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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

Texas Department of Transportation
Texas Turnpike Authority Division
125 East 11th Street
Austin, TX 78761

COMPREHENSIVE DEVELOPMENT AGREEMENT
TxDOT Statewide Open-Road Toll Collection System
TABLE OF CONTENTS

SECTION 1. CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS

1.1 Certain Definitions

1.2 Order of Precedence

1.3 Interpretation of Contract Documents

1.4 Referenced Standards and Specifications

1.5 Explanations; Omissions and Misdescriptions

1.6 Computation of Periods

1.7 Standard for Approvals

1.8 Professional Services Licensing Requirements

1.9 Federal Requirements

SECTION 2. OBLIGATIONS OF DEVELOPER; REPRESENTATIONS, WARRANTIES AND COVENANTS

2.1 Performance Requirements

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

2.3 General Obligations of Developer

2.4 Representations, Warranties and Covenants

2.5 Performance as Directed

SECTION 3. DESIGN REQUIREMENTS; DISCLAIMER; ROLES OF PROJECT MANAGEMENT CONSULTANT AND FHWA

3.1 Design Requirements

3.2 Responsibility for Design

3.3 Disclaimer

3.4 Role of Program Manager

3.5 Role of FHWA

SECTION 4. TIME WITHIN WHICH PROJECT SHALL BE COMPLETED; PROJECT SCHEDULE AND PROGRESS

4.1 Time of Essence; Notice to Proceed

4.2 Completion Deadlines

4.3 Scheduling of Design, Construction and Payment

4.4 Prerequisites for Start of Construction

4.5 Recovery Schedule

SECTION 5. CONTROL OF WORK

5.1 Control and Coordination of Work

5.2 Safety

5.3 Obligation to Minimize Impacts

5.4 Inspection and Testing

5.5 Effect of Oversight, Spot Checks, Audits, Tests, Acceptances and Approvals

5.6 Nonconforming Work

SECTION 6. ACCESS TO PROJECT SITE; UTILITIES; ENVIRONMENTAL COMPLIANCE

6.1 Access to Project Site

6.2 Utilities

6.3 Hazardous Materials Management

6.4 Environmental Compliance

SECTION 7. DISADVANTAGED BUSINESS ENTERPRISE AND HISTORICALLY UNDERUTILIZED BUSINESS PROGRAMS; CIVIL RIGHTS; SUBCONTRACTORS; KEY PERSONNEL

7.1 DBE and HUB Requirements

7.2 Civil Rights; Equal Employment Opportunity

7.3 Subcontracts

7.4 Key Personnel; Qualifications of Employees

7.5 Responsibility for Employees and Subcontractors

SECTION 8. PERFORMANCE AND PAYMENT BONDS

8.1 Provision of Bonds

8.2 Letter of Credit

8.3 No Relief of Liability

8.4 Guarantees

SECTION 9. INSURANCE

9.1 Developer Provided Insurance

9.2 General Insurance Requirements

9.3 Prosecution of Claims

9.4 Commencement of Work

9.5 TxDOT's Right to Remedy Breach by Developer

9.6 Disclaimer

SECTION 10. TITLE; PROJECT SITE SECURITY; MAINTENANCE DURING AND AFTER CONSTRUCTION

10.1 Title

10.2 Project Site Security

10.3 Maintenance During Construction

10.4 Maintenance Obligations After Final Acceptance

SECTION 11. WARRANTIES

11.1 Warranties

11.2 Applicability of Warranties to Re-Done Work

11.3 Subcontractor Warranties

11.4 No Limitation of Liability

11.5 Damages for Breach of Warranty

SECTION 12. PAYMENT FOR SERVICES

12.1 Price

12.2 Invoicing and Payment

12.3 Deductions, Exclusions and Limitations on Payment

12.4 Final Payment of the Price

12.5 Final Payment of the Maintenance Price

12.6 Payment to Subcontractors

12.7 Disputes

SECTION 13. CHANGES IN THE WORK

13.1 Circumstances Under Which Change Orders May Be Issued

13.2 TxDOT-Initiated Change Orders

13.3 Developer-Requested Change Orders

13.4 Contents of Change Orders

13.5 Certain Limitations

13.6 Change Order Pricing

13.7 Time and Materials Change Orders

13.8 Necessary Basic Configuration Changes

13.9 Change Orders for Differing Site Conditions, Force Majeure Events, and Hazardous Materials

13.10 Change Order Records

13.11 Matters Not Eligible for Change Orders and Waiver

13.12 Disputes

13.13 Changes Not Requiring Change Order

13.14 No Release or Waiver

SECTION 14. SUSPENSION

14.1 Suspensions for Convenience

14.2 Suspensions for Cause

14.3 Responsibilities of Developer During Suspension Periods

SECTION 15. TERMINATION FOR CONVENIENCE

15.1 Termination

15.2 Developer's Responsibilities After Receipt of Notice of Termination

15.3 Acceptance

15.4 Settlement Proposal

15.5 Amount of Negotiated Termination Settlement

15.6 No Agreement as to Amount of Termination Settlement

15.7 Reduction in Amount of Claim

15.8 Payment

15.9 Subcontracts

15.10 No Consequential Damages

15.11 No Waiver

15.12 Dispute Resolution

15.13 Allowability of Costs

SECTION 16. DEFAULT

16.1 Default of Developer

16.2 Remedies

16.3 Failure to Comply Caused by Delay Event

16.4 Right to Stop Work for Failure by TxDOT to Make Undisputed Payment.

SECTION 17. LIQUIDATED DAMAGES, STIPULATED DAMAGES AND LIMITATION OF LIABILITY

17.1 Liquidated Damages Generally

17.2 Amount of Liquidated Damages

17.3 Reasonableness of Liquidated Damages

17.4 Stipulated Damages

17.5 Payment; Offset; Reduction; Waiver

17.6 Limitation of Developer's Liability

SECTION 18. INDEMNIFICATION

18.1 Indemnifications by Developer

18.2 Indemnification by TxDOT

18.3 No Effect on Other Rights

18.4 CERCLA Agreement

18.5 Intent of Indemnity for Breach of Agreement

18.6 No Relief from Responsibility

18.7 Right to Rely

SECTION 19. PARTNERING AND DISPUTE RESOLUTION

19.1 General Dispute Resolution Provisions

19.2 Partnering

19.3 Disputes Governed by this Section; Demands and Disputes; Priorities

19.4 Dispute Resolution: Additional Requirements for Subcontractor Disputes

19.5 Mediation or Other Alternative Dispute Resolution

19.6 Subsequent Proceedings

19.7 Continuation of Work

19.8 Records Related to Dispute

SECTION 20. COMPLETION AND ACCEPTANCE

20.1 System Acceptance

20.2 Punch List Acceptance

20.3 Final Acceptance

20.4 End of Maintenance Term Acceptance

20.5 Assignment of Causes of Action

SECTION 21. DOCUMENTS AND RECORDS, INSPECTION AND TESTING

21.1 Escrowed Proposal Documents

21.2 Subcontract Pricing Documents

21.3 Reporting Requirements

21.4 Maintenance of, Access to and Audit of Records

21.5 Retention of Records

21.6 Public Information Act

21.7 Ownership and Use of Documents

21.8 Intellectual Property Rights; Licensing

21.9 Inventions

21.10 Inspection and Testing

SECTION 22. VALUE ENGINEERING

22.1 General

22.2 Value Engineering Recommendation

22.3 Required Information

22.4 TxDOT Review and Approval

22.5 Price Adjustment

22.6 Implementation of VEs

22.7 Use of VEs By TxDOT

SECTION 23. COOPERATION AND COORDINATION WITH OTHER CONTRACTORS AND ADJACENT PROPERTY OWNERS

23.1 Cooperation with Other Contractors

23.2 Interference by Other Contractors

23.3 Coordination with Utility Owners and Adjacent Property Owners

SECTION 24. MISCELLANEOUS PROVISIONS

24.1 Amendments

24.2 Waiver

24.3 Independent Contractor

24.4 Successors and Assigns

24.5 Designation of Representatives; Cooperation with Representatives

24.6 Survival

24.7 Limitation on Third Party Beneficiaries

24.8 Tort Liability; Personal Liability of TxDOT Employees

24.9 Governing Law

24.10 Notices and Communications

24.11 Further Assurances

24.12 Severability

24.13 Headings

24.14 Entire Agreement

24.15 Counterparts

SECTION 25. CERTAIN ADDITIONAL FEDERAL AND STATE PROVISIONS

25.1 Title 49, Code of Federal Regulations, Part 29 Debarment and Suspension Certifications

25.2 Certification Regarding Use of Contract Funds for Lobbying

25.3 Child Support Statement for State Grants, Loans and Contracts

25.4 Equal Employment Opportunity Certification

COMPREHENSIVE DEVELOPMENT AGREEMENT

TxDOT Statewide Open-Road Toll Collection System

This Comprehensive Development Agreement ("Agreement") is entered into by and between the Texas Department of Transportation, a public agency of the State of Texas ("TxDOT"), and_________, a ________ ("Developer"), effective as of _________, 2004, as set forth on the signature page hereto, with reference to the definitions contained in Exhibit A hereto and the following recitals:

  1. TxDOT wishes to develop, design, construct, install and test one or more pilot systems (each, a" Pilot System") for an open-road electronic toll collection system (the "System"), and to develop, design, construct, install, test, integrate and maintain the System on such TxDOT-owned and/or operated toll roads or portions thereof as TxDOT may, in its discretion, designate at any time during a 5-year Project Segment Designation Period. TxDOT may also, in its discretion, designate at any time during such 5-year Project Segment Designation Period a toll road owned and/or operated by a regional mobility authority or by a developer under contract to TxDOT. For any toll road designated by TxDOT, the Work required to implement the System on each such designated toll road is referred to herein as a "Project Segment." Development of each Pilot System and each designated Project Segment are collectively referred to herein as the "Project."
  2. Pursuant to Chapter 361 of the Texas Transportation Code (the "Act") and Sections 27.1-27.5 of Title 43, Texas Administrative Code (the "Rules"), on _______, 2005, TxDOT issued a Request for Detailed Proposals ("RFDP"), and on_______, 2005, received _____ (_) detailed proposals. TxDOT determined that Developer was the proposer which best met the selection criteria contained in the RFDP and that its proposal was the one which provided the best value to the State.
  3. The Executive Director of TxDOT has been authorized to enter into this Agreement pursuant to the Act, the Rules and the Texas Transportation Commission Minute Order_____.
  4. The parties intend for this Agreement to be a comprehensive development agreement obligating Developer to perform all work necessary to obtain completion of the Project (i) complete each Pilot System for the lump sum fixed price specified in the Proposal with respect to such Pilot System (each, a "Pilot System Price"), as the same may be modified pursuant to the procedures specified herein, by the deadlines specified herein with respect to such Pilot System (each a "Pilot System Deadline"), and (ii) complete each Project Segment by the deadlines determined in accordance with the procedures specified herein (each a "Project Segment Deadline") for the prices determined in accordance with the procedures specified herein (each, a "Project Segment Price") subject only to certain specified limited exceptions. Developer submitted with its Proposal fixed Pilot System Prices, and unit prices for each Hypothetical Project Segment described in Exhibit U, to be used as the basis for determining the Project Segment Prices. In order to allow TxDOT to budget for and finance the Project and to reduce the risk of cost overruns, this Agreement includes restrictions affecting Developer's ability to make claims for increases to a Price or extensions of the Completion Deadlines. Developer has agreed in this Agreement to assume such responsibilities and risks and has reflected the assumption of such responsibilities and risks in the Pilot System Prices, and in the procedures specified herein for modifying such Pilot System Prices and for determining the Project Segment Prices.
  5. If Developer fails to complete the Project in accordance with the Completion Deadlines set forth in the Contract Documents, then TxDOT and the members of the public represented by TxDOT will suffer substantial losses and damages. The Contract Documents provide that Developer shall pay TxDOT substantial Liquidated Damages if such completion of any Pilot System or Project Segment is delayed.
  6. The Agreement provides for TxDOT to authorize development of one or more Pilot Systems upon the issuance of Pilot System NTP 1. The Work for each Project Segment, if any, will be initiated by the parties' agreement upon the terms of a Project Segment Supplement issued by TxDOT, and TxDOT's issuance of additional NTPs for each such Project Segment designated by TxDOT during the Project Segment Designation Period.
  7. The Agreement further provides for Developer to maintain the entire System for a price determined on a Project Segment basis in accordance with the procedures specified herein (the "Project Segment Maintenance Price") for a period of ten years commencing on the date of TxDOT's issuance of Pilot System NTP 1 (the "Maintenance Term"), and provides TxDOT with five consecutive one-year options to require Developer to maintain some or all of any individual Project Segment(s) up to a maximum of fifteen years commencing on the date of TxDOT's issuance of Pilot System NTP 1 (collectively, the "Maintenance Term"). Developer submitted with its Proposal unit prices for maintenance of each Hypothetical Project Segment Scenario described in Exhibit U, to be used as the basis for determining the Project Segment Maintenance Prices in accordance with the procedures provided herein. Any Pilot System that TxDOT directs Developer to develop and maintain as a permanent installation shall, upon Final Acceptance thereof, be considered to be a Project Segment for purposes of determining Developer's post-Final Acceptance obligations herein with respect to such permanent installation, and for purposes of determining the maintenance price for such permanent installation.
  8. The System's accuracy and reliability is of paramount importance to TxDOT's ability to finance and build highways to meet the State's infrastructure needs, and TxDOT will suffer substantial losses and damages if the System does not meet the Performance Requirements. The Contract Documents provide that TxDOT shall pay TxDOT substantial Stipulated Damages if the System does not meet the Performance Requirements.

NOW, THEREFORE, in consideration of the sums to be paid to Developer by TxDOT, the foregoing premises and the covenants and agreements set forth herein, the parties hereby agree as follows:

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