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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 6. ACCESS TO PROJECT SITE; UTILITIES; ENVIRONMENTAL COMPLIANCE

6.1 Access to Project Site

6.1.1 TxDOT shall be responsible for providing Developer with such access to the Final ROW for a Pilot System or a Project Segment, as applicable, as is necessary to perform the Work. To the extent that Developer has not been provided with access to portions of the Final ROW prior to the date set forth on the relevant Project Schedule, Developer shall work around such Final ROW with the goal of minimizing delay to the completion of the Project.

6.1.2 TxDOT shall be responsible for the acquisition of any real property outside the Schematic ROW that must be acquired due to a TxDOT-Directed Change, subject to TxDOT's reasonable determination that the property is necessary, subject to the limitations in Section 13.

6.1.3 All costs and expenses for the acquisition of any temporary right or interest in real property that Developer determines necessary or desirable for its convenience in performance of the Work, such as for work space, contractor laydown areas, materials or storage areas, or for any permanent interest in real property that Developer may wish to acquire for its convenience which lies outside the applicable Schematic ROW, shall be Developer's sole responsibility, to be undertaken at Developer's sole cost and expense. TxDOT shall have no obligations or responsibilities with respect to the acquisition, maintenance or disposition of such rights or interests, and shall not use its powers of eminent domain in connection therewith. Developer will comply with all applicable Laws in acquiring and maintaining or disposing of any such property rights or interests. Developer shall cause the documentation of any such property interest to contain the grantor's express acknowledgment that TxDOT shall have no liability with respect thereto.

6.2 Utilities

Developer shall be responsible for verifying the location of all Utilities shown on any Utility Strip Map provided by TxDOT or otherwise related to any Pilot System and any Project Segment (including undertaking field inspections and Project Site studies, researching Utility Owner records and confirming Developer's findings with TxDOT and the Utility Owners), and for obtaining all Utility installations and hook-ups that are required to operate the System, at Developer's cost. Developer's entitlement to Change Orders for additional compensation or extension of time on account of omissions or inaccuracies in the Utility Strip Map shall be limited as set forth in this Section 6.8.1. Developer shall use its best efforts to minimize costs for which Developer is entitled to compensation, including avoidance of an Unidentified Utility where feasible rather than its removal and/or reinstallation in a new location, and to minimize any delay for which Developer is entitled to an extension in a Completion Deadline pursuant to this Section 6.3.

6.3 Hazardous Materials Management

6.3.1 Procedures and Compensation for Hazardous Materials Management

6.3.1.1 If during the course of the Work, Developer encounters Hazardous Materials or potential Recognized Environmental Conditions, Developer shall (a) promptly notify TxDOT in writing and advise TxDOT of any obligation to notify State or federal agencies under applicable Law; and (b) take reasonable steps, including design modifications and/or construction techniques, to avoid excavation or dewatering in areas with Hazardous Materials or Recognized Environmental Conditions. Where excavation or dewatering of Hazardous Materials or Recognized Environmental Conditions is unavoidable, Developer shall utilize appropriately trained personnel and shall select the most cost-effective approach to Hazardous Materials Management, unless otherwise directed by TxDOT. Developer's plan for Hazardous Materials Management shall be subject to the prior written approval of TxDOT. Wherever feasible and consistent with applicable Law, contaminated soil and groundwater shall not be disposed off-site. All Hazardous Materials and potential Recognized Environmental Conditions shall be managed, handled, remediated, transported (where applicable) and disposed of in accordance with applicable Law, Governmental Approvals, the Hazardous Materials Management Plan, the approved Investigative Work Plan described in TP Section ______, and the approved Project Site Investigation Report.

6.3.1.2 Developer shall afford TxDOT the opportunity to inspect sites containing Hazardous Materials or potential Recognized Environmental Conditions before any action is taken which would inhibit TxDOT's ability to ascertain the nature and extent of the contamination.

6.3.1.3 Subject to the limitations and exceptions set forth in this Section 6.3. and Section 13, Developer shall be entitled to a Change Order as set forth in Section 13.9.3 providing for additional compensation and/or a time extension with respect to costs and delays directly attributable to the discovery of Hazardous Materials within applicable Schematic ROW or any parcels added to the applicable Project Site by a TxDOT-Directed Change or required due to a Force Majeure Event.

6.3.2 Hazardous Material Generator

As between Developer and TxDOT, TxDOT shall be considered the generator of Hazardous Materials on any Final ROW properties as of the Effective Date; provided, however, that the foregoing shall not preclude or limit any rights or remedies that TxDOT may have against third parties and/or prior owners, lessees, licensees and occupants of the Final ROW. As between Developer and TxDOT, Developer shall be considered the generator of any Hazardous Materials any Final ROW which result from (a) Release(s) of Hazardous Material attributable to the negligence, willful misconduct, or breach of applicable Law or contract by any Developer-Related Entity; and (b) Release(s) of Hazardous Materials arranged to be brought onto any Final ROW or elsewhere by any Developer-Related Entity regardless of the cause of the Release of Hazardous Materials.

6.3.3 Hazardous Material Releases Caused by Developer

Hazardous Materials Management costs, including assessment, containment, and remediation expenses, on, arising from or related to and/or which result from (a) Release(s) of Hazardous Material attributable to the actions, omissions, negligence, willful misconduct, or breach of applicable Law or contract by any Developer-Related Entity; or (b) Release(s) of Hazardous Materials arranged to be brought onto any Final ROW or elsewhere by any Developer-Related Entity shall not be compensable to Developer, regardless of the cause of the Release of Hazardous Materials.

6.3.4 Hazardous Materials Brought to Final ROW by Developer

Developer shall be solely responsible for: (a) compliance with all Laws applicable to Hazardous Materials brought onto the Project Site by any Developer-Related Entity; (b) use, containment, storage, management, transport and disposal of all Hazardous Materials in accordance with the Contract Documents and all applicable Laws and Environmental Approvals; and (c) payment of all Losses associated with, arising out of or related to such Hazardous Materials.

6.3.5 Environmental Approvals Relating to Hazardous Materials Management

Developer shall be solely responsible for obtaining all Governmental Approvals relating to Hazardous Materials Management including federal and State surface water and groundwater discharge permits and permits for recycling or reuse of Hazardous Materials. Developer shall be solely responsible for compliance with such Governmental Approvals and applicable Laws, including those governing the preparation of waste profiles, waste manifests and bills of lading.

6.4 Environmental Compliance

6.4.1 Developer shall be responsible for compliance with all conditions and requirements of the Environmental Approvals, including TxDOT-Provided Approvals and similar Governmental Approvals specifically applicable to the Project, other than the mitigation requirements which TxDOT has expressly agrees to perform for any Pilot System and/or Project Segment. Each Price includes compensation for Developer's performance of all environmental requirements and conditions relating to the Pilot System and Project Segment to which such Price relates, including mitigation measures, .

6.4.2 Developer shall be responsible for obtaining any New Environmental Approvals required for the Project, including modifications to any TxDOT-Provided Approvals, that may be required in connection with any Final Design. If any New Environmental Approval is necessitated by a TxDOT-Directed Change or Force Majeure Event, Developer shall be responsible for obtaining such New Environmental Approval and/or performing any additional mitigation requirements of such New Environmental Approval only if directed to do so by a Directive Letter or a Change Order. TxDOT shall cooperate with Developer and support its efforts to obtain any such New Environmental Approval. Any Change Order covering a TxDOT-Directed Change or Force Majeure Event shall include compensation to Developer for additional costs incurred by Developer to obtain the New Environmental Approval and to implement any changes in the Work (including performance of additional mitigation measures which are Developer's responsibility) resulting from such New Environmental Approvals, as well as any time extension necessitated by the TxDOT-Directed Change or Force Majeure Event, subject to the conditions and limitations contained in Section 13.

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