Developer shall be solely responsible for and have control over the installation, integration, construction and testing means, methods, techniques, sequences, procedures and site safety, and shall be solely responsible for coordinating all portions of the Work under the Contract Documents, subject, however, to all requirements contained in the Contract Documents.
Developer shall take all reasonable precautions and be solely responsible for the safety of, and shall provide protection to prevent damage, injury, or loss to, all persons on the Project Site or who would reasonably be expected to be affected by the Work, including individuals performing Work, employees of TxDOT and its consultants, visitors to a Project Site and members of the public who may be affected by the Work. Developer shall at all times comply with all health and safety requirements contained in the Technical Provisions and all such requirements under applicable Law.
Developer shall ensure that all of its activities and the activities of Developer-Related Entities are undertaken in a manner that will minimize the effect on surrounding property and the public to the maximum extent practicable.
5.4.1 Developer Inspection and Testing
Developer shall perform the inspection, sampling and testing necessary for Developer to comply with its obligations under the Contract Documents.
5.4.2 Oversight and Inspection and Owner Verification Testing by TxDOT and Others
All materials and each part or detail of the Work shall also be subject to oversight, inspection and owner verification testing by TxDOT and other Persons designated by TxDOT. At all points in performance of the Work at which specific inspections and/or approvals by TxDOT are required by the Technical Provisions and/or the Construction Quality Program, Developer shall not proceed beyond that point until TxDOT has made such inspection or approval or waived its right in writing to inspect or approve. Such oversight, inspection and/or testing does not make such Person a party to this Agreement nor will it change the rights of the Parties. Developer hereby consents to such oversight, inspection and owner verification testing. Upon request from TxDOT, Developer shall furnish information to such Persons as are designated in such request and shall permit such Persons access to any Project Site and all parts of the Work.
5.4.3 Obligation to Uncover Finished Work
Developer shall inform TxDOT in writing of any part of the Work which is about to be covered and offer a full and adequate opportunity to TxDOT to inspect and test such part of the Work before it is covered. At all times before any Final Acceptance, Developer shall remove or uncover such portions of the finished Work as directed by TxDOT. After examination by the TxDOT and any other Persons designated by TxDOT, Developer shall restore the Work to the standard required by the Contract Documents. If the Work exposed or examined is not in conformance with the requirements of the Contract Documents, then uncovering, removing and restoring the Work and recovery of any delay to any Critical Path occasioned thereby shall be at Developer's cost and Developer shall not be entitled to any time extension. Furthermore, any Work done or materials used without adequate notice to and opportunity for prior inspection by TxDOT (if applicable) or without inspection in accordance with TP Section _____ may be ordered uncovered, removed or restored at Developer's cost and without a time extension, even if the Work proves acceptable and conforming after uncovering. Except with respect to Work done or materials used as described in the foregoing sentence, if Work exposed or examined under this Section 5.4.3 is in conformance with the requirements of the Contract Documents, then any delay in any Critical Path from uncovering, removing and restoring Work shall be considered a TxDOT-Caused Delay, and Developer shall be entitled to a Change Order for the cost of such efforts and recovery of any delay to any Critical Path occasioned thereby. Refer to Section 5.6 for provisions regarding payments owing by Developer to TxDOT if TxDOT agrees (in its sole discretion) to accept certain Nonconforming Work.
5.5.1 Oversight and Acceptance
The oversight, spot checks, inspections, verifications, audits, tests, reviews, acceptances and approvals conducted by TxDOT and others do not constitute acceptance of the materials or Work inspected or waiver of any warranty or legal or equitable right with respect thereto. TxDOT may request remedies for Nonconforming Work and/or identify additional Work which must be done to bring the Project into compliance with the requirements of the Contract Documents at any time prior to any Final Acceptance, whether or not previous oversight, spot checks, inspections, verifications, audits, tests, reviews, acceptances or approvals were conducted or waived by TxDOT or any such Persons.
5.5.2 No Estoppel
Developer shall not be relieved of obligations to perform the Work in accordance with the Contract Documents, or any of its Warranty, maintenance or indemnity obligations, as the result of oversight, spot checks, audits, reviews, tests or inspections performed by any Persons, approvals or acceptances made by any Persons, or any failure of any Person to take such action. TxDOT shall not be precluded or stopped, by any measurement, estimate or certificate made either before or after a Final Acceptance, or by making any payment, from showing that any such measurement, estimate or certificate is incorrectly made or untrue, or from showing the true amount and character of the Work performed and materials furnished by Developer, or from showing that the Work or materials do not conform in fact to the requirements of the Contract Documents. Notwithstanding any such measurement, estimate or certificate, or payment made in accordance therewith, TxDOT shall not be precluded or stopped from recovering from Developer and its Surety(ies) such damages as TxDOT may sustain by reason of Developer's failure to comply or to have complied with the terms of the Contract Documents.
5.6.1 Rejection, Removal and Replacement of Work
Nonconforming Work rejected by TxDOT shall be removed and replaced so as to conform to the requirements of the Contract Documents, at Developer's cost and without a time extension; and Developer shall promptly take all action necessary to prevent similar deficiencies from occurring in the future. The fact that TxDOT may not have discovered the Nonconforming Work shall not constitute an acceptance of such Nonconforming Work. If Developer fails to correct any Nonconforming Work within 10 Days of receipt of notice from TxDOT requesting correction, or if such Nonconforming Work cannot be corrected within 10 Days, and Developer fails to (a) provide to TxDOT a schedule for correcting any such Nonconforming Work acceptable to TxDOT within such 10-Day period, (b) commence such corrective Work within such 10-Day period and (c) thereafter diligently prosecute such correction in accordance with such approved schedule to completion, then TxDOT may cause the Nonconforming Work to be remedied or removed and replaced and may deduct the cost of doing so from any moneys due or to become due Developer and/or obtain reimbursement from Developer for such cost.
5.6.2 Agreement to Accept Nonconforming Work
If TxDOT agrees to accept any Nonconforming Work with respect to a Pilot System and/or a Project Segment without requiring it to be fully corrected, TxDOT shall be entitled to reimbursement of a portion of the applicable Price in an amount equal to the greatest of (a) the amount deemed appropriate by TxDOT to provide compensation for impacts to all affected parties (including TxDOT) such as future maintenance and/or other costs relating to the Nonconforming Work, (b) the amount of a Price allocated to such Work, or (c) 100% of Developer's cost savings associated with its failure to perform the Work in accordance with the requirements of the Contract Documents. Such reimbursement shall be payable to TxDOT within 10 Days after Developer's receipt of an invoice therefore. Alternatively, TxDOT may deduct the amount of such costs and expenses from any sums owed by TxDOT to Developer pursuant to this Agreement. Developer acknowledges and agrees that TxDOT shall have sole discretion regarding acceptance or rejection of Nonconforming Work and shall have sole discretion with regard to the amount payable in connection therewith.
