Common use of TxDOT Step-in Rights Clause in Contracts

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-fact with full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken. (g) Take any and all other actions as may be reasonably required or incident to (h) Prosecute and defend any action or proceeding incident to the Maintenance

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.9.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.9.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Capital Maintenance Agreement. 12.3.9.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.9.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.9.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors contractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-in- fact with will full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2. DB Contractor shall reimburse TxDOT, within ten Days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to DB Contractor under this Capital Maintenance Agreement. 12.3.10.3. Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to DB Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to DB Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4. TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5. In the event TxDOT takes action described in this Section

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2. Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Comprehensive Maintenance Agreement. 12.3.10.3. Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4. TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5. In the event TxDOT takes action described in this Section

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors contractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-in- fact with will full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2. DB Contractor shall reimburse TxDOT, within ten Days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to DB Contractor under this Comprehensive Maintenance Agreement. 12.3.10.3. Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to DB Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to DB Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4. TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5. In the event XxXXX takes action described in this Section

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-fact with full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken. (g) Take any and all other actions as may be reasonably required or incident to (h) Prosecute and defend any action or proceeding incident to the Maintenance

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2. Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Comprehensive Maintenance Agreement. 12.3.10.3. Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4. TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5. In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 12.3.10.1. In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors contractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-in- fact with will full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2. DB Contractor shall reimburse TxDOT, within ten Days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to DB Contractor under this Comprehensive Maintenance Agreement. 12.3.10.3. Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to DB Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to DB Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4. TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5. In the event TxDOT takes action described in this Section

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Comprehensive Maintenance Agreement. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors Maintenance Contractor or any other Persons Contractors for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, letters of credit, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Supplierssuppliers, and resolve claims of Subcontractors and Supplierssuppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Capital Maintenance Agreement. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required;; Texas Department of Transportation Execution Version Horseshoe Project 85 Capital Maintenance Agreement (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Capital Maintenance Agreement. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change. Texas Department of Transportation Execution Version Horseshoe Project 86 Capital Maintenance Agreement

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Capital Maintenance Agreement. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required;Texas Department of Transportation SH 99 Grand Parkway Project May 3June 19, 2012 72 RFP Addendum 1Final Request for Proposals Capital Maintenance Agreement (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this Capital Maintenance Agreement. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, and without waiving or releasing DB Contractor Texas Department of Transportation - 87 - Execution Version I-635 LBJ East Project Capital Maintenance Agreement from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Contractor Maintenance Default remains uncured by TxDOT or DB Contractor, to pay any obligees of DB Contractor and perform all or any portion of DB Contractor’s obligations and the Maintenance Services that are the subject of such DB Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Contractor Maintenance Default or such other breaches or failures to perform for which DB Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Suppliers, process invoices and applications for payment from Subcontractors and Suppliers, pay Subcontractors and Suppliers, and resolve claims of Subcontractors and Suppliers, and, for this purpose DB Contractor irrevocably appoints TxDOT as its attorney-in-fact with full power and authority to act for and bind DB Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 DB Contractor shall reimburse TxDOT, within 10 Days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its discretion, to deduct such amounts from any amounts payable to DB Contractor under this CMA. Texas Department of Transportation - 88 - Execution Version I-635 LBJ East Project Capital Maintenance Agreement 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, Subcontractors, vendors and employees shall be liable to DB Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to DB Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a DB Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.

TxDOT Step-in Rights. Upon the occurrence of a DB Maintenance Contractor Maintenance Default and expiration, without full and complete cure, of the cure period, if any, available to DB Maintenance Contractor, and without waiving or releasing DB Maintenance Contractor from any obligations, TxDOT shall have the right, but not the obligation, for so long as such DB Maintenance Contractor Maintenance Default remains uncured by TxDOT or DB Maintenance Contractor, to pay any obligees of DB Maintenance Contractor and perform all or any portion of DB Maintenance Contractor’s 's obligations and the Maintenance Services that are the subject of such DB Maintenance Contractor Maintenance Defaults, as well as any other then-existing breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced diligent efforts to cure. 12.3.10.1 In connection with such action, TxDOT may, to the extent and only to the extent reasonably required for or incident to curing the DB Maintenance Contractor Maintenance Default or such other breaches or failures to perform for which DB Maintenance Contractor received prior written notice from TxDOT but has not commenced and continued diligent efforts to cure: (a) Employ security guards and other safeguards to protect the Project; (b) Spend such sums as are reasonably necessary to employ and pay such architects, engineers, consultants and contractors and to obtain materials and equipment as may be required, without obligation or liability to DB Maintenance Contractor, Subcontractors or any other Persons for loss of opportunity to perform the same Maintenance Services or supply the same materials and equipment; (c) Draw on and use proceeds from letters of credit, or make a claim Claim against payment and performance bonds, guarantees and other performance security and use the proceeds to the extent available under the terms thereof to pay such sums; (d) Execute all applications, certificates and other documents as may be required; (e) Make decisions respecting, assume control over and continue the Maintenance Services as may be reasonably required; (f) Meet with, coordinate with, direct and instruct Subcontractors and Supplierssuppliers, process invoices and applications for payment from Subcontractors contractors and Supplierssuppliers, pay Subcontractors and Suppliers, and resolve claims Claims of Subcontractors and Suppliers, and, and for this purpose DB Maintenance Contractor irrevocably appoints TxDOT as its attorney-in-fact with will full power and authority to act for and bind DB Maintenance Contractor in its place and stead; curing; and Services undertaken.; (g) Take any and all other actions as may be reasonably required or incident toto curing; and (h) Prosecute and defend any action or proceeding incident to the MaintenanceMaintenance Services undertaken. 12.3.10.2 Maintenance Contractor shall reimburse TxDOT, within ten days of receiving an invoice, for TxDOT’s Recoverable Costs in connection with the performance of any act or Maintenance Services authorized by this Section 12.3.10. In lieu of reimbursement, TxDOT may elect, in its sole discretion, to deduct such amounts from any amounts payable to Maintenance Contractor under this CMA. 12.3.10.3 Neither TxDOT nor any of its Authorized Representatives, contractors, subcontractors, vendor and employees shall be liable to Maintenance Contractor in any manner for any inconvenience or disturbance arising out of its entry onto the Project or the Project ROW in order to perform under this Section 12.3.10, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. If any Person exercises any right to pay or perform under this Section 12.3.10, it nevertheless shall have no liability to Maintenance Contractor for the sufficiency or adequacy of any such payment or performance, or for the manner or quality of design, construction, operation or maintenance, unless caused by the gross negligence, recklessness, intentional misconduct or bad faith of such Person. 12.3.10.4 TxDOT’s rights under this Section 12.3.10 are subject to the right of any Surety under payment and performance bonds to assume performance and completion of all bonded work. 12.3.10.5 In the event TxDOT takes action described in this Section 12.3.10 and it is later finally determined that TxDOT lacked the right to do so because there did not occur a Maintenance Contractor Default and expiration, without full and complete cure, of the cure period, if any, available to Maintenance Contractor, then TxDOT’s action shall be treated as a Directive Letter for a TxDOT-Directed Change.