SEP 15 Projects
Texas Toll Roads Statewide Open-Road Toll Collection System Project (TX Toll Collection System)
Comprehensive Development Agreement

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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

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:

SECTION 1. CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS

1.1 Certain Definitions

Exhibit A hereto contains the meaning of various terms used in the Contract Documents.

1.2 Order of Precedence

The term "Contract Documents" shall mean the documents listed in this Section 1.2. Each of the Contract Documents is an essential part of the agreement between the Parties, and a requirement occurring in one is as binding as though occurring in all. The Contract Documents are intended to be complementary and to describe and provide for a complete agreement. In the event of any conflict among the Contract Documents, the order of precedence shall be as set forth below.

(a) For design and other non-construction Work:

  1. Change Orders and Agreement amendments (including amendments to Project Segment Supplements);

  2. Project Segment Supplements

  3. Agreement (including all exhibits other than Exhibits B, C and N);

  4. Technical Provisions;

  5. Attachments to the Technical Provisions;

  6. TxDOT Standards (as supplemented and modified by Exhibit B, Amendments, Modifications and Supplements to TxDOT Standard Specifications); and

  7. Proposal (including all modifications thereto set forth in Exhibit C).

Notwithstanding the foregoing order of precedence, in the event and to the extent that Exhibit C expressly specifies that it is intended to supersede specific provisions of the Contract Documents, Exhibit C shall control over the specified provisions. In determining whether a conflict exists between the Proposal and other Contract Documents, to the extent that the Proposal can reasonably be interpreted as an offer to provide higher quality items than otherwise required by the Contract Documents or to perform services in addition to those otherwise required, or otherwise contains terms which TxDOT considers to be more advantageous than the requirements of the other Contract Documents, the Proposal shall not be considered in conflict with the other Contract Documents, and Developer's obligations hereunder shall include compliance with all such statements, offers and terms.

(b) For installation and construction-related standards, specifications and requirements, the order of precedence set forth in clause (a) shall apply, except that the Final Design Documents shall also be considered Contract Documents and shall be added following the Proposal in the order of precedence, provided that (i) specifications contained therein shall have precedence over plans, and (ii) no conflict shall be deemed to exist between the Final Design Documents and the other Contract Documents with respect to requirements of the Final Design Documents that TxDOT determines are more beneficial than the requirements of the other Contract Documents; and (iii) any other Deviations contained in the Final Design Documents shall have priority over conflicting requirements of other Contract Documents only to the extent that the conflicts are specifically identified in the approval.

(c) Portions of the Reference Documents are referenced in the Contract Documents for the purpose of defining requirements of the Contract Documents. The referenced information shall be deemed incorporated in the Contract Documents to the extent that it is so referenced, with the same order of priority as the Contract Document in which the reference occurs.

(d) Additional details and more stringent requirements contained in a lower priority document will control unless the requirements of the lower priority document present an actual conflict with the requirements of the higher level document (i.e. it is not possible to comply with both requirements). Notwithstanding the order of precedence among Contract Documents set forth in this Section 1.2, in the event of a conflict among any standard or specification applicable to the Project established by reference contained in the Contract Documents to a described publication, TxDOT shall have the right to determine, in its sole discretion, which provision applies regardless of the order of precedence of the documents in which such standards are referenced. Developer shall request in writing TxDOT's determination respecting the order of precedence involving the referenced standards promptly upon becoming aware of any such conflict.

1.3 Interpretation of Contract Documents

In the Contract Documents, where appropriate: the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to; unless otherwise indicated references to Codes are to the codified laws of the State; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation"; unless otherwise indicated references to sections, appendices or schedules are to this Agreement; words such as "herein," "hereof" and "hereunder" shall refer to the entire document in which they are contained and not to any particular provision or section; words not otherwise defined which have well-known technical or construction industry meanings, are used in accordance with such recognized meanings; references to Persons include their respective permitted successors and assigns and, in the case of Governmental Persons, Persons succeeding to their respective functions and capacities; and words of any gender used herein shall include each other gender where appropriate. Unless otherwise specified, lists contained in the Contract Documents defining the Project or the Work shall not be deemed all-inclusive. Developer acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Proposal, to review the terms and conditions of the Contract Documents (including those Reference Documents that are referenced in the Contract Documents, and pursuant to Section 1.2(c) above, are considered Contract Documents) and to bring to the attention of TxDOT any conflicts or ambiguities contained therein. Developer further acknowledges and agrees that it has independently reviewed the Contract Documents with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions of the Contract Documents. Accordingly, if an ambiguity in or dispute regarding the interpretation of the Contract Documents, they shall not be interpreted or construed against the Person which prepared them, and, instead, other rules of interpretation and construction shall be used. TxDOT's interim or final answers to the questions posed during the Proposal process for this Agreement shall in no event be deemed part of the Contract Documents and shall not be relevant in interpreting the Contract Documents except to the extent they may clarify provisions otherwise considered ambiguous. On plans, working drawings, and standard plans, calculated dimensions shall take precedence over scaled dimensions.

1.4 Referenced Standards and Specifications

1.4.1 Except as otherwise specified in the Contract Documents or otherwise directed by TxDOT, material and workmanship specified by the number, symbol or title of any standard established by reference to a described publication affecting any portion of the Project shall comply with the latest edition or revision thereof and amendments and supplements thereto in effect on the Proposal Date.

1.4.2 In interpreting referenced standards, the following apply:

(a) References to the project owner shall mean TxDOT.

(b) References to the Engineer in the context of provider of compliance judgment may mean the Professional Services Quality Review Manager or it may mean a TxDOT representative, depending on the context, as determined by TxDOT in its sole discretion.

(c) References to "plan(s)" shall mean the Final Design Documents.

(d) Cross-references to measurement and payment provisions contained in the referenced standard shall be deemed to refer to the measurement and payment provisions contained in the Contract Documents.

1.5 Explanations; Omissions and Misdescriptions

Developer shall not take advantage of or benefit from any apparent Error in the Contract Documents. Should it appear that the Work to be done or any matter relative thereto is not sufficiently detailed or explained in the Contract Documents, Developer shall request in writing such further written explanations from TxDOT as may be necessary and shall comply with the explanation provided. Developer shall promptly notify TxDOT in writing of all Errors which it may discover in the Contract Documents (including those Reference Documents that are referenced in the Contract Documents, and pursuant to Section 1.2(c) above, are considered Contract Documents), and shall obtain specific instructions in writing from TxDOT regarding any such Error before proceeding with the Work affected thereby. The fact that the Contract Documents omit or misdescribe any details of any Work which are necessary to carry out the intent of the Contract Documents, or which are customarily performed, shall not relieve Developer from performing such omitted Work (no matter how extensive) or misdescribed details of the Work, and they shall be performed as if fully and correctly set forth and described in the Contract Documents, without entitlement to a Change Order hereunder except as specifically allowed under Section 13.

1.6 Computation of Periods

References to "Days" contained in the Contract Documents shall mean calendar days unless otherwise specified; provided that if the date to perform any act or give any notice specified in the Contract Documents (including the last date for performance or provision of notice "within" a specified time period) falls on a non-business day, such act or notice may be timely performed on the next succeeding day which is a business day. Notwithstanding the foregoing, requirements contained in the Contract Documents relating to actions to be taken in the event of an emergency and other requirements for which it is clear that performance is intended to occur on a non-business day, shall be required to be performed as specified, even though the date in question may fall on a non-business day. The term "business days" shall mean Days on which TxDOT is officially open for business.

1.7 Standard for Approvals

In all cases where approvals or consents are required to be provided by TxDOT or Developer hereunder, such approvals or consents shall not be withheld unreasonably except in cases where a different standard (such as sole discretion) is specified. In cases where sole discretion is specified the decision shall not be subject to dispute resolution hereunder.

1.8 Professional Services Licensing Requirements

TxDOT does not intend to contract for, pay for, or receive any Professional Services which are in violation of any professional licensing or registration laws, and by execution of this Agreement, Developer acknowledges that TxDOT has no such intent. It is the intent of the parties that Developer is fully responsible for furnishing the Professional Services of the Project through itself and/or subcontracts with licensed/registered Professional Service firm(s) as provided herein. Any references in the Contract Documents to Developer's responsibilities or obligations to "perform" the Professional Services portions of the Work shall be deemed to mean that Developer shall "furnish" the Professional Services for the Project. The terms and provisions of this Section 1.8 shall control and supersede every other provision of all Contract Documents.

1.9 Federal Requirements

The Work to be performed under this Agreement will be financed in part with federal funds and is, therefore, subject to federal statutes, rules and regulations applicable to work financed with federal funds, including the federal requirements set forth in Exhibit D. In the event of any conflict between any applicable federal requirements and the other requirements of the Contract Documents, the federal requirements shall prevail, take precedence and be in force over and against any such conflicting provisions.

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