Common use of Service Commencement Clause in Contracts

Service Commencement. 9.5.1 Developer shall not initiate, permit or suffer Service Commencement for any Project Segment until TxDOT issues a certificate that all of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions for the Project Segment: (a) TxDOT has issued a certificate of Substantial Completion, or the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination); (b) All component parts, plans and documentation of the Project Management Plan required to be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in the Project Management Plan; (c) All Submittals required by the Project Management Plan or CDA Documents to be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees for, all applicable Governmental Approvals and other third party approvals required for use and operation of the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvals; (e) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies required under this Agreement during the Operating Period have been obtained and Developer has delivered to TxDOT verification thereof as required under Section 26.1.2(d); (g) Any payment and performance security in favor of TxDOT required under Section 26.2 during the Operating Period has been obtained and Developer has delivered the same to TxDOT; (h) Any other guaranty of payment or performance required pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure period.

Service Commencement. 9.5.1 Developer shall not initiate, permit or suffer Service Commencement for any Project Segment until TxDOT issues a certificate that all of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions for the Project Segment: (a) TxDOT has issued a certificate of Substantial Completion, or the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination); (b) All component parts, plans and documentation of the Project Management Plan required to be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in the Project Management Plan; (c) All Submittals required by the Project Management Plan or CDA Documents to be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees for, all applicable Governmental Approvals and other third party approvals required for use and operation of the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvals; (e) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies required under this Agreement during the Operating Period have been obtained and Developer has delivered to TxDOT verification thereof as required under Section 26.1.2(d); (g) Any payment and performance security in favor of TxDOT required under Section 26.2 during the Operating Period has been obtained and Developer has delivered the same to TxDOT; (h) Any other guaranty of payment or performance required pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default (or any other failure or breach which would become a Developer Default after the expiration of the applicable cure period in Section 29.1) that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-non- monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodperiod in Section 29.1.

Service Commencement. 9.5.1 ‌ (a) The Developer shall not initiate, permit or suffer will be entitled to begin tolling on and after the Service Commencement for any Project Segment until TxDOT issues Date. (b) The Department will issue a written certificate that all of Service Commencement at such time as Service Commencement occurs. (c) Service Commencement will have been achieved when each of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions occurred for the entire Project Segment:Assets (or the Department, in its sole discretion, waives any such condition):‌ (ai) TxDOT the Department has issued a certificate the Service Commencement Certificate and delivered to the Developer notice to that effect to the Developer (the “Service Commencement Notice to Proceed”) (which Service Commencement Certificate will be issued following satisfaction or written waiver of Substantial Completionthe relevant conditions);‌ (ii) the Department has approved the Operations and Maintenance Plan, the updated Performance Requirements Baseline Tables, required by the Technical Requirements to be submitted on or before the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination)Service Commencement Date; (biii) All component parts, plans the Developer has received and documentation delivered to the Department copies of all Governmental Approvals necessary to operate the Project Management Plan required to and has satisfied all conditions and requirements thereof which must be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in satisfied before the Project Management Plan; (c) All Submittals required by the Project Management Plan or CDA Documents to can be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees forlawfully opened for regular public use, all applicable such Governmental Approvals remain in full force and other third party approvals required for use and operation of the Project Segmenteffect, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvalsApproval; (eiv) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies all insurance policies required under this Agreement during Section 17.01 for the Operating Period have been obtained and will be in full force and effect, and the Developer has delivered to TxDOT verification the Department duplicate originals or copies thereof (or endorsements reasonably acceptable to the Department extending coverage to the Project), certified by the Developer’s insurance broker to be true and correct copies of the originals; (v) there exists no Developer Default for which the Developer has received notice from the Department, except as required under Section 26.1.2(dto any Developer Default that has been cured or for which Service Commencement will affect its cure, and there exists no event or condition that, with notice or lapse of time, would constitute a Developer Default (with the exception of payment defaults that the Developer has disputed in writing); (vi) all Operations and Maintenance Agreements, if applicable, and agreements relating to toll collection and violation enforcement on the Express Lanes are in full force and effect; (vii) the Developer has implemented the Maintenance Management System in accordance with the Technical Requirements; (viii) all Project Agreements are in full force and effect; (ix) the Developer has provided to the Department the training required to have been provided prior to Service Commencement by the Technical Requirements; (x) the Developer has submitted to the Department an Annual Budget for the remainder of the Agreement Year in which the Service Commencement Date occurs (or, if the remainder of such year is shorter than 90 Days, an Annual Budget that conforms with the requirements specified in Section 9.07, for the remainder of such Agreement Year and for the following Agreement Year); (xi) the Developer has certified to the Department in writing that the conditions set forth in this subsection Section 8.08(c) have been satisfied as of the date of such certification or otherwise waived in writing; (xii) all lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Construction Documentation are in their final configuration and available for normal and safe use and operation, subject only to the XXXX List items; (xiii) all major safety features are installed and functional in accordance with the Technical Requirements, including, as required, shoulders, guardrails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (xiv) all required illumination for normal and safe use and operation is installed and functional in accordance with the Technical Requirements; (xv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (xvi) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures, single lane closures, and as otherwise permitted in accordance with the Technical Requirements) in accordance with and as permitted by a Department-approved traffic management plan solely in order to complete the XXXX List); (xvii) the ETTM System is completed, has passed all Demonstration and Performance Testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to E-ZPass then utilized on State Highways, and is ready for normal operation; (xviii) the TMS (if any) and safety features for TMS components are installed and functional; and (xix) the Developer has otherwise completed the Design-Build Work in accordance with this Agreement, including the Technical Requirements, and with the Construction Documentation, such that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit. (d) The Department’s issuance of the Service Commencement Notice will be subject in all respects to compliance with the submittal and review procedures set forth in Section 10.05 in determining whether the Developer has satisfied the conditions precedent for achieving Service Commencement. (e) The Department’s issuance of the Service Commencement Notice to Proceed will not constitute a waiver by the Department of any then-existing breach of this Agreement by the Developer. (f) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Service Commencement has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (g) Any payment The Developer will provide the Department with written notice of anticipated Service Commencement at least 21 Days prior to the anticipated Service Commencement Date. The parties will comply with the submittal and performance security review procedures set forth in favor Section 10.05 in the determination of TxDOT required under Section 26.2 during the Operating Period whether Service Commencement has been obtained achieved. During such 21-Day period, the Developer and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the Project Assets and review of the final Construction Documentation and the Department’s issuance of a Service Commencement Certificate. In addition, the Department will conduct an inspection of the Project Assets and review of the final Construction Documentation, and such other matters as may be necessary to determine whether Service Commencement is achieved and, not later than the expiration of such 21-Day period, will deliver a written report of findings and recommendations to the Developer. The Department will provide the Developer with a determination of whether or not Service Commencement has delivered been achieved (and if not, an explanation with reasonable specificity as to the same to TxDOT;reasons therefor) within such 21-Day period. (h) Any other guaranty If the Department has not notified the Developer of payment such approval or performance required disapproval within 21 Days after such Developer notice (or 10 Days with respect to any resubmittal of the notice), and if the delay is not a result of a Developer Party action or inaction, then such delay will constitute a Delay Event and a Compensation Event, and any Developer Damages will be determined pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and14.01(b). (i) There exists no uncured The Developer Default that is the subject of a Warning Notice, unless (i) will achieve Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding on or before the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodProject Completion Date.

Service Commencement. 9.5.1 ‌ (a) The Developer shall not initiate, permit or suffer will be entitled to begin tolling on and after the Service Commencement for any Project Segment until TxDOT issues Date. (b) The Department will issue a written certificate that all of Service Commencement at such time as Service Commencement occurs. (c) Service Commencement will have been achieved when each of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions occurred for the entire Project Segment:Assets (or the Department, in its sole discretion, waives any such condition):‌ (ai) TxDOT the Department has issued a certificate the Service Commencement Certificate and delivered to the Developer notice to that effect to the Developer (the “Service Commencement Notice to Proceed”) (which Service Commencement Certificate will be issued following satisfaction or written waiver of Substantial Completionthe relevant conditions);‌ (ii) the Department has approved the Operations and Maintenance Plan, the updated Performance Requirements Baseline Tables, required by the Technical Requirements to be submitted on or before the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination)Service Commencement Date; (biii) All component parts, plans the Developer has received and documentation delivered to the Department copies of all Governmental Approvals necessary to operate the Project Management Plan required to and has satisfied all conditions and requirements thereof which must be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in satisfied before the Project Management Plan;can be lawfully (civ) All Submittals required by the Project Management Plan or CDA Documents to be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees for, all applicable Governmental Approvals and other third party approvals required for use and operation of the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvals; (e) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies insurance policies required under this Agreement during Section 17.01 for the Operating Period have been obtained and will be in full force and effect, and the Developer has delivered to TxDOT verification the Department duplicate originals or copies thereof (or endorsements reasonably acceptable to the Department extending coverage to the Project), certified by the Developer’s insurance broker to be true and correct copies of the originals; (v) there exists no Developer Default for which the Developer has received notice from the Department, except as required under Section 26.1.2(dto any Developer Default that has been cured or for which Service Commencement will affect its cure, and there exists no event or condition that, with notice or lapse of time, would constitute a Developer Default (with the exception of payment defaults that the Developer has disputed in writing); (vi) all Operations and Maintenance Agreements, if applicable, and agreements relating to toll collection and violation enforcement on the Express Lanes are in full force and effect; (vii) the Developer has implemented the Maintenance Management System in accordance with the Technical Requirements; (viii) all Project Agreements are in full force and effect; (ix) the Developer has provided to the Department the training required to have been provided prior to Service Commencement by the Technical Requirements; (x) the Developer has submitted to the Department an Annual Budget for the remainder of the Agreement Year in which the Service Commencement Date occurs (or, if the remainder of such year is shorter than 90 Days, an Annual Budget that conforms with the requirements specified in Section 9.07, for the remainder of such Agreement Year and for the following Agreement Year); (xi) the Developer has certified to the Department in writing that the conditions set forth in this subsection Section 8.08(c) have been satisfied as of the date of such certification or otherwise waived in writing; (xii) all lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Construction Documentation are in their final configuration and available for normal and safe use and operation, subject only to the XXXX List items; (xiii) all major safety features are installed and functional in accordance with the Technical Requirements, including, as required, shoulders, guardrails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (xiv) all required illumination for normal and safe use and operation is installed and functional in accordance with the Technical Requirements; (xv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (xvi) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures, single lane closures, and as otherwise permitted in accordance with the Technical Requirements) in accordance with and as permitted by a Department-approved traffic management plan solely in order to complete the XXXX List); (xvii) the ETTM System is completed, has passed all Demonstration and Performance Testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to E-ZPass then utilized on State Highways, and is ready for normal operation; (xviii) the TMS (if any) and safety features for TMS components are installed and functional; and (xix) the Developer has otherwise completed the Design-Build Work in accordance with this Agreement, including the Technical Requirements, and with the Construction Documentation, such that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit. (d) The Department’s issuance of the Service Commencement Notice will be subject in all respects to compliance with the submittal and review procedures set forth in Section 10.05 in determining whether the Developer has satisfied the conditions precedent for achieving Service Commencement. (e) The Department’s issuance of the Service Commencement Notice to Proceed will not constitute a waiver by the Department of any then-existing breach of this Agreement by the Developer. (f) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Service Commencement has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (g) Any payment The Developer shall provide the Department with written notice of anticipated Service Commencement at least 90 Days prior to the anticipated Service Commencement Date. The parties will comply with the submittal and performance security review procedures set forth in favor Section 10.05 in the determination of TxDOT required under Section 26.2 during the Operating Period whether Service Commencement has been obtained achieved. During such 21-Day period, the Developer and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the Project Assets and review of the final Construction Documentation and the Department’s issuance of a Service Commencement Certificate. In addition, the Department will conduct an inspection of the Project Assets and review of the final Construction Documentation, and such other matters as may be necessary to determine whether Service Commencement is achieved and, not later than the expiration of such 90-Day period, will deliver a written report of findings and recommendations to the Developer. The Department will provide the Developer with a determination of whether or not Service Commencement has delivered been achieved (and if not, an explanation with reasonable specificity as to the same to TxDOT;reasons therefor) within such 90-Day period. (h) Any other guaranty If the Department has not notified the Developer of payment such approval or performance required disapproval within 21 Days after such Developer notice (or 10 Days with respect to any resubmittal of the notice), and if the delay is not a result of a Developer Party action or inaction, then such delay will constitute a Delay Event and a Compensation Event, and any Developer Damages will be determined pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and14.01(b). (i) There exists no uncured The Developer Default that is the subject of a Warning Notice, unless (i) will achieve Service Commencement on or before the Project Completion Date. (j) The Developer will effect its cureexercise all reasonable efforts to resolve any construction- related disputes between the Department and the Developer, (ii) with respect to a monetary default including disputes presented by the Developer on behalf of the Design-Build Contractor. The Parties agree that the obligation of the Developer has disputedin the immediately preceding sentence, which shall not be limited, modified or reduced in any manner, shall not prejudice the rights of the Developer has delivered to TxDOT any letter of credit required pursuant to Article 13 and Section 29.4.7(b)(ii) regarding 14.01 of this Agreement upon the amount in dispute, occurrence of any Compensation Event or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodDelay Event.

Service Commencement. 9.5.1 Developer shall not initiate, permit or suffer Service Commencement for any Project Segment until TxDOT issues a certificate that all of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions for the Project Segment: (a) TxDOT has issued a certificate The ASP acknowledges that time is of Substantial Completionthe essence to the IESO with respect to the Contract Facility achieving Service Commencement on or before the Target Service Commencement Date. The ASP agrees that it will use all commercially reasonable efforts, acting diligently, to achieve Service Commencement on or before the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination);Target Service Commencement Date. (b) All component partsIn order for the IESO to issue the Service Commencement Notice, plans the following conditions must be met: (i) The ASP shall have satisfied all market registration requirements in compliance with the Market Rules. (A) the ASP must be authorized as a Market Participant; (B) the Contract Facility must be registered as a Registered Facility; (C) the Contract Facility shall be capable of complying with the Performance Standards for Ancillary Services set out in the Market Rules Chapter 5, Appendix 5.1, Section 1.1; (D) communication services approved by the IESO shall be in place between the Contract Facility control interface and documentation the System Operator’s Energy Management System (EMS). If applicable, the IESO may agree to the Contract Facility meeting equivalent standards to those set forth in the Market Manual 6: Participant Technical Reference Manual so long as the IESO determines such equivalent standards are suitably applicable to the Contract Facility and do not impact the reliable operation of the Project Management Plan required IESO-Controlled Grid; (E) primary and alternate voice communications services approved by the IESO shall be in place to provide voice communication between the System Operator’s Control Centre and the operator controlling the Contract Facility. If the Control Centre acting as the designated Dispatch entity is located outside of Ontario, the ASP shall provide the System Operator internet access at the proposed Control Centre; and (F) the participant Dispatch messaging system to the ASP shall be preparedin place; (ii) The Contract Facility shall have achieved Certification in accordance with Schedule 2 of this Agreement; (iii) The ASP shall have received a registration approval notification (RAN) document, submitted and approved prior or equivalent, from the System Operator that authorizes the ASP to Service Commencement start providing Regulation Service; and (iv) The ASP shall have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manualsdelivered a duly executed Officer’s Certificate to the IESO, and including manuals and procedures respecting safetythe IESO shall have accepted such Officer’s Certificate, security, Emergency response and Incident response, as identified in the Project Management Plan;each case in accordance with Section 3.3(c). (c) All Submittals required by The ASP shall deliver to the Project Management Plan or CDA Documents IESO a duly executed Officer’s Certificate once the ASP is satisfied the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii) have been met. Within ten (10) Business Days following the receipt of such Officer’s Certificate, the IESO will notify the ASP as to be submitted whether the IESO (x) is satisfied that the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii) have been met; and (y) has determined that the Officer’s Certificate is complete. If the IESO is so satisfied, then the IESO will issue a notice to and approved by TxDOT or the Independent Engineer prior to ASP confirming that the ASP has achieved Service Commencement and confirming the Service Commencement Date (the “Service Commencement Notice”). If the IESO is not satisfied that the ASP has met the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii), or that the Officer’s Certificate is complete, the IESO shall provide to the ASP reasonable particulars of any such deficiencies. The ASP shall remedy such deficiencies and resubmit the revised Officer’s Certificate to the IESO for the IESO’s review on the terms and conditions set out in this Section 3.3(c). Service Commencement will be achieved once the conditions set out in Section 3.3(b) have been submitted to and approved by TxDOT satisfied and the Independent Engineer, in IESO has issued the form and content required by the Project Management Plan or CDA Documents;Service Commencement Notice. (d) Developer has receivedThe ASP shall be solely responsible, at its sole cost and paid all associated fees forexpense, all applicable Governmental Approvals and other third party approvals required for use and operation of meeting the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvals; (elisted in Section 3.3(b) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies required under this Agreement during the Operating Period have been obtained and Developer has delivered to TxDOT verification thereof as required under Section 26.1.2(d); (g) Any payment and performance security in favor of TxDOT required under Section 26.2 during the Operating Period has been obtained and Developer has delivered the same to TxDOT; (h) Any other guaranty of payment or performance required pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodabove.

Service Commencement. 9.5.1 ‌ (a) The Developer shall not initiate, permit or suffer will be entitled to begin tolling on and after the Service Commencement for any Project Segment until TxDOT issues Date. (b) The Department will issue a written certificate that all of Service Commencement at such time as Service Commencement occurs. (c) Service Commencement will have been achieved when each of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions occurred for the entire Project Segment:Assets (or the Department, in its sole discretion, waives any such condition):‌ (ai) TxDOT the Department has issued a certificate the Service Commencement Certificate and delivered to the Developer notice to that effect to the Developer (the “Service Commencement Notice to Proceed”) (which Service Commencement Certificate will be issued following satisfaction or written waiver of Substantial Completionthe relevant conditions);‌ (ii) the Department has approved the Operations and Maintenance Plan, the updated Performance Requirements Baseline Tables, required by the Technical Requirements to be submitted on or before the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination)Service Commencement Date; (biii) All component parts, plans the Developer has received and documentation delivered to the Department copies of all Governmental Approvals necessary to operate the Project Management Plan required to and has satisfied all conditions and requirements thereof which must be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in satisfied before the Project Management Plan; (c) All Submittals required by the Project Management Plan or CDA Documents to can be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees forlawfully opened for regular public use, all applicable such Governmental Approvals remain in full force and other third party approvals required for use and operation of the Project Segmenteffect, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvalsApproval; (eiv) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies all insurance policies required under this Agreement during Section 17.01 for the Operating Period have been obtained and will be in full force and effect, and the Developer has delivered to TxDOT verification the Department duplicate originals or copies thereof (or endorsements reasonably acceptable to the Department extending coverage to the Project), certified by the Developer’s insurance broker to be true and correct copies of the originals; (v) there exists no Developer Default for which the Developer has received notice from the Department, except as required under Section 26.1.2(dto any Developer Default that has been cured or for which Service Commencement will affect its cure, and there exists no event or condition that, with notice or lapse of time, would constitute a Developer Default (with the exception of payment defaults that the Developer has disputed in writing); (vi) all Operations and Maintenance Agreements, if applicable, and agreements relating to toll collection and violation enforcement on the Express Lanes are in full force and effect; (vii) the Developer has implemented the Maintenance Management System in accordance with the Technical Requirements; (viii) all Project Agreements are in full force and effect; (ix) the Developer has provided to the Department the training required to have been provided prior to Service Commencement by the Technical Requirements; (x) the Developer has submitted to the Department an Annual Budget for the remainder of the Agreement Year in which the Service Commencement Date occurs (or, if the remainder of such year is shorter than 90 Days, an Annual Budget that conforms with the requirements specified in Section 9.07, for the remainder of such Agreement Year and for the following Agreement Year); (xi) the Developer has certified to the Department in writing that the conditions set forth in this subsection Section 8.08(c) have been satisfied as of the date of such certification or otherwise waived in writing; (xii) all lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Construction Documentation are in their final configuration and available for normal and safe use and operation, subject only to the XXXX List items; (xiii) all major safety features are installed and functional in accordance with the Technical Requirements, including, as required, shoulders, guardrails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (xiv) all required illumination for normal and safe use and operation is installed and functional in accordance with the Technical Requirements; (xv) fulfillment of all requirements of the Department’s WMATA Memorandum of Agreement; (xvi) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (xvii) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures, single lane closures, and as otherwise permitted in accordance with the Technical Requirements) in accordance with and as permitted by a Department-approved traffic management plan solely in order to complete the XXXX List); (xviii) the ETTM System is completed, has passed all Demonstration and Performance Testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to E-ZPass then utilized on State Highways, and is ready for normal operation; (xix) the TMS (if any) and safety features for TMS components are installed and functional; and (xx) the Developer has otherwise completed the Design-Build Work in accordance with this Agreement, including the Technical Requirements, and with the Construction Documentation, such that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit. (d) The Department’s issuance of the Service Commencement Notice will be subject in all respects to compliance with the submittal and review procedures set forth in Section 10.05 in determining whether the Developer has satisfied the conditions precedent for achieving Service Commencement. (e) The Department’s issuance of the Service Commencement Notice to Proceed will not constitute a waiver by the Department of any then-existing breach of this Agreement by the Developer. (f) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Service Commencement has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (g) Any payment The Developer will provide the Department with written notice of anticipated Service Commencement at least 21 Days prior to the anticipated Service Commencement Date. The parties will comply with the submittal and performance security review procedures set forth in favor Section 10.05 in the determination of TxDOT required under Section 26.2 during the Operating Period whether Service Commencement has been obtained achieved. During such 21-Day period, the Developer and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the Project Assets and review of the final Construction Documentation and the Department’s issuance of a Service Commencement Certificate. In addition, the Department will conduct an inspection of the Project Assets and review of the final Construction Documentation, and such other matters as may be necessary to determine whether Service Commencement is achieved and, not later than the expiration of such 21-Day period, will deliver a written report of findings and recommendations to the Developer. The Department will provide the Developer with a determination of whether or not Service Commencement has delivered been achieved (and if not, an explanation with reasonable specificity as to the same to TxDOT;reasons therefor) within such 21-Day period. (h) Any other guaranty If the Department has not notified the Developer of payment such approval or performance required disapproval within 21 Days after such Developer notice (or 10 Days with respect to any resubmittal of the notice), and if the delay is not a result of a Developer Party action or inaction, then such delay will constitute a Delay Event and a Compensation Event, and any Developer Damages will be determined pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and14.01(b). (i) There exists no uncured The Developer Default that is the subject of a Warning Notice, unless (i) will achieve Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding on or before the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodProject Completion Date.

Service Commencement. 9.5.1 (a) The Developer shall not initiate, permit or suffer will be entitled to begin tolling on and after the Service Commencement for any Project Segment until TxDOT issues Date. (b) The Department will issue a written certificate that all of Service Commencement at such time as Service Commencement occurs. (c) Service Commencement will have been achieved when each of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions occurred for the entire Project Segment:Assets (or the Department, in its sole discretion, waives any such condition): (ai) TxDOT the Department has issued a certificate of Substantial Completion, or the Disputes Board has determined Service Commencement Certificate and delivered to the Developer notice to that TxDOT should have issued such certificate effect to the Developer (regardless of whether TxDOT subsequently contests such determinationthe “Service Commencement Notice to Proceed”); (bii) All component partsthe Department has approved the Operations and Maintenance Plan, plans and documentation of the Project Management Plan updated Performance Requirements Baseline Tables, required by the Technical Requirements to be prepared, submitted and approved prior to on or before the Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in the Project Management PlanDate; (ciii) All Submittals required by the Developer has received and delivered to the Department copies of all Governmental Approvals necessary to operate the Project Management Plan or CDA Documents to and has satisfied all conditions and requirements thereof which must be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by satisfied before the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees forcan be lawfully opened for regular public use, all applicable such Governmental Approvals remain in full force and other third party approvals required for use and operation of the Project Segmenteffect, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvalsApproval; (eiv) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies all insurance policies required under this Agreement during Section 17.01 for the Operating Period have been obtained and will be in full force and effect, and the Developer has delivered to TxDOT verification the Department duplicate originals or copies thereof (or endorsements reasonably acceptable to the Department extending coverage to the Project), certified by the Developer’s insurance broker to be true and correct copies of the originals; (v) there exists no Developer Default for which the Developer has received notice from the Department, except as to any Developer Default that has been cured or for which Service Commencement will affect its cure, and there exists no event or condition that, with notice or lapse of time, would constitute a Developer Default; (vi) all Operations and Maintenance Agreements and agreements relating to toll collection and violation enforcement on the Express Lanes are in full force and effect; (vii) the Developer has implemented the Maintenance Management System in accordance with the Technical Requirements; (viii) all Project Agreements are in full force and effect; (ix) the Developer has provided to the Department the training required under to have been provided prior to Service Commencement by the Technical Requirements; (x) the Developer has submitted to the Department an Annual Budget for the remainder of the Agreement Year in which the Service Commencement Date occurs (or, if the remainder of such year is shorter than 90 Days, an Annual Budget that conforms with the requirements specified in Section 26.1.2(d9.07, for the remainder of such Agreement Year and for the following Agreement Year); (xi) the Developer has certified to the Department in writing that the conditions set forth in this subsection Section 8.08(c) have been satisfied as of the date of such certification; (xii) all lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Construction Documentation are in their final configuration and available for normal and safe use and operation; (xiii) all major safety features are installed and functional, including, as required, shoulders, guardrails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (xiv) all required illumination for normal and safe use and operation is installed and functional in accordance with the Technical Requirements; (xv) fulfillment of all requirements of the Department’s WMATA Memorandum of Agreement; (xvi) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (xvii) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures, single lane closures, and as otherwise permitted by the Department in accordance with the Technical Requirements) in accordance with and as permitted by a Department-approved traffic management plan solely in order to complete the XXXX List); (xviii) the Developer has completed the Toll Commissioning Process described in the Technical Requirements, and the ETTM System is completed, has passed all Demonstration and Performance Testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to E-ZPass then utilized on State Highways, and is ready for normal operation; (xix) the TMS (if any) and safety features for TMS components are installed and functional; and (xx) the Developer has otherwise completed the Design-Build Work in accordance with this Agreement, including the Technical Requirements, and with the Construction Documentation, such that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit, subject only to XXXX List items. (d) The Department’s issuance of the Service Commencement Notice will be subject in all respects to compliance with the submittal and review procedures set forth in Section 10.05 in determining whether the Developer has satisfied the conditions precedent for achieving Service Commencement. (e) The Department’s issuance of the Service Commencement Notice to Proceed will not constitute a waiver by the Department of any then-existing breach of this Agreement by the Developer. (f) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Service Commencement has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (g) Any payment The Developer will provide the Department with written notice of anticipated Service Commencement at least 21 Days prior to the anticipated Service Commencement Date. The parties will comply with the submittal and performance security review procedures set forth in favor Section 10.05 in the determination of TxDOT required under Section 26.2 during the Operating Period whether Service Commencement has been obtained achieved. During such 21-Day period, the Developer and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the Project Assets and review of the final Construction Documentation and the Department’s issuance of a Service Commencement Certificate. In addition, the Department will conduct an inspection of the Project Assets and review of the final Construction Documentation, and such other matters as may be necessary to determine whether Service Commencement is achieved and, not later than the expiration of such 21-Day period, will deliver a written report of findings and recommendations to the Developer. The Department will provide the Developer with a determination of whether or not Service Commencement has delivered been achieved (and if not, an explanation with reasonable specificity as to the same to TxDOT;reasons therefor) within such 21-Day period. (h) Any other guaranty If the Department has not notified the Developer of payment such approval or performance required disapproval within 21 Days after such Developer notice (or 10 Days with respect to any resubmittal of the notice), and if the delay is not a result of a Developer Party action or inaction, then such delay will constitute a Delay Event and a Compensation Event, and any Developer Damages will be determined pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure period14.01(b).

Service Commencement. 9.5.1 Developer shall not initiate, permit or suffer Service Commencement for any Project Segment until TxDOT issues a certificate that all of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions for the Project Segment: (a) TxDOT has issued a certificate of Substantial Completion, or the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination); (b) All component parts, plans and documentation of the Project Management Plan required to be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, as identified in the Project Management Plan; (c) All Submittals required by the Project Management Plan or CDA Documents to be submitted to and approved by TxDOT or the Independent Engineer prior to Service Commencement have been submitted to and approved by TxDOT and the Independent Engineer, in the form and content required by the Project Management Plan or CDA Documents; (d) Developer has received, and paid all associated fees for, all applicable Governmental Approvals and other third third-party approvals required for use and operation of the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third third-party approvals; (e) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies required under this Agreement during the Operating Period have been obtained and Developer has delivered to TxDOT verification thereof as required under Section 26.1.2(d); (g) Any payment and performance security in favor of TxDOT required under Section 26.2 during the Operating Period has been obtained and Developer has delivered the same to TxDOT; (h) Any other guaranty of payment or performance required pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default (or any other failure or breach which would become a Developer Default after the expiration of the applicable cure period in Section 29.1) that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-non- monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodperiod in Section 29.1.

Service Commencement. 9.5.1 Developer shall not initiate, permit or suffer Service Commencement for any Project Segment until TxDOT issues a certificate that all of the following conditions have been satisfied. TxDOT will issue such a certificate immediately upon satisfaction of all the following conditions for the Project Segment: (a) TxDOT has issued a certificate The ASP acknowledges that time is of Substantial Completionthe essence to the IESO with respect to the Contract Facility achieving Service Commencement on or before the Target Service Commencement Date. The ASP agrees that it will use all commercially reasonable efforts, acting diligently, to achieve Service Commencement on or before the Disputes Board has determined that TxDOT should have issued such certificate (regardless of whether TxDOT subsequently contests such determination);Target Service Commencement Date. (b) All component partsIn order to achieve Service Commencement, plans and documentation the following conditions must be met: (i) The ASP shall have satisfied all market registration requirements in compliance with the Market Rules. Without limiting the generality of the Project Management Plan required to foregoing, (A) the ASP must be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security, Emergency response and Incident response, authorized as identified a Market Participant; (B) the Contract Facility must be registered as a Registered Facility; (C) the Contract Facility shall be capable of complying with the Performance Standards for Ancillary Services set out in the Project Market Rules Chapter 5, Appendix 5.1, Section 1.1; (D) communication services approved by the IESO shall be in place between the Contract Facility control interface and the System Operator’s Energy Management PlanSystem (EMS). If applicable, the IESO may agree to the Contract Facility meeting equivalent standards to those set forth in the Market Manual 6: Participant Technical Reference Manual so long as the IESO determines such equivalent standards are suitably applicable to the Contract Facility and do not impact the reliable operation of the IESO-Controlled Grid; (E) primary and alternate voice communications services approved by the IESO shall be in place to provide voice communication between the System Operator’s Control Centre and the operator controlling the Contract Facility. If the Control Centre acting as the designated Dispatch entity is located outside of Ontario, the ASP shall provide the System Operator internet access at the proposed Control Centre; and (F) the participant Dispatch messaging system to the ASP shall be in place; (ii) The Contract Facility shall have achieved Certification in accordance with Schedule 2 of this Agreement; (iii) The ASP shall have received a registration approval notification (RAN) document, or equivalent, from the System Operator that authorizes the ASP to start providing Regulation Service; and (iv) The ASP shall have delivered a duly executed Officer’s Certificate to the IESO in accordance with Section 3.3(c). (c) All Submittals required by The ASP shall deliver to the Project Management Plan or CDA Documents IESO a duly executed Officer’s Certificate once the ASP is satisfied the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii) have been met. Within ten (10) Business Days following the receipt of such Officer’s Certificate, the IESO will notify the ASP as to be submitted whether the IESO (x) is satisfied that the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii) have been met; and (y) has determined that the Officer’s Certificate is complete. If the IESO is so satisfied, then the IESO will issue a notice to and approved by TxDOT or the Independent Engineer prior to ASP confirming that the ASP has achieved Service Commencement have been submitted and confirming the Service Commencement Date (the “Service Commencement Notice”). If the IESO is not satisfied that the ASP has met the conditions set out in Sections 3.3(b)(i) through 3.3(b)(iii), or that the Officer’s Certificate is complete, the IESO shall provide to the ASP reasonable particulars of any such deficiencies. The ASP shall remedy such deficiencies and approved by TxDOT resubmit the revised Officer’s Certificate to the IESO for the IESO’s review on the terms and conditions set out in this Section 3.3(c). Service Commencement will be achieved once the ASP has satisfied the conditions set out in Section 3.3(b) and the Independent Engineer, in IESO has issued the form and content required by the Project Management Plan or CDA Documents;Service Commencement Notice. (d) Developer has receivedThe ASP shall be solely responsible, at its sole cost and paid all associated fees forexpense, all applicable Governmental Approvals and other third party approvals required for use and operation of meeting the Project Segment, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval or other third party approvals; (elisted in Section 3.3(b) Developer, and, if applicable, TxDOT and the Independent Engineer, have completed preparation of the Punch List in accordance with Section 9.4; (f) All Insurance Policies required under this Agreement during the Operating Period have been obtained and Developer has delivered to TxDOT verification thereof as required under Section 26.1.2(d); (g) Any payment and performance security in favor of TxDOT required under Section 26.2 during the Operating Period has been obtained and Developer has delivered the same to TxDOT; (h) Any other guaranty of payment or performance required pursuant to Section 26.4 during the Operating Period has been delivered to TxDOT; and (i) There exists no uncured Developer Default that is the subject of a Warning Notice, unless (i) Service Commencement will effect its cure, (ii) with respect to a monetary default that Developer has disputed, Developer has delivered to TxDOT any letter of credit required pursuant to Section 29.4.7(b)(ii) regarding the amount in dispute, or (iii) with respect to a non-monetary default, Developer has a right to cure and is diligently pursuing cure within the applicable cure periodabove.