Common use of Procedures Relating to Major Maintenance Work Clause in Contracts

Procedures Relating to Major Maintenance Work. The Concessionaire shall, at its sole cost and expense, perform all Major Maintenance with respect to the HOT Lanes, the ETTM Facilities and the ETTM System on the HOT Lanes Project in accordance with Life Cycle Maintenance Plans approved by the Department. All design and construction Work during the Operating Period must comply with the applicable Technical Requirements. (a) Not later than 18 months prior to the projected Service Commencement Date, the Department and the Concessionaire shall agree upon baseline asset condition reports by the Department that evaluate (i) the four inner lanes of the Capital Beltway and maintenance/repair requirements during the period preceding the Service Commencement Date, to be done at or about the time the New Lanes are opened, and (ii) the HOT Lanes and all other improvements and assets of the HOT Lanes Project (the HOT Lanes and all such other improvements and assets, collectively, the “HOT Lanes Assets”) and their physical conditions as of the date of such report (in the format set forth as Exhibit P, the “Baseline Report”). Further, prior to the Service Commencement Date the Department shall elect to (A) undertake the rehabilitation of any defect or outstanding maintenance item identified in the Baseline Report, at its sole cost, or (B) pay the Concessionaire the cost, as determined by the Department and the Concessionaire using the same methodology as employed by the Department for other State highways for similar purposes, of any such rehabilitation or maintenance not so undertaken or completed, as applicable, by the Department. The Baseline Report shall be revised to reflect completion of any such rehabilitation or maintenance. The Concessionaire shall be deemed to have accepted the HOT Lanes in their then current condition on the Service Commencement Date, except to the extent specified by delivery of written notice by the Concessionaire to the Department of any conditions that remain to be corrected pursuant to the Baseline Report. (b) Every five years after the Service Commencement Date, the Concessionaire shall conduct a reassessment of the physical condition of the HOT Lanes Assets, and prepare a comparative analysis of such conditions to the conditions as reported in the Baseline Report (or, with respect to any Project Enhancements, their condition upon completion thereof), such analysis to take into account any changes in federal requirements and changes to safety standards. If the condition of any HOT Lanes Asset is determined by the Concessionaire, the Department or the Independent Engineer to fall below its assessment rating in the Baseline Report (or the original condition of such Project Enhancement), the Concessionaire shall, within 90 days of such assessment, develop and submit to the Department a plan to restore such HOT Lanes Asset to its baseline or original condition, as applicable, subject to ordinary wear and tear, including a budget, timeline and identification of the funding sources that will be utilized to restore such HOT Lanes Asset. (c) No later than 90 days before the beginning of each calendar year after the Service Commencement Date, the Concessionaire shall annually prepare and provide to the Department for its review and approval a full five-year period maintenance plan on a rolling basis that describes life cycle asset maintenance for the HOT Lanes Project (the “Life Cycle Maintenance Plan”). The Life Cycle Maintenance Plan shall include a description of all Major Maintenance to be undertaken during such five-year period, by component, item or discrete project (each a “Task”), the estimated costs and timing relating to each Task, and such other information as may be reasonably requested by the Department. The Concessionaire shall reasonably consider any changes or additions proposed by the Department to the proposed Life Cycle Maintenance Plan and shall modify the Life Cycle Maintenance Plan to reflect those changes and additions which are consistent with Good Industry Practice, applicable Law, Technical Requirements or Regulatory Approvals, and the Department shall deliver its approval or disapproval to the Concessionaire within 45 days after the Concessionaire has provided the assessment to the Department in accordance with the first sentence of this Section 8.06(b). (d) In the event of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the Department and the O&M Contractor shall endeavor in good faith to resolve any such disagreement or dispute within 60 days after such assessment is provided to the Department. Any disagreements or disputes raised by the Department with respect to the Life Cycle Maintenance Plan must be based on whether such assessment and the underlying assumptions are reasonable, realistic and consistent with Good Industry Practice, Project experience and condition, the Technical Requirements and applicable Law. If no agreement is reached within such 60-day period as to any such matter, either party may submit the dispute to the disputes resolution procedures set forth in Section 17.06. Until resolution of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the treatment of the disputed Tasks in the most recently-approved Life Cycle Maintenance Plan shall remain in effect and govern the requirements relating to such Tasks. (e) If at any time the Concessionaire fails to complete all or any of the Tasks of the Major Maintenance within the time schedules agreed to by the Department and the Concessionaire in the relevant Life Cycle Maintenance Plan (as such schedule may be mutually extended or shortened by the Department and the Concessionaire) by more than 30 days or, if in the reasonable determination of the Department, the Concessionaire fails to perform any Task in accordance with Good Industry Practice, all applicable Law, Technical Requirements or Regulatory Approvals, the Department may, at its option, but is not obligated to, either (i) notify the Concessionaire that the Department will carry out such Task or correct such defective work using Department personnel, materials and equipment or (ii) procure the services for such Task or corrective work by one or more contractors. Upon such notice or such determination by the Department of the tentative winning contract award(s), as the case may be, the Department shall be entitled to demand that the Concessionaire pay to the Department an amount equal to the Department’s good faith estimate of the Allocable Costs it will incur to complete such Task or corrective work, plus a 10% contingency, and its third-party costs incurred to procure such contract(s). The Concessionaire shall make such payment to the Department not later than 30 days after demand by the Department for such payment. If the Department’s Allocable Costs to complete such Tasks and any third-party costs incurred to procure such contract(s), are greater or less than the amount the Concessionaire previously paid to the Department under this Section 8.06(e), the Concessionaire shall pay to the Department an amount equal to such excess or the Department shall reimburse the excess funds paid by the Concessionaire, as applicable. The Concessionaire or the Department shall make such payment not later than 30 days after the Department has finalized its calculation of the Allocable Costs to complete such Tasks and any third-party costs to procure such contract(s) and demand has been made for such payment. (f) The Concessionaire may, by written notice delivered to the Department within 30 days, object to any demand by the Department in accordance with Section 8.06(e) above on the basis that the Concessionaire has completed the Task(s) specified in the Department’s demand in accordance with Good Industry Practice, all applicable Law, Technical Requirements or Regulatory Approvals or that such Task(s) are not then delayed by more than 30 days, which notice will give details of the grounds for such objection. Upon the giving of any such notice, the parties will endeavor to reach agreement as to any matters referred to in the notice. If no agreement is reached as to any such matter within 30 days after the giving of such notice, either party may refer the matter to the dispute resolution procedures pursuant to Section 17.06 for determination.

Procedures Relating to Major Maintenance Work. The Concessionaire shall, at its sole cost and expense, perform all Major Maintenance with respect to the HOT Lanes, the ETTM Facilities and the ETTM System on the HOT Lanes Project in accordance with Life Cycle Maintenance Plans approved by the Department. All design and construction Work during the Operating Period must comply with the applicable Technical Requirements. (a) Not later than 18 months prior to the each projected Service Commencement Date, the Department and the Concessionaire shall agree upon baseline asset condition reports by the Department that evaluate (i) with respect to the Original HOT Lanes, the four inner lanes of the Capital Beltway and maintenance/repair requirements during the period preceding the Service Commencement Date, to be done at or about the time the New Lanes are opened, (ii) with respect to the NEXT HOT Lanes, the NEXT HOT Lanes and NEXT Access Ramps and (iiiii) the HOT Lanes and all other improvements and assets of the HOT Lanes Project (the HOT Lanes and all such other improvements and assets, collectively, the “HOT Lanes Assets”) and their physical conditions as of the date of such report (in the format set forth as Exhibit P, the “Baseline Report”). Further, prior to the applicable Service Commencement Date Date, the Department shall elect to (A) undertake the rehabilitation of any defect or outstanding maintenance item identified in the Baseline Report, at its sole cost, or (B) pay the Concessionaire the cost, as determined by the Department and the Concessionaire using the same methodology as employed by the Department for other State highways for similar purposes, of any such rehabilitation or maintenance not so undertaken or completed, as applicable, by the Department. The Baseline Report shall be revised to reflect completion of any such rehabilitation or maintenance. The Concessionaire shall be deemed to have accepted the HOT Lanes in their then current condition on the Service Commencement Date, except to the extent specified by delivery of written notice by the Concessionaire to the Department of any conditions that remain to be corrected pursuant to the Baseline Report. (b) Every five years after the Initial Service Commencement Date, the Concessionaire shall conduct a reassessment of the physical condition of the HOT Lanes Assets, and prepare a comparative analysis of such conditions to the conditions as reported in the Baseline Report (or, with respect to any Project Enhancements, their condition upon completion thereof), such analysis to take into account any changes in federal requirements Federal Requirements and changes to safety standards. After the Service Commencement Date for the NEXT Project, the Concessionaire shall include the NEXT HOT Lanes and the NEXT Access Ramps into such reassessment and analysis. If the condition of any HOT Lanes Asset is determined by the Concessionaire, Concessionaire or the Department or the Independent Engineer to fall below its assessment rating in the Baseline Report (or the original condition of such Project Enhancement), the Concessionaire shall, within 90 days of such assessment, develop and submit to the Department a plan to restore such HOT Lanes Asset to its baseline or original condition, as applicable, subject to ordinary wear and tear, including a budget, timeline and identification of the funding sources that will be utilized to restore such HOT Lanes Asset. (c) No later than 90 days before the beginning of each calendar fiscal year after the Initial Service Commencement Date, the Concessionaire shall annually prepare and provide to the Department for its review and approval a full five-year period maintenance plan on a rolling basis that describes life cycle asset maintenance for the HOT Lanes Project (the “Life Cycle Maintenance Plan”). After the Service Commencement Date for the NEXT Project, the Concessionaire shall include the NEXT HOT Lanes and the NEXT Access Ramps into the Life Cycle Maintenance Plan. The Life Cycle Maintenance Plan shall include a description of all Major Maintenance to be undertaken during such five-year period, by component, item or discrete project (each a “Task”), the estimated costs and timing relating to each Task, and such other information as may be reasonably requested by the Department. The Concessionaire shall reasonably consider any changes or additions proposed by the Department to the proposed Life Cycle Maintenance Plan and shall modify the Life Cycle Maintenance Plan to reflect those changes and additions which are consistent with Good Industry Practice, applicable Law, Technical Requirements or Regulatory Approvals, and the Department shall deliver its approval or disapproval to the Concessionaire within 45 days after the Concessionaire has provided the assessment to the Department in accordance with the first sentence of this Section 8.06(b). (d) In the event of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the Department and the O&M Contractor Concessionaire shall endeavor in good faith to resolve any such disagreement or dispute within 60 days after such assessment is provided to the Department. Any disagreements or disputes raised by the Department with respect to the Life Cycle Maintenance Plan must be based on whether such assessment and the underlying assumptions are reasonable, realistic and consistent with Good Industry Practice, Project experience and condition, the Technical Requirements and applicable Law. If no agreement is reached within such 60-day period as to any such matter, either party may submit the dispute to the disputes resolution procedures set forth in Section 17.06. Until resolution of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the treatment of the disputed Tasks in the most recently-recently- approved Life Cycle Maintenance Plan shall remain in effect and govern the requirements relating to such Tasks. (e) If at any time the Concessionaire fails to complete all or any of the Tasks of the Major Maintenance within the time schedules agreed to by the Department and the Concessionaire in the relevant Life Cycle Maintenance Plan (as such schedule may be mutually extended or shortened by the Department and the Concessionaire) by more than 30 days or, if in the reasonable determination of the Department, the Concessionaire fails to perform any Task in accordance with Good Industry Practice, all applicable Law, Technical Requirements or Regulatory Approvals, the Department may, at its option, but is not obligated to, either (i) notify the Concessionaire that the Department will carry out such Task or correct such defective work using Department personnel, materials and equipment or (ii) procure the services for such Task or corrective work by one or more contractors. Upon such notice or such determination by the Department of the tentative winning contract award(s), as the case may be, the Department shall be entitled to demand that the Concessionaire pay to the Department an amount equal to the Department’s good faith estimate of the Allocable Costs it will incur to complete such Task or corrective work, plus a 10% contingency, and its third-party costs incurred to procure such contract(s). The Concessionaire shall make such payment to the Department not later than 30 days after demand by the Department for such payment. If the Department’s Allocable Costs to complete such Tasks and any third-third- party costs incurred to procure such contract(s), are greater or less than the amount the Concessionaire previously paid to the Department under this Section 8.06(e), the Concessionaire shall pay to the Department an amount equal to such excess or the Department shall reimburse the excess funds paid by the Concessionaire, as applicable. The Concessionaire or the Department shall make such payment not later than 30 days after the Department has finalized its calculation of the Allocable Costs to complete such Tasks and any third-party costs to procure such contract(s) and demand has been made for such payment. (f) The Concessionaire may, by written notice delivered to the Department within 30 days, object to any demand by the Department in accordance with Section 8.06(e) above on the basis that the Concessionaire has completed the Task(s) specified in the Department’s demand in accordance with Good Industry Practice, all applicable Law, Technical Requirements or Regulatory Approvals or that such Task(s) are not then delayed by more than 30 days, which notice will give details of the grounds for such objection. Upon the giving of any such notice, the parties will endeavor to reach agreement as to any matters referred to in the notice. If no agreement is reached as to any such matter within 30 days after the giving of such notice, either party may refer the matter to the dispute resolution procedures pursuant to Section 17.06 for determination.