Common use of Department Delays Treated as Department Changes Clause in Contracts

Department Delays Treated as Department Changes. (i) The Concessionaire may submit to the Department a request for Change Order if the Design Build Contractor incurs a material increase of its construction costs or incurs a material impact to the critical path which delays the Guaranteed Substantial Completion Date due to a material breach or an inexcusable delay by the Department in performing any of its obligations described in Article 7 of this Agreement. For the purposes of this Section, an “inexcusable delay” shall mean a delay that is attributable solely to error or omission of the Department, and an inexcusable delay or a material breach specifically excludes delay or breach attributable to: (a) the submission of incomplete documentation for the Department’s review, (b) required review or approvals from other Governmental Authorities necessary or appropriate to the Department’s review, (c) failure to obtain appropriation and allocation of public funds, (d) consumption of available float, (e) submittals or requests that are "deemed approved" if no response is provided within 21 days, or (f) force majeure events. A response pursuant to Section 7.06(k) shall not be considered “deemed approved”, and shall not be considered an “inexcusable delay” in the event that a delay is attributable to items (a) through (f) above or is not attributable solely to error or omission of the Department. (ii) The Concessionaire shall submit its request for Change Order within 21 days after the occurrence giving rise to the request for adjustment or relief. The request for Change Order shall include sufficient information to advise Department of the circumstances giving rise to the request for adjustment and the basis of such request. (iii) If the Department determines the Concessionaire is entitled to cost relief, the Concessionaire shall be entitled to recover only the direct costs reasonably and necessarily incurred by the Design Build Contractor as a direct result of the Department’s delay. However, under no circumstances will such recoverable costs include home office overhead incurred by the Design Build Contractor’s member companies or financing costs. (iv) The Concessionaire’s request for Change Order may include the price escalation for materials only if the Department’s delay causes the Guaranteed Substantial Completion Date to be delayed by at least one year and such delay is not attributable to the actions or negligence of the Concessionaire, a Concessionaire Party, or the Design Build Contractor. (v) The Department may extend the Guaranteed Substantial Completion Date only if its delay results in a material impact to the critical path set forth in the Baseline Schedule. (vi) If for any reason the Concessionaire fails to deliver the request for Change Order within the time period specified in Section 7.12(e)(ii), the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to cost or schedule relief attributable to any such alleged Department delay or breach. (vii) If the Department grants to the Concessionaire cost relief, schedule relief, or both, the Concessionaire shall pass such relief to the Design Build Contractor pursuant to the terms of the Design-Build Contract. (viii) If the authorized project representatives of the Concessionaire and the Department fail to agree on the terms of any Change Order submitted pursuant to this Section 7.12(e) within 60 days after the request is received by the Department the matter shall be resolved at the discretion of the Department’s Chief Engineer. Otherwise, the Concessionaire’s sole recourse shall be litigation in accordance with Sections 17.06(c) and 17.06(d).

Department Delays Treated as Department Changes. (i) The Concessionaire may submit to the Department a request for Change Order if the Design Design-Build Contractor incurs a material increase of its construction costs or incurs a material impact to the critical path which delays the Guaranteed Substantial Completion Date or the NEXT Guaranteed Final Completion Date, as applicable, due to a material breach or an inexcusable delay by the Department in performing any of its obligations described in Article 7 of this Agreement. For the purposes of this Section, an “inexcusable delay” shall mean a delay that is attributable solely to error or omission of the Department, and an inexcusable delay or a material breach specifically excludes delay or breach attributable to: (a) the submission of incomplete documentation for the Department’s review, (b) required review or approvals from other Governmental Authorities necessary or appropriate to the Department’s review, (c) failure to obtain appropriation and allocation of public funds, (d) consumption of available float, (e) submittals or requests that are "“deemed approved" ” if no response is provided within 21 days, or (f) force majeure events. A response pursuant to Section 7.06(k) shall not be considered “deemed approved”, and shall not be considered an “inexcusable delay” in the event that a delay is attributable to items (a) through (f) above or is not attributable solely to error or omission of the Department. (ii) The Concessionaire shall submit its request for Change Order within 21 days after the occurrence giving rise to the request for adjustment or relief. The request for Change Order shall include sufficient information to advise Department of the circumstances giving rise to the request for adjustment and the basis of such request. (iii) If the Department determines the Concessionaire is entitled to cost relief, the Concessionaire shall be entitled to recover only the direct costs reasonably and necessarily incurred by the Design Design-Build Contractor as a direct result of the Department’s delay. However, under no circumstances will such recoverable costs include home office overhead incurred by the Design Design-Build Contractor’s member companies or financing costs. (iv) The Concessionaire’s request for Change Order may include the price escalation for materials only if the Department’s delay causes the Guaranteed Substantial Completion Date or the NEXT Guaranteed Final Completion Date, as applicable, to be delayed by at least one year and such delay is not attributable to the actions or negligence of the Concessionaire, a Concessionaire Party, or the Design Design-Build Contractor. (v) The Department may extend the Guaranteed Substantial Completion Date or the NEXT Guaranteed Final Completion Date, as applicable, only if its the Department’s delay results in a material impact to the critical path set forth in the applicable Baseline Schedule. (vi) If for any reason the Concessionaire fails to deliver the request for Change Order within the time period specified in Section 7.12(e)(ii), the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to cost or schedule relief attributable to any such alleged Department delay or breachdelay. (vii) If the Department grants to the Concessionaire cost relief, schedule relief, or both, the Concessionaire shall pass such relief to the Design Design-Build Contractor pursuant to the terms of the Design-Build Contract. (viii) If the authorized project representatives of the Concessionaire and the Department fail to agree on the terms of any Change Order submitted pursuant to this Section 7.12(e) within 60 days after the request is received by the Department the matter shall be resolved at the discretion of the Department’s Chief Engineer. Otherwise, the Concessionaire’s sole recourse shall be litigation in accordance with Sections 17.06(c) and 17.06(d).