Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a) a Maintenance Manager approved by TxDOT who (i) has full responsibility for the prosecution of the Maintenance Services, (ii) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iii) is available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period. 5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior approval for any change to the person then serving as the Maintenance Manager. 5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidate. DB Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position. 5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance Services 5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email addresses and pager numbers for the Maintenance Manager and all such field representatives. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives 24 hours per Day, seven Days per week. 5.4.6 DB Contractor acknowledges and agrees that the award of this CMA by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
Appears in 4 contracts
Samples: Capital Maintenance Agreement, Capital Maintenance Agreement, Capital Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance PeriodTerm, DB Maintenance Contractor shall provide (a) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Maintenance Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTPNTP1, DB Maintenance NTP2 and Maintenance NTP3, if applicable, Maintenance Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager as presented in the Proposal.
5.4.3 During the Maintenance PeriodTerm, DB Maintenance Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Maintenance Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Maintenance Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Maintenance Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Maintenance Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or
5.4.5 DB Maintenance Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Maintenance Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Maintenance Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Maintenance Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Maintenance Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Maintenance Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Maintenance Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $103,000
5.4.8 In addition, if the individual filling the role of Maintenance Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day (x) beginning on (i) to the extent Maintenance Contractor shall not have submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager role is vacated due to death, retirement, injury or no longer being
5.4.9 Maintenance Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. Maintenance Contactor shall pay to TxDOT within ten Business Days after Maintenance Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to Maintenance Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, Maintenance Contractor shall not be liable for damages under Sections 5.4.7 and
Appears in 2 contracts
Samples: Comprehensive Maintenance Agreement, Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance PeriodTerm, DB Maintenance Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Maintenance Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Periodterm of the COMA.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Maintenance Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager and the Maintenance Safety Manager as presented in the Proposal.
5.4.3 During the Maintenance PeriodTerm, DB Maintenance Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Maintenance Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Maintenance Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Maintenance Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Maintenance Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, Maintenance Contractor shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Maintenance Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Maintenance Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Maintenance Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Maintenance Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Maintenance Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Maintenance Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Maintenance Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role or the Maintenance Safety Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role or the Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $76,000 Maintenance Safety Manager $76,000
5.4.8 In addition, if the individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain
5.4.9 Maintenance Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. Maintenance Contactor shall pay to TxDOT within ten Business Days after Maintenance Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to Maintenance Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, Maintenance Contractor shall not be liable for damages under Sections 5.4.7 and
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a) a Maintenance Manager approved by TxDOT who (i) has full responsibility for the prosecution of the Maintenance Services, (ii) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iii) is available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior approval for any change to the person then serving as the Maintenance Manager.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidate. DB Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.the
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project, and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email addresses and pager numbers for the Maintenance Manager and all such field representatives. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
Appears in 1 contract
Samples: Capital Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance PeriodTerm, DB Maintenance Contractor shall provide (a) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Maintenance Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTPNTP1, DB Maintenance NTP2 and Maintenance NTP3, if applicable, Maintenance Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager as presented in the Proposal.
5.4.3 During the Maintenance PeriodTerm, DB Maintenance Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Maintenance Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Maintenance Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Maintenance Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Maintenance Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or
5.4.5 DB Maintenance Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Maintenance Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Maintenance Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Maintenance Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Maintenance Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Maintenance Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Maintenance Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to clauses (a)-(c) of Sections 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $103,000
5.4.8 In addition, if the individual filling the role of Maintenance Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, subject to clauses (a)-(c) of Section 5.4.9, for each day that the Maintenance Manager role is not filled by an approved individual, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows, as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $10,300 per day
5.4.9 Maintenance Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. Maintenance Contactor shall pay to TxDOT within ten Business Days after Maintenance Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to Maintenance Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, Maintenance Contractor shall not be liable for damages under Sections 5.4.7 and
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) is dedicated to the Project and has full responsibility for the prosecution of the Maintenance Services, (iib) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iiic) is available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the applicable Maintenance PeriodTerm.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior written approval for of any change to the person then serving as the Maintenance ManagerManager under the DB Agreement and the person identified as the Maintenance Safety Manager in the Proposal.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.and
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative(s). TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative(s) 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If either of the approved individuals filling the Maintenance Manager role or the Maintenance Safety Manager role are not available for the Maintenance Services and do not maintain active involvement in the prosecution and performance of the Maintenance Services because either such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if either such individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $76,000 Texas Department of Transportation Grand Parkway Project Segments H, I-1 & I-2 23 RFP Addendum #4 Comprehensive Maintenance Agreement October 1, 2015 Maintenance Safety Manager $76,000
5.4.8 In addition, if either individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day (x) beginning on (i) to the extent DB Contractor shall not have submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the fifteen-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated for any other reason, as applicable, or (ii) to the extent DB Contractor shall have submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager or Maintenance Safety Manager role, as applicable, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $7,000 per day Maintenance Safety Manager $7,000 per day
5.4.9 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within ten Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such Key Personnel Change Fees from any amounts owed by TxDOT to DB Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 5.4.7 and 5.4.8 if: (a) DB Contractor removes or replaces such person at the direction of TxDOT;
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the applicable Maintenance PeriodTerm.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager and the Maintenance Safety Manager as presented in the Proposal.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance Services
5.4.5 DB Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role or the Maintenance Safety Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role or the Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $76,000 Maintenance Safety Manager $76,000
5.4.8 In addition, if the individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such
5.4.9 DB Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within ten Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to DB Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for damages under Sections 5.4.7 and 5.4.8 if: (a) DB Contractor removes or replaces such person at the direction of TxDOT; (b) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding such damages); or (c) DB Contractor identifies the replacement for the Maintenance Manager or Maintenance Safety Manager, as applicable within 60 Days after issuance of any Maintenance NTP, provided, however, in each such case, DB Contractor shall promptly propose to TxDOT a replacement for such personnel, which individual shall be subject to TxDOT’s prior written approval. Following any TxDOT-approved substitution or replacement of the Maintenance Manager or Maintenance Safety Manager, as applicable pursuant to the terms hereof, the new individual shall be considered the Maintenance Manager or Maintenance Safety Manager, as applicable for all purposes under this Comprehensive Maintenance Agreement, including the provisions of this Section 5.4.9.
5.4.10 DB Contractor acknowledges and agrees that the Maintenance Manager and Maintenance Safety Manager positions are of critical importance to TxDOT and the Project. In addition to the approval rights of TxDOT set forth in this Section 5.4 and the damages set forth in Sections 5.4.7 and 5.4.8, if the individual in the Maintenance Manager or Maintenance Safety Manager position leaves that position for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, XxXXX shall have the right to terminate this Comprehensive Maintenance Agreement for default under Section 12, unless DB Contractor provides TxDOT a replacement acceptable to TxDOT within 30 Days after the earlier of: (a) the date on which such individual has left his/her position; or (b) DB Contractor or TxDOT becomes aware that such individual intends to leave his/her position.
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance PeriodTerm, DB Maintenance Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Maintenance Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Periodterm of the COMA.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Maintenance Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager and the Maintenance Safety Manager as presented in the Proposal.
5.4.3 During the Maintenance PeriodTerm, DB Maintenance Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Maintenance Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Maintenance Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Maintenance Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Maintenance Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, Maintenance Contractor shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Maintenance Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Maintenance Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Maintenance Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Maintenance Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Maintenance Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Maintenance Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Maintenance Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role or the Maintenance Safety Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role or the Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $76,000 Maintenance Safety Manager $76,000 Texas Department of Transportation Grand Parkway Project Segments H, I-1 & I-2 23 RFP Addendum #1 Comprehensive Maintenance Agreement June 25, 2015
5.4.8 In addition, if the individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, Maintenance Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day (x) beginning on (i) to the extent Maintenance Contractor shall not have submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable Maintenance Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the fifteen-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated for any other reason, as applicable, or (ii) to the extent Maintenance Contractor shall have submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager or Maintenance Safety Manager role, as applicable, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, Maintenance Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $7,000 per day Maintenance Safety Manager $7,000 per day
5.4.9 Maintenance Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. Maintenance Contactor shall pay to TxDOT within ten Business Days after Maintenance Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to Maintenance Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, Maintenance Contractor shall not be liable for damages under Sections 5.4.7 and
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) is dedicated to the Project and has full responsibility for the prosecution of the Maintenance Services, (iib) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iiic) is available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the applicable Maintenance PeriodTerm.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior written approval for of any change to the person then serving as the Maintenance ManagerManager under the DB Agreement and the person identified as the Maintenance Safety Manager in the Proposal.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.and
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative(s). TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative(s) 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If either of the approved individuals filling the Maintenance Manager role or the Maintenance Safety Manager role are not available for the Maintenance Services and do not maintain active involvement in the prosecution and performance of the Maintenance Services because either such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if either such individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $76,000 Texas Department of Transportation Grand Parkway Project Segments H, I-1 & I-2 23 RFP Addendum #5 Comprehensive Maintenance Agreement October 22, 2015 Maintenance Safety Manager $76,000
5.4.8 In addition, if either individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day (x) beginning on (i) to the extent DB Contractor shall not have submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the fifteen-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated for any other reason, as applicable, or (ii) to the extent DB Contractor shall have submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager or Maintenance Safety Manager role, as applicable, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $7,000 per day Maintenance Safety Manager $7,000 per day
5.4.9 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within ten Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such Key Personnel Change Fees from any amounts owed by TxDOT to DB Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 5.4.7 and 5.4.8 if: (a) DB Contractor removes or replaces such person at the direction of TxDOT;
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) has will have full responsibility for the prosecution of the Maintenance Services, (iib) acts will act as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iiic) is will be available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the applicable Maintenance PeriodTerm.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall update and obtain TxDOT’s prior written approval for of any change changes to the person then serving as the Maintenance ManagerManager and the Maintenance Safety Manager as presented in the Proposal.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance Services
5.4.5 DB Contractor shall designate in writing one or more a field representatives representative who shall have onsite field and office authority to represent and act for DB Contractor. A field That representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are actually in progress. DB Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role or the Maintenance Safety Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if such individual filling the Maintenance Manager role or the Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a liquidated amount as follows as deemed compensation to TxDOT for such Losses: POSITION LIQUIDATED AMOUNT Maintenance Manager $76,000 Maintenance Safety Manager $76,000
5.4.8 In addition, if the individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such
5.4.9 DB Contractor understands and agrees that any damages payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within ten Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such damages from any amounts owed by TxDOT to DB Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for damages under Sections 5.4.7 and 5.4.8 if: (a) DB Contractor removes or replaces such person at the direction of TxDOT; (b) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding such damages); or (c) DB Contractor identifies the replacement for the Maintenance Manager or Maintenance Safety Manager, as applicable within 60 Days after issuance of any Maintenance NTP, provided, however, in each such case, DB Contractor shall promptly propose to TxDOT a replacement for such personnel, which individual shall be subject to TxDOT’s prior written approval. Following any TxDOT-approved substitution or replacement of the Maintenance Manager or Maintenance Safety Manager, as applicable pursuant to the terms hereof, the new individual shall be considered the Maintenance Manager or Maintenance Safety Manager, as applicable for all purposes under this Comprehensive Maintenance Agreement, including the provisions of this Section 5.4.9.
5.4.10 DB Contractor acknowledges and agrees that the Maintenance Manager and Maintenance Safety Manager positions are of critical importance to TxDOT and the Project. In addition to the approval rights of TxDOT set forth in this Section 5.4 and the damages set forth in Sections 5.4.7 and 5.4.8, if the individual in the Maintenance Manager or Maintenance Safety Manager position leaves that position for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, TxDOT shall have the right to terminate this Comprehensive Maintenance Agreement for default under Section 12, unless DB Contractor provides TxDOT a replacement acceptable to TxDOT within 30 Days after the earlier of: (a) the date on which such individual has left his/her position; or (b) DB Contractor or TxDOT becomes aware that such individual intends to leave his/her position.
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a) a Maintenance Manager approved by TxDOT who (i) has full responsibility for the prosecution of the Maintenance Services, (ii) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iii) is available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior approval for any change to the person then serving as the Maintenance Manager.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidate. DB Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.the
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project, and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email addresses and pager numbers for the Maintenance Manager and all such field representatives. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Capital Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced, DB Contractor acknowledges that POSITION KEY PERSONNEL CHANGE FEE
5.4.8 In addition, if the individual filling the role of Maintenance Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses that would accrue to TxDOT in such event. Therefore, subject to Section 5.4.9, for each day (x) beginning on, (i) if DB Contractor has not yet submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the 15-day period after the Maintenance Manager role is vacated for any other reason, as applicable, or (ii) if DB Contractor has submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager role, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, DB Contractor agrees to pay to TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: Maintenance Manager $5,000 per day
5.4.9 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within 10 Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its discretion, shall have the right to deduct such Key Personnel Change Fees from any amounts owed by TxDOT to DB Contractor or to collect such Key Personnel Change Fees from any bond, letter of credit or Guaranty furnished in accordance with this Capital Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 5.4.7 and 5.4.8, if
(a) DB Contractor removes or replaces such person at the direction of TxDOT, (b) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding such damages) or
Appears in 1 contract
Samples: Capital Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a1) a Maintenance Manager approved by TxDOT who who: (ia) is dedicated to the Project and has full responsibility for the prosecution of the Maintenance Services, (iib) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iiic) is available to respond to TxDOT or TxDOT’s Authorized Representatives; Representatives and (b2) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the applicable Maintenance PeriodTerm.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior written approval for of any change to the person then serving as the Maintenance ManagerManager under the DB Agreement and the person identified as the Maintenance Safety Manager in the Proposal.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager or the Maintenance Safety Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager or the Maintenance Safety Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager or the Maintenance Safety Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidatecandidate(s). DB Contractor’s request to replace the Maintenance Manager or the Maintenance Safety Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.and
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its sole discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email e-mail addresses and pager numbers for the Maintenance Manager and all such field representativesrepresentative(s). TxDOT requires the ability to contact the Maintenance Manager and all such field representatives representative(s) 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Comprehensive Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If either of the approved individuals filling the Maintenance Manager role or the Maintenance Safety Manager role are not available for the Maintenance Services and do not maintain active involvement in the prosecution and performance of the Maintenance Services because either such individual has been replaced for a reason other than as set forth in clauses (a)-(c) of Section 5.4.9, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial Losses and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, if either such individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available or not actively involved in the prosecution and performance of the Maintenance Services, as determined by TxDOT in its sole discretion, then, subject to Section 5.4.9, regardless of whether such individual has been replaced by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $76,000 Texas Department of Transportation Grand Parkway Project Segments H, I-1 & I-2 23 RFP Addendum #3 Comprehensive Maintenance Agreement September 18, 2015 Maintenance Safety Manager $76,000
5.4.8 In addition, if either individual filling the role of Maintenance Manager or Maintenance Safety Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses which would accrue to TxDOT in such event. Therefore, for each day (x) beginning on (i) to the extent DB Contractor shall not have submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the fifteen-day period after the Maintenance Manager or Maintenance Safety Manager role is vacated for any other reason, as applicable, or (ii) to the extent DB Contractor shall have submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager or Maintenance Safety Manager role, as applicable, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, DB Contractor agrees to pay TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: POSITION KEY PERSONNEL CHANGE FEE Maintenance Manager $7,000 per day Maintenance Safety Manager $7,000 per day
5.4.9 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within ten Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its sole discretion, shall have the right to deduct such Key Personnel Change Fees from any amounts owed by TxDOT to DB Contractor or to collect such damages from any bond or Guaranty furnished under this Comprehensive Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 5.4.7 and 5.4.8 if: (a) DB Contractor removes or replaces such person at the direction of TxDOT;
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Maintenance Manager; Qualifications of Employees. 5.4.1 At all times during the Maintenance Period, DB Contractor shall provide (a) a Maintenance Manager approved by TxDOT who (i) has full responsibility for the prosecution of the Maintenance Services, (ii) acts as agent and shall be a single point of contact in all matters on behalf of DB Contractor, and (iii) is available to respond to TxDOT or TxDOT’s Authorized Representatives; and (b) a Maintenance Safety Manager who will be responsible for all safety aspects of the Project during the Maintenance Period.
5.4.2 On or before 60 Days after TxDOT issues a Maintenance NTP, DB Contractor shall obtain TxDOT’s prior approval for any change to the person then serving as the Maintenance Manager.
5.4.3 During the Maintenance Period, DB Contractor shall promptly notify TxDOT in writing of any proposed changes in the person serving as the Maintenance Manager. DB Contractor shall not change, or permit any change in, the person serving as the Maintenance Manager without the prior written consent of TxDOT. Before DB Contractor replaces the Maintenance Manager, TxDOT shall be given the opportunity to interview and approve or disapprove the replacement candidate. DB Contractor’s request to replace the Maintenance Manager shall include a proposed replacement, with equivalent or better qualifications, who shall be available within 30 Days after TxDOT’s approval. Any request shall be submitted in sufficient time, taking into consideration TxDOT’s interview and approval rights, for an approved replacement to be in position without a gap in continuity of the position.the
5.4.4 All individuals performing Maintenance Services shall have the skill and experience and any licenses or certifications required to perform the Maintenance Services assigned to them. If TxDOT determines, in its discretion, that any Person employed by DB Contractor or any Subcontractor is not performing the Maintenance Services in a proper and skillful manner or is detrimental to the progress of the Maintenance ServicesServices and/or the Project, then, at the written request of TxDOT, DB Contractor shall remove such Person from the Project, and such Person shall not be reemployed on the Project without the prior written approval of TxDOT.
5.4.5 DB Contractor shall designate in writing one or more field representatives who shall have onsite field and office authority to represent and act for DB Contractor. A field representative shall be present within the Maintenance Limits at the job site at all times while Maintenance Services are in progress. DB Contractor shall provide to TxDOT phone, email addresses and pager numbers for the Maintenance Manager and all such field representatives. TxDOT requires the ability to contact the Maintenance Manager and all such field representatives 24 hours per Day, seven Days per week.
5.4.6 DB Contractor acknowledges and agrees that the award of this CMA Capital Maintenance Agreement by TxDOT to DB Contractor was based, in large part, on the qualifications and experience of the personnel listed in the Proposal and DB Contractor’s commitment that such individuals would be available to undertake and perform the Maintenance Services. DB Contractor represents, warrants and covenants that such individuals are available for and will fulfill the roles identified for them in the Proposal in connection with the Maintenance Services. Unless otherwise agreed to by TxDOT in writing, such individuals shall be available for the Maintenance Services and shall maintain active involvement in the prosecution and performance of the Maintenance Services in accordance with the approved Maintenance Management Plan.
5.4.7 If the approved individual filling the Maintenance Manager role is not available for the Maintenance Services and does not maintain active involvement in the prosecution and performance of the Maintenance Services because such individual has been replaced, DB Contractor acknowledges that POSITION KEY PERSONNEL CHANGE FEE
5.4.8 In addition, if the individual filling the role of Maintenance Manager is not available for the Maintenance Services or does not maintain active involvement in the prosecution and performance of the Maintenance Services and such individual has not been replaced by an individual approved by TxDOT, DB Contractor acknowledges that TxDOT, the Maintenance Services and the Project will suffer significant and substantial additional Losses due to the unavailability of an approved individual to fill the Maintenance Manager role and that it is impracticable and extremely difficult to ascertain and determine the actual Losses that would accrue to TxDOT in such event. Therefore, subject to Section 5.4.9, for each day (x) beginning on, (i) if DB Contractor has not yet submitted a proposed replacement to TxDOT, (A) the date immediately following the 30-day period after the Maintenance Manager role is vacated due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (except where such employee is moved to an affiliated company) or (B) the date immediately following the 15-day period after the Maintenance Manager role is vacated for any other reason, as applicable, or (ii) if DB Contractor has submitted a proposed replacement to TxDOT, the date on which TxDOT rejects the proposed replacement for the vacated Maintenance Manager role, and (y) ending on (and excluding) the date on which such role has been filled by an individual approved by TxDOT, DB Contractor agrees to pay to TxDOT a Key Personnel Change Fee as follows as deemed compensation to TxDOT for such Losses: Maintenance Manager $5,000 per day Texas Department of Transportation 29 Request for Proposals – Addendum #5 Southern Gateway Project Capital Maintenance Agreement March 21, 2017
5.4.9 DB Contractor understands and agrees that any Key Personnel Change Fees payable in accordance with Sections 5.4.7 and 5.4.8 are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances existing as of the Effective Date. DB Contactor shall pay to TxDOT within 10 Business Days after DB Contractor’s receipt of an invoice therefor from TxDOT. In lieu of reimbursement, TxDOT, in its discretion, shall have the right to deduct such Key Personnel Change Fees from any amounts owed by TxDOT to DB Contractor or to collect such Key Personnel Change Fees from any bond, letter of credit or Guaranty furnished in accordance with this Capital Maintenance Agreement. Notwithstanding the foregoing, DB Contractor shall not be liable for Key Personnel Change Fees under Sections 5.4.7 and 5.4.8, if
(a) DB Contractor removes or replaces such person at the direction of TxDOT, (b) such individual is unavailable due to death, retirement, injury or no longer being employed by the applicable DB Contractor-Related Entity (provided that moving to an affiliated company shall not be considered grounds for avoiding such damages) or
Appears in 1 contract
Samples: Capital Maintenance Agreement
