Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents. 9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following: (a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7; (b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance; (c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services; (d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement; (e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal; (f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5; (g) Reviewing the establishment and plans of Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection procedures, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 of the Technical Provisions; (h) Attending and witnessing Developer’s other tests and inspections; (i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law; (j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders; (k) Making recommendations on Relief Event Determinations; (l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests, (m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8; (n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and (o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7. 9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions. 9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement. 9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement. 9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement. 9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to: (a) Arbitrate or render binding decisions or judgments; (b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific (c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals; (d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5; (e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.the
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project Facility offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project Facility offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety safety
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of life TxDOT or property; and quality control; orDeveloper, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;the
(h) Attending and witnessing DeveloperXxxxxxxxx’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals);
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; ;
(f) Undertake Developer’s primary responsibility for quality assurance and quality control; or
(g) Act as an agent of TxDOT or Developer, except as provided in Section 9.3.1.2(c).
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection procedures, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 2 contracts
Samples: Comprehensive Development Agreement, Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; ;
(f) Undertake Developer’s primary responsibility for quality assurance and quality control; or
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals);
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; ;
(f) Undertake Developer’s primary responsibility for quality assurance and quality control; or
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.the
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project Facility offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 22.4 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals);
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 22.4 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project Facility offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals);
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety safety
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of life TxDOT or property; and quality control; orDeveloper, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.the
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; oror Section 9.3.1.2(c).
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection procedures, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; oror Section 9.3.1.2(c).
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection procedures, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals);
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
(f) Undertake Developer’s primary responsibility for quality assurance
(g) Act as an agent of TxDOT or Developer, except as provided in
9.3.1.8 In the event the Parties determine that the Independent Engineer Agreement for any reason is inconsistent with the provisions of the CDA Documents on the scope of work, roles, responsibilities or compensation of the Independent Engineer, or fails to include any such scope of work, role, responsibility or compensation terms, the Parties shall use diligent efforts to amend the Independent Engineer Agreement to correct the inconsistency or failure.
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Management Plan, including (i) audit review of Design Documents, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 22.4 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for tofor the sole purpose of confirming compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 21, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project and Developer’s Project offices, operations buildings and data respecting the Project design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.that
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specific
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the Project, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
Oversight by Independent Engineer. 9.3.1.1 From and after the Effective Date, the Independent Engineer shall have the right and responsibility to conduct the monitoring, reviewing, inspection, testing, reporting, auditing and other oversight functions set forth in the CDA Documents and the Independent Engineer Agreement. The Parties shall cause the Independent Engineer Agreement to include all the rights and responsibilities of the Independent Engineer set forth in the CDA Documents.
9.3.1.2 The Independent Engineer’s rights and responsibilities shall include throughout the Term the following:
(a) Monitoring and auditing Developer and its books and records to determine compliance with requirements of the CDA Documents and the approved Project Facility Management Plan, including (i) audit review of Design Documents, Plans, Construction Documents and other Submittals and (ii) audit review regarding Patron Confidential Information; as provided in Section 8.8.7;
(b) Conducting field monitoring and inspections on an audit basis as indicated in the CDA Documents and Independent Engineer Agreement, including in connection with TxDOT’s certifications of Substantial Completion, Service Commencement and Final Acceptance;
(c) Conducting Owner Verification Tests (“OVT”) to verify Developer’s compliance with all testing frequencies and requirements, including performance and acceptance testing, set forth in the CDA Documents and the approved Project Facility Management Plan. The Independent Engineer’s OVT effort during construction will focus on materials, components, systems and Elements where Nonconforming Work, Deviations, Defects or other non-compliance could affect safety, compliance with Governmental Approvals or the Residual Life at Handback. Notwithstanding any contrary provisions hereof, the Independent Engineer will perform OVT as the express agent of TxDOT, under TxDOT’s exclusive direction and control, and TxDOT will pay for all costs of the Independent Engineer’s OVT services;
(d) Providing simultaneously to Developer, TxDOT and the Collateral Agent reports, quality reports, regular audit reports, reports on Performance Requirements, Targets and Defects, other reports, and findings, opinions, evaluations, comments, objections and recommendations, all as more particularly set forth in the CDA Documents and the Independent Engineer Agreement;
(e) Reviewing and commenting on all Submittals for which TxDOT review and comment or approval is required under the CDA Documents, unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement, or unless waived in writing by the Parties for a specific Submittal or type of Submittal;
(f) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Renewal Work Schedule and revisions thereto, as provided in Section 8.6.5;
(g) Reviewing the establishment and plans of Selecting Auditable Sections submitted for approval in accordance with Section 19.3.2 of the Technical Provisions, reviewing the random selection procedures for selecting Auditable Sections and ensuring that the Auditable Sections are selected in accordance with the random selection proceduresSections, accompanying Developer on physical inspections associated with Developer’s Audit Inspections, conducting audit inspectionsits own Audit Inspections, assessing and scoring Developer’s O&M Records, and assessing and scoring the condition of Elements, as provided in Section 19.5 the Maintenance Management Plan and Table 19-2 of the Technical Provisions;
(h) Attending and witnessing Developer’s other tests and inspections;
(i) Auditing the books and records of Key Contractors for the sole purpose of confirming to confirm compliance with the CDA Documents and applicable Law;
(j) Investigating, analyzing and reporting on Safety Compliance and performance of Safety Compliance Orders;
(k) Making recommendations on Relief Event Determinations;
(l) Evaluating and reporting to TxDOT on Developer’s estimates of cost impacts attributable to Compensation Events, Relief Events, Developer’s projected impacts of proposed TxDOT Changes on the Project Facility Schedule and Milestone Schedule, and Change Requests,
(m) Recommending suspension of work if circumstances exist that would entitle TxDOT to order suspension of work under Section 17.3.8;
(n) Notifying TxDOT of any Developer breach or failure specified in Exhibit 2118, recommending assessment of Noncompliance Points, and reporting on Developer’s cure or failure to cure, as provided in Section 18.2; and
(o) Reviewing, commenting on and giving recommendations, objections or disapprovals regarding the Facility Payment Request and revisions thereto, as provided in Exhibit 7.
9.3.1.3 Developer at all times shall coordinate and cooperate with the Independent Engineer to facilitate the full, efficient, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting, auditing, and other oversight functions. Without limiting the foregoing, Developer shall afford the Independent Engineer safe access to the Project Facility and Developer’s Project offices, operations buildings and data respecting the Project Facility design, construction, operations and maintenance, and the Utility Adjustment Work, and shall deliver to the Independent Engineer upon request accurate and complete books, records, data and information regarding Work, the Project Facility and the Utility Adjustment Work, in the format required by the Technical Provisions.
9.3.1.4 The Independent Engineer shall be required to report and give notices to TxDOT, Developer and Lenders in accordance with the terms of the Independent Engineer Agreement.
9.3.1.5 Except as provided in Section 9.3.1.2(c), costs and expenses for the Independent Engineer shall be allocated equally between Developer and TxDOT, as set forth in the Independent Engineer Agreement.
9.3.1.6 Wherever in the CDA Documents it is stated that the Independent Engineer shall or may perform an action, function or task, it means that the Parties agree that the Independent Engineer has been or will be given the right and obligation to perform the same under the Independent Engineer Agreement.
9.3.1.7 The Independent Engineer is procured by TxDOT, with input from Developer, to assist them with fair and objective oversight and administration of this Agreement and the Work. Nothing in this Agreement, the Technical Provisions or the Independent Engineer Agreement is intended or shall be construed as vesting in the Independent Engineer any powers or authority to:
(a) Arbitrate or render binding decisions or judgments;
(b) Approve or disapprove Submittals or Work (unless expressly provided otherwise in the CDA Documents or Independent Engineer Agreement for specificspecific Submittals); other Submittals;
(c) Conduct “over-the-shoulder” reviews of Design Documents or other Submittals;or
(d) Conduct formal prior reviews of Design Documents except to the extent necessary or advisable to comply with FHWA, U.S. Army Corps of Engineers or other applicable federal agency requirements or unless TxDOT chooses to have the Independent Engineer do so pursuant to Section 18.5;
(e) Direct design, construction, operations or maintenance of the ProjectFacility, or order suspensions of Work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; and quality control; or
Appears in 1 contract
Samples: Comprehensive Development Agreement
