Assessment of Noncompliance Points. If TxDOT is notified or otherwise becomes aware of a Noncompliance Event or if TxDOT serves a Notice of Determination under Section 2.2, TxDOT may assess Noncompliance Points in accordance with the Noncompliance Events Table, subject to the following:
(a) For each Noncompliance Event for which an NCE Cure Period is identified in the Noncompliance Events Table (Category A or B), that is not a late, incomplete or defective Submittal, provided that the Noncompliance Event is not cured, Noncompliance Points shall first be assessed at the end of the first NCE Cure Period.
(b) For each Noncompliance Event for which an NCE Cure Period is identified in the Noncompliance Events Table (Category A or B) that is a late, incomplete, or defective Submittal, Noncompliance Points shall first be assessed at the date of expiration of the time period or milestone event required by the CMC Documents for the Submittal.
(c) For each Noncompliance Event for which there is no NCE Cure Period identified in the Noncompliance Events Table (Category C), Noncompliance Points shall be assessed on the date on which the breach or failure occurred. Each subsequent instance of a breach or failure assessed against the same line item in the Noncompliance Events Table will be treated as a separate Noncompliance Event.
(d) If a Noncompliance Event for which an NCE Cure Period is provided in the Noncompliance Events Table (Category A or B) is not fully cured within the applicable NCE Cure Period then continuation of such Noncompliance Event beyond such NCE Cure Period shall be treated as a new and separate Noncompliance Event, without necessity for further notice, for the purpose of assessing Noncompliance Points. Additionally, without further notice, (i) a new cure period equal to the NCE Cure Period set forth in the Noncompliance Events Table shall apply upon expiration of the NCE Cure Period, and (ii) if applicable, additional Noncompliance Charges shall be assessed against DB Contractor in accordance with Section 8 and deducted from the applicable monthly payment for the Maintenance Services.
(e) For the purpose of assessing Noncompliance Points, a failure by DB Contractor to report to TxDOT and to keep an accurate record of a Noncompliance Event as and when required under Section 2.1 of this Exhibit 9 constitutes a distinct failure to perform separate from and in addition to the subject Noncompliance Event itself.
(f) TxDOT may, but is not obligated to, assess fewer than the maximum number...
Assessment of Noncompliance Points. 11.3.1 Each Noncompliance Event shall accrue Noncompliance Points in accordance with the following principles:
11.3.1.1 In respect of a Noncompliance Event that has a Cure Period, for each full or part Cure Period arising between the Noncompliance Start Date and the Noncompliance Rectification Date, the Noncompliance Event shall, subject to Section 11.3.1.3, accrue the number of Noncompliance Points set out against that Noncompliance Event in Exhibit 7 (Non-Compliance Points Tables).
11.3.1.2 All Noncompliance Points in respect of a Cure Period shall be deemed to accrue in the month that the relevant Cure Period commenced.
11.3.1.3 To the extent that any Noncompliance Event benefits from a Grace Period and the Noncompliance Rectification Date occurs within the relevant Grace Period, such Noncompliance Event shall not accrue any Noncompliance Points.
11.3.1.4 In respect of a Noncompliance Event that has no Cure Period, that Noncompliance Event shall accrue the number of Noncompliance Points set out against that Noncompliance Event in Exhibit 7 (Non-Compliance Points Tables), but shall not attract any further Noncompliance Points during the period that such Noncompliance Events continue to subsist. Notwithstanding the foregoing, any subsequent recurrence of the same Noncompliance Event shall be treated as a separate Noncompliance Event and shall accrue Noncompliance Points.
11.3.1.5 To the extent that any breach or failure to perform obligations under the Project Documents would cause simultaneous occurrence of more than one Noncompliance Event (including, without limitation, with respect to a Noncompliance Event that appears in both Tables 7.1 and
Assessment of Noncompliance Points. 6.3.1 If at any time (a) any report indicates or the Department is notified or otherwise becomes aware of a Noncompliance or (b) the Department serves notice of determination under Section 6.2.2, then, without prejudice to any other right or remedy available to the Department, the Department may assess Noncompliance Points in accordance with Appendix 5, as revised from time to time, subject to the following terms and conditions:
6.3.1.1 The date of assessment shall be deemed to be the date of the initial notification under Section 6.2.
6.3.1.2 The number of points listed in Appendix 5 for any particular Noncompliance is the maximum number of Noncompliance Points that may be assessed for each event or circumstance that is a Noncompliance. The Department may, but is not obligated to, assess less than the maximum.
6.3.1.3 Upon occurrence of the Noncompliance entitling the Department to assess Noncompliance Points, and to the extent the Department has determined to assess Noncompliance Points, the Department shall only allocate the percent thereof set forth in the following table prior to expiration of the applicable cure period. If the Noncompliance is not fully and completely cured by the expiration of the applicable cure period, the remaining percentage of Noncompliance Points indicated in the following table shall be deemed assessed, without further notice.
6.3.1.4 For the purpose of applying the foregoing table, if the Department, on the one hand, and Developer, on the other hand, deliver concurrent written notices under Section 6.2 of the same Noncompliance, Developer’s notice shall prevail. Notices shall be deemed to be concurrent if each sends its written notice before actually receiving the written notice from the other. Knowledge of the other’s written notice obtained prior to actual receipt of the notice shall have no effect on determining whether concurrent notice has occurred.
6.3.1.5 Appendix 5 assigns certain instances of Noncompliance a fast cure period, which is a shorter cure period within the full cure period allowed for the associated Noncompliance (“Fast Cure Period”). If the Department has delivered to Developer a notice of determination under Section 6.2.2 for one of the instances of Noncompliance that has a Fast Cure Period assigned to it in Appendix 5, and if Developer cures the relevant Noncompliance within the Fast Cure Period, the Department will assess Noncompliance Points at the rate of 50% of the Noncompliance Points that would o...
Assessment of Noncompliance Points. Subject to Exhibit 14 (Payment Mechanism), Noncompliance Points may be assessed in accordance with the principles set forth in this Section 22.4 (Assessment of Noncompliance Points).
Assessment of Noncompliance Points. Subject to Section 4.4(c), if at any time a Noncompliance Event:
Assessment of Noncompliance Points. If (a) the electronic data base or Operations Report (or more frequent report) indicates or IFA is notified or otherwise becomes aware of a Noncompliance Event or (b) IFA serves Notice of Determination under Section 11.2.2, IFA may assess Noncompliance Points in accordance with Exhibit 12 (Noncompliance Points System and Persistent Developer Default), subject to the following terms and conditions.
11.3.1 The date of assessment shall be deemed to be the date of the initial Notice under Section 11.2.
11.3.2 IFA shall not be entitled to assess Noncompliance Points under more than one assessment category for any particular Noncompliance Event.
11.3.3 A failure by Developer to keep record of or report to IFA a Noncompliance Event as and when required under Section 11.2.1.1
Assessment of Noncompliance Points
