Developer warrants that it owns, or will own, and has, or will have, good and marketable title to all materials, equipment, tools and supplies furnished, or to be furnished, by it and its Subcontractors that become part of the Project or are purchased for TxDOT for the operation, maintenance or repair thereof, free and clear of all Liens. Title to all of such materials, equipment, tools and supplies which shall have been delivered to a Project Site shall pass to TxDOT, free and clear of all Liens, upon the sooner of (a) incorporation into the Project, or (b) payment by TxDOT to Developer of invoiced amounts pertaining thereto. Notwithstanding any such passage of title, with respect to each Pilot System and Project Segment, Developer shall retain sole care, custody and control of such materials, equipment, tools and supplies and shall exercise due care with respect thereto until the relevant Final Acceptance Date for such Pilot System or Project Segment, as applicable, or until Developer is removed from the Project.
Developer shall provide appropriate security for each Project Site, and shall take all reasonable precautions and provide protection to prevent damage, injury, or loss to the Work and materials and equipment to be incorporated therein, as well as all other property at or on each Project Site, whether owned by Developer, TxDOT, or any other Person.
10.3.1 With respect to each Pilot System and Project Segment, Developer shall be responsible for maintenance of the Work and the Project Site in accordance with TP Sections _________ at all times prior to Final Acceptance of that Pilot System or Project Segment, as applicable. Developer shall maintain, rebuild, repair, restore or replace all Work, including Design Documents, Construction Documents, materials, equipment, supplies and maintenance equipment which are purchased for permanent installation in, or for use during construction of the Project that is injured or damaged prior to the date Developer's maintenance responsibility ends, regardless of who has title thereto under the Contract Documents and regardless of the cause of the damage or injury, at no additional cost to TxDOT, except to the extent that TxDOT is responsible for such costs in accordance with the express terms of this Agreement. Developer, at its cost, shall also have sole responsibility during such periods for rebuilding, repairing and restoring all other property within the Final ROW whether owned by Developer, TxDOT or any other Person.
10.3.2 If insurance proceeds with respect to any loss or damage for which Developer is responsible for the rebuilding, repair or restoration thereof are paid to TxDOT, then TxDOT shall arrange for such proceeds to reimburse Developer as repair or replacement work is performed by Developer to the extent that TxDOT has not previously paid for such repair or replacement work; provided, however, that release of such proceeds to Developer shall not be a condition precedent to Developer's obligation to perform such replacement or repair work or indicate that such replacement or repair work has been approved and accepted by TxDOT.
10.4.1 Developer's Obligation to Maintain and Repair
During the Maintenance Term, as the same may be extended by any Maintenance Option Term, Developer shall be responsible for all maintenance of the Work and the System (including each Pilot System and Project Segment), and shall keep the same in good working order and condition, performing all preventative maintenance and routine maintenance and making all adjustments, repairs, rehabilitations, reconstructions, and replacements necessary to keep the System in operation in accordance with the Performance Requirements set forth in TP Sections ________ at all times, including carrying out the approved Maintenance Plan developed pursuant to Section 10.4.2, below, scheduling and completing routine cleaning, inspection and servicing of all System components, provision and timely replenishment of all spares, supplies and consumables, and performance of scheduled preventative maintenance and corrective maintenance as required in the Contract Documents. Developer shall maintain, rebuild, repair, restore or replace all Work, including Design Documents, Construction Documents, Software, Hardware, materials, equipment, supplies and maintenance equipment which are purchased for permanent installation in, or for use during construction or operation of the Project that is injured or damaged prior to the date Developer's maintenance responsibility ends, regardless of who has title thereto under the Contract Documents and regardless of the cause of the damage or injury, at no additional cost to TxDOT, except to the extent that TxDOT is responsible for such costs in accordance with the express terms of this Agreement.
10.4.2 Maintenance Plan and Procedures
10.4.2.1 For each Pilot System and Project Segment, Developer shall prepare and provide TxDOT with a proposed written standard maintenance plan and procedures, including standards of performance with which Developer and its employees and agents shall strictly comply (the "Maintenance Plan"). The Maintenance Plan shall include and cover all procedures of every kind necessary for the maintenance and repair of the System as specified in TP Section ___. Developer shall develop procedures satisfactory to TxDOT, in its sole discretion. Each Maintenance Plan shall also include a plan for inventory management and control, including all activities required to maintain an adequate supply of materials, supplies, parts and equipment to maintain the System at all times. Once accepted, such Maintenance Plan shall be subject to change in whole or in part, at any time, at the sole discretion of TxDOT pursuant to Section 10.4.2.3 hereof.
10.4.2.2 Developer shall furnish to TxDOT the proposed Maintenance Plan for each Pilot System and Project Segment for TxDOT's review no later than 120 Days prior to the date of the applicable Pilot System Acceptance Deadline or Project Segment System Acceptance Deadline established pursuant to the then-current applicable Project Schedule. TxDOT shall conduct its review within 15 Days of receipt thereof. To the extent that TxDOT objects to parts of the Maintenance Plan or directs changes therein, Developer shall satisfy such objections and accommodate such change requests. Developer shall submit the revised proposed Maintenance Plan for TxDOT's review within 15 Days of receipt of TxDOT's comments, whereupon TxDOT shall review the revised Maintenance Plan within 15 Days of receipt thereof. Developer shall continue to satisfy TxDOT's objections and accommodate TxDOT's change requests in similar fashion until TxDOT accepts the Maintenance Plan. Neither the acceptance of any Maintenance Plan nor any direction of changes to a Maintenance Plan shall shift any liability or risk to TxDOT for maintenance of the System or Developer's obligations to comply with the Performance Requirements and the other requirements of the Contract Documents.
10.4.2.3 The accepted Maintenance Plan shall be incorporated in a manual entitled "Maintenance Plan and Procedures, Open-Road Toll System." Any changes to the Maintenance Plan approved by TxDOT, in its sole discretion, shall be documented by changes to the manual. The manual will be kept up-to-date in a single bound volume (to the extent practicable) reflecting all provisions in effect at all times for each Pilot System and Project Segment. The Maintenance Plan shall set forth a quality control and quality assurance program which will cause Developer's maintenance and repair of the System to meet all requirements hereof and will establish the procedures and methods of operation most likely to achieve quality and performance at minimum cost.
10.4.3 Additional Maintenance Responsibilities
10.4.3.1 Developer shall collect and analyze data including System assurance data ("System Assurance Monitoring") and System availability data, and perform diagnostic analysis of failures and trend analysis.
10.4.3.2 Developer shall report monthly on System activities, including operating statistics and System accuracy and availability, inventory, and other information as requested by TxDOT. Developer shall keep detailed maintenance records and inventory data to permit TxDOT to ascertain Developer's compliance with the requirements for the Work and shall furnish copies of such documents upon request. The maintenance records shall include a summary of interruptions to normal availability, explaining the duration and cause of such interruption. The procedures and forms for such record keeping for each Pilot System and Project Segment shall be provided by Developer and approved by TxDOT in advance and as a condition to any Final Acceptance thereof. At a minimum, the monthly management reports shall include a summary of the month's activities, highlighting any special events and incidents, a summary of performance achieved, an accuracy and availability report, and such other information as may be required by the Contract Documents or requested by TxDOT.
10.4.3.3 Developer shall develop a capital asset replacement program, including capital asset condition monitoring and reporting thereon.
10.4.3.4 Developer shall monitor the System from a security perspective, respond to emergencies, and report security issues and incidents to appropriate authorities.
10.4.3.5 Developer shall train new maintenance and supervisory personnel prior to transition to maintenance of the System by TxDOT as specified in Section 10.4.5.1.
10.4.3.6 Developer shall be responsible for configuration management activities throughout the Maintenance Term for all System elements, including Hardware, Software and documentation, and support and maintain all System Software.
10.4.3.7 Developer shall make no change in the design or configuration of the System as accepted by TxDOT without the express written consent of TxDOT, in its sole discretion.
10.4.4 Corrective Action
If a minimum functional System Availability performance levels defined in Table 1 of the TP or the System performance requirements defined in Table 4 of the TP are not met for any calendar quarter (3 month period, or performance records indicate either will not be met, Developer shall promptly notify TxDOT in writing and undertake a study to determine the causes and propose a plan to correct the problem. Developer shall take immediate corrective action to mitigate the cause at Developer's sole cost and expense. In the event that Developer fails to perform its obligations under this Section, TxDOT may give Developer written notice of such failure and an opportunity to cure as provided in Section 16.1.2. If Developer does not cure such failure within the cure period provided in Section 16.1.2, among any other remedies available to TxDOT, TxDOT shall have the right to the remedy set forth in Section 16.2.1(h) and Section 16.2.2.
10.4.5 Transfer of Maintenance to TxDOT at End of Maintenance Period
10.4.5.1 Training and Personnel
Developer shall provide training of TxDOT personnel or the personnel of a TxDOT-designate organization to maintain all Project Segments to be initiated at least 6 months prior to the end of the Maintenance Term for any Project Segment. Staff numbers and positions and training procedures will be in accordance with Developer's staffing plan in the Maintenance Plan then in effect. Developer shall design its classroom and on-the-job training with the objective of providing sufficient maintenance personnel competent to maintain the System. Developer shall provide qualified instructors who will prepare the course material including the latest modifications, equipment changes, maintenance updates, and any revised maintenance procedures, and may enlist major subcontractors or suppliers to augment Developer's own trainers. Literature, training aids, and equipment used in training shall be turned over to TxDOT at the termination of the Maintenance Term for each Project Segment. The training shall be designed with the objective that within 3 months of the start of the training, but no later than 90 Days prior to the end of the Maintenance Term, there shall be sufficient quantity of personnel trained so that the Project Segment can be completely run without Developer's personnel. It shall include classroom and hands-on experience.
10.4.5.2 Continued Stocking of Parts
At the end of the Maintenance Term for each Project Segment, the spare parts, equipment, expendables and consumables inventory shall be fully stocked and complete (including substitution with suitable alternatives for any such spare parts, equipment and expendables that are obsolete) to the extent required by the Contract Documents, or as may be modified. In the event that such inventory is not fully stocked and complete, an amount equal to the cost of restocking and completing such inventory shall be deducted from any payments, if any, due Developer and/or from any letter of credit then held by TxDOT. To the extent that the cost of restocking and completing such inventory incurred by TxDOT exceeds the payments due Developer, such differential shall be paid by the Developer to TxDOT within 15 Days after the date of termination of the Maintenance Term.
10.4.5.3 Condition of Project Segment at End of Maintenance Term
For each Project Segment, as of the date of expiration of the applicable Maintenance Term, the System shall be in a state of good operation condition and repair, with a physical and economic life expectancy consistent with the lifetimes of the components comprising such Project Segment that are listed in TP Section ___. Any capital asset replaced within one year prior to handover shall have a minimum of a one-year warranty in accordance with Section 11.2. Any extant warranty for any component of such Project Segment shall be transferred to TxDOT. Failure to maintain the assets in a state of good operating condition and repair shall be cause for termination, and/or for drawing against the bonds and letter of credit provided by Developer as security for Developer's performance. For each Project Segment, not more than 120 Days prior to expiration of the Maintenance Term for such Project Segment, TxDOT and Developer shall conduct a walk-through of such Project Segment and conduct such tests of the System in accordance with the procedures set forth in TP Section __, and shall produce a punch-list of those items requiring Maintenance Work prior to transfer of the maintenance responsibility for such Project Segment to TxDOT.