Common use of Key Personnel; Qualifications of Employees Clause in Contracts

Key Personnel; Qualifications of Employees. 7.3.1. TSP shall appoint a Program Manager, a Project Manager-Installation, and a Project Manager-Operations and Maintenance. These positions shall be considered Key Personnel. TSP shall not change, or permit any change in, any Key Personnel without the prior written consent of the Joint Board, in its sole discretion. 7.3.2. All individuals performing Work shall have the skill and experience and any licenses required to perform the Work assigned to them. If the Joint Board determines, in its sole discretion, that any Person employed by TSP or any Subcontractor is not performing the Work in a proper, desirable and skillful manner or is detrimental to the progress of the Work, then, at the written request of the Joint Board, TSP shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of the Joint Board. If such Person is not removed or if TSP fails to ensure that skilled and experienced personnel are furnished for the proper performance of the Work, then the Joint Board may suspend the affected portion of the Work by delivery of written notice of such suspension to TSP. Such suspension shall in no way relieve TSP of any obligation contained in the Contract Documents or entitle TSP to a Claim or Change Order. Once compliance is achieved, the Joint Board will notify TSP and TSP shall promptly resume the Work. During the period of any such suspension, TSP shall not be entitled to the payment of any portion of the applicable Price or any other payment hereunder. 7.3.3. A TSP Authorized Representative shall be available at all times while Work is actually in progress. TSP shall provide phone and pager numbers for all Key Personnel. The Joint Board requires the ability to contact the Key Personnel 24 hours per Day, seven days per week. 7.3.4. TSP acknowledges and agrees that the award of this Contract by the Joint Board to TSP was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and TSP’s commitment that such individuals would be available to undertake and perform the Work. TSP represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Work. Unless otherwise agreed to by the Joint Board in writing, individuals filling Key Personnel roles shall be available for the Work and shall maintain active involvement in the prosecution and performance of the Work. In addition to the foregoing, the Joint Board reserves the right to require a 100% time commitment per position from any Key Personnel if the Joint Board, in its sole discretion, determines that such personnel are not devoting sufficient time to the prosecution and performance of the Work.

Key Personnel; Qualifications of Employees. 7.3.1. TSP shall appoint a Program Manager, a Project Manager-Installation, and a Project Manager-Program Manager- Operations and Maintenance. These positions shall be considered Key Personnel. TSP shall not change, or permit any change in, any Key Personnel without the prior written consent of the Joint Board, in its sole discretion. 7.3.2. All individuals performing Work shall have the skill and experience and any licenses required to perform the Work assigned to them. If the Joint Board determines, in its sole discretion, that any Person employed by TSP or any Subcontractor is not performing the Work in a proper, desirable and skillful manner or is detrimental to the progress of the Work, then, at the written request of the Joint Board, TSP shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of the Joint Board. If such Person is not removed or if TSP fails to ensure that skilled and experienced personnel are furnished for the proper performance of the Work, then the Joint Board may suspend the affected portion of the Work by delivery of written notice of such suspension to TSP. Such suspension shall in no way relieve TSP of any obligation contained in the Contract Documents or entitle TSP to a Claim or Change Order. Once compliance is achieved, the Joint Board will notify TSP and TSP shall promptly resume the Work. During the period of any such suspension, TSP shall not be entitled to the payment of any portion of the applicable Price or any other payment hereunder. 7.3.3. A TSP Authorized Representative shall be available at all times while Work is actually in progress. TSP shall provide phone and pager numbers for all Key Personnel. The Joint Board requires the ability to contact the Key Personnel 24 hours per Day, seven days per week. 7.3.4. TSP acknowledges and agrees that the award of this Contract by the Joint Board to TSP was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and TSP’s commitment that such individuals would be available to undertake and perform the Work. TSP represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Work. Unless otherwise agreed to by the Joint Board in writing, individuals filling Key Personnel roles shall be available for the Work and shall maintain active involvement in the prosecution and performance of the Work. In addition to the foregoing, the Joint Board reserves the right to require a 100% time commitment per position from any Key Personnel if the Joint Board, in its sole discretion, determines that such personnel are not devoting sufficient time to the prosecution and performance of the Work.

Key Personnel; Qualifications of Employees. 7.3.17.4.1 The Contract Documents identify certain job categories of Key Personnel for the Project. TSP shall appoint a Program ManagerExcept as provided in Section 7.4.6, a Project Manager-Installation, and a Project Manager-Operations and Maintenance. These positions shall be considered Key Personnel. TSP DB Contractor shall not change, or permit any change in, any Key Personnel. Any replacement Key Personnel without during the Term shall be subject to prior written consent of the Joint Board, in its sole discretionapproval by TxDOT. 7.3.2. All individuals performing Work 7.4.2 DB Contractor shall designate an Authorized Representative who shall have the skill onsite field and experience office authority to represent and any licenses required to perform the Work assigned to themact for DB Contractor. If the Joint Board determines, in its sole discretion, that any Person employed by TSP or any Subcontractor is not performing the Work in a proper, desirable and skillful manner or is detrimental to the progress of the Work, then, at the written request of the Joint Board, TSP shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of the Joint Board. If such Person is not removed or if TSP fails to ensure that skilled and experienced personnel are furnished for the proper performance of the Work, then the Joint Board may suspend the affected portion of the Work by delivery of written notice of such suspension to TSP. Such suspension shall in no way relieve TSP of any obligation contained in the Contract Documents or entitle TSP to a Claim or Change Order. Once compliance is achieved, the Joint Board will notify TSP and TSP shall promptly resume the Work. During the period of any such suspension, TSP shall not be entitled to the payment of any portion of the applicable Price or any other payment hereunder. 7.3.3. A TSP An Authorized Representative shall be available present at the job site at all times while Work is actually in progress. TSP DB Contractor shall provide phone phone, e-mail addresses and pager mobile telephone numbers for all Key Personnel. The Joint Board TxDOT requires the ability to contact the following Key Personnel 24 hours per Dayday, seven days per week: (a) Project Manager, (b) Safety Manager, (c) Environmental Compliance Manager, (d) Construction Manager, and (e) Independent Quality Firm Manager. 7.3.4. TSP 7.4.3 DB Contractor acknowledges and agrees that the award of this Contract Agreement by the Joint Board TxDOT to TSP DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and TSPDB Contractor’s commitment that such individuals would be available to undertake and perform the Work. TSP DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Work. Unless otherwise agreed to by the Joint Board in writing, individuals Individuals filling Key Personnel roles shall be shall 7.4.4 If an individual filling one or more Key Personnel roles is not available for the Work and shall does not maintain active involvement in the prosecution and performance of the Work because such individual has been replaced, DB Contractor acknowledges that TxDOT, the Work. In addition , and the Project will suffer significant and substantial Losses due to the foregoingunavailability of the individual identified in the Proposal and that it is impracticable and extremely difficult to ascertain and determine the actual Losses that would accrue to TxDOT in such event. Therefore, the Joint Board reserves the right to require if an individual filling a 100% time commitment per position from any Key Personnel if the Joint Board, role is not available or not actively involved in its sole discretion, determines that such personnel are not devoting sufficient time to the prosecution and performance of the WorkWork sufficient for satisfactory performance of the Work to be performed by such Key Personnel, as determined by TxDOT in its discretion, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows, for each position held by such individual, as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE 7.4.5 In addition, if an individual filling one or more Key Personnel roles is not available for the Work and does not maintain active involvement in the prosecution and performance of the Work and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Work and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill a Key Personnel role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day that a Key Personnel role is not filled by an approved individual, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee amount as follows, for each position not filled, as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE PER DAY 7.4.6 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with this Section 7.4 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. TxDOT shall have the right to deduct any amount owed by DB Contractor to TxDOT hereunder from any amounts owed by TxDOT to DB Contractor, or to collect from any bond or Guaranty furnished under this Agreement for such Key Personnel Change Fees. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 7.4.4 or 7.4.5 if (a) DB Contractor removes or replaces such personnel at the direction of TxDOT, except pursuant to Section 7.7.3; (b) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding Key Personnel Change Fees); or (c) such individual is unavailable due to TxDOT’s failure to issue NTP1 within 180 days of the Proposal Due Date for a reason other than the acts, omissions, negligence, intentional misconduct, or breach of applicable Law, contract or Governmental Approval of any DB Contractor-Related Entity; provided, however, in each such case, DB Contractor shall promptly propose to TxDOT a replacement for such personnel, which individual shall be subject to TxDOT’s review and written approval. If NTP1 has not been issued within 180 days after the Proposal Due Date through no act, omission, negligence, intentional misconduct, or breach of applicable Law, contract or Governmental Approval of any DB Contractor-Related Entity, DB Contractor shall have 30 days after issuance of NTP1 to identify any change in Key Personnel without incurring any Key Personnel Change Fees. Following any TxDOT-approved substitution or replacement of a Key Personnel pursuant to the terms hereof, the new individual shall be considered a Key Personnel for all purposes under this Agreement, including the provisions of this Section 7.4 relative to Key Personnel Change Fees. 7.4.7 DB Contractor acknowledges and agrees that the Key Personnel positions are of critical importance to TxDOT and the Project. In addition to the approval rights of TxDOT set forth in Section 7.4.1 and the Key Personnel Change Fees set forth in Sections 7.4.4 and 7.4.5, if an individual in a Key Personnel position leaves that position for a reason other than as set forth in clauses (a) through (c) of Section 7.4.6, TxDOT shall have the right to terminate this Agreement for default under Section 16, unless DB Contractor provides TxDOT a replacement acceptable to TxDOT within 30 days after the earlier of (a) the date on which such individual has left his/her position or (b) DB Contractor or TxDOT becomes aware that such individual intends to leave his/her position. 7.4.8 Any position on DB Contractor’s organizational chart or within DB Contractor’s organization structure that is above that of the designated Key Personnel position for which Key Personnel Change Fees may apply will be deemed to be a Key Personnel position and, for purposes of Key Personnel Change Fees under Sections 7.4.4 and 7.4.5, shall be at the level which is immediately higher than the Key Personnel immediately below that position (e.g., an individual that reports into the deputy project director level but is higher than the other Key Personnel level would be considered a deputy project director for this purpose).

Key Personnel; Qualifications of Employees. 7.3.17.4.1 The Contract Documents identify certain job categories of Key Personnel for the Project. TSP shall appoint a Program Manager, a Project Manager-Installation, and a Project Manager-Operations and Maintenance. These positions shall be considered Key Personnel. TSP Integrator shall not change, or permit any change in, any Key Personnel without the prior written consent of the Joint Board, TxDOT in its sole discretionaccordance with TP Section 2.1.2.2.2. 7.3.2. 7.4.2 All individuals performing Work shall have the skill and experience and any licenses required to perform the Work assigned to them. If the Joint Board TxDOT determines, in its sole discretion, that any Person employed by TSP Integrator or any Subcontractor is not performing the Work in a proper, desirable and skillful manner or is detrimental to the progress of the WorkWork and/or the Project, then, at the written request of the Joint BoardTxDOT, TSP Integrator shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of the Joint BoardTxDOT. If such Person is not removed or if TSP Integrator fails to ensure that skilled and experienced personnel are furnished for the proper performance of the Work, then the Joint Board TxDOT may suspend the affected portion of the Work by delivery of written notice of such suspension to TSPIntegrator. Such suspension shall in no way relieve TSP Integrator of any obligation contained in the Contract Documents or entitle TSP Integrator to a Claim or Change Order. Once compliance is achieved, the Joint Board TxDOT will notify TSP Integrator and TSP Integrator shall be entitled to and shall promptly resume the Work. During the period of any such suspension, TSP Integrator shall not be entitled to the payment of any portion of the applicable Price or any other payment hereunder. 7.3.37.4.3 Integrator shall designate in writing who shall have onsite field and office authority to represent and act for Integrator. A TSP Authorized Representative An authorized representative shall be available present at the jobsite at all times while Work is actually in progressprogress at the jobsite. TSP Integrator shall provide phone and pager numbers for all Key Personnel. The Joint Board TxDOT requires the ability to contact the following Key Personnel 24 hours per Day, seven days Days per week: ProgramManager; installation manager (from the date of issuance of an NTP to the date of Final Acceptance); and maintenance manager (during the Maintenance Term). 7.3.4. TSP 7.4.4 Integrator acknowledges and agrees that the award of this Contract Agreement by the Joint Board TxDOT to TSP Integrator was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and TSPIntegrator’s commitment that such individuals would be available to undertake and perform the Work. TSP Integrator represents, warrants and 7.4.5 Subject to the other terms, provisions and covenants requirements of the Contract Documents (including the requirements for quality control and quality assurance and the right of TxDOT to require a 100% time commitment per position as set forth in Section 7.4.4), TxDOT acknowledges that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Workan individual may fill more than one Key Personnel role. Unless otherwise agreed to by the Joint Board in writing, individuals If an individual filling one or more Key Personnel roles shall be is not available for the Work and shall does not maintain active involvement in the prosecution and performance of the Work. In addition to the foregoing, Integrator acknowledges that TxDOT, the Joint Board reserves Work and the right Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to require a 100% time commitment per position from any ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if certain Key Personnel if the Joint Board, in its sole discretion, determines that such personnel are not devoting sufficient time to available or not actively involved in the prosecution and performance of the Work., as determined by TxDOT, in its sole discretion, Integrator agrees to pay TxDOT a liquidated amount as follows, for each position held by such individual, as deemed compensation to TxDOT for such Losses: Program Manager $100,000 Maintenance manager $50,000 All other positions noted with an asterisk in Exhibit X $25,000 Integrator understands and agrees that any damages payable in accordance with this Section 7.4.5 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. TxDOT shall have the right to deduct or draw upon any amount owed by Integrator to TxDOT hereunder from any amounts owed by TxDOT to Integrator, including any Retainage which may be payable by TxDOT to Integrator, or from any bond or letter of credit held by TxDOT under this Agreement. Notwithstanding the foregoing, Integrator shall not be liable for liquidated damages under this Section 7.4.5 if (i) Integrator removes or replaces such personnel at the direction of TxDOT; (ii) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable Integrator-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding liquidated damages), or (iii) such individual is unavailable due to TxDOT’s failure to issue the Initial NTP within 180 Days of the Agreement date for a reason other than the fault, act or omission of any Integrator-Related Entity; provided, however, in each such case, Integrator shall promptly propose to TxDOT a replacement for such personnel, which individual shall be subject to TxDOT’s review and written consent. If the Initial NTP has not been issued within 180 Days after the Agreement date, Integrator shall have 30 Days after issuance of the Initial NTP to identify any change in Key Personnel without incurring any liquidated damages. Further notwithstanding the foregoing, following the issuance of the Initial NTP and subject to TxDOT’s right to review and approve the designation of additional or different Key Personnel for any subsequent Project Segment, Integrator shall not be liable for liquidated damages under this Section 7.4.5 if the same Key Personnel are not available to work on each such subsequent Project Segment, provided, however, that once approved, the Key Personnel designated for any such subsequent Project Segment must be available to complete the Work for such Project Segment. Following any TxDOT-approved substitution or replacement of a Key Personnel pursuant to the terms hereof for any Project Segment, the new individual shall be considered a Key Personnel for all purposes under this Agreement, including the provisions of this Section

Key Personnel; Qualifications of Employees. 7.3.119.1.1 The Contract Documents identify certain job categories of Key Personnel for the Project. TSP shall appoint a Program Manager, a Project Manager-Installation, and a Project Manager-Operations and Maintenance. These positions shall be considered Key Personnel. TSP Design/Builder shall not change, or permit any change in, any Key Personnel without the prior written consent of the Joint Board, Alamo RMA in its sole discretionaccordance with Technical Provision 1. 7.3.2. 19.1.2 All individuals performing Development Work shall have the skill and experience and any licenses required to perform the Development Work assigned to them. If the Joint Board Alamo RMA determines, in its sole discretion, that any Person employed by TSP Design/Builder or any Subcontractor is not performing the Development Work in a proper, desirable and skillful manner or is detrimental to the progress of the WorkDevelopment Work and/or the Project, then, at the written request of the Joint BoardAlamo RMA, TSP Design/Builder shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of the Joint BoardAlamo RMA. If such Person is not removed or if TSP Design/Builder fails to ensure that skilled and experienced personnel are furnished for the proper performance of the Development Work, then the Joint Board Alamo RMA may suspend the affected portion of the Development Work by delivery of written notice of such suspension to TSPDesign/Builder. Such suspension shall in no way relieve TSP Design/Builder of any obligation contained in the Contract Documents or entitle TSP Design/Builder to a Claim or Change Order. Once compliance is achieved, the Joint Board will notify TSP Design/Builder shall be entitled to and TSP shall promptly resume the Development Work. During the period of any such suspension, TSP Design/Builder shall not be entitled to the payment of any portion of the applicable Development Price or any other payment hereunder. 7.3.319.1.3 Design/Builder shall designate in writing who shall have onsite field and office authority to represent and act for Design/Builder. A TSP Authorized Representative Said authorized representative shall be available present at the jobsite at all times while Development Work is actually in progress. TSP While any night work or shift work is to be performed by Design/Builder, a superintendent shall be at the jobsite at all times. Design/Builder shall provide phone and pager numbers for all Key Personnel. The Joint Board Alamo RMA requires the ability to contact the Key Personnel these key individuals 24 hours per Day, seven days Days per week. 7.3.4. TSP 19.1.4 Design/Builder acknowledges and agrees that the award of this Contract Agreement by the Joint Board Alamo RMA to TSP Design/Builder was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and TSPDesign/Builder’s commitment that such individuals would be available to undertake and perform the Development Work. TSP Design/Builder represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Development Work. Unless otherwise agreed to by the Joint Board Alamo RMA in writing, individuals filling Key Personnel roles shall be available for the Work and shall maintain active involvement in the prosecution and performance of the Work. In addition to the foregoing, the Joint Board reserves the right to require a devote 100% time commitment per position from any Key Personnel if the Joint Board, in its sole discretion, determines that such personnel are not devoting sufficient of their time to the prosecution and performance of the Development Work to the extent necessary to satisfactorily and timely complete their designated duties under the Contract Documents. By way of illustration and example, the Design Manager would be expected to devote full time to the Project until Final Design Plans are approved by the Alamo RMA, but, thereafter, could reduce his or her commitment to such time as is necessary to aid the Construction Manager and Design/Build Project Manager in completing construction of the Project. If the individuals filling the Category A Key Personnel roles are not available for the Development Work and do not dedicate 100% of their time, as required herein, to the prosecution and performance of the Development Work, Design/Builder acknowledges that the Alamo RMA, the Development Work and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to the Alamo RMA in such event. Therefore, if any such Category A Key Personnel are not available or do not dedicate 100% of their time, as required herein, to the prosecution and performance of the Development Work, except by reason of death or disability, Design/Builder agrees to pay the Alamo RMA a liquidated amount of $100,000 per Category A Key Personnel that is unavailable as deemed compensation to the Alamo RMA for such Losses. Design/Builder understands and agrees that any damages payable in accordance with this Section 19.1 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. The Alamo RMA shall have the right to deduct any amount owed by Design/Builder to the Alamo RMA hereunder from any amounts owed by the Alamo RMA to Design/Builder, including any Retainage which may be payable by the Alamo RMA to Design/Builder. Notwithstanding the foregoing, Design/Builder shall not be liable for liquidated damages under this Section 19.1 if (i) Design/Builder removes or replaces such personnel at the direction of the Alamo RMA; (ii) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable member of the Development Group (provided that moving to an affiliated company shall not be considered grounds for avoiding liquidated damages), or (iii) such individual is unavailable due to the Alamo RMA’s failure to issue the NTP within 210 days of the Proposal Date; provided, however, in each such case, Design/Builder shall promptly propose to the Alamo RMA a replacement for such personnel, which individual shall be subject to the Alamo RMA’s review and written consent. In the event the NTP has not been issued within 210 days after the Proposal Date, Design/Builder shall have 30 days after issuance of the NTP to identify any change in Category A Key Personnel without incurring any liquidated damages, provided that such new Category A Personnel must be approved by Alamo RMA and meet the requirements of Section 19.1.2. 19.1.5 The Alamo RMA may waive Liquidated Damages pursuant to this Section 19.1 in its sole discretion.