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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 2. OBLIGATIONS OF DEVELOPER; REPRESENTATIONS, WARRANTIES AND COVENANTS

2.1 Performance Requirements

2.1.1 Performance of Work; Project Management Plan

2.1.1.1 The Work shall include the design, construction, installation, integration, fabrication, assembly, testing, verification and maintenance of each Pilot System and each Project Segment, in conformance with the Technical Provisions, the Basic Configuration and the Schematic Design (to the extent available and appropriate), and otherwise complying with the requirements of the Contract Documents. All materials, services and efforts necessary to achieve System Acceptance, Punch List and Final Acceptance of the Pilot System(s) and each Project Segment on or before the applicable Completion Deadlines shall be Developer's sole responsibility, except as otherwise specifically provided in the Contract Documents. Subject to the terms of Section 13, the costs of all Work, including such materials, services and efforts (i) with respect to the Pilot System(s) are included in the Pilot System Prices; (ii) with respect to each Project Segment will be included in each Project Segment Price; and (iii) with respect to the Maintenance Term will be included in each Project Segment Maintenance Price.

2.1.1.2 Developer shall perform the Work for all Project Segments designated by TxDOT during the Project Segment Designation Period based upon executed Project Segment Supplements and upon issuance of the applicable NTPs. TxDOT shall designate a Project Segment by submission of a draft Project Segment Supplement to Developer in the form of Exhibit P. Project Segment Supplements issued by TxDOT shall describe the Project Segment Basic Configuration, and shall contain TxDOT's proposed Project Segment Price, Project Segment Completion Deadlines, Maintenance Work Prices, Liquidated Damages amounts and Stipulated Damages amounts, based upon the Hypothetical Project Segment Scenario prices in Exhibit U-2, the Hypothetical Project Segment Scenario schedule requirements set forth in Exhibit U-6, the Hypothetical Project Segment Scenario Maintenance Work prices in Exhibit U-4, and the Hypothetical Project Segment Scenario methodologies for determining Liquidated Damages and Stipulated Damages set forth in Exhibit U-5. Developer shall have 10 Days to review each draft Project Segment Supplement and either accept the terms proposed by TxDOT or provide Developer's counter-proposal. All deviations from TxDOT's draft Project Segment Supplement must be clearly identified in Developer's counter-proposal and justified. If Developer does not accept the terms proposed by TxDOT, the parties shall endeavor in good faith to negotiate the Project Segment Price, the Project Segment Maintenance Price, the Project Segment Schedule, the Project Segment Liquidated Damages Values and the Project Segment Stipulated Damages Values and any other relevant terms and conditions. Upon mutual agreement on the terms of the Project Segment Supplement for a Project Segment, the parties shall execute the same and it shall become a part of this Agreement. Should the parties be unable to reach agreement after negotiating in good faith for a reasonable period of time (as determined by TxDOT) in accordance with the procedures provided in Section 2.1.1.3 and Section 2.1.1.4, below, TxDOT may, in its sole discretion, (i) direct Developer to proceed with the Project Segment Work, and refer the determination of the Project Segment Price, Project Segment Completion Deadlines, Project Segment Maintenance Price, Project Segment Liquidated Damage Values and/or Project Segment Stipulated Damages Values to Dispute Resolution pursuant to Section 19, (ii) direct Developer to proceed with the Work in accordance with the Project Segment Schedule provided by Developer on a time and materials basis pursuant to Section 13.7, or (iii) terminate the negotiations and procure the Project Segment Work from another party. Nothing contained herein shall limit or modify TxDOT's unilateral right, in its sole discretion, to procure or seek other alternatives to issuing the Project Segment Supplements to Developer or having other contractors or developers perform such Work. Developer acknowledges and agrees that it has no contractual or other right to receive any Project Segment Supplements or undertake any Project Segment Work, including no right of first negotiation or first refusal or other similar right or interest. TxDOT shall not be required to commence or continue any negotiations of a Project Segment Supplement and may decide to use another party for such Work as and when it determines, in its sole discretion.

2.1.1.3 The draft Project Segment Supplement shall describe in reasonable detail TxDOT's estimated (i) Project Segment Price based upon the lump sum and unit prices in Exhibit U-2 for the Hypothetical Project Segment Scenario(s) most closely resembling the Project Segment, (ii) Project Segment Completion Deadlines based upon the Project Schedules in for the Hypothetical Project Segment Scenario(s) and TxDOT's Project Segment needs; and (iii) Maintenance Work Price based upon the lump sum and unit prices in Exhibit U-4 for the Hypothetical Project Segment Scenario(s) most closely resembling the Project Segment. Any revisions to pricing that Developer proposes must be based upon differences between the original assumptions with respect to the Hypothetical Project Segment Scenarios upon which the Exhibit U-2 and/or Exhibit U-4 prices were established, and the Project Segment. For example, material differences in required quantities or labor needs that affect the Developer's purchasing power may justify a change in unit prices, but changes in market conditions would not justify a change in unit prices, except to the limited extent Developer is entitled to Price changes arising out of Section 12.1.4. TxDOT shall have the right to review Developer's back-up for its quantities, labor and work effort estimates, as well as the EPDs, during the course of any Project Segment Price negotiations. The negotiations shall be conducted on an "openbook" basis, i.e., Developer will disclose the basis for determining its Project Segment Price and Project Segment Maintenance Price, including assumptions as to schedule, labor needs and rates, equipment rates, material costs, productivity, design and productivity allowances, contingency and indirects, and other items reasonably required by TxDOT to satisfy itself as to the reasonableness of the negotiated Project Segment Price and Project Segment Maintenance Price. The lump sum prices and unit prices shall be adjusted to account for changes in the cost items that were the basis for determining such initial amounts, in accordance with the indices specified for adjusting the Project Segment Price and Project Segment Maintenance Price, set forth in Section 12.1.4. Any revisions to schedule that Developer proposers must be based upon differences between the original assumptions with respect to the Hypothetical Project Segment Scenarios upon which the Exhibit U-6 schedules were established, and the Project Segment.

2.1.1.4 Notwithstanding Section 2.1.1.2, TxDOT shall not require simultaneous Work on __________________without Developer's prior written consent, which consent shall not be unreasonably withheld or delayed. [NOTE TO PROPOSERS "" THIS PROVISION IS TO COME AND WILL PROVIDE PARAMETERS AS TO THE AMOUNT OF WORK THAT CAN BE REQUIRED AT ANY ONE TIME]

2.1.1.5 Developer shall maintain each Pilot System and Project Segment in accordance with the requirements of the Contract Documents during the Maintenance Term. TxDOT shall have the option to extend the Maintenance Term for any Project Segment as provided in this Section 2.1.1.5. If directed by TxDOT, in its sole discretion, Developer shall continuously maintain any Project Segment designated by TxDOT for up to five consecutive one-year periods after the expiration of the initial Maintenance Term. TxDOT may exercise its extension options with respect to any and all of the Project Segments then being maintained by Developer. TxDOT shall notify Developer in writing of TxDOT's desire to exercise an extension option to extend Developer's obligation to maintain any portion of the Project for an additional one-year period not fewer than 60 Days prior to expiration of the then current Maintenance Term (as the same may have been previously extended by TxDOT). The Project Segment Maintenance Prices to be paid by TxDOT during any extension period shall be determined in accordance with Section 12.1.3.3.

2.1.1.6 Developer shall plan, schedule, and execute all aspects of the Work and shall coordinate its activities with all parties who are directly impacted by the Work. Developer shall document and report all Work in accordance with the requirements set forth herein and in the approved Project Management Plan described in TP Section . Developer shall submit the Project Management Plan for each Pilot System and Project Segment to TxDOT for approval within 30 Days after the issuance of the relevant NTP.

2.1.2 Performance Standards

Developer shall furnish the design of the Project and shall install and construct the Project as designed, in accordance with all professional engineering principles and construction practices generally accepted as standards of the industry in the State, in a good and workmanlike manner, free from defects (except to the extent that such defects are inherent in prescriptive specifications included in the Contract Documents), and in accordance with the terms and conditions set forth in the Contract Documents.

2.1.3 Changes in Basic Configuration

2.1.3.1 Where a Schematic Design is provided by TxDOT for a Pilot System or a Project Segment, if, as the result of an Error in the Schematic Design, it becomes apparent that such Basic Configuration must be materially modified, such modification shall be considered a Necessary Basic Configuration Change and shall be eligible for a Change Order as provided in Section 13.8.

2.1.3.2 If a VE results in a change in a Basic Configuration, any cost savings from such VE shall be shared in accordance with Section 22.

2.1.3.3 Developer shall not make any change in a Basic Configuration except as approved by TxDOT and authorized by a Change Order in accordance with Section 13, and subject to the limitations contained in Section 6.10. A Change Order is required regardless of the reason underlying the change and regardless of whether the change increases, decreases or has no effect on Developer's costs or schedule.

2.1.3.4 Except for a TxDOT-Directed Change (including a Necessary Basic Configuration Change) involving more than $5,000 in additional direct costs or involving a delay to a Critical Path, any changes in a Basic Configuration shall be the responsibility of Developer.

2.2 Prerequisites to Issuance of Subsequent Pilot System NTPs or Project Segment NTPs

Following Pilot System NTP 1, TxDOT shall not issue an NTP for Developer to proceed with the Work for a subsequent Pilot System, or Work that is the subject of any Project Segment Supplement, unless and until TxDOT and Developer have executed a Project Segment Supplement for such Work and Developer has satisfied the following requirements for such Pilot System or Project Segment:

(a) Developer shall have delivered to TxDOT the applicable Pilot System Performance Bond, Project Segment Performance Bond or Rider required pursuant to Section 8.1.1;

(b) Developer shall have delivered to TxDOT the applicable Pilot System Payment Bond, Project Segment Payment Bond or Rider required pursuant to Section 8.1.2;

(c) Developer shall have delivered to TxDOT the applicable letter of credit or Rider required pursuant to Section 8.2;

(d) Developer shall have delivered to TxDOT any Guaranty of Developer's obligations pursuant to the Agreement or Project Segment Supplement that may be required with respect to a Pilot System or Project Segment, respectively, pursuant to Section 8.4.2;

(e) Developer shall have provided to TxDOT the insurance policies, certificates of insurance, riders to its existing insurance policies or other evidence reasonably required by TxDOT to confirm the existence of all the insurance coverages required pursuant to Section 9.2.2.1; and

(f) Developer shall have provided to TxDOT any other documents, things or assurances reasonably required by an executed Project Segment Supplement or otherwise by TxDOT in connection with such Pilot System or Project Segment.

2.3 General Obligations of Developer

Developer, in addition to performing all other requirements of the Contract Documents, shall:

2.3.1 Furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the Contract Documents expressly specify will be undertaken by TxDOT or other Persons) (a) to construct, fabricate, assemble, install and integrate the Project and maintain it during installation and construction in accordance with the requirements of the Contract Documents, the applicable Project Schedule (including all Project Segment Schedules), all Laws, all Governmental Approvals, the approved Professional Services Quality Program and Construction Quality Program, the Construction Documents and all other applicable safety, environmental and other requirements, taking into account the applicable ROW limits and other constraints affecting the Project, so as to achieve each System Acceptance, Punch List Acceptance and each Final Acceptance by the applicable Completion Deadlines, and (b) otherwise to do everything required by and in accordance with the Contract Documents.

2.3.2 At all times provide a Project Manager approved by TxDOT who (a) will have full responsibility for the prosecution of the Work, (b) will act as agent and be a single point of contact in all matters on behalf of Developer, (c) will be present (or its approved designee will be present) at the Project Site at all times that Work is performed, and (d) will be available to execute instructions and directions from TxDOT or its authorized representatives.

2.3.3 Use the Professional Services firm or firms and other Subcontractors identified in the Proposal to perform the Professional Services and other services, as applicable, required by the Contract Documents (or other firms approved in writing by TxDOT, which approval shall not be withheld provided that Developer has demonstrated to TxDOT's satisfaction that such firm has the demonstrated competence and professional qualifications necessary for the satisfactory performance of the required services, and that the designated key personnel at such firm have sufficient experience in the requirements applicable to the Project). Developer shall not shift Professional Services Work from one firm to another without the prior written approval of TxDOT.

2.3.4 Obtain all Governmental Approvals required in connection with the Project (excluding the TxDOT-Provided Approvals shown in Exhibit E, and certain New Environmental Approvals as provided in Section 6.10.1.3); and prior to beginning any construction activities in the field, furnish TxDOT with fully executed copies of all Governmental Approvals (other than the Governmental Approvals obtained by TxDOT) required for such portion of the Project.

2.3.5 Comply with all conditions imposed by and undertake all actions required by and all actions necessary to maintain in full force and effect all Governmental Approvals, including performance of all environmental mitigation measures required by the Contract Documents, except to the extent that responsibility for performance of such measures is expressly assigned to another Person in the Contract Documents.

2.3.6 Provide such assistance as is reasonably requested by TxDOT in dealing with any Governmental Person and/or in prosecuting and defending lawsuits in any and all matters relating to the Project. Such assistance may include providing information and reports regarding the Project as well as executing declarations and attending meetings and hearings. This provision is not intended to require Developer to provide legal services for the benefit of TxDOT.

2.3.7 Comply with, and ensure that all Subcontractors comply with, all requirements of all applicable Laws, including Environmental Laws, the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), including any amendments, and the federal requirements set forth in Exhibit D.

2.3.8 Cooperate with TxDOT, the Project Management Consultant, TxDOT's other consultants, and Governmental Persons with jurisdiction over the Project in review and oversight of the design of the Project, performing oversight and conducting inspections during the construction, installation, testing, integration and verification of the Project and other matters relating to the Work.

2.3.9 Pay, prior to delinquency, all applicable federal, State and local sales, excise, consumer, use and similar taxes, property taxes and any other taxes, fees, charges or levies imposed by a Governmental Person, whether direct or indirect, relating to, or incurred in connection with, the performance of the Work. Developer acknowledges that it is exempt from paying sales tax on Expendable Materials purchases within the State. If materials purchased for the Work are not wholly used or expended on the Project, Developer shall be responsible for applicable sales taxes.

2.3.10 Mitigate delay to the Project and mitigate damages due to delay in all circumstances, to the extent possible, including by resequencing, reallocating, or redeploying Developer's forces to other work, as appropriate.

2.4 Representations, Warranties and Covenants

Developer represents, warrants and covenants that:

2.4.1 Developer and its Professional Services Subcontractor(s) have maintained, and throughout the term of this Agreement shall maintain, all required authority, license status, professional ability, skills and capacity to perform the Work, and shall perform them in accordance with the requirements contained in the Contract Documents.

2.4.2 Developer has evaluated the known constraints affecting the Work associated with each Pilot System, and has reasonable grounds for believing and does believe that the Work associated with each Pilot System can be performed in accordance with the Contract Documents and within such constraints.

2.4.3 Developer has evaluated the feasibility of performing the Work to develop each Pilot System within the applicable Pilot Completion Deadlines and for the applicable Pilot System Prices, accounting for constraints affecting the applicable Pilot Systems, and has reasonable grounds for believing and does believe that such performance (including achievement of the applicable Pilot System Acceptance, the applicable Pilot System Punch List Acceptance and the applicable Pilot System Final Acceptance by the applicable Pilot Completion Deadlines is feasible and practicable. Developer has evaluated the procedures specified herein with respect to determining the Project Segment Prices, Project Segment Completion Deadlines, Project Segment Liquidated Damages Values and Project Segment Stipulated Damages Values, and has reasonable grounds for believing, and does believe, that completion of Project Segments for the Project Segment Price(s) and within the Project Segment Completion Deadline(s) that will be determined based upon such procedures will be feasible and practicable, accounting for constraints affecting the applicable Project Segments, and the Project Segment Liquidated Damages Values and Project Segment Stipulated Damages Values determined based upon such procedures will be reasonable. Developer has evaluated the procedures specified herein with respect to determining the Project Segment Maintenance Prices and has reasonable grounds for believing, and does believe, that such procedures will be feasible and practicable, accounting for constraints affecting the Project. Developer further acknowledges and agrees that if TxDOT designates an additional or different project to be a Pilot System other than those that are identified in the Technical Provisions, such Pilot System will be treated as a Project Segment for purposes of this Section 2.4.3.

2.4.4 Developer will, in accordance with prudent and generally accepted engineering practices and prior to establishing any Project Segment Price(s) and Project Segment Completion Deadline(s) (i) review any geotechnical information provided by TxDOT, (ii) take appropriate steps to verify any preliminary utility information provided by TxDOT, (iii) examine the Project Site and surrounding locations, (iv) perform appropriate field studies, and (v) undertake other activities sufficient to familiarize itself with existing Utilities, surface conditions and subsurface conditions potentially affecting such Project Segment to the extent Developer deems necessary or advisable for performing its obligations under the Contract Documents with respect to such Project Segment. Developer shall be deemed to have acknowledged and agreed that it has been afforded the opportunity to review the information and documents made available to it by TxDOT with respect to such future Project Site(s), and to the extent access is made available by TxDOT to conduct inspections and tests of the Project Site(s) and surrounding locations. Before commencing any work on a particular portion or aspect of the Project, Developer shall verify all governing dimensions of the relevant Project Site and shall examine all adjoining work which may have an impact on such Work. Developer shall ensure that the Design Documents and Construction Documents accurately depict all governing and adjoining dimensions. In the event that TxDOT designates an additional or different project to be a Pilot System other than those that are identified in the Technical Provisions, such Pilot System will be treated as a Project Segment for purposes of this Section 2.4.4.

2.4.4 Developer acknowledges and agrees that it has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. Developer shall be deemed to have familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals for any Project Segment prior to entering into any Project Segment Supplement. Except as specifically permitted under Section 13, Developer shall be responsible for complying with the foregoing at its sole cost and without any increase in any Price or extension of any Completion Deadline on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the Contract Documents. Developer has no reason to believe that any Governmental Approval required to be obtained by Developer with respect to any Pilot System or Project Segment will not be granted in due course and, thereafter, remain in effect so as to enable the Work to proceed in accordance with the Contract Documents. If any Governmental Approvals required to be obtained by Developer with respect to a Pilot System and/or Project Segment must formally be issued in the name of TxDOT, Developer shall undertake all efforts to obtain such approvals subject to TxDOT's reasonable cooperation with Developer, including execution and delivery of appropriate applications and other documentation prepared by Developer in form approved by TxDOT. Developer shall assist TxDOT in obtaining any Government Approvals which TxDOT may be obligated to obtain, including providing information requested by TxDOT, preparing necessary supporting materials and participating in meetings regarding such approvals. In the event that TxDOT designates an additional or different project to be a Pilot System other than those that are identified in the Technical Provisions, such Pilot System will be treated as a Project Segment for purposes of this Section 2.4.5.

2.4.6 All design and engineering Work furnished by Developer shall be performed by or under the supervision of Persons licensed to practice architecture, engineering or surveying (as applicable) in the State, by personnel who are careful, skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Contract Documents and who shall assume professional responsibility for the accuracy and completeness of the Design Documents and Construction Documents prepared or checked by them.

2.4.7 Developer shall at all times schedule and direct its Work to provide an orderly progression of the Work to achieve, as applicable, each Pilot System Acceptance, Pilot System Punch List Acceptance, Pilot System Final Acceptance, Project Segment System Acceptance, Project Segment Punch List Acceptance and Project Segment Final Acceptance by the applicable Completion Deadlines and in accordance with the applicable approved Project Schedules, including furnishing such employees, materials, facilities and equipment and working such hours, extra shifts, overtime operations, Sundays and holidays as may be necessary to achieve such goal, all at Developer's sole cost, except as otherwise specifically provided in Section 13.

2.4.8 Except as provided in Section 21.8.1 hereof with respect to certain identified preexisting works licensed to TxDOT, Developer is and will be the sole author of all works employed by Developer in preparing any and all Software, (b) that it has and will have full and sufficient right to assign or grant the rights and/or licenses granted in the Software pursuant to this Agreement, (c) that all Software, including any preexisting works addressed in Section 21.8.1 hereof, have not been and will not be published under circumstances which have caused a loss of copyright therein, and (d) that all Software, including all preexisting works addressed in Section 21.8.1 hereof, do not and will not infringe any patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy or similar rights of any third party, nor has any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, or is such a claim pending, against Developer (or, insofar as Developer is aware, any entity form which Developer has obtained such rights). The representations and warranties set forth in this Section 2.4.8 shall survive the Maintenance Term (including any Maintenance Options) and shall survive the termination of this Agreement.

[NOTE TO PROPOSERS: SECTIONS 2.4.9-2.4.12 WILL BE REVISED TO REFLECT THE BUSINESS ORGANIZATIONAL STRUCTURE OF THE DEVELOPER AND WHETHER ANY GUARANTOR IS REQUIRED]

2.4.9 Developer is a corporation duly organized and validly existing under the laws of the State of ___________, with all requisite power to own its properties and assets and carry on its business as now conducted or proposed to be conducted. Developer is duly qualified to do business, and is in good standing, in the State, and will remain in good standing throughout the term of this Agreement and for as long thereafter as any obligations remain outstanding under the Contract Documents. [Guarantor is a corporation duly organized and validly existing under the laws of the State of ___________, with all requisite power to own its properties and assets and carry on its business as now conducted or proposed to be conducted. Guarantor is duly qualified to do business, and is in good standing, in the State, and will remain in good standing throughout the term of this Agreement and for as long thereafter as any obligations remain outstanding under the Contract Documents.]

2.4.10 The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action of Developer, and this Agreement has been duly executed and delivered by Developer.

2.4.11 All required approvals have been obtained with respect to the execution, delivery and performance of this Agreement, and performance of this Agreement will not result in a breach of or a default under Developer's organizational documents or any indenture or loan or credit agreement or other material agreement, instrument, judgment or decree to which Developer is a party or by which its properties and assets may be bound or affected. [All required approvals have been obtained with respect to the execution, delivery and performance of the Guarantee, and performance of the Guarantee will not result in a breach of or a default under Guarantor's organizational documents or any indenture or loan or credit agreement or other material agreement or instrument to which Guarantor is a party or by which its properties and assets may be bound or affected.]

2.4.12 This Agreement constitutes the legal, valid and binding obligation of Developer, enforceable against Developer and, if applicable, each member of Developer, in accordance with its terms. [Each Guarantee has been duly authorized by all necessary corporate action, has been duly executed and delivered by Guarantor, and constitutes the legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms.]

2.5 Performance as Directed

At all times during the term hereof, including during the course of, and notwithstanding the existence of, any dispute, Developer shall perform as and if directed by TxDOT in a diligent manner and without delay, shall abide by TxDOT's decision or order, and shall comply with all applicable provisions of the Contract Documents. If a dispute arises regarding such performance or direction, the dispute shall be resolved in accordance with Section 19.

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