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Tools & Programs: SEP-15

Texas Toll Roads Statewide Open-Road Toll Collection System Project (TX Toll Collection System)

Comprehensive Development Agreement TxDot Statewide Open-Road Toll Collection System

SECTION 3. DESIGN REQUIREMENTS; DISCLAIMER; ROLES OF PROJECT MANAGEMENT CONSULTANT AND FHWA

3.1 Design Requirements

3.1.1 Design Review Process and Compliance with Final Design Documents

3.1.1.1 Developer shall furnish the Design Documents to TxDOT in accordance with the design review submittal and certification process set forth in [TP Section ________.

3.1.1.2 Developer shall respond to the comments provided by TxDOT and make modifications to the Design Documents based on such comments in accordance with TP Section _______. Developer acknowledges that comments may be provided which reflect concerns regarding operability or preferences of the commenter or which otherwise do not directly relate to specific requirements of the Contract Documents. Developer agrees to undertake reasonable efforts to accommodate or otherwise resolve any such comments through the review process described in TP Section ______. The foregoing shall in no way be deemed to obligate Developer to incorporate any comments that would result in a significant disruption to its schedule or a significant increase in its costs, except pursuant to a TxDOT-Directed Change.

3.1.1.3 Developer shall construct, fabricate, assemble, provide, install, integrate, test and verify all aspects of each Pilot System and Project Segment in accordance with their respective Final Design Documents and Construction Documents. The Final Design Documents may be changed only with prior written approval of TxDOT in its sole discretion. Developer may make minor modifications to the Construction Documents without prior written approval of TxDOT, but must deliver the modifications to TxDOT in advance of performance of the Work.

3.2 Responsibility for Design

3.2.1 Developer Responsibility

Developer agrees that it has full responsibility for the design of the Project and that Developer will furnish the design of the Project, regardless of the fact that with respect to certain Pilot Systems or Project Segments, a Schematic Design may be provided to Developer as a preliminary basis for Developer's design. Developer specifically acknowledges and agrees that:

(a) Developer is not entitled to rely on (i) any Schematic Design(s) except as specified in Section 3.2.2, (ii) the Reference Documents, or (iii) any other documents or information provided by TxDOT, except to the extent specifically permitted in the Contract Documents.

(b) Developer is responsible for correcting any Errors in a Schematic Design through the design and/or construction process without any increase in any Price or extension of a Completion Deadline for the relevant Work, subject only to the right to a Change Order with respect to any Necessary Basic Configuration Changes to the extent permitted by Section 13.8.

(c) TxDOT's liability for Errors in any Schematic Design is limited to its obligations relating to Necessary Basic Configuration Changes, and is subject to the requirements and limitations of Section 13.

(d) Developer's warranties and indemnities hereunder cover Errors in the Project even though they may be related to Errors in the Schematic Design(s).

(e) Developer is responsible for verifying all technical information contained in the RFDP Documents or otherwise provided by TxDOT with respect to a Pilot System or Project Segment.

3.2.2 Schematic Design

3.2.2.1 Developer acknowledges and agrees that if Developer wishes to deviate from the Schematic ROW contained in a Schematic Design, it must specifically identify such Deviations in writing to TxDOT, provide justification for the modification, and obtain specific written approval from TxDOT, in its sole discretion, prior to use of such modifications. Developer must obtain TxDOT's prior written approval to deviate from a Schematic Design unless the proposed Deviation (i) is within the Schematic ROW and requires no additional right-of-way; (ii) meets the requirements of the Technical Provisions; (iii) requires no New Environmental Approval; and (iv) does not constitute a Design Exception or Design Waiver. Developer acknowledges and agrees that the requirements and constraints set forth in the Contract Documents and in the Governmental Approvals, as well as Project Site conditions, will impact Developer's ability to revise the concepts contained in a Schematic Design, in addition to the requirement to obtain approval.

3.2.2.2 Developer may rely on the Basic Configuration elements as shown on any Schematic Design as representing a feasible design solution for the Project and that it is feasible to develop the Project within the Schematic ROW limits identified in the Schematic Design, and shall have the right to obtain a Change Order for Necessary Basic Configuration Changes as provided in Section 13.

3.2.2.3 Developer acknowledges that any Schematic Design is preliminary and subject to refinement through the Final Design process for construction of the relevant highway segment, and that Developer's entitlement to an increase in a Price or time extension in connection with any changes in the Schematic Design is limited to Necessary Basic Configuration Changes.

3.3 Disclaimer

3.3.1 Developer understands and agrees that TxDOT shall not be responsible or liable in any respect for any Losses whatsoever suffered by any Developer-Related Entity by reason of any use of any information contained in any Schematic Design or Reference Documents, or any action or forbearance in reliance thereon, except to the extent that TxDOT has specifically agreed in Section 13 that Developer shall be entitled to an increase in a Price and/or extension of a Completion Deadline with respect to such matter. Developer further acknowledges and agrees that (a) if and to the extent Developer or anyone on Developer's behalf uses any of said information in any way, such use is made on the basis that Developer, not TxDOT, has approved and is responsible for said information, and (b) Developer is capable of conducting and obligated hereunder to conduct any and all studies, analyses and investigations as it deems advisable to verify or supplement said information, and that any use of said information is entirely at Developer's own risk and at its own discretion.

3.3.2 SUBJECT TO SECTION 3.2.2, TxDOT DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION CONTAINED IN ANY SCHEMATIC DESIGN OR REFERENCE DOCUMENTS IS, OR WILL BE, EITHER COMPLETE OR ACCURATE (INCLUDING WITH RESPECT TO (i) HEIGHTS, LENGTHS OR SIZES DEPICTED IN THE SCHEMATIC DESIGN (ii) HEIGHTS, LENGTHS OR SIZES OF STRUCTURES OR WALLS DEPICTED IN THE SCHEMATIC DESIGN, OR (iii) ANY FAILURE OR OMISSION TO DEPICT ANY OF THE FOREGOING IN THE SCHEMATIC DESIGN) OR THAT SUCH INFORMATION IS IN CONFORMITY WITH THE REQUIREMENTS OF TxDOT-PROVIDED APPROVALS OR OTHER CONTRACT DOCUMENTS. TxDOT DOES NOT REPRESENT OR WARRANT THE ACCURACY OR COMPLETENESS OF ANY ITEMIZED LIST SET FORTH IN THE TECHNICAL PROVISIONS. THE FOREGOING SHALL IN NO WAY AFFECT TxDOT's LIABILITY FOR NECESSARY BASIC CONFIGURATION CHANGES AS SPECIFIED HEREIN OR TO ISSUE CHANGE ORDERS IN ACCORDANCE WITH SECTION 13.

3.4 Role of Program Manager

Carter & Burgess has been designated as TxDOT's Project Management Consultant. The Project Management Consultant will assist TxDOT in the management and oversight of the Project and the Agreement.

3.5 Role of FHWA

Developer acknowledges and agrees that FHWA will have certain approval rights with respect to the Project (including rights to approve the Project design and certain Change Orders), as well as the right to provide certain oversight and technical services with respect to the Project.

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