Common use of Damage to the Project Clause in Contracts

Damage to the Project. 3.8.3.1 DB Contractor shall be excused from its obligation to repair direct physical loss or damage to the Project, including debris removal, to the extent such damage is directly attributable to and resulting from any of the following events, provided (1) the event is beyond the control of the DB Contractor-Related Entities, (2) the event is not due to an act, omission, negligence, recklessness, willful misconduct, breach of contract or Law of any DB Contractor-Related Entity, and (3) the event (or the effects of such event) could not have been avoided or mitigated by the exercise of caution, due diligence, or reasonable efforts by DB Contractor: (a) except as set forth in Section 32.5 of the Design-Build Specifications, the acts of third parties (not including DB Contractor-Related Entities or other parties acting on behalf of DB Contractor), including (i) collision with the Project by aircraft, ships, watercraft, trains, vehicles or other equipment; (ii) riot or civil commotion; (iii) vandalism; (iv) leakage from fire extinguishing equipment; and (v) terrorism; and (b) the following events: (i) lightning; (ii) explosion; (iii) fire; (iv) collapse or “sinkhole collapse”; (v) volcanic action; (vi) windstorm or hail; (vii) earthquake; (viii) tsunami; (ix) hurricane; (x) tornado; and (xi) any other natural disaster that 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. 3.8.3.2 In no event shall DB Contractor be excused from its obligation to perform a repair under the Performance Warranty for Warranty Defects caused by any of the following: (a) normal wear and tear (regardless of the amount or type of traffic on the Project); (b) settling, cracking, bulging, shrinkage or expansion of any portion of the Project; (c) rust, or other corrosion, decay, deterioration; (d) hidden, latent or patent defects; or (e) faulty Work, design defects, or other faulty workmanship or materials in the Work, as such term is defined in the Design-Build Contract.

Damage to the Project. 3.8.3.1 Subject to the restrictions and limitations set forth in this Section 10 and subject to TxDOT’s rights set forth in Sections 3.3.1.3, 3.4.2.2, and 3.4.2.3, DB Contractor shall be excused from entitled to a Change Order for its obligation reasonable and documented costs to repair direct physical loss or damage to any of the Project, including debris removal, Maintained Elements to the extent set forth in this Section 10.8.3. 10.8.3.1 DB Contractor shall be entitled to a Change Order for its costs to repair direct physical damage to the extent such damage is directly attributable to and resulting from any of the following events, provided (1) the event is beyond the control of the DB Contractor-Related Entities, (2) the event Entities and is not due to an act, omission, negligence, recklessness, willful misconduct, breach of contract or Law of any DB Contractor-Related Entity, and (3) the further that such event (or the effects of such event) could not have been avoided or mitigated by the exercise of caution, due diligence, or reasonable efforts by DB Contractor: (a) except as set forth in Section 32.5 of the Design-Build Specifications, the acts of third parties (not including DB Contractor-Related Entities or other parties acting on behalf of DB Contractor), including (i) collision with the Project by aircraft, ships, watercraft, trains, vehicles or other equipment; (ii) riot or civil commotion; (iii) vandalism; (iv) leakage from fire extinguishing equipment; and (v) terrorism; and (b) the following events: (i) lightning; (ii) explosion; (iii) fire; (iv) collapse or “sinkhole collapse”; (v) volcanic action; (vi) windstorm or hail; (vii) earthquake; (viii) tsunami; (ix) hurricane; (x) tornado; and (xi) any other natural disaster that 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. 3.8.3.2 10.8.3.2 In no event event, shall DB Contractor be excused from its obligation entitled to perform a repair under the Performance Warranty Change Order for Warranty Defects increased costs caused by any of the following: : (a) normal wear and tear (regardless of the amount or type of traffic on the Project); ; (b) settling, cracking, bulging, shrinkage or expansion of any portion of the Project; ; (c) rust, or other corrosion, decay, deterioration; ; (d) hidden, latent or patent defects; or or (e) faulty Work, design defects, or other faulty workmanship or materials in the Work, as such term is defined in the Design-Build ContractDBC. 10.8.3.3 If damage to a Maintained Element occurs, DB Contractor shall immediately notify TxDOT thereof telephonically or in person, to be followed immediately by written notification. DB Contractor shall be responsible for determining the appropriate action to be undertaken, subject to concurrence by TxDOT. In the event that any Governmental Approvals specify a procedure to be followed, DB Contractor shall follow the procedure set forth in the Governmental Approvals. 10.8.3.4 DB Contractor shall bear the burden of proving that damage to the Maintained Elements meeting the requirements of and subject to the limitations in this Section 10.8.3 has occurred.

Damage to the Project. 3.8.3.1 DB Contractor shall be excused from its obligation to repair direct physical loss or damage to the Project, including debris removal, to the extent such damage is directly attributable to and resulting from any of the following events, provided (1) the event is beyond the control of the DB Contractor-Related Entities, (2) the event is not due to an act, omission, negligence, recklessness, willful misconduct, breach of contract or Law of any DB Contractor-Related Entity, and (3) the event (or the effects of such event) could not have been avoided or mitigated by the exercise of caution, due diligence, or reasonable efforts by DB Contractor: (a) except as set forth in Section 32.5 of the Design-Build Specifications, the acts of third parties (not including DB Contractor-Related Entities or other parties acting on behalf of DB Contractor), including including (i) collision with the Project by aircraft, ships, watercraft, trains, vehicles or other equipment; (ii) riot or civil commotion; (iii) vandalism; (iv) leakage from fire extinguishing equipment; and (v) terrorism; and (b) the following events: (i) lightning; (ii) explosion; (iii) fire; (iv) collapse or “sinkhole collapse”; (v) volcanic action; (vi) windstorm or hail; (vii) earthquake; (viii) tsunami; (ix) hurricane; (x) tornado; and (xi) any other natural disaster that 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. 3.8.3.2 In no event shall DB Contractor be excused from its obligation to perform a repair under the Performance Warranty for Warranty Defects caused by any of the following: (a) normal wear and tear (regardless of the amount or type of traffic on the Project); (b) settling, cracking, bulging, shrinkage or expansion of any portion of the Project; (c) rust, or other corrosion, decay, deterioration; (d) hidden, latent or patent defects; or (e) faulty Work, design defects, or other faulty workmanship or materials in the Work, as such term is defined in the Design-Build Contract.

Damage to the Project. 3.8.3.1 Subject to the restrictions and limitations set forth in this Section 10 and subject to TxDOT’s rights set forth in Sections 3.3.1.3, 3.4.2.2, and 3.4.2.3, DB Contractor shall be excused from entitled to a Change Order for its obligation reasonable and documented costs to repair direct physical loss or damage to any of the Project, including debris removal, Maintained Elements to the extent set forth in this Section 10.8.3. 10.8.3.1 DB Contractor shall be entitled to a Change Order for its costs to repair direct physical damage to the extent such damage is directly attributable to and resulting from any of the following events, provided (1) the event is beyond the control of the DB Contractor-Related Entities, (2) the event Entities and is not due to an act, omission, negligence, recklessness, willful misconduct, breach of contract or Law of any DB Contractor-Related Entity, and (3) the further that such event (or the effects of such event) could not have been avoided or mitigated by the exercise of caution, due diligence, or reasonable efforts by DB Contractor: (a) except as set forth in Section 32.5 of the Design-Build Specifications, the acts of third parties (not including DB Contractor-Related Entities or other parties acting on behalf of DB Contractor), including (i) collision with the Project by aircraft, ships, watercraft, trains, vehicles or other equipment; (ii) riot or civil commotion; (iii) vandalism; (iv) leakage from fire extinguishing equipment; and (v) terrorism; and (b) the following events: (i) lightning; (ii) explosion; (iii) fire; (iv) collapse or “sinkhole collapse”; (v) volcanic action; (vi) windstorm or hail; (vii) earthquake; (viii) tsunami; (ix) hurricane; (x) tornado; and (xi) any other natural disaster that 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. 3.8.3.2 10.8.3.2 In no event event, shall DB Contractor be excused from its obligation entitled to perform a repair under the Performance Warranty Change Order for Warranty Defects increased costs caused by any of the following: : (a) normal wear and tear (regardless of the amount or type of traffic on the Project); ; (b) settling, cracking, bulging, shrinkage or expansion of any portion of the Project; ; (c) rust, or other corrosion, decay, deterioration; ; (d) hidden, latent or patent defects; or or (e) faulty Work, design defects, or other faulty workmanship or materials in the Work, as such term is defined in the Design-Build ContractDBC. 10.8.3.3 If damage to a Maintained Element occurs, DB Contractor shall immediately notify TxDOT thereof telephonically or in person, to be followed immediately by written notification. DB Contractor shall be responsible for determining the appropriate action to be undertaken, subject to concurrence by

Damage to the Project. 3.8.3.1 4.5.11.3.1 Subject to the restrictions and limitations set forth in this Section 4.5 hereof and Section 5 of the CMA, DB Contractor shall be excused from entitled to a Change Order for its obligation reasonable and documented costs to repair direct physical damage to any of the Maintained Elements to the extent set forth in this Section 4.5.11.3. 4.5.11.3.2 DB Contractor shall be entitled to a Change Order for its costs to repair direct physical loss or damage to the Projectdamage, including debris removal, to the extent such damage is directly attributable to and resulting from any of the following events, provided (1) the event is beyond the control of the DB Contractor-Related Entities, (2) the event is not due to an act, omission, negligence, recklessness, willful misconduct, breach of contract or Law of any DB Contractor-Related Entity, and (3) the event (or the effects of such event) could not have been avoided or mitigated by the exercise of caution, due diligence, or reasonable efforts by DB Contractor:, and (4) the reasonable costs to repair the direct physical loss or damage, including debris removal, resulting from the event exceeds the Project Damage Deductible (as adjusted in accordance with changes to CPI commencing on the Effective Date and annually thereafter on each anniversary of the Effective Date): (a) except as set forth in Section 32.5 of the Design-Build Specifications, the acts of third parties (not including DB Contractor-Related Entities or other parties acting on behalf of DB Contractor), including (i) collision with the Project by aircraft, ships, watercraft, trains, vehicles or other equipment; (ii) riot or civil commotion; (iii) vandalism; (iv) leakage from fire extinguishing equipment; and (v) terrorism; and (b) the following events: (i) lightning; (ii) explosion; (iii) fire; (iv) collapse or “sinkhole collapse”; (v) volcanic action; (vi) windstorm or hail; (vii) earthquake; (viii) tsunami; (ix) hurricane; (x) tornado; and (xi) any other natural disaster that 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. 3.8.3.2 In no event shall DB Contractor be excused from its obligation to perform a repair under the Performance Warranty for Warranty Defects caused by any of the following: (a) normal wear and tear (regardless of the amount or type of traffic on the Project); (b) settling, cracking, bulging, shrinkage or expansion of any portion of the Project; (c) rust, or other corrosion, decay, deterioration; (d) hidden, latent or patent defects; or (e) faulty Work, design defects, or other faulty workmanship or materials in the Work, as such term is defined in the Design-Build Contract.