Common use of Design Work Clause in Contracts

Design Work. (a) The Concessionaire will submit to the Department accurate and complete copies of all Design Documentation and Construction Documentation relating to the Work within three Days after such documentation is delivered by the Design-Build Contractor to the Concessionaire under the Design-Build Contract. If the Department determines that any submittal is not in compliance in any respect, the Department will be entitled to cease all further review of such submittal and will notify the Concessionaire with a description of such noncompliance together with its review comments. The Concessionaire will respond to all of the Department’s comments and objections and make all modifications to the submittal necessary to bring such submittal into compliance with this Agreement and resubmit such documentation to the Department in accordance with the foregoing procedures. Such re-submittal will identify all changes to the prior submittal. (b) The Concessionaire will provide the Department with a schedule of its proposed submittals of Design Documentation and Construction Documentation (which schedule will be updated periodically as necessary) so as to facilitate the Department’s coordination and review of such documents, and will complete quality control and quality assurance reviews of all Design Documentation and Construction Documentation to ensure that they are accurate and complete and comply with the requirements of this Agreement and the Technical Requirements prior to any submission to the Department. (c) Whenever the Department is entitled to review and comment on, or to affirmatively approve the Design Documentation and Construction Documentation and other items submitted in accordance with this Agreement or the Technical Requirements, the Department will respond within 21 Days after the Department’s acknowledgement of receipt. In the event that the Department fails to respond in 21 Days, such failure by the Department to respond will be deemed to be the Department’s approval thereof, except to the extent that submittals deviate from the Technical Requirements, Governmental Approvals, or Law. Subject to Section 10.02(c), if the Department has responded, the Concessionaire will respond to all of the Department’s comments and objections and, to the extent Department approval is required pursuant hereto, make modifications to the Design Documentation and Construction Documentation necessary to fully reflect and resolve all such comments and objections, and resubmit such documentation to the Department for its review and approval in accordance with the foregoing procedures (except that in the case of a resubmittal, the Department will have ten Days to respond, unless the Department notifies the Concessionaire within such ten Days that the Department has determined in its sole discretion that the resubmittal is of significant substance and requires the full 21-Day response period). The Concessionaire will give due consideration to the Department’s suggested amendments and comments, but the Concessionaire will not be obligated to incorporate the Department’s suggested amendments or comments unless they are necessary for such submittal to comply with the applicable requirements of this Agreement. Whenever the Department is required to respond to the Concessionaire’s request for the Department’s approval or consent pursuant to this Section 8.04 (whether or not failure to respond is deemed approval or consent), the Department will be deemed to have responded if it has notified the Concessionaire, within the applicable time period, that the Department requires additional time to obtain information or to perform reviews necessary or appropriate for a complete response. (d) Failure to respond within the 21-Day time period will not constitute a deemed approval by the Department pursuant to Section 8.04(c) with respect to the Concessionaire’s Right of Way Acquisition and Relocation Plan, Deviations pursuant to Section 14.03, or any other matter where the Department has sole discretion to approve or disapprove pursuant to this Agreement. Any failure of the Department to respond to the Concessionaire regarding the Department’s approval of such documents or matters within 21 Days after delivery of the Concessionaire’s request to the Department will be deemed disapproval by the Department. If the Department fails to respond within such 21 Days, the Department will notify the Concessionaire of the status of the review of such submittals upon the request of the Concessionaire. (e) On or about the time of the scheduled submissions that require the Department’s review, comment or approval, the Concessionaire will meet with the Department and will identify during such meetings, among other things, the evolution of the design and any Deviations or other changes from any of the Technical Requirements, or, if applicable, previous design submissions. Minutes of the meetings will be maintained by the Concessionaire and provided to all attendees for review. (f) Construction Documentation will set forth in detail drawings and specifications describing the requirements for construction of the Work, in full compliance with the Technical Requirements, Law and Governmental Approvals. The Construction Documentation will be consistent with the latest set of interim design submissions; as such submissions may have been modified in writing in a design review meeting or as otherwise agreed upon in writing, and will be submitted after Concessionaire has obtained all requisite Governmental Approvals associated with the Work contained in such documents. (g) The Department’s review, comment and/or approval of interim design submissions and the Construction Documentation are for the purpose of evaluating the Concessionaire’s compliance with the requirements of this Agreement and will be performed in accordance with the terms of this Agreement. (h) Following the Department’s initial approval pursuant to this Section 8.04, the Concessionaire will have the right to amend, supplement or otherwise modify the Design Public Hearing Documentation, Design Documentation or the Construction Documentation or any part thereof, without the further approval of the Department; provided, that the Department’s approval will be required with respect to amendments, supplements or modifications that (i) constitute a material change in the scope of the Work or Deviations from any of the Technical Requirements, (ii) result in increases in the time to complete the Work beyond the Guaranteed Substantial Completion Date, or (iii) except to the extent directly attributable to a Compensation Event, impose on the Department any new or increased costs, liabilities or obligations; provided, further, that the Concessionaire will provide the Department notice of all such proposed amendments, supplements and modifications regardless of whether the Department’s consent is required and will reimburse the Department, upon demand, for all the Allocable Costs it incurs to review and consider such proposed amendments, supplements or modifications that are subject to the Department’s approval. (i) In the event the Concessionaire’s design differs from the schematic upon which the NEPA Documents were based, as between the Department and the Concessionaire, the Concessionaire will be fully responsible for all necessary actions, and will bear all risk of delay (except to the extent resulting from Delay Events) and all risk of increased cost, resulting from or arising out of any associated change in the Project location and design, including (i) conducting all necessary environmental studies and preparing all necessary environmental documents in compliance with applicable Environmental Laws, (ii) obtaining and complying with all necessary new Governmental Approvals (including any modifications, renewals and extensions of the NEPA Documents and other existing Governmental Approvals) or third party approvals or agreements, and (iii) bearing all risk and cost of litigation. The foregoing provisions will not apply, however, in the case of a Department Change or Department Project Enhancement. The Department and FHWA will independently evaluate all environmental studies and documents and fulfill the other responsibilities assigned to them by 23 CFR Part 771; provided, that except in the case of a Compensation Event that results in a change in the Project location and design, the Concessionaire will fully reimburse the Department for the Allocable Costs it incurs to conduct further or supplemental environmental studies and to fulfill any other responsibilities assigned to it pursuant to 23 CFR Part 771.

Design Work. (a) The Concessionaire DB Contractor will submit to the Department Concessionaire accurate and complete copies of all Design Documentation and Construction Documentation relating to the DB Work within three Days after such documentation is delivered by in accordance with the Design-Build Contractor Schedule of Submittals, which the Concessionaire will deliver to the Department following Concessionaire under the Design-Build ContractApproval or Concessionaire Review, as applicable. If Subject to Section 10.05, if the Department determines that any submittal is not in compliance in any respect, under the CA the Department will be entitled to cease all further review of such submittal and will is to notify the Concessionaire with a description of such noncompliance together with its review comments. The Concessionaire will promptly forward the same to the DB Contractor, which shall, subject to Concessionaire Review, respond to all of the Department’s comments and objections and make all modifications to the submittal necessary to bring such submittal into compliance with this Agreement and the CA and resubmit such documentation to the Concessionaire for resubmission to the Department in accordance with the foregoing procedures. Such re-submittal will identify all changes to the prior submittal. (b) The No later than thirty (30) Days prior to the anticipated date of issuance of the DB Design Work NTP, the DB Contractor shall submit for Concessionaire will provide Approval a proposed Schedule of Submittals meeting the Department with a schedule requirements of its proposed submittals Section 8.04(b) of Design Documentation the CA and Construction Documentation specifying in reasonable detail (which schedule will be updated periodically as necessaryi) so as to facilitate the Department’s coordination and review of such documents, and will complete quality control and quality assurance reviews of all Design Documentation and Construction Documentation to ensure that they are accurate and complete and comply with the requirements of this Agreement and the Technical Requirements prior to any submission to the Department. (c) Whenever the Department is entitled to review and comment on, require Concessionaire Approval or to affirmatively approve the Design Documentation and Construction Documentation and other items submitted Concessionaire Review in accordance with this Agreement or the Technical Requirements, the Department will respond within 21 Days after Requirements and/or the Department’s acknowledgement of receipt. In the event that the Department fails to respond in 21 Days, such failure by the Department to respond will be deemed to be the Department’s approval thereof, except to the extent that submittals deviate from the Technical Requirements, Governmental Approvals, or Law. Subject to Section 10.02(c), if the Department has responded, the Concessionaire will respond to all of the Department’s comments and objections and, to the extent Department approval is required pursuant hereto, make modifications to the Design Documentation and Construction Documentation necessary to fully reflect and resolve all such comments and objections, and resubmit such documentation to the Department for its review and approval in accordance with the foregoing procedures CA and (except that in ii) the case of a resubmittal, the Department will have ten Days to respond, unless the Department notifies the Concessionaire within time periods for such ten Days that the Department has determined in its sole discretion that the resubmittal is of significant substance reviews and requires the full 21-Day response period)approvals. The Concessionaire will give due consideration to the Department’s suggested amendments and comments, but the Concessionaire will not be obligated to incorporate the Department’s suggested amendments or comments unless they are necessary for such submittal to comply with the applicable requirements of this Agreement. Whenever the Department is required to respond to the Concessionaire’s request for the Department’s shall provide its approval or consent pursuant to this Section 8.04 (whether or not failure to respond is deemed approval or consent), the Department will be deemed to have responded if it has notified the Concessionaire, within the applicable time period, that the Department requires additional time to obtain information or to perform reviews necessary or appropriate for a complete response. (d) Failure to respond within the 21-Day time period will not constitute a deemed approval by the Department pursuant to Section 8.04(c) with respect to the Concessionaire’s Right of Way Acquisition and Relocation Plan, Deviations pursuant to Section 14.03, or any other matter where the Department has sole discretion to approve or disapprove pursuant to this Agreement. Any failure disapproval of the Department to respond to the Concessionaire regarding the Department’s approval proposed Schedule of such documents or matters Submittals within 21 Days after delivery of the Concessionaire’s request to the Department will be deemed disapproval by the Department. If the Department fails to respond within such 21 Days, the Department will notify the Concessionaire of the status of the review of such submittals upon the request of the Concessionaire. (e) On or about the time of the scheduled submissions that require the Department’s review, comment or approval, the Concessionaire will meet with the Department and will identify during such meetings, among other things, the evolution of the design and any Deviations or other changes from any of the Technical Requirements, or, if applicable, previous design submissions. Minutes of the meetings will be maintained by the Concessionaire and provided to all attendees for review. (f) Construction Documentation will set forth in detail drawings and specifications describing the requirements for construction of the Work, in full compliance with the Technical Requirements, Law and Governmental Approvals. The Construction Documentation will be consistent with the latest set of interim design submissions; as such submissions may have been modified in writing in a design review meeting or as otherwise agreed upon in writing, and will be submitted after Concessionaire has obtained all requisite Governmental Approvals associated with the Work contained in such documents. (g) The Department’s review, comment and/or approval of interim design submissions and the Construction Documentation are for the purpose of evaluating the Concessionaire’s compliance with the requirements of this Agreement and will be performed in accordance with the terms of this Agreement. (h) Following the Department’s initial approval pursuant to this Section 8.04, the Concessionaire will have the right to amend, supplement or otherwise modify the Design Public Hearing Documentation, Design Documentation or the Construction Documentation or any part thereof, without the further approval of the Department; provided, that the Department’s approval will be required with respect to amendments, supplements or modifications that (i) constitute a material change in the scope of the Work or Deviations from any of the Technical Requirements, (ii) result in increases in the time to complete the Work beyond the Guaranteed Substantial Completion Date, or (iii) except to the extent directly attributable to a Compensation Event, impose on the Department any new or increased costs, liabilities or obligations; provided, further, that the Concessionaire will provide the Department notice of all such proposed amendments, supplements and modifications regardless of whether the Department’s consent is required and will reimburse the Department, upon demand, for all the Allocable Costs it incurs to review and consider such proposed amendments, supplements or modifications that are subject to the Department’s approval. (i) In the event the Concessionaire’s design differs from the schematic upon which the NEPA Documents were based, as between the Department and the Concessionaire, the Concessionaire will be fully responsible for all necessary actions, and will bear all risk of delay (except to the extent resulting from Delay Events) and all risk of increased cost, resulting from or arising out of any associated change in the Project location and design, including (i) conducting all necessary environmental studies and preparing all necessary environmental documents in compliance with applicable Environmental Laws, (ii) obtaining and complying with all necessary new Governmental Approvals (including any modifications, renewals and extensions of the NEPA Documents and other existing Governmental Approvals) or third party approvals or agreements, and (iii) bearing all risk and cost of litigation. The foregoing provisions will not apply, however, in the case of a Department Change or Department Project Enhancement. The Department and FHWA will independently evaluate all environmental studies and documents and fulfill the other responsibilities assigned to them by 23 CFR Part 771; provided, that except in the case of a Compensation Event that results in a change in the Project location and design, the Concessionaire will fully reimburse the Department for the Allocable Costs it incurs to conduct further or supplemental environmental studies and to fulfill any other responsibilities assigned to it pursuant to 23 CFR Part 771.five