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

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24.1 Amendments

The Contract Documents may be amended only by a written instrument duly executed by the parties or their respective successors or assigns.

24.2 Waiver

Either party's waiver of any breach or failure to enforce any of the terms, covenants, conditions or other provisions of the Contract Documents at any time shall not in any way limit or waive that party's right thereafter to enforce or compel strict compliance with every term, covenant, condition or other provision, any course of dealing or custom of the trade notwithstanding. Furthermore, if the parties make and implement any interpretation of the Contract Documents without documenting such interpretation by an instrument in writing signed by both parties, such interpretation and implementation thereof will not be binding in the event of any future disputes.

24.3 Independent Contractor

Developer is an independent contractor, and nothing contained in the Contract Documents shall be construed as constituting any relationship with TxDOT other than that of Project developer and independent contractor. In no event shall the relationship between TxDOT and Developer be construed as creating any relationship whatsoever between TxDOT and Developer's employees. Neither Developer nor any of its employees is or shall be deemed to be an employee of TxDOT. Except as otherwise specified in the Contract Documents, Developer has sole authority and responsibility to employ, discharge and otherwise control its employees and has complete and sole responsibility as a principal for its agents, for all Subcontractors and for all other Persons that Developer or any Subcontractor hires to perform or assist in performing the Work.

24.4 Successors and Assigns

The Contract Documents shall be binding upon and inure to the benefit of TxDOT and Developer and their permitted successors, assigns and legal representatives.

24.4.1 TxDOT may assign all or part of its right, title and interest in and to any Contract Documents, including rights with respect to the Payment and Performance Bonds, to any other Person.

24.4.2 Developer may not, without the prior written consent of TxDOT in its sole discretion, voluntarily or involuntarily assign, convey, transfer, pledge, mortgage or otherwise encumber its rights or interests under the Contract Documents. No partner, joint venturer, member or shareholder of Developer may assign, convey, transfer, pledge, mortgage or otherwise encumber its ownership interest in Developer without the prior written consent of TxDOT, in TxDOT's sole discretion.

24.5 Designation of Representatives; Cooperation with Representatives

24.5.1 TxDOT and Developer shall each designate an individual or individuals who shall be authorized to make decisions and bind the parties on matters relating to the Contract Documents ("Authorized Representative"). Exhibit L hereto provides the initial Authorized Representative designations. Such designations may be changed by a subsequent writing delivered to the other party in accordance with Section 24.10. The parties may also designate technical representatives who shall be authorized to investigate and report on matters relating to the construction of the Project and negotiate on behalf of each of the parties but who do not have authority to bind TxDOT or Developer.

24.5.2 Developer shall cooperate with TxDOT and all representatives of TxDOT designated as described above.

24.6 Survival

Developer's representations and warranties, the dispute resolution provisions contained in Section 19, the warranties contained in Section 11, the indemnifications and releases contained in Section 18, the Source Code Escrow provisions contained in Section __ and all other provisions which by their inherent character or express terms should survive termination of this Agreement and/or any Final Acceptance, shall survive the termination of this Agreement and/or the expiration of the Maintenance Term, shall survive the termination of this Agreement and the expiration of the Maintenance Term (including any Maintenance Period Options).

24.7 Limitation on Third Party Beneficiaries

It is not intended by any of the provisions of the Contract Documents to create any other third party beneficiary hereunder or to authorize anyone not a party hereto to maintain a suit for personal injury or property damage pursuant to the terms or provisions hereof, except to the extent that specific provisions (such as the warranty and indemnity provisions) identify third parties and state that they are entitled to benefits hereunder. Except as otherwise provided in this Section 24.7, the duties, obligations and responsibilities of the parties to the Contract Documents with respect to third parties shall remain as imposed by law. The Contract Documents shall not be construed to create a contractual relationship of any kind between TxDOT and a Subcontractor or any Person other than Developer.

24.8 Tort Liability; Personal Liability of TxDOT Employees

TxDOT's authorized representatives are acting solely as agents and representatives of TxDOT when carrying out the provisions of or exercising the power or authority granted to them under this Agreement. They shall not be liable either personally or as employees of TxDOT for actions in their ordinary course of employment.

No agent, consultant, officer or authorized employee of TxDOT nor any member of the Commission, shall be personally responsible for any liability arising under this Agreement.

The Parties agree to provide to each other's authorized representative written notice of any claim which such Party may receive from any third party relating in any way to the matters addressed in this Agreement, and shall otherwise provide notice in such form and within such period as is required by law.

In no event shall TxDOT be liable for injury, damage, or death sustained by reason of a defect or want of repair on or within the Project Site during the period Developer has operation and control of the Project Site, nor shall TxDOT be liable for any injury, damage or death caused by the actions, omissions, negligence, willful misconduct, or breach of applicable Law or contract by any Developer-Related Entity. Developer expressly acknowledges and agrees that TxDOT's rights in this Agreement to take any action with respect to the Project, including the right to review, comment on, disapprove and/or accept designs, plans, specifications, work plans, construction, installation, traffic management details, safety plan and the like, are discretionary in nature and exist solely for the benefit and protection of TxDOT and do not create or impose upon TxDOT any standard or duty of care toward Developer or any other Person, all of which are hereby expressly disclaimed.

24.9 Governing Law

The Contract Documents shall be governed by and construed in accordance with the laws of the State of Texas.

24.10 Notices and Communications

24.10.1 Notices under the Contract Documents shall be in writing and (a) delivered personally, (b) sent by certified mail, return receipt requested, (c) sent by a recognized overnight mail or courier service, with delivery receipt requested, or (d) sent by telefacsimile or email communication followed by a hard copy and with receipt confirmed by telephone, to the following addresses (or to such other address as may from time to time be specified in writing by such Person):

All correspondence with Developer shall be sent to Developer's Project Manager or as otherwise directed by Developer's Project Manager. The address for such communications shall be:

Attn: __________________
Telephone: __________________
Facsimile: ___________________________
E-mail: ______________________

In addition, copies of all notices to proceed and suspension, termination and default notices shall be delivered to the following persons:

Attn: ______________________
Telephone: __________________________
Facsimile: ___________________________
E-mail: __________________________

All communications to TxDOT shall be marked as regarding the SH-45 Southeast Turnpike Project and shall be delivered as directed by TxDOT's Program Manager.

Texas Department of Transportation Austin District Office 7901 North Interregional Highway Austin, TX 78761 Attn: Mr. David Powell Telephone: (512) ___________ Facsimile: (512) ____________ E-mail:

In addition, copies of all notices regarding disputes, termination and default notices shall be delivered to the following persons:

Texas Department of Transportation Office of General Counsel 125 East 11th Street Austin, Texas 78701 Attn: Mr. John J. Ingram Telephone: (512) 463-8630 Facsimile: (512) 475-3070 E-mail:

24.10.2 Notices shall be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or when delivery is refused, as shown on the receipt of the U. S. Postal Service, private carrier or other Person making the delivery. Notwithstanding the foregoing, notices sent by telefacsimile after 4:00 p.m. Central Standard or Daylight Time (as applicable) and all other notices received after 5:00 p.m. shall be deemed received on the first business day following delivery (that is, in order for a fax to be deemed received on the same day, at least the first page of the fax must have been received before 4:00 p.m.). Any technical or other communications pertaining to the Work shall be conducted by Developer's Project Manager and technical representatives designated by TxDOT. Developer's representatives shall be available at all reasonable times for consultation. Except as otherwise provided in Section 24.5.1, each party's representative shall be authorized to act on behalf of such party in matters concerning the Work.

24.10.3 Developer shall copy TxDOT on all written correspondence pertaining to the Project between Developer and any Person other than Developer's Subcontractors, consultants and attorneys.

24.11 Further Assurances

Developer shall promptly execute and deliver to TxDOT all such instruments and other documents and assurances as are reasonably requested by TxDOT to further evidence the obligations of Developer hereunder, including assurances regarding the validity of (a) the assignments of Subcontracts contained herein and (b) any instruments securing performance hereof.

24.12 Severability

If any clause, provision, section or part of this Agreement is ruled invalid under Section 19 or otherwise by a court having proper jurisdiction, then the parties shall: (a) promptly meet and negotiate a substitute for such clause, provision, section or part, which shall, to the greatest extent legally permissible, effect the original intent of the parties, including an equitable adjustment to the applicable Price to account for any change in the Work resulting from such invalidated portion; and (b) if necessary or desirable, apply to the court or other decision maker (as applicable) which declared such invalidity for an interpretation of the invalidated portion to guide the negotiations. The invalidity or unenforceability of any such clause, provision, section or part shall not affect the validity or enforceability of the balance of this Agreement, which shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable clause, provision, section or part.

24.13 Headings

The captions of the sections of this Agreement are for convenience only and shall not be deemed part of this Agreement or considered in construing this Agreement.

24.14 Entire Agreement

The Contract Documents contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, statements, representations and negotiations between the parties with respect to its subject matter.

24.15 Counterparts

This instrument may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

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