Order to (a) increase the Price to compensate
the DB Contractor for any increase in costs incurred, including
project overhead and disruption damages, and (b) extend the
applicable Completion Deadlines as a result of any delay in the
Critical Path, directly attributable to changes to the scope of the
work for the Utility Adjustment from the scope of the work agreed
to by the Utility Owner in a Pre-Proposal Utility Commitment that
was made by an authorized representative of the Utility Owner
and approved by TxDOT prior to the due date for proposals for the
Project. Except for project overhead to be calculated in
accordance with the DBC for certain days that a Completion
Deadline is extended, delay and disruption damages are not
recoverable for such delays.
[insert if TxDOT has entered into an ILA for adjustment of
municipal Utilities that will be managed by DB Contractor][TxDOT
anticipates entering into an Utility ILA with [●] for the relocation of
[●].DB Contractor will be entitled to a Change Order extending
Completion Deadlines for delays to the Critical Path resulting from
the public Utility Owner’s failure to provide a required approval,
acceptance, or comment in connection with a design submittal
under the Utility ILA within the applicable time periods set forth in
such Utility ILA. The risk of such delays will be shared between
DB Contractor and TxDOT, provided DB Contractor’s

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 responsibility for such delays is capped, as set forth in the DBC. .]
[insert if TxDOT anticipates entering into any Advance Utility
Relocation Agreements] [TxDOT anticipates entering into an
Advance Utility Relocation Agreement with [●] for the relocation of
[●]. DB Contractor is entitled to a Change Order (a) increasing the
Price to compensate the DB Contractor for any increase in costs
incurred and (b) extending the applicable Completion Deadline as
a result of any failure by such Utility Owner to relocate its Utility in
accordance with any advance utility relocation agreement entered
into with TxDOT. 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.]

Force Majeure Subject to the following risk sharing, DB Contractor is entitled to

Events additional time and/or compensation for specified Relief Events,
including Force Majeure Events, that materially and adversely
affect DB Contractor’s obligations, provided such events are
beyond the control of the DB Contractor-Related Entities and are
not due to (1) an act, omission, negligence, recklessness or
intentional misconduct of or (2) breach of contract or Law or
violation of any Governmental Approval by, any of the DB
Contractor-Related Entities, and further provided that such events
(or the effects of such events) could not have been avoided by the
exercise of caution, due diligence, or reasonable efforts by any
DB Contractor-Related Entity.
The Force Majeure Events are:
(a) Any earthquake, tornado, hurricane or other natural disaster
that (i) causes direct physical damage to the Project and (ii) has
been proclaimed a disaster or state of emergency by the
President of the United States, the Governor of the State of
Texas, or a County Judge of a county in which the Project is
located, unless and to the extent such damage is caused by the
DB Contractor's action or inaction or the DB Contractor's means
and methods of construction;
(b) Any epidemic in the region around the Project;
(c) Any blockade, rebellion, war, riot, act of sabotage, act of
terrorism or civil commotion, in each case that causes direct
physical damage to the Project; and
(d) Any other cataclysmic phenomena of nature or cataclysmic
fire, as determined by TxDOT in its good faith discretion, that (i)
causes physical damage to the Project or (ii) prevents any access
to the Site.
The risk of such delays will be shared between DB Contractor and
TxDOT, provided DB Contractor’s responsibility for such delays is
capped, as set forth in the DBC. Except for project overhead to
be calculated in accordance with the DBC for days that a

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 Completion Deadline is extended, delay and disruption damages
are not recoverable.

Other Relief The DB Contractor will be entitled to additional time and/or

Events compensation for the following other Relief Events, in addition to
and subject to the same conditions as Force Majeure Events:
(a) The discovery at, near or on the Project ROW (excluding DB
Contractor-Designated ROW) of any archaeological,
paleontological or cultural resources provided that the existence of
such resources or substances was not disclosed in, or
ascertainable from, the RFP Documents, was not otherwise
known to DB Contractor prior to the Proposal Due Date and would
not have become known to DB Contractor by undertaking
reasonable investigation prior to the Proposal Due Date;
(b) The discovery at, near or on the Project ROW (excluding DB
Contractor-Designated ROW) of any species listed as a
Threatened or Endangered Species (regardless of whether the
species is listed as threatened or endangered as of the Proposal
Due Date), provided that the presence of such species was not
disclosed in, or ascertainable from, the RFP Documents, was not
otherwise known to DB Contractor prior to the Proposal Due Date
and would not have become known to DB Contractor by
undertaking reasonable investigation prior to the Proposal Due
Date;
(c) Any Change in Law, that (1) requires a material modification of
the Project design, (2) requires DB Contractor to obtain a new
major State or federal environmental approval not previously
required for the Project, (3) results in an increase in DB
Contractor’s costs directly attributable to the Change in Law of at
least $500,000, or (4) specifically targets the Project or DB
Contractor;
(d) Any Third Party Release of Hazardous Materials or TxDOT
Release of Hazardous Materials which: (1) occurs after the
Proposal Due Date (and for Third Party Releases, also after the
date TxDOT makes the parcel available to DB Contractor for the
Work) and before the end of the Term, (2) is required to be
reported to a Governmental Entity, (3) renders use of the roadway
or construction area unsafe or potentially unsafe absent
assessment, containment or remediation, and (4) with respect to
Third Party Releases of Hazardous Materials, does not result from
DB Contractor’s failure to exercise reasonable efforts to protect
the Site from third parties;
(e) Issuance of a temporary restraining order or other form of
injunction by a court that prohibits prosecution of a material
portion of the Work;
(f) The suspension, termination, interruption, modification, denial
or failure to obtain or non-renewal of any TxDOT-Provided

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 Approval, except to the extent that such suspension, termination,
interruption, modification, denial or failure to obtain or non-renewal
arises from failure by any DB Contractor-Related Entity to locate
or design the Project or carry out the work in accordance with the
TxDOT-Provided Approvals or other Governmental Approval;
(g) Modifications to a Governmental Approval that is DB
Contractor’s responsibility to obtain made by a Governmental
Entity after formal issuance of the Governmental Approval,
provided that the required modification is not due to changes to
the Project initiated by DB Contractor; and
(h) Modifications made after the Proposal Due Date to draft Third
Party Agreements included in the RIDs.
(i) Issuance of a new drainage permit by TxDOT that requires a
material modification of the Project design where either (1) DB
Contractor was not provided with the permit application or (2) DB
Contractor was provided with the permit application and timely
notified TxDOT of the specific conflict with DB Contractor’s
design.
[Add any additional Relief Events.]

Delay Deductible DB Contractor’s responsibility for delays to the Critical Path due to
Aggregate Cap qualifying delays (Uncooperative Utility Delay, Utility Owner Delay,
Differing Site Conditions Delay, Unidentified Utility Delay, Force
Majeure Event Delay, and Eminent Domain Delay) shall not
exceed [●][insert 10% - 25% of the number of days from NTP1
until the Substantial Completion Deadline] days (the “Delay
Deductible Aggregate Cap”). If the Delay Deductible Aggregate
cap is reached, DB Contractor will be entitled to a Change Order
extending the Completion Deadlines for each day of delay to the
Critical Path occurring after the Delay Deductible Aggregate Cap
is reached that results from a qualifying delay, as well as project
overhead to be calculated in accordance with the DBC for any
days the Completion Deadlines are extended.

Matters Not The DB Contractor is responsible for all risks not specifically
Eligible for accepted by TxDOT. Examples of specific exclusions are
Change Orders identified in the DBC.

BUSINESS RISKS

Insurance The DB Contractor is required to provide insurance coverage

specified in the DBC, which must include at a minimum: builder’s
risk, commercial general liability, automobile liability, pollution
liability, professional liability, workers’ compensation and
employer’s liability, umbrella liability, and railroad protective
liability.
Subcontractor insurance requirements are also specified in the

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 DBC.
TxDOT and their members, directors, officers, employees, agents
and Project consultants must be additional insureds, except on
the professional liability policy.

DB Contractor The following are examples of DB Contractor Defaults:

Defaults
 Failure to begin Work within 30 days following issuance of
NTP1 or NTP2, or failure to satisfy all conditions to
commencement of the Construction Work, and commence the
Construction Work with diligence and continuity
 Failure to complete the Work by the applicable Completion
Deadline
 Failure to perform the Work in accordance with the Contract
Documents
 Suspending or ceasing the Work or failure to continuously and
diligently prosecute the Work
 Failure to obtain or maintain any insurance, bonds,
guarantees, letters of credit (if any) or other performance
security as and when required under the DBC
 Voluntary or involuntary assignment or transfer of all or any
portion of the DBC without TxDOT’s prior written consent
 Failure to make payment when due for labor or equipment or
failure to make payment to TxDOT when due of any amounts
owing to TxDOT
 Failure to timely observe or perform any other material
obligation, term, or condition under the DBC
 Material misrepresentation by the DB Contractor
 Voluntary or involuntary bankruptcy or insolvency
 DB Contractor or, if DB Contractor is a joint venture, any
Equity Member knowingly or intentionally fails to comply with a
requirement of Subchapter J, Chapter 552, Government Code
that is applicable to DB Contractor.
 [Include the following language if Non-Compliance Points are
included in the DBA: Persistent DB Contractor Default]

Cure of DB The DB Contractor has an opportunity to cure certain DB

Contractor Contractor Defaults, as described in the DBC.
Defaults

TxDOT Remedies TxDOT has the right to exercise one or more of the following
for DB Contractor remedies in the event of an uncured DB Contractor Default:
Default
 Right to terminate

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
  Right to deduct amounts (including interest) payable to TxDOT
from amounts owing to the DB Contractor
 Right to take immediate action in the event of emergency or
danger
 Right to recover damages
 Right to make demand upon, draw on, enforce and collect any
bonds, letters of credit, guaranty, or other performance
security available to TxDOT for DB Contractor Default
 Other remedies as provided by Law

DB Contractor’s The DB Contractor has the right to stop Work if TxDOT fails to
Right to Stop make an undisputed payment within 15 Business Days after
Work TxDOT’s receipt of written notice of nonpayment from the DB
Contractor. If such nonpayment continues for more than 180
days, upon written notice from the DB Contractor to TxDOT, the
nonpayment may be deemed a Termination for Convenience.

Suspension TxDOT may order the DB Contractor to suspend all or any part of
the Work for the period of time that TxDOT deems appropriate.
Such suspension for convenience will be considered a TxDOT-
Directed Change, except for brief suspensions (not exceeding 48
hours each up to a total of 96 hours). Adjustments of the Price
and the Completion Deadlines are available for any such TxDOT-
Directed Change.

Termination The DB Contractor may terminate the DBC if NTP1 has not been
issued by TxDOT within 365 days after the Effective Date.
TxDOT may terminate the DBC for convenience or for the DB
Contractor’s default.

Liquidated Liquidated Damages for Delay: DB Contractor will pay liquidated

Damages damages to TxDOT with respect to any failure to achieve
Substantial Completion [If the project is tolled, include the
following language here: Toll Zone Completion] and/or Final
Acceptance by the applicable Completion Deadline unless the
delay was directly attributable to a Qualifying Delay. The daily
amounts of such liquidated damages are set forth in the DBA.
Qualifying Delay Late Fees: DB Contractor will pay liquidated
damages to TxDOT with respect to any failure to achieve
Substantial Completion [If the project is tolled, include the
following language here: Toll Zone Completion] and/or Final
Acceptance by the applicable Completion Deadline due to a
Qualifying Delay. The daily amounts of such Qualifying Delay
Late Fees are set forth in the DBA.
Lane Closures, Lane Rental Charges and Liquidated Damages:
Liquidated damages for Lane Closures and Lane Rental Charges

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 are set forth in the DBC. [The DBA will include a Lane Rental
Bank against which the Lane Rental Charges will apply.]
Key Personnel Change Fees: Fees will be assessed, as set forth
in the DBC, if DB Contractor changes Key Personnel, regardless
of whether TxDOT approves a replacement.
Key Personnel Unavailability Liquidated Damages: Liquidated
damages will be assessed, as set forth in the DBC, for each day
that a relevant Key Personnel role is not filled by an approved
individual.
[If the project plan of finance includes TIFIA, include the following
language here:
TIFIA Requirements: DB Contractor will be assessed liquidated
damages in the event DB Contractor’s failure to comply with the
TIFIA-related obligations under the DBA result in TxDOT’s inability
to obtain a TIFIA loan.]

Non-Compliance [Include this Non-Compliance Points summary if applicable to the

Points project.] The performance of the Work is subject to Non-
Compliance Points, as set forth in the DBA. Non-Compliance
Points may be assessed by TxDOT for certain breaches of the
Contract Documents. The DB Contractor will be assessed
liquidated damages for certain point thresholds. In addition,
TxDOT will have the right to terminate the DBC for a DB
Contractor Persistent Default evidenced by the accumulation of a
certain number of Non-Compliance Points within a rolling 180-day
period.

Indemnification The DB Contractor shall indemnify, defend, and hold harmless

TxDOT, the State of Texas, the Texas Transportation
Commission, FHWA, TxDOT consultants, and their respective
successors, assigns, officeholders, officers, directors, agents,
representatives, consultants and employees for the actual or
alleged culpable act, error, omission, negligence, breach, or
misconduct of any DB Contractor-related entity in or associated
with performance of the Work, any actual or threatened release of
hazardous materials, breach of the DBC, and failure to comply
with applicable Laws or Governmental Approvals, among other
things.

OTHER CONTRACT PROVISIONS

TIFIA [If the project plan of finance includes TIFIA, include the following
Requirements language here:
TxDOT intends to apply for a TIFIA loan from the United States
Department of Transportation pursuant to a loan agreement and
related documents for the purpose of funding all or a portion of the
Project (“TIFIA Loan Agreement”). In the event TxDOT elects to

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020
 negotiate a TIFIA Loan Agreement, DB Contractor shall be
required to comply with certain obligations related to the TIFIA
Loan Agreement, including the making of representations and
warranties regarding claims, default and debarment, as well as
compliance by the DB Contractor and its affiliates with certain
federal laws. Failure to comply with TIFIA-related obligations may
result in liquidated damages, withholding of payments or
termination of the DBC for default.

Dispute Informal resolution procedures and compliance with the Dispute

Resolution Review Panel procedures are prerequisites and conditions to
resolution of Disputes under the Dispute Resolution Procedures
set forth in the DBC.
A three-member Disputes Review Panel (Panel) will be
established to assist TxDOT and DB Contractor with the
resolution of any Disputes that arise during the term of the DBC.
TxDOT and DB Contractor will each appoint one Panel member,
and the two party-appointed Panel members will appoint a Panel
Chairperson. The Panel will meet with TxDOT and DB Contractor
and inspect the Project site on at least a quarterly basis and will
provide non-binding recommendations regarding any Dispute
raised by a party.
If a Dispute is not timely resolved after a recommendation is
provided by the Panel, the parties must commence the Informal
Resolution Procedures, during which the officers/directors of the
parties will meet to attempt to resolve the Dispute. After the
conclusion of the Informal Resolution Procedures, if the Dispute
was not resolved to the Parties’ satisfaction: (a) the Parties may
mutually agree to initiate mediation, or (b) either Party may refer
the Dispute to the formal Dispute Resolution Procedures.
The formal Dispute Resolution Procedures include the contract
claims process established pursuant to Texas Transportation
Code Section 201.112 and Title 43, Texas Administrative Code,
Section 9.2.
The Disputes Review Panel procedures and Dispute Resolution
Procedures do not apply to certain Ineligible Matters.

Records and The DB Contractor must submit all submittals to TxDOT through
Documentation TxDOT’s electronic content management system.
In addition, the DB Contractor must maintain all project records
and documents on its own electronic data management system in
accordance with Texas State Records Retention Schedule. DB
Contractor is required to provide certain contracting information if
requested by TxDOT as a result of a request pursuant to the
Public Information Act.
The DB Contractor may be required to purchase additional

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 software as required for the Project.

Escrowed The DB Contractor’s detailed Proposal pricing information (EPDs)

Proposal will be kept at TxDOT’s project office in locked fireproof cabinets
Documents with the keys held only by the DB Contractor.
(“EPD”)
EPDs are the property of the DB Contractor and will be
considered to be in the DB Contractor’s possession.
EPDs must be available for joint review by DB Contractor, TxDOT
and TxDOT’s consultants, and any dispute resolver(s).
Change Order documentation must be added to EPDs.
EPDs will be maintained until all of the following have occurred:
(a) 180 days from the later of Final Acceptance or termination of
the DBC, (b) all Claims or Disputes regarding the Work have been
settled, (c) all Warranty Terms have expired, and (d) Final
Payment has been made and accepted.

DBE Provisions; TxDOT’s Disadvantaged Business Enterprise (“DBE”) Program for

Subcontractors design-build contracts is based on TxDOT’s standard DBE
Program with certain modifications to accommodate the design-
build approach.
The DB Contractor must exercise good faith efforts to achieve the
DBE participation goal for the Project through implementation of
DB Contractor’s approved DBE Performance Plan.
The DB Contractor may only retain Subcontractors that are
qualified, experienced and capable in the performance of the
portion of the Work assigned. After execution of the DBC, the DB
Contractor must select subcontractors based on procedures
approved by TxDOT.
DB Contractor must provide 100% of any cost savings to TxDOT,
if the DB Contractor replaces a Subcontractor that is identified in
the Proposal, unless the replacement is for a reason that is
specified in the DBC.
The DB Contractor is required to include flow down required terms
into subcontracts. Subcontracts must be fully assignable to
TxDOT. Dispute procedures involving Subcontractors must
contain additional requirements.

Key Personnel Certain job categories of Key Personnel for the Project are
identified. Except for certain reasons specified in the DBC, Key
Personnel may not be substituted. Liquidated damages may be
assessed for unavailability of Key Personnel.

Assignment The DB Contractor may not assign its interests in the DBC without
TxDOT’s prior written approval.
TxDOT may assign its interests in the DBC: (a) without the DB

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 Contractor’s consent, to any other public agency or public entity
as permitted by Law, (b) without the DB Contractor’s consent, to
any other Person that succeeds to the governmental powers and
authority of TxDOT, and (c) to any other Person with the prior
written approval of the DB Contractor.

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[Project Name] Design-Build Contract Term Sheet
[Date] Version 4.0 – September 4, 2020