Development of the Facility. 7.1 General Obligations of Developer 7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines; 7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives; 7.1.3 Comply with, and require that all Contractors comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended; 7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and 7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate. 7.2 Performance, Design and Construction Standards; Deviations 7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or Utility Adjustments included in the Construction Work in 7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan. 7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation. 7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;and
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.the
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;TxDOT
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.the
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;and
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.the
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement Technical Documents or Safety Standards encompass matters that are addressed in the Technical Provisions or Technical Documents as of the Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall not be obligated to (but may) incorporate the same into its design and construction of the Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the
7.2.5 References in the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event manuals or other Claim, unless (a) Developer neither knew nor had reason to know prior to publications governing the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a change TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the need for Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the change was discovered subject of concession or suspectedpublic-private partnership agreements. TxDOT shall have the right to add such changed, added or should have been discovered replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or suspected through replacement Technical Documents or Safety Standards encompass matters that are addressed in the exercise Technical Provisions or Technical Documents as of reasonable carethe Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall bear any additional costs associated with redoing not be obligated to (but may) incorporate the Work already performed. Inconsistent or conflicting provisions same into its design and construction of the CDA Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall not be treated as erroneous provisions Changes in Law (including, to the extent expressly provided under this other sections of
7.2.8 Refer to Section 7.2.4, but instead shall be governed 12.4 for the timing by Section 1.2which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.the
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement Technical Documents or Safety Standards encompass matters that are addressed in the Technical Provisions or Technical Documents as of the Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall not be obligated to (but may) incorporate the same into its design and construction of the Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason Developer
7.2.5 References in the Technical Provisions or Technical Documents to know prior to manuals or other publications governing the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a change TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the need for Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the change was discovered subject of concession or suspectedpublic-private partnership agreements. TxDOT shall have the right to add such changed, added or should have been discovered replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or suspected through replacement Technical Documents or Safety Standards encompass matters that are addressed in the exercise Technical Provisions or Technical Documents as of reasonable carethe Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall bear any additional costs associated with redoing not be obligated to (but may) incorporate the Work already performed. Inconsistent or conflicting provisions same into its design and construction of the CDA Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall not be treated as erroneous provisions Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 7.2.4, but instead shall be governed 12.4 for the timing by Section 1.2which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA FA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during constructionconstruction (except as otherwise contemplated herein in respect of TxDOT Works), so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;; and
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Subject to Sections 25.1 and 25.3, Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or (except as otherwise contemplated herein in respect of TxDOT Works) and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA FA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and applicable Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, and (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or (except as contemplated herein in respect of TxDOT Works) and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction of the Facility other than the TxDOT Works shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. Deviations expressly and specifically allowed by the Technical Provisions with respect to the Segment 3C Facility Segment also shall constitute TxDOT’s approval of such Deviations, subject to any terms, conditions, qualifications or limitations related to such Deviations set forth in the Technical Provisions. With the exception of Deviations expressly and specifically allowed in the Technical Provisions with respect to the Segment 3C Facility Segment, TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.
7.2.4 Developer acknowledges that it (a) had the opportunity prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents Documents, except in connection with the TxDOT Works, that are first took effect as of such date and were erroneous or create created a potentially unsafe condition, and (b) had the opportunity and duty prior to notify TxDOT and the Independent Engineer in writing of such fact and Amendment Effective Date to identify any subsequent amendments to the provisions of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to Technical Provisions or
7.2.5 References in the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event manuals or other Claim, unless (a) Developer neither knew nor had reason to know prior to publications governing the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such prior to the Service Commencement Date for the applicable Facility Segment shall mean the most recent editions in effect as of the Effective Date, in each case subject to exceptions (if any) thereto set forth in the Technical Provisions that expressly permit or apply a change different standard, requirement or provision. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to an applicable Service Commencement Date for a Facility Segment shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the need Effective Date, TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement Technical Documents or Safety Standards encompass matters that are addressed in the Technical Provisions or Technical Documents as of the Effective Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing:
7.2.6.1 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work for a Capacity Improvement shall mean the change was discovered most recent editions in effect on the date TxDOT issues the applicable NTP for such Capacity Improvement; and
7.2.6.2 In the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or suspectedreplacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or should have been discovered replacement Safety Standards, prior to the Service Commencement Date of the Segment 3A Facility Segment or suspected through the exercise of reasonable careSegment 3C Facility Segment, as the case may be, Developer shall bear any additional costs associated with redoing not be obligated to (but may) incorporate the Work already performed. Inconsistent or conflicting provisions same into its design and construction of the CDA Facility prior to the Service Commencement Date for such Facility Segment.
7.2.7 New or revised statutes or regulations adopted after the Effective Date (as to the Segment 3A Facility Segment) or after the Amendment Effective Date (as to the Segment 3C Facility Segment) that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall not be treated as erroneous provisions Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 7.2.4, but instead shall be governed 12.4 for the timing by Section 1.2which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Facility Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or Utility Adjustments included in the Construction Work inwith
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.the
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement Technical Documents or Safety Standards encompass matters that are addressed in the Technical Provisions as of the Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall not be obligated to (but may) incorporate the same into its design and construction of the Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statues or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT change to Technical Provisions and Technical Documents; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason to know prior to the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such a change after the need for the change was discovered or suspected, or should have been discovered or suspected through the exercise of reasonable care, Developer shall bear any additional costs associated with redoing the Work already performed. Inconsistent or conflicting provisions of the CDA Documents shall not be treated as erroneous provisions under this Section 7.2.4, but instead shall be governed by Section 1.2.
7.2.5 References in the Technical Provisions or Technical Documents to manuals or other publications governing the Design Work or Construction Work prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the subject of concession or public-private partnership agreements. TxDOT shall have the right to add such changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or replacement Technical Documents or Safety Standards encompass matters that are addressed in the Technical Provisions or Technical Documents as of the Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall not be obligated to (but may) incorporate the same into its design and construction of the Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall be treated as Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 12.4 for the timing by which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Development of the Facility. 7.1 General Obligations of Developer
7.1.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the CDA Documents expressly specify will be undertaken by TxDOT or other Persons) to construct the Facility and maintain it during construction, so as to achieve Service Commencement and Final Acceptance by the applicable Milestone Schedule Deadlines;and
7.1.2 At all times provide a Facility Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, including Design Work, Construction Work and O&M Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or his/her designee approved by TxDOT will be present) at the Site at all times that Design Work or Construction Work is performed, and (d) will be available to respond to the Independent Engineer, TxDOT or its Authorized Representatives;
7.1.3 Comply with, and require that all Contractors (other than NTTA) comply with, all requirements of all applicable Laws, including Environmental Laws and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), as amended;
7.1.4 Cooperate with TxDOT, the Independent Engineer, and Governmental Entities with jurisdiction in all matters relating to the Work, including Design Work, Construction Work and O&M Work, including their review, inspection and oversight of the design, construction, operations and maintenance of the Facility and the design and construction of the Utility Adjustments; and
7.1.5 Use commercially reasonable efforts to mitigate delay to design and construction of the Facility and mitigate damages due to delay in all circumstances, to the extent possible, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ forces to other work, as appropriate.
7.2 Performance, Design and Construction Standards; Deviations
7.2.1 Developer shall furnish all aspects of the Design Work and all Design Documents, including design required in connection with the operation and maintenance of the Facility, Renewal Work or Upgrades, and shall construct the Facility and/or and the Utility Adjustments included in the Construction Work as designed, free from Defects, and in accordance with (a) Good Industry Practice, (b) the requirements, terms and conditions set forth in the CDA Documents (including the Technical Provisions and Technical Documents), (c) the Milestone Schedule and Facility Schedule, (d) all Laws, (e) the requirements, terms and conditions set forth in all Governmental Approvals, (f) the approved Facility Management Plan and all component plans prepared or to be prepared thereunder, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility. Developer also shall construct the Facility and/or and the Utility Adjustments included in the Construction Work inin accordance with (i) the Final Design Documents, and (ii) the Construction Documents, in each case taking into account the Facility Right of Way limits and other constraints affecting the Facility.
7.2.2 The Facility design and construction shall be subject to the requirements of the approved Quality Management Plan.
7.2.3 Developer may apply for TxDOT approval of Deviations from applicable Technical Provisions or Technical Documents regarding design or construction. All applications shall be in writing. Where Developer requests a Deviation as part of the submittal of a component plan of the Facility Management Plan, Developer shall specifically identify and label the proposed Deviation. TxDOT shall consider in its sole discretion, but have no obligation to approve, any such application. Without limiting such discretion, Developer shall bear the burden of persuading TxDOT that the Deviation sought constitutes sound and safe engineering consistent with Good Industry Practice and achieves or substantially achieves TxDOT’s applicable Safety Standards and criteria. No Deviation shall be deemed approved or be effective unless and until stated in writing signed by TxDOT’s Authorized Representative. TxDOT’s affirmative written approval of a component plan of the Facility Management Plan shall constitute (a) approval of the Deviations expressly identified and labeled as Deviations therein, unless TxDOT takes exception to any such Deviation and (b) disapproval of any Deviations not expressly identified and labeled as Deviations therein. TxDOT's lack of issuance of a written Deviation within 14 days after Developer applies therefor in writing shall be deemed a disapproval of such application. TxDOT’s denial or disapproval of a requested Deviation shall be final and not subject to the Dispute Resolution Procedures. TxDOT may elect to process the application as a Change Request under Section 14.2 rather than as an application for a Deviation.
7.2.4 Developer acknowledges that prior to the Effective Date it had the opportunity to identify any provisions of the Technical Provisions or Technical Documents that are erroneous or create a potentially unsafe condition, and the opportunity and duty to notify TxDOT and the Independent Engineer in writing of such fact and of the changes to the provision that Developer believed were the minimum necessary to render it correct and safe. If it is reasonable or necessary to adopt changes to the Technical Provisions or Technical Documents after the Effective Date to make the provisions correct and safe, such changes shall not be grounds for a Relief Event, Compensation Event or other Claim, unless (a) Developer neither knew nor had reason Developer
7.2.5 References in the Technical Provisions or Technical Documents to know prior to manuals or other publications governing the Effective Date that the provision was erroneous or created a potentially unsafe condition or (b) Developer knew of and reported to TxDOT the erroneous or potentially unsafe provision prior to the Effective Date and TxDOT did not adopt reasonable and necessary changes. If Developer commences or continues any Design Work or Construction Work affected by such prior to the Service Commencement Date shall mean the most recent editions in effect as of the Proposal Due Date, unless expressly provided otherwise. Any changes to the Technical Provisions and Technical Documents, including Safety Standards, respecting Design Work or Construction Work prior to the Service Commencement Date shall be subject to the Change Order process for a change TxDOT Change in accordance with Article 14. Safety Compliance changes shall be in accordance with Section 12.4.
7.2.6 The Parties anticipate that from time to time after the need for Proposal Due Date TxDOT will adopt, through revisions to existing manuals and publications or new manuals and publications, changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, relating to Design Work and Construction Work of general application to Comparable Limited Access Highways that are or become tolled or the change was discovered subject of concession or suspectedpublic-private partnership agreements. TxDOT shall have the right to add such changed, added or should have been discovered replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, to Book 3 by notice to Developer, whereupon they shall constitute amendments, and become part, of the Technical Documents. If such changed, added or suspected through replacement Technical Documents or Safety Standards encompass matters that are addressed in the exercise Technical Provisions or Technical Documents as of reasonable carethe Proposal Due Date, they may, upon inclusion in Book 3, replace and supersede inconsistent provisions of the Technical Provisions and Technical Documents to the extent designated by TxDOT in its sole discretion. TxDOT will identify the superseded provisions in its notice to Developer. Notwithstanding the foregoing, in the absence of a TxDOT Change and except as provided otherwise in Section 7.2.7 with respect to a Change in Law and Section 7.5.3 with respect to Adjustment Standards, if TxDOT adopts the changed, added or replacement standards, criteria, requirements, conditions, procedures, specifications and other provisions, including changed, added or replacement Safety Standards, prior to the Service Commencement Date, Developer shall bear any additional costs associated with redoing not be obligated to (but may) incorporate the Work already performed. Inconsistent or conflicting provisions same into its design and construction of the CDA Facility prior to the Service Commencement Date.
7.2.7 New or revised statutes or regulations adopted after the Proposal Due Date that change, add to or replace applicable standards, criteria, requirements, conditions, procedures, specifications and other provisions, including Safety Standards, related to the Design Work and Construction Work, as well as revisions to Technical Provisions and Technical Documents to conform to such new or revised statutes or regulations, shall not be treated as erroneous provisions Changes in Law (including, to the extent expressly provided under other sections of this Agreement, Discriminatory Change in Law) rather than a TxDOT Change; however, the foregoing shall not apply to new or revised statutes or regulations that also cause or constitute changes in Adjustment Standards.
7.2.8 Refer to Section 7.2.4, but instead shall be governed 12.4 for the timing by Section 1.2which Developer must implement Safety Compliance.
Appears in 1 contract
Samples: Comprehensive Development Agreement
