Partnering will be encouraged in preference to formal dispute resolution mechanisms. Partnering in this context is intended to be a voluntary, non-binding procedure available for use by the Parties to resolve any issues that may arise during performance of the Work.
19.2.1 Schedule; Participation
As soon as possible after execution of this Agreement, TxDOT and Developer shall jointly select a third-party facilitator to conduct the partnering meetings. The cost of the facilitator shall be shared equally by TxDOT and Developer. Partnering meetings shall be conducted at the office of TxDOT or at such location as otherwise agreed upon by the Parties. Persons who should attend the partnering meetings include appropriate Key Personnel and executives of the Parties.
Subject to the requirements of the Public Information Act, neither the language of this Section 19.2.2 nor any statements made or materials prepared during or relating to partnering meetings, including any statements made or documents prepared by the facilitator, shall be admissible or discoverable in any judicial or other dispute resolution proceeding.
If partnering fails to resolve an issue and Developer elects to pursue a formal Dispute with TxDOT, the Dispute shall be resolved pursuant to Texas Transportation Code Section 201.112 and the dispute resolution procedures established thereunder, as the same may be amended from time to time. The dispute resolution procedures are set forth in Exhibit M attached to this Agreement. Section 19 shall not apply to (i) claims that are not actionable against TxDOT by Developer on its own behalf or on behalf of any of its Subcontractors in accordance with Section 19.4, (ii) claims arising solely in tort; (iii) claims for indemnity under Section 18; (iv) claims for injunctive relief; (v) claims against insurance companies, including any Subcontractor Dispute that is covered by insurance; (vi) any Dispute based on remedies expressly created by statute; (vii) any Dispute that is actionable only against a bonding company; or (viii) any Dispute that is actionable only against a letter of credit bank.
For purposes of this Section 19, a "Subcontractor Dispute" shall include any Dispute by a Subcontractor, including also any pass-through claims by a lower tier Subcontractor, against Developer that is actionable by Developer against TxDOT and arises from Work, materials or other services provided or to be provided under the Contract Documents. If Developer determines to pursue a Dispute against TxDOT that includes a Subcontractor Dispute, the following additional conditions shall apply:
(a) Developer shall identify clearly in all submissions pursuant to this Section 19, that portion of the Dispute that involves a Subcontractor Dispute.
(b) Failure of Developer to assert a Subcontractor Dispute on behalf of any Subcontractor at the time of submission of a related Demand by Developer, as provided hereunder, shall constitute a release and discharge of TxDOT by Developer on account of, and with respect to, such Subcontractor Dispute.
(c) Developer shall require in all Subcontracts that all Subcontractors of any tier (a) agree to submit Subcontractor Disputes to Developer in a proper form and in sufficient time to allow processing by Developer in accordance with this Section 19; (b) agree to be bound by the terms of this Section 19 to the extent applicable to Subcontractor Disputes; (c) agree that, to the extent a Subcontractor Dispute is involved, completion of all steps required under this Section 19 shall be a condition precedent to pursuit by the Subcontractor of any other remedies permitted by law, including institution of a lawsuit against Developer; (d) agree that any Subcontractor Dispute brought against a bonding company, that also is actionable against TxDOT through Developer, shall be stayed until completion of all steps required under this subsection; and (e) agree that the existence of a dispute resolution process for Disputes involving Subcontractor Disputes shall not be deemed to create any claim, right or cause of action by any Subcontractor against TxDOT. The Subcontractors shall, at all times, have rights and remedies only against Developer.
Developer and TxDOT, by mutual agreement, may at any time refer the Dispute to mediation or any other form of alternative dispute resolution that is acceptable to all parties to the Dispute. At the request of TxDOT, Developer shall also participate in any and all mediation or other alternative dispute resolution proceedings between TxDOT and any Utility Owner relating to any Utility Adjustment (to the extent not resolved under the dispute resolution process set forth in this Section 19). Developer and TxDOT shall share equally the expenses of the mediator or other alternative dispute resolution process.
19.6.1 Exclusive Jurisdiction and Venue
Developer agrees that the exclusive jurisdiction and venue for any legal action or proceeding, at law or in equity, arising out of or relating to the Contract Documents or the Project, shall be the Travis County District Court. Developer waives all objections it might have to the jurisdiction or venue of such court and hereby consents to such court's jurisdiction, regardless of Developer's residence or domicile, for any such action or proceeding.
19.6.2 Admissibility of Disputes Resolution Proceedings
The admissibility, in any administrative or judicial proceeding subsequent to this dispute resolution process, of the Parties' submittals and any TxDOT determinations shall be in the discretion of the appropriate administrative officer or the court in accordance with applicable rules of law.
At all times during this dispute resolution process or any subsequent administrative, arbitration or court proceeding, Developer and all Subcontractors shall proceed with the Project diligently, without delay, in accordance with this Agreement, and as directed by TxDOT. Developer acknowledges that it shall be solely responsible for any Project delay that results from its actions or inactions during the dispute resolution process, even if Developer's position in connection with the Dispute ultimately prevails. In addition, all Parties shall continue to comply with all provisions of the Contract Documents, the Governmental Approvals and applicable Law.
Throughout the course of any Work that is the subject of any Demand or Dispute, Developer shall keep separate and complete records as required by Section 13.3.4. These records shall be retained for a period of not less than five years from the date of resolution of the Dispute.