Common use of Alternative Facilities Clause in Contracts

Alternative Facilities. (a) This Section 12.05 sets forth the Concessionaire’s sole and exclusive rights and remedies with respect to Alternative Facilities, and supersedes any provisions of this Agreement to the contrary. Such rights and remedies are subject to Section 12.05(k). (b) The Concessionaire Damages owing from the Department to the Concessionaire on account of an Alternative Facility will be determined pursuant to Section 14.01(b). The foregoing Concessionaire Damages will be determined in the same manner, and subject to the same conditions and limitations set forth under Section 14.01(c) and Section 14.01(d). (c) The Department may, but is not obligated to, deliver to the Concessionaire a notice of a potential Alternative Facility no later than 90 Days prior to the opening of the potential Alternative Facility to traffic. The Department will include in such notice (i) a reasonable description of the potential Alternative Facility, including the expected date of opening, any right of way alignments, number of lanes, location and other pertinent features, (ii) a statement whether the potential Alternative Facility will be tolled, and if so the intended toll rate schedule by vehicle classification, provided, that such schedule is available at the time of such notice and (iii) subject to any confidentiality obligations binding upon the Department, any traffic and revenue studies and analyses available to the Department for the potential Alternative Facility. EXECUTION VERSION – DECEMBER 5, 2011 (d) If the Department has delivered a notice of a potential Alternative Facility pursuant to Section 12.05(c), within 180 Days after the Department delivers such notice to the Concessionaire, the Concessionaire will deliver to the Department a written notice of Claim stating whether the Concessionaire believes the potential Alternative Facility will have a Net Cost Impact or Net Revenue Impact and, if so, a true and complete copy of a preliminary traffic and revenue study and analysis showing the projected effects and a reasonably detailed statement quantifying such effects. Such analysis and quantification will include data on past Toll Revenues and projected future Toll Revenues with and without the potential Alternative Facility, together with any projected Net Cost Impact or Net Revenue Impact. At the Concessionaire’s request within such 180-Day period, the Department will grant reasonable extensions of time for the Concessionaire to deliver the written notice of Claim, so long as the Concessionaire is making good faith, diligent progress in completing its traffic and revenue analysis and Net Cost Impact or Net Revenue Impact analysis, provided, that in no event will the Department be obligated to grant extensions aggregating more than 90 Days. The Department will reimburse the Concessionaire its Allocable Costs in preparing such preliminary traffic and revenue study. (e) If for any reason the Concessionaire fails to deliver such written notice of Claim and related information within the foregoing time period (as may be extended) pursuant to Section 12.05(d), the Concessionaire will be deemed to have irrevocably and forever waived and released any Claim or right to compensation for Concessionaire Damages attributable to the construction, operation and use of the potential Alternative Facility, or any other Alternative Facility that is not substantially different from the potential Alternative Facility. For purposes of this Section 12.05(e), an Alternative Facility ultimately constructed and operated will be considered substantially different from the potential Alternative Facility if (i) the route is substantially different, (ii) the number of lanes is different, (iii) the number of HOV, HOT, truck or other special purpose or restricted use lanes is different or their length is substantially different, (iv) the total length is substantially different, (v) highways, roads and facilities having interchange, entrance or exit ramp access to and from such Alternative Facility are different, or the design capacity of an interchange, entrance or exit ramp is substantially different, (vi) the Department stated in its written notice that the potential Alternative Facility would be tolled and the actual Alternative Facility is not tolled or is tolled at materially lower toll rates for the predominant classifications of vehicles than the rates described in the Department’s notice, (vii) the means for collecting tolls is substantially different (e.g. barrier only vs. barrier-free or open lane tolling) or (viii) there are other differences similar in scale or effect to the foregoing differences. (f) If the Concessionaire delivers its written notice of Claim and related information, then, if the Department disagrees with the amount of Concessionaire Damages claimed by the Concessionaire, at the Department’s request the Concessionaire will engage in good faith, diligent negotiations with the Department to settle the Dispute as to the Concessionaire Damages, if any, owing from the Department to the Concessionaire on account of the potential Alternative Facility. As part of such negotiations, the parties will continue to refine and exchange, on an Open Book Basis, plans, drawings, configurations and other information on the potential Alternative Facility, traffic and revenue data, information, analyses and studies and financial modeling and quantifications of projected Net Cost Impacts or Net Revenue Impacts, if EXECUTION VERSION – DECEMBER 5, 2011 any. At the request of either party, the parties will engage a neutral facilitator to assist with the negotiations. (g) If the parties are successful in the negotiations, they will execute and deliver written agreements and, if necessary, amendments to this Agreement, setting forth all terms and conditions of the settlement, which will thereafter be final and binding and constitute a full settlement and release of any and all Claims, causes of action, suits, demands and Losses of the Concessionaire arising out of the Alternative Facility, or any similar Alternative Facility, to the extent not taken into account in any prior determination of Concessionaire Damages, and any Delay Events related to an Alternative Facility. Neither party will thereafter have the right to rescind or cancel the settlement for any reason, including differences between the amounts of actual future Net Cost Impacts or Net Revenue Impacts and the amounts that were previously projected. (h) If, despite such good faith, diligent negotiations (including exchange of information on an Open Book Basis), the parties are unable to agree upon the Concessionaire Damages within 90 Days after commencement of such negotiations, then either party may, by written notice to the other party, terminate the negotiations and request that the Dispute be resolved in accordance with Article 21. (i) If the Department has not delivered a notice of a potential Alternative Facility pursuant to Section 12.05(c) and the Alternative Facility is opened for traffic operations, or if any Alternative Facility is opened and upon opening is substantially different from the Alternative Facility that is the subject of a compensation settlement or is not the subject of a compensation settlement under Section 12.05(g), then the Concessionaire will be entitled to pursue its Claim for Concessionaire Damages on and subject to the following terms and conditions: (i) the Concessionaire will have a period of up to four years following the opening for traffic operations of the Alternative Facility to make a Claim for Concessionaire Damages (which may include both past and future Net Cost Impacts or Net Revenue Impacts). The Concessionaire will make a Claim by delivering to the Department written notice of such Claim, together with the same related information and materials described in Section 12.05(d). The written notice will state the claimed Concessionaire Damages and the Concessionaire’s proposed Base Case Financial Model Update. If for any reason the Concessionaire fails to deliver such written notice of Claim and related information within the foregoing time period, the Concessionaire will be deemed to have irrevocably and forever waived and released any Claim or other right to compensation for any Net Cost Impact or Net Revenue Impact, past or future, attributable to the Alternative Facility; (ii) if the Concessionaire timely delivers its written notice of Claim and related information, then at the Department’s request the Concessionaire will deliver to the Department, on an Open Book Basis, any other information, studies, analyses and documentation used by or available to the Concessionaire in support of its Claim or otherwise relevant to the determination of the Concessionaire Damages (if any), and the parties will seek to settle the Claim in good faith. Any unresolved Dispute regarding EXECUTION VERSION – DECEMBER 5, 2011 whether the Concessionaire is entitled to any compensation and the amount thereof will be resolved according to Article 21 of this Agreement; and (iii) the Concessionaire will bear the burden of proving its Claim. (j) If any Alternative Facility for which compensation is paid pursuant to Section 12.05(g) or Section 12.05(i) is modified physically or operationally after opening for traffic operations so that it is substantially different (as described in Section 12.05(e)) from the original Alternative Facility and a result thereof the Concessionaire experiences a further Net Cost Impact or Net Revenue Impact, then the Concessionaire will be entitled to further Concessionaire Damages for such additional impact. The foregoing right to further compensation will be subject to the same terms and conditions set forth in Section 12.05(g), with the deadline for making a Claim in relation thereto running from the date the changes in the original Alternative Facility are substantially completed. (k) The Concessionaire acknowledges that each of CTB and the Department has a paramount public interest and duty to develop and operate whatever Department Projects it deems to be in the best interests of the State, and that the compensation to which the Concessionaire is entitled on account of Alternative Facilities is a fair and equitable remedy. Accordingly, the Concessionaire will not have, and irrevocably waives and relinquishes, any and all rights to institute, seek or obtain any injunctive relief or pursue any action, order or decree to restrain, preclude, prohibit or interfere with CTB’s or the Department’s rights to plan, finance, develop, operate, maintain, toll or not toll, repair, improve, modify, upgrade, reconstruct, rehabilitate, restore, renew or replace Alternative Facilities; provided, that the foregoing will not preclude the Concessionaire from enforcing its rights to compensation under this Section 12.05, or claiming any relief in respect of Delay Events, if appropriate. The filing of any such action by the Concessionaire seeking to restrain, preclude, prohibit or interfere with CTB’s or the Department’s rights will automatically entitle CTB or the Department, as applicable, to recover all costs and expenses, including attorneys fees, of defending such action and any appeals.

Alternative Facilities. (a) This Section 12.05 sets forth the Concessionaire’s sole and exclusive rights and remedies with respect to Alternative Facilities, and supersedes any provisions of this Agreement to the contrary. Such rights and remedies are subject to Section 12.05(k). (b) The Concessionaire Damages owing from the Department to the Concessionaire on account of an Alternative Facility will be determined pursuant to Section 14.01(b). The foregoing Concessionaire Damages will be determined in the same manner, and subject to the same conditions and limitations set forth under Section 14.01(c) and Section 14.01(d). (c) The Department may, but is not obligated to, deliver to the Concessionaire a notice of a potential Alternative Facility no later than 90 Days prior to the opening of the potential Alternative Facility to traffic. The Department will include in such notice (i) a reasonable description of the potential Alternative Facility, including the expected date of opening, any right of way alignments, number of lanes, location and other pertinent features, (ii) a statement whether the potential Alternative Facility will be tolled, and if so the intended toll rate schedule by vehicle classification, provided, that such schedule is available at the time of such notice and (iii) subject to any confidentiality obligations binding upon the Department, any traffic and revenue studies and analyses available to the Department for the potential Alternative Facility. EXECUTION VERSION – DECEMBER 5, 2011. (d) If the Department has delivered a notice of a potential Alternative Facility pursuant to Section 12.05(c), within 180 Days after the Department delivers such notice to the Concessionaire, the Concessionaire will deliver to the Department a written notice of Claim stating whether the Concessionaire believes the potential Alternative Facility will have a Net Cost Impact or Net Revenue Impact and, if so, a true and complete copy of a preliminary traffic and revenue study and analysis showing the projected effects and a reasonably detailed statement quantifying such effects. Such analysis and quantification will include data on past Toll Revenues and projected future Toll Revenues with and without the potential Alternative Facility, together with any projected Net Cost Impact or Net Revenue Impact. At the Concessionaire’s request within such 180-Day period, the Department will grant reasonable extensions of time for the Concessionaire to deliver the written notice of Claim, so long as the Concessionaire is making good faith, diligent progress in completing its traffic and revenue analysis and Net Cost Impact or Net Revenue Impact analysis, provided, that in no event will the Department be obligated to grant extensions aggregating more than 90 Days. The Department will reimburse the Concessionaire its Allocable Costs in preparing such preliminary traffic and revenue study. (e) If for any reason the Concessionaire fails to deliver such written notice of Claim and related information within the foregoing time period (as may be extended) pursuant to Section 12.05(d), the Concessionaire will be deemed to have irrevocably and forever waived and released any Claim or right to compensation for Concessionaire Damages attributable to the construction, operation and use of the potential Alternative Facility, or any other Alternative Facility that is not substantially different from the potential Alternative Facility. For purposes of this Section 12.05(e), an Alternative Facility ultimately constructed and operated will be considered substantially different from the potential Alternative Facility if (i) the route is substantially different, (ii) the number of lanes is different, (iii) the number of HOV, HOT, truck or other special purpose or restricted use lanes is different or their length is substantially different, (iv) the total length is substantially different, (v) highways, roads and facilities having interchange, entrance or exit ramp access to and from such Alternative Facility are different, or the design capacity of an interchange, entrance or exit ramp is substantially different, (vi) the Department stated in its written notice that the potential Alternative Facility would be tolled and the actual Alternative Facility is not tolled or is tolled at materially lower toll rates for the predominant classifications of vehicles than the rates described in the Department’s notice, (vii) the means for collecting tolls is substantially different (e.g. barrier only vs. barrier-free or open lane tolling) or (viii) there are other differences similar in scale or effect to the foregoing differences. (f) If the Concessionaire delivers its written notice of Claim and related information, then, if the Department disagrees with the amount of Concessionaire Damages claimed by the Concessionaire, at the Department’s request the Concessionaire will engage in good faith, diligent negotiations with the Department to settle the Dispute as to the Concessionaire Damages, if any, owing from the Department to the Concessionaire on account of the potential Alternative Facility. As part of such negotiations, the parties will continue to refine and exchange, on an Open Book Basis, plans, drawings, configurations and other information on the potential Alternative Facility, traffic and revenue data, information, analyses and studies and financial modeling and quantifications of projected Net Cost Impacts or Net Revenue Impacts, if EXECUTION VERSION – DECEMBER 5, 2011 any. At the request of either party, the parties will engage a neutral facilitator to assist with the negotiations. (g) If the parties are successful in the negotiations, they will execute and deliver written agreements and, if necessary, amendments to this Agreement, setting forth all terms and conditions of the settlement, which will thereafter be final and binding and constitute a full settlement and release of any and all Claims, causes of action, suits, demands and Losses of the Concessionaire arising out of the Alternative Facility, or any similar Alternative Facility, to the extent not taken into account in any prior determination of Concessionaire Damages, and any Delay Events related to an Alternative Facility. Neither party will thereafter have the right to rescind or cancel the settlement for any reason, including differences between the amounts of actual future Net Cost Impacts or Net Revenue Impacts and the amounts that were previously projected. (h) If, despite such good faith, diligent negotiations (including exchange of information on an Open Book Basis), the parties are unable to agree upon the Concessionaire Damages within 90 Days after commencement of such negotiations, then either party may, by written notice to the other party, terminate the negotiations and request that the Dispute be resolved in accordance with Article 21. (i) If the Department has not delivered a notice of a potential Alternative Facility pursuant to Section 12.05(c) and the Alternative Facility is opened for traffic operations, or if any Alternative Facility is opened and upon opening is substantially different from the Alternative Facility that is the subject of a compensation settlement or is not the subject of a compensation settlement under Section 12.05(g), then the Concessionaire will be entitled to pursue its Claim for Concessionaire Damages on and subject to the following terms and conditions: (i) the Concessionaire will have a period of up to four years following the opening for traffic operations of the Alternative Facility to make a Claim for Concessionaire Damages (which may include both past and future Net Cost Impacts or Net Revenue Impacts). The Concessionaire will make a Claim by delivering to the Department written notice of such Claim, together with the same related information and materials described in Section 12.05(d). The written notice will state the claimed Concessionaire Damages and the Concessionaire’s proposed Base Case Financial Model Update. If for any reason the Concessionaire fails to deliver such written notice of Claim and related information within the foregoing time period, the Concessionaire will be deemed to have irrevocably and forever waived and released any Claim or other right to compensation for any Net Cost Impact or Net Revenue Impact, past or future, attributable to the Alternative Facility; (ii) if the Concessionaire timely delivers its written notice of Claim and related information, then at the Department’s request the Concessionaire will deliver to the Department, on an Open Book Basis, any other information, studies, analyses and documentation used by or available to the Concessionaire in support of its Claim or otherwise relevant to the determination of the Concessionaire Damages (if any), and the parties will seek to settle the Claim in good faith. Any unresolved Dispute regarding EXECUTION VERSION – DECEMBER 5, 2011 whether the Concessionaire is entitled to any compensation and the amount thereof will be resolved according to Article 21 of this Agreement; and (iii) the Concessionaire will bear the burden of proving its Claim. (j) If any Alternative Facility for which compensation is paid pursuant to Section 12.05(g) or Section 12.05(i) is modified physically or operationally after opening for traffic operations so that it is substantially different (as described in Section 12.05(e)) from the original Alternative Facility and a result thereof the Concessionaire experiences a further Net Cost Impact or Net Revenue Impact, then the Concessionaire will be entitled to further Concessionaire Damages for such additional impact. The foregoing right to further compensation will be subject to the same terms and conditions set forth in Section 12.05(g), with the deadline for making a Claim in relation thereto running from the date the changes in the original Alternative Facility are substantially completed. (k) The Concessionaire acknowledges that each of CTB and the Department has a paramount public interest and duty to develop and operate whatever Department Projects it deems to be in the best interests of the State, and that the compensation to which the Concessionaire is entitled on account of Alternative Facilities is a fair and equitable remedy. Accordingly, the Concessionaire will not have, and irrevocably waives and relinquishes, any and all rights to institute, seek or obtain any injunctive relief or pursue any action, order or decree to restrain, preclude, prohibit or interfere with CTB’s or the Department’s rights to plan, finance, develop, operate, maintain, toll or not toll, repair, improve, modify, upgrade, reconstruct, rehabilitate, restore, renew or replace Alternative Facilities; provided, that the foregoing will not preclude the Concessionaire from enforcing its rights to compensation under this Section 12.05, or claiming any relief in respect of Delay Events, if appropriate. The filing of any such action by the Concessionaire seeking to restrain, preclude, prohibit or interfere with CTB’s or the Department’s rights will automatically entitle CTB or the Department, as applicable, to recover all costs and expenses, including attorneys fees, of defending such action and any appeals.