Common use of Department Oversight Clause in Contracts

Department Oversight. Contractor acknowledges that pursuant to Section 10.02 of the Comprehensive Agreement, the Department has the right to oversee the Work, including the DB Work, and Contractor shall cooperate with Concessionaire and Department to facilitate the Department’s conduct of such oversight of the DB Work. If at any time Concessionaire fails to perform any of its obligations in any material respect under the Comprehensive Agreement, the Department, with written notice to Concessionaire given concurrently with the increase in the Department’s monitoring or as soon as practicable thereafter, is entitled, pursuant to Section 10.04(b) of the Comprehensive Agreement, to adequately and appropriately increase the level of its monitoring of the Project and Concessionaire’s compliance with its obligations pursuant to the Comprehensive Agreement, until such time as Concessionaire has demonstrated to the Department’s reasonable satisfaction that it will perform and is capable of performing such obligations. If such failure by Concessionaire to perform its obligations under the Comprehensive Agreement is a result of Contractor’s failure to perform its obligations hereunder, then Contractor (i) will, on behalf of Concessionaire, as required by Section 10.04(b) of the Comprehensive Agreement, compensate the Department for all “Allocable Costs” incurred by the Department as a result of such increased level of monitoring from and after the date on which such increased level of monitoring begins, not to exceed $2,000,000 in the aggregate; provided, that if the increased monitoring is due to a delay in achieving Substantial Completion or Final Acceptance, Contractor will compensate the Department (through Concessionaire) for such increased monitoring solely by payment of liquidated damages pursuant to Section 7.2, and (ii) as permitted by Section 10.04 (d) of the Comprehensive Agreement, may submit a cure plan to the Department (through Concessionaire) describing specific actions Contractor will undertake to improve its performance and avoid the need for increased monitoring, which the Department may accept or reject under the Comprehensive Agreement, and if the Department accepts a cure plan, the Department has agreed under the Comprehensive Agreement not to increase its monitoring or other oversight services unless Concessionaire (or Contractor for the purposes of this Agreement) fails to diligently pursue such cure plan. In addition, Contractor shall, on behalf of Concessionaire, accommodate the Department’s and FHWA’s rights under Section 10.03 of the Comprehensive Agreement with respect to the DB Work, including, but not limited to, the right of access to the Project Right of Way and the right to inspect the DB Work-related records subject to and in accordance with the requirements of the Comprehensive Agreement. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not impose any obligations, duties or liabilities upon the Department beyond those obligations, duties, or liabilities expressly assumed by the Department under the Comprehensive Agreement. Further, nothing in this Agreement shall create any direct cause of action by Contractor against the Department, except to the extent this Agreement is assigned to the Department pursuant to Article 16.