MassDOT Service Plazas RFP - Form of Lease Addendum 5 disclaimed.docx

LEASE AND CONCESSIONS AGREEMENT

FOR EIGHTEEN SERVICE PLAZAS

BY AND BETWEEN

THE MASSACHUSETTS DEPARTMENT OF TRANSPORTATION, AS LANDLORD

AND

<>, AS OPERATOR

DATE: <> ___, 202_

This Microsoft Word version of the Lease and Concessions Agreement is provided only for the convenience of the Proposers and may include aberrations from the official Addendum Number 5 to the final Request for Proposals issued on September 30, 2024 in .pdf format. Proposers’ use of these Word versions is at their own risk.

MassDOT Draft April 1, 2025

ACTIVE 708963554v2 ACTIVE 708963554v2

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TABLE OF CONTENTS

Page

ARTICLE 1

DEFINITIONS AND INTERPRETATION

ARTICLE 2

REPRESENTATIONS AND WARRANTIES AND OPERATOR DELIVERABLES

ARTICLE 3

EFFECTIVE DATE AND TERM

ARTICLE 4

LEASE OF SERVICE PLAZAS

ARTICLE 5

REVITALIZATION OF THE SERVICE PLAZAS

ARTICLE 6

FINANCING AND REFINANCING

ARTICLE 7

GENERAL REQUIREMENTS AND CONDITIONS

ARTICLE 8

CONSTRUCTION OF REVITALIZATION IMPROVEMENTS AND

SUBSEQUENT CAPITAL IMPROVEMENTS

ARTICLE 9

OPERATION AND MANAGEMENT OF SERVICE PLAZAS

ARTICLE 10

MAINTENANCE, REPAIR, REPLACEMENT AND SURRENDER

ARTICLE 11

ENVIRONMENTAL MATTERS

ARTICLE 12

CHANGES

ARTICLE 13

PERSONNEL, LABOR AND CONTRACTING PRACTICES

ARTICLE 14

MASSDOT RIGHTS AND MASSDOT OBLIGATIONS

ARTICLE 15

RENT, UTILITIES AND OTHER EXPENSES

ARTICLE 16

ASSIGNMENT AND CHANGE IN CONTROL

ARTICLE 17

INSURANCE, DAMAGE AND DESTRUCTION

ARTICLE 18

SUPERVENING EVENTS

ARTICLE 19

INDEMNIFICATION

ARTICLE 20

SECURITY FOR PERFORMANCE

ARTICLE 21

DISPUTE RESOLUTION PROCEDURES

ARTICLE 22

EVENTS OF DEFAULT AND MASSDOT REMEDIES

ARTICLE 23

EXPIRATION OR TERMINATION

ARTICLE 24

MISCELLANEOUS PROVISIONS

i

EXHIBITS

EXHIBITS A-1 THROUGH A-18 PlANS AND/OR DESCRIPTIONS OF THE SERVICE PLAZAS

APPENDICES

ACTIVE 708963554v2

LEASE AND CONCESSIONS AGREEMENT

FOR EIGHTEEN SERVICE PLAZAS

THIS LEASE AND CONCESSIONS AGREEMENT FOR EIGHTEEN SERVICE PLAZAS (this “Lease”) is entered into and effective as of _______, ___, 202_ (the “Effective Date”) by and between the MASSACHUSETTS DEPARTMENT OF TRANSPORTATION, a body politic and corporate and public instrumentality of the Commonwealth of Massachusetts duly established and existing pursuant to Massachusetts General Laws. Chapter 6C, as may be amended from time to time (the “Act”), with an office address of State Transportation Building, 10 Park Plaza, Boston, MA 02116, (the “Landlord” or “MassDOT”, which terms shall be deemed to mean and include, where the context so permits, its successors and assigns) and <>, a <> organized and existing under the laws of the <State/Commonwealth> of <> and authorized to do business in the Commonwealth of Massachusetts, with an office address of <> (the “Operator”). MassDOT and Operator are sometimes individually referred to herein as a “Party” and sometimes collectively referred to herein as the “Parties”.

RECITALS

WHEREAS, MassDOT currently operates certain right of ways, highways and related appurtenances on and within certain real estate now owned by MassDOT in the Commonwealth of Massachusetts known as Interstate 90 and the Massachusetts Turnpike (the “Turnpike”), and known as Route 3, Route 24, Route 128, Route 6 and Route 132 (said Routes, together with the Turnpike are each individually referred to in this Lease as a “Highway”, and collectively are referred to in this Lease as the “Highways”) to serve members of the public traversing the highways and roads of Massachusetts; and WHEREAS, MassDOT owns, inter alia, eighteen (18) travel services plazas along the Highways, of which eleven (11) are located along the Turnpike and of which seven (7) are located along the other Highways in Barnstable, Beverly, Bridgewater, Lexington, Newton and Plymouth Massachusetts, including the food and beverage service areas, fuel service areas, retail service areas, parking areas, delivery areas, storage tanks, and any other areas located therein as further shown and/or described in the plans and/or descriptions attached hereto as Exhibits A-1 through A-18 (each a “Service Plaza” and collectively the “Service Plazas”); and WHEREAS, the Service Plazas provide food, fuel, retail and other services to the public along the Highways; and WHEREAS, MassDOT issued a Request for Proposals to lease, manage, operate, and maintain the Service Plazas and design, construct and finance certain improvements to the Service Plazas dated September 30, 2024, (collectively along with all attachments and addenda thereto, the “RFP”) which sought proposals from parties interested in leasing, managing, operating and maintaining the Service Plazas and, upon agreement of the Parties, designing, constructing and financing certain improvements to the Service Plazas; and WHEREAS, in response to the RFP, the Operator submitted a proposal dated <>, 202_ (the “Proposal”) to lease, manage, operate and maintain the Service Plazas and design, construct and finance certain improvements to the Service Plazas; and WHEREAS, following the review and selection process established in the RFP and based on the evaluation criteria and corresponding weighting set forth in the RFP, MassDOT, <by resolution of <> dated <>, 2025, selected the Operator’s proposal to lease and operate the Service Plazas and authorized this Lease and certain ancillary agreements following negotiations pursuant to the RFP>; and WHEREAS, all negotiations pursuant to the RFP have concluded with this Lease; and WHEREAS, MassDOT and Operator now desire to execute and deliver this Lease in order to confirm their mutual understandings and agreements with respect thereto.

NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties hereto, intending to be legally bound, hereby covenant and agree as follows:

DEFINITIONS AND INTERPRETATION

Definitions As used in this Lease, capitalized terms have the meanings assigned to them in this Lease or in Appendix A (Definitions).

Interpretation This Lease shall be interpreted according to the following provisions, except to the extent the context or the express provisions of this Lease otherwise require.

Plurality . Words importing the singular number mean and include the plural number and vice versa.

Persons . Words importing persons include individuals, legal personal representatives, firms, companies, associations, joint ventures, general partnerships, limited partnerships, limited liability partnerships, limited liability companies, trusts, business trusts, corporations, governmental authorities, and other legal entities.

Headings . The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Lease shall be solely for convenience of reference and shall not affect its meaning, construction or effect.

References Hereto . The terms “hereby,” “hereof,” “herein,” “hereunder” and any similar terms refer to this Lease.

References to Days and Time of Day . All references to days herein are references to calendar days, unless otherwise indicated, such as by reference to Business Days. Each reference to time of day is a reference to local time in Boston, Massachusetts. If the time for doing an act, including making any payment, falls or expires on a day that is not a Business Day, the time for doing such act shall be extended to the next Business Day.

References to Including . The words “include,” “includes,” and “including” are to be construed as meaning “include without limitation,” “includes without limitation,” and “including without limitation,” respectively.

References to Statutes . Each reference to a statute or statutory provision includes any statute or statutory provision which amends, extends, consolidates or replaces the statute or statutory provision or which has been amended, extended, consolidated or replaced by the statute or statutory provision and includes any orders, regulations, by-laws, ordinances, codes of practice or instruments made under the relevant statute.

References to Governmental Authorities . Each reference to a Governmental Authority is deemed to include a reference to any successor to such Governmental Authority or any organization or entity or organizations or entities which has or have taken over the functions or responsibilities of such Governmental Authority.

References to Documents and Standards . Each reference to an agreement, document, standard, principle or other instrument includes a reference to that agreement, document, standard, principle or instrument as amended, supplemented, substituted or assigned.

Industry Terms . Words and phrases that are not defined herein but that have well-known technical or industry meanings shall be construed pursuant to such recognized meanings, taking into account the context in which such words and phrases are used herein.

References to Dollar Amounts . All statements of, or references to, dollar amounts or money, including references to “$” and “dollars,” are to the lawful currency of the United States of America.

References to All Reasonable Efforts . The expression “all reasonable efforts” and expressions of like import, when used in connection with an obligation of either Party, means taking in good faith and with due diligence all commercially reasonable steps to achieve the objective and to perform the obligation, including doing all that can reasonably be done in the circumstances taking into account each Party’s obligations hereunder to mitigate delays and additional costs to the other Party, and in any event taking no less steps and efforts than those that would be taken by a commercially reasonable and prudent person in comparable circumstances but where the whole of the benefit of the obligation and where all the results of taking such steps and efforts accrued solely to that person’s own benefit; provided that, the foregoing will not require MassDOT to:

Take any action which is contrary to the public interest, as determined by MassDOT in its discretion; or Undertake action that might be available to MassDOT due to its status as a Governmental Authority but that would not be available to a private, commercially reasonable and prudent person.

Discretion . When a Party has “discretion,” it means that the Party has the sole, absolute and unfettered discretion, with no requirement to act reasonably or provide reasons unless specifically required under the provisions of this Lease.

References to Promptly . The word “promptly” is to be construed as meaning as soon as reasonably practicable in light of then-prevailing circumstances.

Obligations to Provide Assistance . The obligations of a Party to cooperate with, to assist or to provide assistance to the other Party hereunder shall be construed as an obligation to use the Party’s personnel resources to the extent reasonably available in the context of performance of their normal duties, and not to incur material additional overtime or third-party expense unless requested and reimbursed by the assisted Party. Unless otherwise expressly stated herein, any failure of a Party entitled to assistance hereunder to perform an obligation under this Lease shall not be excused on account of any failure of the Party obligated to provide assistance.

Party Bearing Cost of Performance . All obligations or responsibilities undertaken by each Party hereto shall be performed at the cost of the Party undertaking the obligation or responsibility, unless the other Party has expressly agreed in this Lease to bear all or a portion of the cost, either directly, by reimbursement to the other Party or through an adjustment to the Rent.

Exhibits: Appendices . This Lease includes, and incorporates by reference, all provisions of the Exhibits hereto. This Lease includes, and incorporates by reference, all provisions of the Appendices hereto, and references to Sections or Articles “of the Lease” in the Appendices are intended solely for convenience to refer to Sections or Articles included in the main body of this Lease and shall not be construed to mean that the Appendices are not a part of this Lease.

Interpolation . If any calculation hereunder is to be made by reference to a chart or table of values, and the reference calculation falls between two stated values, the calculation shall be made on the basis of linear interpolation.

Accounting and Financial Terms . All accounting and financial terms used herein are, unless otherwise indicated, to be interpreted and applied in accordance with GAAP.

Applicability, Stringency and Consistency of Contract Standards . Where more than one Contract Standard applies to any particular performance obligation of the Operator hereunder, each such applicable Contract Standard shall be complied with by the Operator. In the event there are different levels of stringency among such applicable Contract Standards, the most stringent of the applicable Contract Standards shall govern. In the event of any inconsistency among the Contract Standards, the Operator shall notify MassDOT, and MassDOT’s written determination as to the applicable standard shall be binding. Any reference in this Lease to materials, equipment, systems or supplies (whether such references are in lists, notes, specifications, schedules, or otherwise) shall be construed to require the Operator to furnish the same, at minimum, in accordance with the grades and standards therefor indicated in this Lease.

Deposits . An amount equal to the Initial Deposit and the Additional Deposit shall be applied to Rent due under this Lease.

REPRESENTATIONS AND WARRANTIES AND OPERATOR DELIVERABLES

Representations And Warranties Of Massdot . MassDOT represents and warrants, as of the Effective Date, that:

Existence and Powers . MassDOT is a body politic and corporate and public instrumentality of the Commonwealth, with full legal right, power and authority to enter into and to perform its obligations under this Lease.

Due Authorization . This Lease been duly authorized, executed and delivered by MassDOT, and constitutes a legal, valid and binding obligation of MassDOT, enforceable against MassDOT in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights from time to time in effect and equitable principles of general application.

No Conflict . Neither the execution and delivery by MassDOT of this Lease nor the performance by MassDOT of its obligations in connection with the transactions contemplated hereby or the fulfillment by MassDOT of the terms or conditions hereof:

Conflicts with, violates or results in a breach of any law or governmental regulation applicable to MassDOT; or Conflicts with, violates or results in a material breach of any term or condition of any order, judgment or decree, or any contract, agreement or instrument, to which MassDOT is a party or by which MassDOT or any of its properties or assets are bound, or constitutes a material default under any of the foregoing.

No Approvals Required . Except for approvals as have been duly obtained or made, no approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Authority is required for the valid execution and delivery by MassDOT of this Lease or the performance by MassDOT of its obligations hereunder.

Service Plazas . MassDOT has good, valid and enforceable right to use or possess the Service Plazas, and to lease the Service Plazas to the Operator pursuant to the terms of this Lease and on the dates provided in this Lease, free and clear of all Encumbrances that apply to the Service Plazas, except for Permitted Encumbrances. Except for:

The Operator’s rights under this Lease; and The leasing rights of the current operators of the Service Plazas pursuant to the lease agreements in effect as of the Effective Date, which leasing rights will expire or terminate on the applicable Commencement Dates for each of the Service Plazas, MassDOT has not granted or assigned to any person other than the Operator any right to lease all or a portion of any Service Plaza from and after the Commencement Date for such Service Plaza. MassDOT also has not granted to any person the option to lease all or any portion of any Service Plaza from and after the Commencement Date for such Service Plaza.

No Litigation . There is no action, suit, proceeding, investigation or litigation before or by any Governmental Authority pending against MassDOT in which an unfavorable decision, ruling or finding could reasonably be expected to have a material and adverse effect on the execution and delivery of this Lease by MassDOT or the validity, legality or enforceability of this Lease against MassDOT, or any other agreement or instrument entered into by MassDOT in connection with the transactions contemplated hereby or on the ability of MassDOT to perform its obligations hereunder or under any such other agreement or instrument.

No Broker’s Fees . No broker, finder, financial advisor or investment banker is entitled to any brokerage, finder’s, financial advisor’s or investment banker’s fee or commission or similar payment in connection with the transactions contemplated by this Lease based upon arrangements made by and on behalf of MassDOT or any of its Affiliates for which the Operator may become liable at any time.

No Other Representation or Warranty . Except as expressly provided in this Section 2.1, MassDOT makes no representations or warranties (and expressly disclaims any and all warranties not expressly set forth in this Lease) whether express, implied, statutory, or otherwise, including any warranty of merchantability, fitness for a particular purpose, or non-infringement.

Representations And Warranties Of The Operator . The Operator represents and warrants the following, which representations and warranties shall be deemed to be continuing and shall remain true and correct in all material respects and in full force and effect during the entire Term of this Lease:

Existence and Powers . The Operator is a single special purpose <> duly organized, validly existing and in good standing under the laws of the <State/Commonwealth> of <>, and has the authority to do business in the Commonwealth and in any other state in which it conducts its activities, with the full legal right, power and authority to enter into and perform its obligations under this Lease.

Due Authorization and Binding Obligation . This Lease has been duly authorized, executed and delivered by all necessary action of the Operator and constitutes a legal, valid and binding obligation of the Operator, enforceable against the Operator in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights from time to time in effect and equitable principles of general application.

No Other Business; No Conflict . Operator has not had, and shall not have, any business other than entering into this Lease and performing its obligations under this Lease. Neither the execution nor delivery by the Operator of this Lease nor the performance by the Operator of its obligations in connection with the transactions contemplated hereby or the fulfillment by the Operator of the terms or conditions hereof:

Conflicts with, violates or results in a breach of any law, governmental regulation, operating agreements, charter documents, by-laws or certificates of incorporation applicable to the Operator; or Conflicts with, violates or results in a breach of any order, judgment or decree, or any contract, agreement or instrument to which the Operator is a party or by which the Operator or any of its properties or assets are bound, or constitutes a default under any of the foregoing.

No Approvals Required . No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Authority is required for the valid execution and delivery of this Lease by the Operator, except as such have been duly obtained or made.

No Litigation Affecting the Operator . There is no action, suit, proceeding, investigation or litigation, at law or in equity, before or by any court or Governmental Authority pending or, to the best of its knowledge after due inquiry, overtly threatened or publicly announced against the Operator or any of its Affiliates, in which an unfavorable decision, ruling or finding could reasonably be expected to have a material and adverse effect on the execution and delivery of this Lease by the Operator or the validity, legality or enforceability of this Lease against the Operator, or any other agreement or instrument entered into by the Operator in connection with the transactions contemplated hereby, or on the ability of the Operator to perform its obligations hereunder or under any such other agreement or instrument.

No Litigation Affecting the Project Contractors . To the best of its knowledge after due inquiry, there is no action, suit, proceeding, investigation or litigation, at law or in equity, before or by any court or Governmental Authority pending or, to the best of the Operator’s knowledge after due inquiry, overtly threatened or publicly announced against any Project Contractor, in which an unfavorable decision, ruling or finding could reasonably be expected to have a material and adverse effect on the execution and delivery of any Project Contract by the respective Project Contractor or the validity, legality or enforceability of any Project Contract against the Project Contractor that is party to the Project Contract, or on the ability of any Project Contractor to perform its obligations under its respective Project Contract.

Intellectual Property Rights . The Operator owns, has express rights to use, or is the recipient of a valid license to, all Intellectual Property necessary for the performance of its obligations under this Lease, and has and will maintain the full power and authority to grant the Intellectual Property and other related rights granted under or contemplated by this Lease without the further consent of any third-party.

Information Supplied by the Operator . The information supplied and representations and warranties made by the Operator in all submittals made in response to the RFP and in all post-proposal submittals with respect to the Operator (and to the Operator’s knowledge after due inquiry, all information supplied in such submittals with respect to the Project Contractors and Subcontractors) are true, correct and complete in all material respects.

Operator Review . The Operator has carefully reviewed the whole of this Lease and has taken all steps it considers reasonably necessary to satisfy itself that nothing contained herein inhibits or prevents the Operator from performing and completing the Contract Services in accordance with the Contract Standards.

Compliance with Applicable Law Generally . The Operator is in compliance in all material respects with Applicable Law pertaining to the Operator’s business and services.

Practicability of Performance . Subject to, and in accordance with, the terms of this Lease, the Operator assumes the risk of the practicability and possibility of performance of the Contract Services in compliance with the requirements of the Contract Standards on the scale, within the time for completion, and in the manner required hereunder, and agrees that sufficient consideration for the assumption of such risk is included herein.

No Broker’s Fees . No broker, finder, financial advisor or investment banker is entitled to any brokerage, finder’s, financial advisor’s or investment banker’s fee or commission or similar payment in connection with the transactions contemplated by this Lease based upon arrangements made by and on behalf of the Operator or any of its Affiliates for which MassDOT may become liable at any time.

Consideration . This Lease has been entered into by Operator (1) for fair and equivalent consideration and (2) following its own independent investigation, examination and due diligence with respect to the subject matter hereof without any representation or warranty (whether express or implied, in fact or in law) by or on behalf of MassDOT except as otherwise specifically provided herein.

Deposits . The Initial Deposit and the Additional Deposit both have been fully earned by MassDOT and are non-refundable. An amount equal to the Initial Deposit and the Additional Deposit shall be applied to Rent due under this Lease.

No Organizational Conflicts of Interest . To the best of its knowledge after due inquiry, no actual, potential or perceived organizational conflict of interest exists with respect to the Operator or any of its Project Contractors or Subcontractors. For purposes of this Section 2.2(O):

The term “organizational conflict of interest” means a circumstance arising out of existing or past activities, business or financial interests, familial relationships, contractual relationships, and/or organizational structure (i.e., parent entities, subsidiaries, Affiliates, etc.) of the Operator or any of its Project Contractors or Subcontractors that results in (a) impairment or potential impairment of a consultant’s ability to render impartial assistance or advice to MassDOT, or of its objectivity in performing work for MassDOT, (b) an unfair competitive advantage for the Operator with respect to the procurement process for the Project, including access to information that is not generally available to other proposers, based on services previously provided by a consultant with respect to the Project, or (c) a perception or appearance of impropriety with respect to the procurement process for the Project (regardless of whether any such perception is accurate); and The term “consultant” means any person that is currently performing or has previously performed professional or consulting services for MassDOT with respect to the Project, including any person providing accounting, auditing, architecture, landscape architecture, construction, project management, engineering, environmental consulting, appraisal, land surveying, or legal services, and includes subconsultants at all tiers.

Operator Deliverables . The Operator has delivered to MassDOT on the Effective Date the following:

Documents . Such documents and certificates as MassDOT may reasonably request evidencing the organization, existence and good standing of the Operator, the authorization of the entry by the Operator into this Lease and the Project Contracts to which it is a party, all in form and substance reasonably satisfactory to MassDOT; and Opinions . One or more legal opinion(s) of the Operator’s counsel (in-house or external), all in form and substance reasonably acceptable to MassDOT.

EFFECTIVE DATE AND TERM

Term Effective Date and Term . This Lease shall become effective on the Effective Date, however, the Operator’s right of possession shall commence on the Group 1 Commencement Date (at 12:01 AM) for the Group 1 Service Plazas and on the Group 2 Commencement Date (at 12:01 AM) for the Group 2 Service Plazas, and shall continue in effect until the Expiration Date (the “Term”).