Limitations on Developer’s Right to Rely. (a) No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT: (i) Is solely for the benefit and protection of TxDOT; (ii) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities; (iii) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents; (iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT; (v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and (vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents. (b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults. (c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents. (d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and (i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance; (ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5; (iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof; (iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and (v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 5 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement, Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 4 contracts
Samples: Development Agreement, Development Agreement, Development Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 3 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement, Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOTIFA. Such activity by TxDOT IFA shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract PPA Documents.
(d) . 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals 3.1.8.2 and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, its sole or absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT IFA to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 3 contracts
Samples: Public Private Agreement, Public Private Agreement, Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were was conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.Section
Appears in 3 contracts
Samples: Development Agreement, Development Agreement, Development Agreement
Limitations on Developer’s Right to Rely. (a) No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(i) Is solely for the benefit and protection of TxDOT;
(ii) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) andand 4.1.8(c):
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Development Agreement, Development Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: TxDOT (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.57.2.3 or 8.1.2.10;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion Completion, Service Commencement and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion Completion, Service Commencement and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOTIFA. Such activity by TxDOT IFA shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract PPA Documents.
(d) . 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals 3.1.8.2 and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, its sole or absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT IFA to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:of
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.3.7.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates notices of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTthe Department, and no lack thereof by TxDOTthe Department, shall constitute acceptance by the Department of materials or Work that fails to does not comply with the Contract Documents or waiver of any legal or equitable right held by the Department with respect to such Work under the Contract Documents, at law, Documents or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2Law. TxDOT The Department shall be entitled to exercise all rights and remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done under the Contract Documents or Law to bring the Work and the Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTthe Department. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTthe Department:
(i) 1. Is solely for the benefit and protection of TxDOTthe Department;
(ii) 2. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) 3. Does not create or impose upon TxDOT the Department any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) 4. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTthe Department;
(v) 5. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents, except that the issuance of the notices of Substantial Completion and Final Acceptance may be relied upon and used as evidence to establish the commencement of the Department’s payment obligations and Developer’s entitlement to receive the Milestone Payment, Availability Payments and holdbacks from Availability Payments under Section 11.2.3 (as applicable), nevertheless without waiving the Department’s rights and remedies against Developer for failing to meet the requirements of the Contract Documents; and
(vi) 6. May not be asserted by Developer against TxDOT the Department as a defense, legal or equitable, equitable defense to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.3.7.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.3.7.1 or failure to conduct any such activity by TxDOTthe Department. Such activity or failure to conduct such activity by TxDOT the Department shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.3.7.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT the Department from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Public Private Partnership Agreement, Public Private Partnership Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project Facility into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.other
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project Facility to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(i) Is solely for the benefit and protection of TxDOT;
(ii) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) andand 4.1.8(c):
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 2 contracts
Samples: Development Agreement, Development Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:Facility into
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project Facility to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOTIFA. Such activity by TxDOT IFA shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract PPA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) 3.1.8.2 and
(i) a. Developer shall be entitled to rely on written approvals and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, its sole or absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT IFA to rescind such approval or acceptance;
(ii) b. Developer shall be entitled to rely on specific written Deviations TxDOT IFA approves under Section 3.2.55.2.4 or 6.1.2.7;
(iii) c. Developer shall be entitled to rely on the certificates certificate of Substantial Completion and Final Acceptance from TxDOT IFA for the limited purpose of establishing that Substantial Completion the commencement of IFA’s payment obligations and Final Acceptance, as applicable, have occurredDeveloper’s entitlement to receive Availability Payments, and the respective dates thereof, nevertheless without prejudice to any rights and remedies available to IFA respecting unapproved Deviations, Nonconforming Work and Developer Defaults;
(iv) TxDOT d. IFA is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT IFA delivers to Developer; and
(v) TxDOT e. IFA is not relieved from performance of its express responsibilities under the Contract PPA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:Work
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project Facility to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: TxDOT (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, absolute or unfettered its sole discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.57.2.2 or 8.1.2.10;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion Completion, Service Commencement and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion Completion, Service Commencement and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Service Commencement and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract CDA Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.other
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.2;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion, Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project East End Crossing into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.Section
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project East End Crossing to satisfy the standards and requirements of the Contract PPA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and
3.1.8.2 and from IFA (i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.or
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Service Commencement and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract CDA Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.2;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; andTexas Department of Transportation SH 99 Grand Parkway Project June 19July 2, 2012 19 RFP Addendum 1 2 Development Agreement
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely.
(a) No review, comment oncomment, objection, rejection, approval, disapproval, acceptanceacceptance, 26 concurrence, certification (including certificates of South Segment Substantial 27 Completion, Project Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight 28 by or on behalf of TxDOTADOT, including review and approval of the Project 29 Management Plan and Operations and Maintenance Management Plan, and no 30 lack thereof by TxDOTADOT, shall constitute acceptance by ADOT of materials or Work that fails to comply with the Contract Documents 31 or waiver of any legal or equitable right under the Contract Documents, at lawLaw, or 32 in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall ADOT will be entitled to complete and accurate Submittals, to remedies 33 for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults, and to 34 identify and require additional Work which must be done to bring the Work and Project into 35 compliance with requirements of the Contract Documents, regardless of whether 36 previous review, comment oncomment, objection, rejection, approval, disapproval, 37 acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing certification or other oversight Oversight were conducted or given provided 38 by TxDOTADOT. Regardless of Without regard to any such activity or failure to conduct any such activity 39 by TxDOTADOT, Developer at all times shall have an independent duty and obligation to 40 fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and 1 acknowledges that any such activity or failure to conduct any such activity by TxDOTby
2 ADOT:
3 (i) Is solely for the benefit and protection of TxDOTADOT;
4 (ii) Does not relieve Developer of its responsibility for the selection of, and the 5 competent performance of by, all Developer-Related EntitiesEntities performing any 6 Work;
7 (iii) Does not create or impose upon TxDOT ADOT any duty duty, standard of care or 8 obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the 9 Contract Documents in accordance with or toward any other Person, all standards applicable thereto.of which are hereby 10 expressly disclaimed;
Appears in 1 contract
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Service Commencement and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract CDA Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.other
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.2;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.3.7.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates notices of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTthe Department, and no lack thereof by TxDOTthe Department, shall constitute acceptance by the Department of materials or Work that fails to does not comply with the Contract Documents or waiver of any legal or equitable right held by the Department with respect to such Work under the Contract Documents, at law, Documents or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2Law. TxDOT The Department shall be entitled to exercise all rights and remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done under the Contract Documents or Law to bring the Work and the Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTthe Department. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTthe Department:
(i) 1. Is solely for the benefit and protection of TxDOTthe Department;
(ii) 2. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) 3. Does not create or impose upon TxDOT the Department any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) 4. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTthe Department;
(v) 5. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents, except that the issuance of the notices of Substantial Completion and Final Acceptance may be relied upon and used as evidence to establish the commencement of the Department’s payment obligations and Developer’s entitlement to receive the Milestone Payment and Availability Payments (as applicable), nevertheless without waiving the Department’s rights and remedies against Developer for failing to meet the requirements of the Contract Documents; and
(vi) 6. May not be asserted by Developer against TxDOT the Department as a defense, legal or equitable, equitable defense to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.3.7.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.3.7.1 or failure to conduct any such activity by TxDOTthe Department. Such activity or failure to conduct such activity by TxDOT the Department shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.3.7.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT the Department from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Public Private Partnership Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:,
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.Contract
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion, Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project East End Crossing into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.Section
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project East End Crossing to satisfy the standards and requirements of the Contract PPA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(i) a. Developer shall be entitled to rely on written approvals and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.or
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(i) Is solely for the benefit and protection of TxDOT;
(ii) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
and 4.1.8(c): (i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were was conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were was conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, DeveloperXxxxxxxxx’s obligation obliga tion to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract FA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project Facility (other than the design and construction of the TxDOT Works) into compliance with requirements of the Contract FA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract FA Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract FA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract FA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract FA Documents. The foregoing does not in any manner waive or lessen TxDOT’s obligations under Article 25.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract FA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project Facility (except in respect of design and construction of the TxDOT Works) to satisfy the standards and requirements of the Contract FA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Facility Agreement
Limitations on Developer’s Right to Rely. (a) No 4.4.7.1 Except for the Owner’s acceptance of a Developer Change Proposal pursuant to Section 12.2, no review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates any Certificate of Functional Area Readiness, Certificate of Project Substantial Completion and Completion, or Certificate of Project Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTthe Owner, and no lack thereof by TxDOTthe Owner, shall constitute acceptance by the Owner of materials or Work that fails to does not comply with the Contract Documents or waiver of any legal or equitable right held by the Owner with respect to such Work under the Contract DocumentsDocuments or Law, at lawprovided that Developer may rely on: (a) a Certificate of Functional Area Readiness for the commencement of the O&M Services and Concessions operations, or in equityif any, except to for the extent Nonconforming Work is expressly accepted by TxDOT in its discretion relevant Functional Area; and in accordance with Section 6.8.2(b) a Certificate of Project Substantial Completion for the commencement of the applicable O&M Services and Concessions operations and the commencement of Supplemental Payments. TxDOT The Owner shall be entitled to exercise all rights and remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done under the Contract Documents or Law to bring the Work and the Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight Oversight were conducted or given by TxDOTthe Owner. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTthe Owner:
(i) 1. Is solely for the benefit and protection of TxDOTthe Owner;
(ii) 2. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities and the performance of Developer and all Developer-Related Entities in accordance with the terms and conditions of the Contract Documents;
(iii) 3. Does not create or impose upon TxDOT the Owner any duty or obligation toward Developer to cause it Developer to fulfill the requirements of the Contract Documents;
(iv) 4. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTthe Owner;
(v) 5. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents, except that the issuance of the Certificate of Project Substantial Completion may be relied upon and used as evidence to establish Developer’s entitlement to start receiving the Supplemental Payments, nevertheless without waiving the Owner’s rights and remedies against Developer for failing to meet the requirements of the Contract Documents; and
(vi) 6. May not be asserted by Developer against TxDOT the Owner as a defense, legal or equitable, equitable defense to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) 4.4.7.2 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT the Owner from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a) No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(i) Is solely for the benefit and protection of TxDOT;
(ii) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(iv) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(v) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vi) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Limitations on Developer’s Right to Rely. 5.1.3.1 No action or failure to take action by or on behalf of LAWA relating to Oversight (including review and approval of the Project Management Plan) or other act or omission of LAWA or the Independent Engineer shall:
(a) No constitute an approval or acceptance by LAWA of Developer’s performance of its obligations in accordance with the Contract Documents;
(b) alter, waive, diminish or otherwise prejudice any rights, remedies or powers that LAWA has under the Contract Documents or otherwise;
(c) limit Developer’s obligation to perform the Work in accordance with the Contract Documents; or
(d) affect Developer’s liabilities and obligations to fulfill the requirements of the Contract Documents (including its indemnity obligations).
5.1.3.2 Developer acknowledges and agrees that review, comment oncomment, exception, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity certification or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTLAWA:
(ia) Is is solely for the benefit and protection of TxDOTLAWA;
(iib) Does does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does does not relieve Developer from compliance with the requirements of the Contract Documents or create or impose upon TxDOT LAWA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTXXXX;
(ve) May may not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents;
(f) shall not relieve Developer from liability for, and responsibility to replace, Nonconforming Work (including Work based on Design Documents to the extent that they include a change, deviation, modification, alteration or exception from the Technical Provisions not approved as a Deviation) and to cure Developer Defaults;
(g) shall not be deemed or construed as any assumption of risk by XXXX as to design, construction, equipping, supply, operations, maintenance, performance or quality of the Project or performance of the Work; and
(vih) May may not be asserted by Developer against TxDOT LAWA as a defense, legal or equitable, equitable defense to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.
(c) To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 5.1.3.3 Notwithstanding the provisions of Sections 4.1.8(a)5.1.3.1 and 5.1.3.2, 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose LAWA’s written approval of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;12.4 (Deviations).
(iii) Developer shall be entitled to rely on the certificates 5.1.3.4 LAWA’s approval of Substantial Completion and Final Acceptance from TxDOT design documents for the limited purpose of establishing that Substantial Completion and Final Acceptance, construction as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under described in the Contract Documents in accordance with all standards applicable theretoshall constitute approval of the design by LAWA for purposes of Government Code section 830.6, but shall not be deemed to relieve Developer of liability for the design.
Appears in 1 contract
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment on, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its sole discretion and in accordance with Section 6.8.25.6.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) 3.1.8.2 Unless expressly permitted under Section 6.8.25.6.2, Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 5.6.2 or Developer defaults.
(c) 3.1.8.3 To the maximum extent permitted by law, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s its sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.52.1.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Development Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project East End Crossing into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOTIFA. Such activity by TxDOT IFA shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project East End Crossing to satisfy the standards and requirements of the Contract PPA Documents.
(d) Notwithstanding the provisions of Sections 4.1.8(a), 4.1.8(b) and
(i) Developer shall be entitled to rely on approvals and acceptances from TxDOT: (A) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOT, and no lack thereof by TxDOT, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract Documents, regardless of whether previous review, comment on, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOT. Regardless of any such activity or failure to conduct any such activity by TxDOT, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract Documents. Xxxxxxxxx agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOT:,
(ia) Is solely for the benefit and protection of TxDOTADOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iiic) Does not create or impose upon TxDOT ADOT any duty duty, standard of care or obligation toward Developer to cause it to fulfill the requirements of the Contract DocumentsDocuments or toward any other Person, all of which are hereby expressly disclaimed;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTADOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract Documents;
(f) Shall not be deemed or construed as any assumption of risk by the ADOT as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vig) May not be asserted by Developer against TxDOT ADOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.its
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT from any and all duty and obligation to cause Developer’s Work or the Project to satisfy the standards and requirements of the Contract Documents.hereby
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: ADOT (Ai) for the limited purpose of establishing that the approval or acceptance occurred occurred, or (Bii) that are within TxDOT’s sole, its sole discretion or absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT ADOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT ADOT approves under Section 3.2.56.2.4;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT ADOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof, nevertheless without prejudice to any rights and remedies available to ADOT respecting unapproved Deviations, Nonconforming Work and Developer Defaults;
(ivd) TxDOT ADOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT ADOT delivers to Developer; and
(ve) TxDOT ADOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Design Build Maintain Agreement
Limitations on Developer’s Right to Rely. (a)
3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 3.1.8.1 or failure to conduct any such activity by TxDOTIFA. Such activity by TxDOT IFA shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project to satisfy the standards and requirements of the Contract PPA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(i) a. Developer shall be entitled to rely on written approvals and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.or
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 3.1.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification (including certificates of Substantial Completion, Substantial Completion and Final Acceptance), concurrence monitoring, testing, inspection, spot checking, auditing or other oversight Oversight by or on behalf of TxDOTIFA, including review and approval of the Project Management Plan, and no lack thereof by TxDOTIFA, shall constitute acceptance by IFA of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract PPA Documents, at lawLaw, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT IFA shall be entitled to remedies for unapproved Deviations and Deviations, Nonconforming Work and Developer Defaults and to identify additional Work which must be done to bring the Work and Project East End Crossing into compliance with requirements of the Contract PPA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, concurrence, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were Oversight was conducted or given by TxDOTIFA. Regardless of any such activity or failure to conduct any such activity by TxDOTIFA, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract PPA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTIFA:
(i) a. Is solely for the benefit and protection of TxDOTIFA;
(ii) b. Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;
(iii) c. Does not create or impose upon TxDOT IFA any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract PPA Documents;
(iv) d. Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOTIFA;
(v) e. May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract PPA Documents;
f. Shall not be deemed or construed as any assumption of risk by IFA as to design, construction, operations, maintenance, performance or quality of Work or materials; and
(vi) g. May not be asserted by Developer against TxDOT IFA as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract PPA Documents.
(b) Unless expressly permitted under Section 6.8.2, 3.1.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract PPA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) or failure to conduct any such activity by TxDOT. Such activity by TxDOT shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaults.Section
(c) 3.1.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT IFA from any and all duty and obligation to cause Developer’s 's Work or the Project East End Crossing to satisfy the standards and requirements of the Contract PPA Documents.
(d) 3.1.8.4 Notwithstanding the provisions of Sections 4.1.8(a)3.1.8.1, 4.1.8(b) and3.1.8.2 and 0.0.0.0:
(i) a. Developer shall be entitled to rely on written approvals and acceptances from TxDOT: IFA (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (B) that are within TxDOT’s sole, absolute or unfettered discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(ii) Developer shall be entitled to rely on specific Deviations TxDOT approves under Section 3.2.5;
(iii) Developer shall be entitled to rely on the certificates of Substantial Completion and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(iv) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any statement TxDOT delivers to Developer; and
(v) TxDOT is not relieved from performance of its express responsibilities under the Contract Documents in accordance with all standards applicable thereto.or
Appears in 1 contract
Samples: Public Private Agreement
Limitations on Developer’s Right to Rely. (a) 6.3.8.1 No review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification (including certificates of Substantial Completion Completion, Service Commencement and Final Acceptance), concurrence concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight by or on behalf of TxDOTTxDOT or the Independent Engineer, and no lack thereof by TxDOTTxDOT or the Independent Engineer, shall constitute acceptance of materials or Work that fails to comply with the Contract Documents or waiver of any legal or equitable right under the Contract CDA Documents, at law, or in equity, except to the extent Nonconforming Work is expressly accepted by TxDOT in its discretion and in accordance with Section 6.8.2. TxDOT shall be entitled to remedies for unapproved Deviations and Nonconforming Work and to identify additional Work which must be done to bring the Work and Project Facility into compliance with requirements of the Contract CDA Documents, regardless of whether previous review, comment oncomment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by TxDOTTxDOT or the Independent Engineer. Regardless of any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer, Developer at all times shall have an independent duty and obligation to fulfill the requirements of the Contract CDA Documents. Xxxxxxxxx Developer agrees and acknowledges that any such activity or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer:
(ia) Is solely for the benefit and protection of TxDOT;
(iib) Does not relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related EntitiesEntities (other than NTTA);
(iiic) Does not create or impose upon TxDOT any duty or obligation toward Developer to cause it to fulfill the requirements of the Contract CDA Documents;
(ivd) Shall not be deemed or construed as any kind of warranty, express or implied, by TxDOT;
(ve) May not be relied upon by Developer or used as evidence in determining whether Developer has fulfilled the requirements of the Contract CDA Documents; and
(vif) May not be asserted by Developer against TxDOT as a defense, legal or equitable, to, or as a waiver of or relief from, Developer’s obligation to fulfill the requirements of the Contract CDA Documents.
(b) Unless expressly permitted under Section 6.8.2, 6.3.8.2 Developer shall not be relieved or entitled to reduction of its obligations to perform the Work in accordance with the Contract CDA Documents, or any of its other liabilities and obligations, including its indemnity obligations, as the result of any activity identified in Section 4.1.8(a) 6.3.8.1 or failure to conduct any such activity by TxDOTTxDOT or the Independent Engineer. Such activity by TxDOT or the Independent Engineer shall not relieve Developer from liability for, and responsibility to cure and correct, any unapproved Deviations, Nonconforming Work that is not expressly accepted in accordance with Section 6.8.2 or Developer defaultsDefaults.
(c) 6.3.8.3 To the maximum extent permitted by lawLaw, Developer hereby releases and discharges TxDOT and the Independent Engineer from any and all duty and obligation to cause Developer’s 's Work or the Project Facility to satisfy the standards and requirements of the Contract CDA Documents. The Independent Engineer is an intended third party beneficiary of this provision.
(d) 6.3.8.4 Notwithstanding the provisions of Sections 4.1.8(a)6.3.8.1, 4.1.8(b) 6.3.8.2 and
(ia) Developer shall be entitled to rely on written approvals and acceptances from TxDOT: TxDOT (Ai) for the limited purpose of establishing that the approval or acceptance occurred or (Bii) that are within TxDOT’s sole, absolute or unfettered its sole discretion, but only to the extent that Developer is prejudiced by a subsequent decision of TxDOT to rescind such approval or acceptance;
(iib) Developer shall be entitled to rely on specific written Deviations TxDOT approves under Section 3.2.57.2.2 or 8.1.2.10;
(iiic) Developer shall be entitled to rely on the certificates of Substantial Completion Completion, Service Commencement and Final Acceptance from TxDOT for the limited purpose of establishing that Substantial Completion Completion, Service Commencement and Final Acceptance, as applicable, have occurred, and the respective dates thereof;
(ivd) TxDOT is not relieved from any liability arising out of a knowing and intentional material misrepresentation under any written statement TxDOT delivers to Developer; and
(ve) TxDOT is not relieved from performance of its express responsibilities under the Contract CDA Documents in accordance with all standards applicable thereto.
Appears in 1 contract
Samples: Comprehensive Development Agreement
