Common use of Exceptions to Waiver Clause in Contracts

Exceptions to Waiver. The exclusion of consequential damages set forth in Section 21.6.1 shall not exclude or affect: (a) Any liability for any type of damage or loss to the extent it is covered by the proceeds of insurance (i) required to be carried pursuant to Section 16, or (ii) actually carried by Developer under policies solely with respect to the Project and the Work, regardless of whether required to be carried pursuant to Section 16; (b) Any liability, obligation, loss, damage, cost or expense arising out of illegal activities, fraud, criminal conduct, gross negligence or intentional misconduct on the part of TxDOT or any Developer-Related Entity; (c) Developer’s liability respecting indemnities set forth elsewhere in this Agreement or the other Contract Documents; (d) Developer’s obligation to pay any liquidated damages expressly provided for in the Contract Documents; (e) Liability for other damages expressly provided for in the Contract Documents; and (f) Any liability, obligation, loss, damage, cost or expense arising out of any Facility Agreement or any act or omission of any Developer-Related Entity or TxDOT regarding any Facility occurring after the Close of Finance for such Facility, as to which the provisions of the applicable Facility Agreements shall exclusively govern Developer-Related Entities’ and TxDOT’s respective liabilities for consequential damages and any limits thereon or waivers thereof.