4.1.1 Time is of the essence of this Agreement.
4.1.2 Authorization allowing Developer to proceed with Work hereunder shall be provided through sequentially numbered Notices to Proceed issued by TxDOT for each Pilot System ("Pilot System NTP 1" et. seq.) and for each Project Segment ("Project Segment NTP 1" et seq.).
4.2.1 System Acceptance Deadline
Developer shall achieve the Pilot System Acceptance for each Pilot System on or before the number of Days after the effective date of the relevant Pilot System NTP set forth in the Pilot System Schedule in Exhibit U-6, and Project Segment System Acceptance of each Project Segment on or before expiration of the number of Days specified in the relevant Project Segment NTP for such Project Segment. Said date(s) for achieving System Acceptance, as it or they may be extended hereunder, is/are each referred to herein as a Pilot or Project Segment "System Acceptance Deadline."
4.2.2 Punch List Acceptance Deadline
Developer shall achieve Pilot System Punch List Acceptance of each Pilot System on or before 30 Days after Pilot System Acceptance of such Pilot System. Developer shall achieve Project Segment Punch List Acceptance of each Project Segment on or before 30 Days after Project Segment System Acceptance of such Project Segment.
4.2.3 Final Acceptance Deadline
Developer shall achieve Pilot System Final Acceptance of each Pilot System on or before 120 Days after Pilot System Acceptance of such Pilot System. Developer shall achieve Project Segment Final Acceptance of each Project Segment within 120 Days after Project Segment System of such Project Segment. Each such deadline for achieving Final Acceptance, as it may be extended hereunder, is referred to herein as a Pilot System or Project Segment "Final Acceptance Deadline."
4.2.4 No Time Extensions
Except as otherwise specifically provided in Section 13, TxDOT shall have no obligation to extend a Completion Deadline and Developer shall not be relieved of its obligation to comply with the Project Schedule and to achieve System Acceptance, Punch List Acceptance and Final Acceptance of each Pilot System and Project Segment by the applicable Completion Deadlines for any reason.
4.3.1 Project Schedule
4.3.1.1 Pilot System Project Schedule
Pilot System Work shall be undertaken and completed in accordance with the applicable Pilot System Project Schedule, as described in TP Section ___. Each Pilot System Project Schedule shall be used by the parties for planning and monitoring the progress of the Pilot System Work and as the basis for determining the amount of monthly progress payments to be made to Developer. If Developer fails to provide an acceptable Pilot System Project Schedule within 90 Days after issuance of Pilot System NTP 1 or any subsequent NTP for a Pilot System, Developer shall have no right to receive progress payments until such time as Developer has prepared and TxDOT has approved such Pilot System Project Schedule.
4.3.1.2 Future Project Segment Schedule
Project Segment Work shall be undertaken and completed in accordance with the applicable Project Segment Schedule. Each Project Segment Schedule shall be used by the parties for planning and monitoring the progress of the Work and as the basis for determining the amount of monthly progress payments to be made to Developer. Developer shall incorporate the Project Segment Completion Deadlines set forth in the Project Segment Supplement into its proposed Project Segment Schedule of all activities necessary to complete the Project Segment by such Project Segment Completion Deadlines. If Developer fails to provide an acceptable Project Segment Project Schedule within 90 Days after issuance of any NTP for a Project Segment, Developer shall have no right to receive progress payments until such time as Developer has prepared and TxDOT has approved such Project Segment Project Schedule.
4.3.2 Float
All Float contained in a Project Schedule, as initially approved or generated thereafter, shall be considered a Project resource available to either party or both Parties as needed to achieve schedule milestones, interim completion dates and/or Completion Deadlines. All Float shall be shown as such in the relevant Project Schedule on each affected schedule path. Identification of (or failure to identify) Float on the schedule shall be examined by TxDOT in determining whether to approve the relevant Project Schedule. Once identified, Developer shall monitor, account for and maintain Float in accordance with critical path methodology.
Developer shall not start construction (or recommence construction following any suspension) of any portion of the Project prior to occurrence of all the following events, except with the prior written approval of TxDOT, in its sole discretion, and Developer shall commence such construction promptly following occurrence of such events:
4.4.1 TxDOT shall have issued the relevant NTP.
4.4.2 TxDOT shall have approved the relevant Project Schedule.
4.4.3 TxDOT shall have provided written acceptance of the Professional Services Quality Program and the Construction Quality Program, Construction Monitoring Plan, Project Mitigation Plan, and the Hazardous Materials Management Plan.
4.4.4 All requirements of the Construction Quality Program, which are a condition to construction, shall have been met.
4.4.5 TxDOT shall have approved all applicable Design Documents and received all Construction Documents relating to such Work.
4.4.6 All Governmental Approvals necessary for construction of the applicable portion of the Project shall have been obtained and all conditions of such Governmental Approvals, which are a prerequisite to commencement of such construction, shall have been performed and satisfied.
4.4.7 All insurance policies, bonds and letters of credit required to be delivered to TxDOT hereunder prior to commencement of construction shall have been received and approved by TxDOT and shall remain in full force and effect.
4.4.8 All necessary rights of access for such portion of the Project shall have been obtained.
4.4.9 All pre-construction environmental surveys and mitigation shall have been completed as required for the area(s) proposed for construction, and Developer shall have performed all other survey work and delivered all notices required by the Contract Documents to be delivered prior to commencement of construction on such portion of the Project.
As used in this Section 4.4, the term "construction" specifically excludes potholing and geotechnical investigations incidental to design Work, mobilization, Project Site security and establishment of work yard(s) and storage sites.
4.5.1 If at any time, the Work on any Critical Path item is delayed for a period which exceeds the greater of either 30 Days in the aggregate or that number of Days in the aggregate equal to 5% of the Days remaining until a Completion Deadline, then Developer shall prepare and submit to TxDOT for review and approval with the next Monthly Update a Recovery Schedule demonstrating Developer's proposed plan to regain lost schedule progress and to achieve the original contractual milestones in accordance with this Agreement and any Project Segment Supplement, including System Acceptance by the applicable System Acceptance Deadline, Punch List Acceptance by the applicable Punch List Acceptance Deadline and Final Acceptance by the applicable Final Acceptance Deadline.
4.5.2 TxDOT shall notify Developer within 14 Days after receipt of each such Recovery Schedule whether the Recovery Schedule is deemed accepted or rejected. Within 7 Days after any rejection by TxDOT of the Recovery Schedule, Developer will resubmit a revised Recovery Schedule incorporating TxDOT's comments. When TxDOT accepts Developer's Recovery Schedule, Developer shall, within five Days after TxDOT's acceptance, incorporate and fully include such schedule into the applicable Project Schedule, deliver the same to TxDOT and proceed in accordance with the approved Recovery Schedule.
4.5.3 All costs incurred by Developer in preparing, implementing and achieving the Recovery Schedule shall be borne by Developer and shall not result in a change to the applicable Price, except to the extent that a change in the applicable Price is permitted in accordance with Section 13.
4.5.4 If Developer fails to provide an acceptable Recovery Schedule as required herein, Developer shall have no right to receive progress payments until such time as Developer has prepared and TxDOT has approved such Recovery Schedule.
