Common use of Procedures Relating to Maintenance Work Clause in Contracts

Procedures Relating to Maintenance Work. (a) The Concessionaire shall perform all maintenance obligations with respect to the Project in accordance with the Technical Requirements. (b) Every year after the Service Commencement Date, the Concessionaire shall conduct an annual assessment of the physical condition of the Project (except as otherwise provided in the Technical Requirements), and prepare a comparative analysis of such conditions to the conditions as previously reported (or, with respect to any Project Enhancements, their condition upon completion thereof), such analysis to take into account any changes in federal requirements and changes to safety standards. The condition of each Asset shall be assessed using the Department’s Maintenance Rating Program in accordance with the Technical Requirements. If any Asset is determined by the Concessionaire, the Department or the Independent Engineer to fall below a rating of 90%, the Concessionaire shall, within 90 days of such assessment, develop and submit to the Department a plan to restore such Asset to a condition that will enable the Asset to meet all applicable Performance Requirements, and such plan shall also include a budget, timeline and identification of the funding sources that will be utilized to restore such Asset. (c) No later than 90 days before the beginning of each calendar year after the Service Commencement Date, the Concessionaire shall annually prepare and deliver to the Department for its review and approval a full five-year period maintenance plan on a rolling basis that describes life cycle asset maintenance for the Project (each a “Life Cycle Maintenance Plan”). The Life Cycle Maintenance Plan shall include a description of all Major Maintenance to be undertaken during such five-year period, by component, item or discrete project (each a “Task”), the estimated costs and timing relating to each Task, and such other information as may be reasonably requested by the Department. The Life Cycle Maintenance Plan shall reasonably demonstrate and incorporate a schedule of maintenance, repair, reconstruction, rehabilitation, restoration, renewal and replacement activity necessary to meet the Performance Requirements set forth in the Technical Requirements and other standards and requirements set forth in this Agreement. The Concessionaire shall reasonably consider any changes or additions proposed by the Department to the proposed Life Cycle Maintenance Plan and shall modify the Life Cycle Maintenance Plan to reflect those changes and additions which are consistent with the standards and requirements of this Agreement. The Department shall deliver its comments, approval or disapproval to the Concessionaire within 45 days after the Concessionaire has delivered each proposed Life Cycle Maintenance Plan to the Department in accordance with the first sentence of this Section 9.05(c). (d) In the event of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the Department and the Concessionaire shall endeavor in good faith to resolve any such disagreement or dispute within 60 days after it is provided to the Department. Any disagreements or disputes raised by the Department with respect to the Life Cycle Maintenance Plan must be based on whether it and the underlying assumptions are reasonable, realistic and consistent with Good Industry Practice, Project experience and condition, the Technical Requirements and applicable Law. If no agreement is reached within such 60-day period as to any such matter, either party may submit the dispute to the disputes resolution procedures set forth in Section 22.01. Until resolution of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the treatment of the disputed Tasks in the most recently-approved Life Cycle Maintenance Plan shall remain in effect and govern the requirements relating to such Tasks. (e) If the Concessionaire fails to complete any or all of the Tasks in accordance with this Agreement and the applicable Life Cycle Maintenance Plan, the Department may, at its option, but is not obligated to, either (i) notify the Concessionaire that the Department will carry out such Task or correct such defective work using Department personnel, materials and equipment or (ii) procure the services for such Task or corrective work by one or more contractors. Upon such notice or such determination by the Department of the tentative winning contract award(s), as the case may be, the Department shall be entitled to demand that the Concessionaire pay to the Department an amount equal to the Department’s good faith estimate of the Allocable Costs it will incur to complete such Task or corrective work, plus an additional 10% contingency, and its third-party costs incurred to procure such contract(s). The Concessionaire shall make such payment to the Department not later than 30 days after demand by the Department for such payment. If the Department’s Allocable Costs to complete such Tasks and any third-party costs incurred to procure such contract(s), are greater or less than the amount the Concessionaire previously paid to the Department under this Section 9.05, the Concessionaire shall pay to the Department an amount equal to such excess or the Department shall reimburse the excess funds paid by the Concessionaire, as applicable. The Concessionaire or the Department shall make such payment not later than 30 days after the Department has finalized its calculation of the Allocable Costs to complete such Tasks and any third-party costs to procure such contract(s) and demand has been made for such payment.

Procedures Relating to Maintenance Work. (a) The Concessionaire shall perform all maintenance obligations with respect to the Project in accordance with the Technical Requirements. (b) Every year after the Service Commencement Date, the Concessionaire shall conduct an annual assessment of the physical condition of the Project (except as otherwise provided in the Technical Requirements), and prepare a comparative analysis of such conditions to the conditions as previously reported (or, with respect to any Project Enhancements, their condition upon completion thereof), such analysis to take into account any changes in federal requirements and changes to safety standards. The condition of each Asset shall be assessed using the Department’s Maintenance Rating Program in accordance with the Technical Requirements. If any Asset is determined by the Concessionaire, the Department or the Independent Engineer to fall below a rating of 90%, the Concessionaire shall, within 90 days of such assessment, develop and submit to the Department a plan to restore such Asset to a condition that will enable the Asset to meet all applicable Performance Requirements, and such plan shall also include a budget, timeline and identification of the funding sources that will be utilized to restore such Asset. (c) No later than 90 days before the beginning of each calendar year after the Service Commencement Date, the Concessionaire shall annually prepare and deliver to the Department for its review and approval a full five-year period maintenance plan on a rolling basis that describes life cycle asset maintenance for the Project (each a “Life Cycle Maintenance Plan”). The Life Cycle Maintenance Plan shall include a description of all Major Maintenance to be undertaken during such five-year period, by component, item or discrete project (each a “Task”), the estimated costs and timing relating to each Task, and such other information as may be reasonably requested by the Department. The Life Cycle Maintenance Plan shall reasonably demonstrate and incorporate a schedule of maintenance, repair, reconstruction, rehabilitation, restoration, renewal and replacement activity necessary to meet the Performance Requirements set forth in the Technical Requirements and other standards and requirements set forth in this Agreement. The Concessionaire shall reasonably consider any changes or additions proposed by the Department to the proposed Life Cycle Maintenance Plan and shall modify the Life Cycle Maintenance Plan to reflect those changes and additions which are consistent with the standards and requirements of this Agreement. The Department shall deliver its comments, approval or disapproval to the Concessionaire within 45 days after the Concessionaire has delivered each proposed Life Cycle Maintenance Plan to the Department in accordance with the first sentence of this Section 9.05(c9.04(c). (d) In the event of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the Department and the Concessionaire shall endeavor in good faith to resolve any such disagreement or dispute within 60 days after it is provided to the Department. Any disagreements or disputes raised by the Department with respect to the Life Cycle Maintenance Plan must be based on whether it and the underlying assumptions are reasonable, realistic and consistent with Good Industry Practice, Project experience and condition, the Technical Requirements and applicable Law. If no agreement is reached within such 60-day period as to any such matter, either party may submit the dispute to the disputes resolution procedures set forth in Section 22.01. Until resolution of any disagreement or dispute relating to a Life Cycle Maintenance Plan, the treatment of the disputed Tasks in the most recently-approved Life Cycle Maintenance Plan shall remain in effect and govern the requirements relating to such Tasks. (e) If the Concessionaire fails to complete any or all of the Tasks in accordance with this Agreement and the applicable Life Cycle Maintenance Plan, the Department may, at its option, but is not obligated to, either (i) notify the Concessionaire that the Department will carry out such Task or correct such defective work using Department personnel, materials and equipment or (ii) procure the services for such Task or corrective work by one or more contractors. Upon such notice or such determination by the Department of the tentative winning contract award(s), as the case may be, the Department shall be entitled to demand that the Concessionaire pay to the Department an amount equal to the Department’s good faith estimate of the Allocable Costs it will incur to complete such Task or corrective work, plus an additional 10% contingency, and its third-party costs incurred to procure such contract(s). The Concessionaire shall make such payment to the Department not later than 30 days after demand by the Department for such payment. If the Department’s Allocable Costs to complete such Tasks and any third-party costs incurred to procure such contract(s), are greater or less than the amount the Concessionaire previously paid to the Department under this Section 9.059.04, the Concessionaire shall pay to the Department an amount equal to such excess or the Department shall reimburse the excess funds paid by the Concessionaire, as applicable. The Concessionaire or the Department shall make such payment not later than 30 days after the Department has finalized its calculation of the Allocable Costs to complete such Tasks and any third-party costs to procure such contract(s) and demand has been made for such payment.