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:
- 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."
- 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.
- 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_____.
- 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.
- 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.
- 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.
- 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.
- 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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