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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 20. COMPLETION AND ACCEPTANCE

20.1 System Acceptance

20.1.1 General Requirements

In general, System Acceptance with respect to a Pilot System or any Project Segment can be achieved only when (i) all required System Acceptance testing is successfully completed, (ii) the Work associated with such Pilot System or Project Segment is completed, (iii) the Project Site of such Pilot System or Project Segment safely may be opened to public and private vehicular traffic, and (iv) such Pilot System and/or Project Segment functions accurately and reliably in accordance with the Performance Requirements.

20.1.2 Notice and Inspection

Developer shall provide written notice to TxDOT when all of the following have occurred:

(a) Developer has completed all Work relating to the applicable Pilot System or Project Segment except for Punch List items, final cleanup and other items included in the requirements for Final Acceptance of such Pilot System or Project Segment;

(b) Developer has ensured that all such Work relating to the applicable Pilot System or Project Segment has been performed in accordance with the requirements of the Contract Documents, the Governmental Approvals and applicable Law;

(c) The applicable Pilot System or Project Segment may be operated without damage to the System or Project Segment or any other property on or off the applicable Project Site, and without injury to any Person;

(d) The Pilot System or Project Segment, (i) can be safely opened to public use, (ii) is fully signed and striped, and (iii) has all safety appurtenances installed;

(e) All remaining Punch List work for the applicable Pilot System or Project Segment can be completed with no impact to traffic. If any lane closures are required to complete the Punch List items, Developer shall be only entitled to close lanes between 8:00 p.m. and 6:00 a.m. and through traffic will be maintained by Developer at all times;

(f) Developer has furnished to TxDOT (i) the necessary preliminary as-built drawings associated with completed Work, (ii) the as-built drawings and documents required for conducting inspections and/or testing, and (iii) the applicable as-built drawings and documents for maintenance and operations;

(g) Developer has furnished to TxDOT a certification from Developer's Construction Quality Acceptance Manager, in form and substance satisfactory to TxDOT, certifying conformity of the construction with the Design Documents;

(h) Developer has acquired all spare parts, components and equipment as described in TP Section 4.5.5; and

(i) Developer has completed all inspection, testing and verification as described in TP Section 4.3, including any additional inspection and testing following any repairs, modifications and/or replacements required thereunder and has provided TxDOT with all documentation and other items required by TP Sections 2.3.3, 2.5.2 and 7.1.

TxDOT will then conduct such inspections, verifications, surveys and/or testing as it deems desirable. If such inspections, verifications, surveys and/or tests disclose that any of Work does not meet the requirements of the Contract Documents, TxDOT will promptly advise Developer as to any Errors in the Work necessary to be corrected as a condition to System Acceptance and as to any Errors which may be corrected as Punch List items. Upon correction of the Errors identified as a prerequisite to System Acceptance, Developer shall provide written notification to TxDOT, and TxDOT will conduct additional inspections, verifications, surveys and/or testing as it deems desirable. This procedure shall be repeated until TxDOT finds that all prerequisites to System Acceptance of the applicable Pilot System or Project Segment have been met.

20.1.3 Certificate of System Acceptance

TxDOT will issue a Certificate of System Acceptance with respect to the applicable Pilot System and Project Segment at such time as (a) TxDOT finds that all conditions set forth in Section 20.1.2 have been satisfied; (b) TxDOT finds that all Errors identified as prerequisites to System Acceptance have been corrected, (c) all inspection and testing as described in TP Section ___ shall have been completed, (d) Developer and TxDOT have agreed upon a Punch List; and (e) any other conditions precedent to System Acceptance expressly set forth in this Agreement have occurred.

20.2 Punch List Acceptance

20.2.1 Requirements

Developer shall provide written notice to TxDOT when all of the following have occurred:

[TO COME - NOTE: SOME OF ITEMS IN 20.3 MAY BE MOVED UP TO 20.2]

20.2.2 Certificate of Punch List Acceptance

TxDOT will issue a Certificate of Punch List Acceptance with respect to the applicable Pilot System and Project Segment at such time as (a) TxDOT finds that all conditions set forth in Section 20.2.1 have been satisfied; (b) TxDOT finds that all Errors identified as prerequisites to Punch List Acceptance have been corrected, (c) all inspection and testing as described in TP Section ___ shall have been completed, and (d) any other conditions precedent to Punch List Acceptance expressly set forth in this Agreement have occurred.

20.3 Final Acceptance

20.3.1 Promptly after System Acceptance with respect to a Pilot System or Project Segment, Developer shall perform all of the Work relating to such Pilot System or Project Segment, if any, which was deferred in connection with the System Acceptance, and shall satisfy all of its other obligations under the Contract Documents, the Governmental Approvals and applicable Laws, including ensuring that all equipment, materials, facilities, improvements, structures and components have been properly adjusted and tested. TxDOT will issue a Certificate of Final Acceptance when it finds that all of the following conditions be been satisfied:

(a) TxDOT has issued a Certificate of System Acceptance and a Certificate of Punch List Acceptance with respect to the applicable Pilot System or Project Segment;

(b) TxDOT has received all Design Documents, As-Built Documents, Final ROW record maps, surveys, maintenance manuals, electronic files, test data and other deliverables required under the Contract Documents and a source Code Escrow has been established for any Software Source Code that is required to be deposited into a Source Code Escrow pursuant to Section ___;

(c) All special tools, equipment, furnishings, Hardware, Software and supplies purchased and/or used by Developer as provided in the Contract Documents (provided, however, that prior to expiration of this Agreement, Developer may retain possession of any such items that may be used in connection with a future Project Segment Supplement) shall have been delivered to TxDOT and all replacement spare parts shall have been purchased and delivered to TxDOT, free and clear of Liens;

(d) All personnel, construction supplies, equipment, waste materials, rubbish and temporary facilities of each Developer-Related Entity shall have been removed from the applicable Project Site, Developer shall restore and repair all damage or injury arising from such removal to the satisfaction of TxDOT, and such Project Site shall be in good working order and condition;

(e) Developer shall have delivered to TxDOT a certification representing that there are no outstanding claims of Developer or claims, Liens or stop notices of any Subcontractor, laborer, Utility Owner or railroads with respect to the Work, other than any previously submitted unresolved claims of Developer and any claims, Liens or stop notices of a Subcontractor, laborer, Utility Owner or railroad being contested by Developer (in which event the certification shall include a list of all such matters with such detail as is requested by TxDOT and, with respect to all Subcontractor, laborer, Utility Owner and railroad claims, Liens and stop notices, shall include a representation by Developer that it is diligently and in good faith contesting such matters by appropriate legal proceedings which shall operate to prevent the enforcement or collection of the same). For purposes of such certificate, the term "claim" shall include all matters or facts which may give rise to a claim;

(f) Developer shall have satisfactory completed all additional inspection and testing following any repairs, modifications and/or replacements required thereunder;

(g) The Punch List items shall have been completed to the satisfaction of TxDOT, all of Developer's other obligations under the Contract Documents, the Governmental Approvals and applicable Laws, other than obligations which by their nature are required to be performed after such Final Acceptance, shall have been satisfied in full or waived in writing by TxDOT;

(h) Developer shall have completed the items set forth in TP Section 87.4; and

(i) Developer shall have finalized and closed out all Governmental Approvals.

20.3.2 Final Acceptance for a Pilot System or Project Segment will not prevent TxDOT from correcting any measurement, estimate, or certificate made before or after completion of the Work for such Pilot System or Project Segment, nor shall it prevent TxDOT from recovering from Developer, its Surety(ies), Letter of Credit Banks, or other provider of performance security or any combination of the foregoing, overpayment sustained for failure of Developer to fulfill the obligations under the Contract Documents. A waiver on the part of TxDOT of any breach of any part of Developer shall not be held to be a waiver of any other or subsequent breach. The occurrence of any Final Acceptance shall not relieve Developer of any of its continuing obligations under the Contract Documents, including Warranty and maintenance obligations, or constitute any assumption of liability by TxDOT.

20.4 End of Maintenance Term Acceptance

20.4.1 Requirements

Developer shall provide written notice to TxDOT when all of the following have occurred:

[TO COME]

20.4.2 Certificate of End of Maintenance Term Acceptance

TxDOT will issue a Certificate of End of Maintenance Term Acceptance with respect to the applicable Pilot System and Project Segment at such time as (a) TxDOT finds that all conditions set forth in Section 20.2.1 have been satisfied; (b) TxDOT finds that all Errors identified as prerequisites to End of Maintenance Term Acceptance have been corrected, (c) all inspection and testing as described in TP Section ___ shall have been completed, and (d) any other conditions precedent to End of Maintenance Term expressly set forth in this Agreement have occurred.

20.5 Assignment of Causes of Action

Developer shall assign to TxDOT all right, title and interest in and to all claims and causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15), arising from purchases of goods, services, equipment, Hardware, Software or materials pursuant to the Contract Documents or any Subcontract. This assignment shall be made and become effective with respect to each Pilot System and Project Segment at the time TxDOT tenders the applicable Final Payment of the Price to Developer, without further acknowledgment by the Parties.

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