Common use of Impact to Performance Standards and Measures Clause in Contracts

Impact to Performance Standards and Measures. (i) If as a result of a Change Order or Change Directive, it is determined that such change will or does materially impair TxDOT’s ability to meet the Performance Standards, then Developer and TxDOT will negotiate as part of the Change Order (or, in the case of a Change Directive, TxDOT shall be entitled to) an appropriate adjustment to the affected Performance Standards. The adjustment shall be limited to the minimum extent reasonably necessary under the circumstances. (ii) If it is possible to avoid an adjustment to Performance Standards through a Change Order adjusting price (or through a price adjustment in connection with a Change Directive) but Developer prefers not to incur the price adjustment, then TxDOT shall cooperate with and assist Developer with analyzing trade-offs between price and Performance Standards to give Developer a range of choices on how to proceed with the Change Order or Change Directive. (iii) If it is not possible to adjust a Performance Standard in a manner that enables Developer to remain in compliance with its obligations under the Agreement, then Developer either may (A) incur the price adjustment to the extent needed to preserve the Performance Standard and remain in compliance with the Agreement or (B) modify or withdraw the Change Order or Change Directive.