MassDOT Service Plazas RFP - Form of Lease Addendum 5.pdf

MassDOT Draft April 1, 2025

LEASE AND CONCESSIONS AGREEMENT

FOR EIGHTEEN SERVICE PLAZAS

BY AND BETWEEN

THE MASSACHUSETTS DEPARTMENT OF TRANSPORTATION, AS LANDLORD

AND

<>, AS OPERATOR

DATE: <> ___, 202_

ACTIVE 708963554v2

[This Page Intentionally Left Blank]

TABLE OF CONTENTS

Page

ARTICLE 1

DEFINITIONS AND INTERPRETATION

Section 1.1 Definitions 20 Section 1.2 Interpretation 20

(A) Plurality 20

(B) Persons 20

(C) Headings 20

(D) References Hereto 21

(E) References to Days and Time of Day 21

(F) References to Including 21

(G) References to Statutes 21

(H) References to Governmental Authorities 21

(I) References to Documents and Standards 21

(J) Industry Terms 21

(K) References to Dollar Amounts 21

(L) References to All Reasonable Efforts 21

(M) Discretion 22

(N) References to Promptly 22

(O) Obligations to Provide Assistance 22

(P) Party Bearing Cost of Performance 22

(Q) Exhibits: Appendices 22

(R) Interpolation 22

(S) Accounting and Financial Terms 22

(T) Applicability, Stringency and Consistency of Contract Standards 22

(U) Deposits 23

ARTICLE 2

REPRESENTATIONS AND WARRANTIES AND OPERATOR DELIVERABLES

Section 2.1 Representations And Warranties Of Massdot 23

(A) Existence and Powers 23

(B) Due Authorization 23

(C) No Conflict 23

(D) No Approvals Required 23

(E) Service Plazas 23

(F) No Litigation 24

(G) No Broker’s Fees 24

(H) No Other Representation or Warranty 24 i

Section 2.2 Representations And Warranties Of The Operator 24

(A) Existence and Powers 24

(B) Due Authorization and Binding Obligation 24

(C) No Other Business; No Conflict 25

(D) No Approvals Required 25

(E) No Litigation Affecting the Operator 25

(F) No Litigation Affecting the Project Contractors 25

(G) Intellectual Property Rights 25

(H) Information Supplied by the Operator 26

(I) Operator Review 26

(J) Compliance with Applicable Law Generally 26

(K) Practicability of Performance 26

(L) No Broker’s Fees 26

(M) Consideration 26

(N) Deposits 26

(O) No Organizational Conflicts of Interest 26

Section 2.3 Operator Deliverables 27

(A) Documents 27

(B) Opinions 27

ARTICLE 3

EFFECTIVE DATE AND TERM

Section 3.1 Term 27

(A) Effective Date and Term 27

(B) Effect of MassDOT Election to Extend Effectiveness 28

(C) Accrued Rights 28

(D) No Operator Renewals or Extensions 28

(E) Effect of Dissolution or Abolishment of MassDOT 28

(F) Independent Covenants 28

Section 3.2 Continuity Of Operations Period 29 Section 3.3 Survival 29

ARTICLE 4

LEASE OF SERVICE PLAZAS

Section 4.1 Nature Of Lease 30 Section 4.2 Lease Of Service Plazas 30

(A) Lease of Service Areas 30

(B) Condition of the Service Plazas 30 ii

(C) No Ownership Interest 31

Section 4.3 Quiet Enjoyment 31 Section 4.4 Notice Of Lease 31 Section 4.5 Certificates Of Massdot And Operator 31

(A) MassDOT Estoppel Certificate 32

(B) Operator Estoppel Certificate 32

(C) Acknowledgement of Leasehold Mortgage 32

ARTICLE 5

REVITALIZATION OF THE SERVICE PLAZAS

Section 5.1 Scope Of Work And Master Revitalization Plan 33 Section 5.2 Service Plaza Specific Plaza Management Plans 33

(A) Requirements of the Plaza Management Plans 33

(C) Financial Plan 35

(D) Lenders’ Commitment Letters 36

(E) Equity Commitment Letters 38

(F) Financial Model 39

Section 5.3 Additional Contents Of Plaza Management Plans 42 Section 5.4 Construction Of Revitalization Improvements 42 Section 5.5 Failure To Obtain Approval Of Plaza Management Plans 43

ARTICLE 6

FINANCING AND REFINANCING

Section 6.1 Operator Responsibility To Finance The Project 45

(A) Operator Financing 45

(B) Operator Liability 45

Section 6.2 Debt Non-Recourse To Massdot And Commonwealth 45 Section 6.3 Security Documents 45

(A) Restrictions and Mandatory Terms 45

(B) Preconditions to Execution and Compliance with Security Documents 46

(C) Changes to Security Documents 47

Section 6.4 Leasehold Mortgages 47 Section 6.5 Refinancing 47

(A) Consent Required for Refinancing 47

(B) MassDOT’s Share of Refinancing Gain 47 iii

(C) Operator Proposal to Refinance 47

(D) Audit Rights 48

(E) Payment to MassDOT 48

(F) Calculation of Refinancing Gain 48

(G) Costs of Refinancing 48

(H) MassDOT Cooperation 49

ARTICLE 7

GENERAL REQUIREMENTS AND CONDITIONS

Section 7.1 Contract Standards 49

(A) Generally 49

(B) Application of Good Industry Practice 49

(C) Responsibility for Operator Persons 49

(D) Cooperation with MassDOT Representatives 49

Section 7.2 Assumption Of Risk And Responsibility 49 Section 7.3 Compliance With Applicable Law 50

(A) Compliance Obligation 50

(B) Governmental Approvals 50

(C) Registration, Licensing and Certification Requirements 50

(D) Investigations of Non-Compliance 50

(E) Fines, Penalties and Remediation 51

Section 7.4 Safety And Security 51 Section 7.5 Project Plans 51

(A) Safety and Security Plans 52

(B) Renewal and Replacement Plans 52

(C) Operational Plans 53

(D) Quality Assurance and Quality Control Plan 53

(E) Revitalization Improvements 54

(F) Environmental Management Plans 54

(G) MassDOT Review and Approval of Project Plans 55

(H) Operator Responsibility for Project Plans 55

Section 7.6 Environmental Compliance 55 Section 7.7 Emergencies 55 Section 7.8 Permitted Uses And Business Restrictions 56

(A) Permitted Uses 56

(B) No Other Business 56

(C) MassDOT Consent Required 56 iv

Section 7.9 Subleasing 56

(A) Right to Sublet 56

(B) Copies of Subleases 57

(C) Operator Not Released 57

(D) SNDA 57

(E) Additional Security 57

(F) Compliance with Master Revitalization Plan and Plaza Management Plans 58

Section 7.10 Background Information And Independent Diligence 58

(A) Information Provided by or on Behalf of MassDOT 58

(B) Responsibility for Independent Diligence 59

(C) No Reliance on Unincorporated Statements or Representations 59

Section 7.11 Delivery Of Documents 60 Section 7.12 Ownership And Use Of Deliverable Material And Work Product 60

(A) MassDOT Ownership of Work Product and Work-for-Hire 60

(B) Assignment of Work Product and Associated Assets 60

(C) Pre-Existing Intellectual Property 60

(D) License to Work Product 61

(E) Operator’s Authority to Grant Intellectual Property Rights 61

(F) Operator Intellectual Property Indemnity 61

(G) Further Assistance and Survival 61

Section 7.13 Certain Notices Of Default 61 Section 7.14 Surveys And Title Insurance Policies 61 Section 7.15 Advertising 62

ARTICLE 8

CONSTRUCTION OF REVITALIZATION IMPROVEMENTS AND

SUBSEQUENT CAPITAL IMPROVEMENTS

Section 8.1 Improvements To Service Areas 62

(A) Required Revitalization Improvements 62

(B) Subsequent Capital Improvements 63

Section 8.2 Construction And Governmental Approvals And Related Requirements 63

(A) Governmental Approvals Generally 63

(B) MEPA Requirements 63

(C) Governmental Approvals 64

Section 8.3 Plans, Specifications And As-Builts 64 v

(A) MassDOT Approval Required 64

(B) As-Built Plans and Specifications 65

(C) Changes in Plans and Specifications 65

Section 8.4 Construction Commencement 65

(A) Commencement and Completion of Construction 65

(B) Construction Commencement Conditions 66

(C) Establishment of the Revitalization Period 67

(D) Effect of the Establishment of a Revitalization Period 67

Section 8.5 Scheduled Opening Date For Each Service Plaza And Delay Liquidated Damages 67

(A) Scheduled Opening Date of Service Areas 67

(B) Delay Liquidated Damages 67

(C) Adjustments to Scheduled Opening Dates 67

Section 8.6 Construction Schedules And Reports 68

(A) Revitalization Improvements Schedule and Reports 68

(B) Recovery Schedule 68

(C) Minimization of Disruptions 69

Section 8.7 Construction Practice 69

(A) Exclusive Responsibility 69

(B) Operator Control of the Construction Work 69

(C) Quality Assurance and Quality Control 69

(D) General Construction Work Obligations 69

Section 8.8 Title, Risk Of Loss And Encumbrances 71

(A) Title and Risk of Loss 71

(B) Encumbrances 71

Section 8.9 Coordination With Separate Contractors 71

(A) Generally 71

(B) Interrelated Work 72

(C) Coordination and Performance 72

(D) Disputes Associated with Separate Contractors 72

Section 8.10 Construction Oversight And Uncovering Of Work 73

(A) MassDOT Oversight 73

(B) Suspension, Delay or Interruption of Construction Work 73 vi

(C) Notice of Covering of Construction Work and Costs Related to Uncovering 74

Section 8.11 Correction Of Revitalization Improvements And Subsequent Capital Improvements 74

ARTICLE 9

OPERATION AND MANAGEMENT OF SERVICE PLAZAS

Section 9.1 Operating Services Generally 75

(A) Continuous Operations 75

(B) General Responsibilities 76

Section 9.2 Maintenance Staffing 76

(A) Required Maintenance Resources 76

(B) Required Maintenance Equipment 77

Section 9.3 Flags And Flagpoles 78 Section 9.4 Sale Of Massachusetts Food And Drink Products 78

(A) Massachusetts Food and Drink Program 78

(B) Inclusion in Gross Sales 79

Section 9.5 Food, Beverage EV CHARGING And Fuel Prices 79 Section 9.6 Prices Of Non-Food, Beverage EV CHARGING And Fuel Items 79 Section 9.7 Future Revenue Opportunities 80 Section 9.8 Coin Operated Games, Amusement And Toy Vending 80 Section 9.9 Massachusetts Commission For The Blind 80

(A) Generally 80

(B) Operation of Vending Facilities 80

(C) Responsibility for Operation of Vending Machines 81

(D) Exclusion from Gross Sales 81

Section 9.10 Electric Vehicle Charging Stations 81

(A) Electric Vehicle Charging Stations Generally 81

(B) Technical Requirements for Electric Vehicle Charging Stations 81

(C) Performance Requirements 82

(D) Operator, MassDOT and Governmental Authority Inspections; Records 82

(E) MassDOT Revenue Share 82

(F) Electric Vehicle Charging Pricing 83

(G) Future Expansion and/or Upgrade of Electric Vehicle Charging Stations 83 vii

Section 9.11 Certain Specific Provisions Relating To Fuel Services At The Service Plazas 83

(A) Fuel Sales/Scope of Fuel Services 83

(B) Initial Fuel Service Equipment Testing 83

(C) Fuel Service Equipment 84

(D) Title to Fuel Service Equipment 84

(E) Alternative Fuels 85

(F) Additional Obligations 86

Section 9.12 Periodic Operating Reports 86

(A) Complaint Reporting and Minority and Women Owned Businesses Reporting 86

(B) Quarterly Operating Reports 86

(C) Semi-Annual Customer Satisfaction Reports 86

(D) Annual Inspection Reports 86

(E) Annual Capital Investment and Renewal and Replacement Reports 87

ARTICLE 10

MAINTENANCE, REPAIR, REPLACEMENT AND SURRENDER

Section 10.1 Ordinary Maintenance 87 Section 10.2 Maintenance And Repair Of Service Plaza Grounds 87

(A) Operator Grounds Maintenance Obligations 87

(B) Operator Snow and Ice Removal 87

Section 10.3 Pest Control 88 Section 10.4 Trash And Debris Removal 88 Section 10.5 Major Maintenance Repairs And Replacements 88 Section 10.6 Renewal And Replacement Reserve Account 88

(A) Establishment of Account and Funding of Reserve and Use Prior to Completion of Revitalization Improvements 88

(B) Funding of Reserve and Use After Completion of Revitalization Improvements 89

(C) Withdrawal of Amounts 89

(D) MassDOT Right to Reserve Funds 90

(E) Additional Aspects of the Reserve Funds 90

Section 10.7 Maintenance Inspections And Assessments 91 Section 10.8 Surrender Requirements 91

(A) Required Condition at End of Term 91

(B) First Surrender Inspection and Surrender Survey 91

(C) Surrender Reserve 92 viii

(D) Performance of Surrender Work and Further Inspection 92

(E) Final Condition Assessment 92

(F) Final Compliance with Surrender Requirements 92

Section 10.9 Operations And Maintenance Performance Standards 92

(A) Compliance with Operations and Maintenance Performance Standards;

Liquidated Damages 93

(B) Periodic Modification of Operations and Maintenance Performance Standards 93

ARTICLE 11

ENVIRONMENTAL MATTERS

Section 11.1 Hazardous Substances 93

(A) Operator Responsibility for Hazardous Substances 93

(B) Environmental Remediation Protocol 94

(C) Notification and Remediation Requirements 94

Section 11.2 Investigation Period 94 Section 11.3 Operator’s Environmental Representations And Warranties 95 Section 11.4 Additional Operator Obligations Regarding Hazardous Substances And

Fuel Service Equipment 98 Section 11.5 Inspections By Massdot 98 Section 11.6 Settlement Agreements 99 Section 11.7 Maintenance Of Records 99 Section 11.8 Environmental Audit 99

ARTICLE 12

CHANGES

Section 12.1 Massdot Changes 100

(A) MassDOT Right to Require Changes 100

(B) Master Revitalization Plan, Plaza Management Plans, Corrections of

Defects or Deficiencies Not a Change 100

(C) No Entitlement to Perform a Change 100

(D) Restrictions on MassDOT Changes 100

(E) Emergencies 101

(F) Documentation of Costs 101

Section 12.2 Change Notice And Response 101

(A) MassDOT Change Notice 102

(B) Implementation Proposal 102 ix

(C) Review and Evaluation of Implementation Proposal 104

(D) MassDOT Response 104

(E) Change Order 105

(F) Preliminary Response and Implementation Proposal Costs 105

(G) Required Change Orders 105

(H) Forecasted Reduction in Gross Sales or Other Revenues 105

Section 12.3 Change Directives 106 Section 12.4 Operator Changes 106

(A) Restrictions 106

(B) Operator Change Request 106

(C) MassDOT Evaluation 107

(D) MassDOT Approval 107

(E) Implementation of Approved Change 108

(F) Withdrawal of Operator Change Request 108

Section 12.5 Cost Savings 108

(A) MassDOT Change or Remedial Change 108

(B) Operator Change Request and Shared Savings 108

(C) Method of Payment 109

Section 12.6 No Suspension Of Performance 109

ARTICLE 13

PERSONNEL, LABOR AND CONTRACTING PRACTICES

Section 13.1 Personnel And Labor 109

(A) Operations and Maintenance Manager 109

(B) Project Executive 110

(C) Key Personnel 110

(D) Contact Information 110

(E) Staffing Generally 110

(F) Disputes 111

(G) Labor Peace Agreement 111

(H) Project Labor Agreements 111

(I) Prevailing Wages 111

(J) Operator’s Additional Agreements 112

Section 13.2 Project Contractors And Subcontractors 113

(A) Generally 114

(B) Required Use of Project Contractors 114

(C) Prohibited Persons 114

(D) Non-Discrimination and Equal Employment Opportunity 114 x

(E) Terms and Actions 115

(F) Indemnity for Claims 116

(G) Reporting 116

(H) Assignability 116

Section 13.3 Project Contracts And Project Contract Guaranty Agreements 116

(A) MassDOT Consents 116

(B) Timeframe for Consents 117

(C) Self-Performance by Operator 117

Section 13.4 Replacement Project Contracts And Project Contract Guaranty Agreements 118

Section 13.5 Delivery Of Amended Or Replacement Project Contracts And Project Contract Guaranty Agreements 118

ARTICLE 14

MASSDOT RIGHTS AND MASSDOT OBLIGATIONS

Section 14.1 MassDOT Rights 119

(A) Reservation of Rights Generally 119

(B) MassDOT Use of Portions of Service Areas 119

(C) MassDOT Use of Additional Space at Service Plazas 119

(D) Additional Electric Vehicle Charging Stations; Alternative Fuels 120

Section 14.2 Massdot Obligations 120

(A) MASSDOT Obligations Generally 120

(B) MassDOT Discontinuance of Utilities 121

(C) MassDOT Snow Removal and De-Icing Responsibilities 121

(D) New Commercial Facilities 121

(E) Cooperation with Operator Representatives 122

Section 14.3 Massdot Access Rights 122 Section 14.4 No Eviction, Trespass Or Claim 122 Section 14.5 Third Party Asset Managers 122

ARTICLE 15

RENT, UTILITIES AND OTHER EXPENSES

Section 15.1 Rent 123

(A) Payment Obligations Generally 123

(B) Operational Rent 123

(C) Minimum Annual Guaranteed Rent 123 xi

(D) Escalation of Minimum Annual Guaranteed Rent 124

(E) Changes to Minimum Annual Guaranteed Rent and Operational Rent 124

Section 15.2 Payment Terms And Reports 124 Section 15.3 Massdot Audit Right 125 Section 15.4 Interest For Late Payment 125 Section 15.5 Annual Reconciliations 125 Section 15.6 Utilities 125 Section 15.7 Taxes And Assessments 126 Section 15.8 Tolls 126

ARTICLE 16

ASSIGNMENT AND CHANGE IN CONTROL

Section 16.1 Assignment By Operator 126 Section 16.2 Limitations On Change In Control 127 Section 16.3 Costs Of Request For Consent 128

ARTICLE 17

INSURANCE, DAMAGE AND DESTRUCTION

Section 17.1 Insurance Conditions And Coverages 128

(A) General Insurance Requirements 128

(B) Worker’s Compensation and Employer’s Liability Insurance 128

(C) Commercial Liability Insurance 128

(D) Automobile Liability Insurance 129

(E) Umbrella Liability Insurance 129

(F) Property / Builder’s Risk Insurance 129

(G) Contractors Professional Liability 129

(H) Pollution Liability 129

(I) Cyber and Privacy & Security Liability 130

(J) Crime / Employee Dishonesty 130

(K) Employment Practices Liability 130

(L) General Requirements applicable to all policies 130

Section 17.2 Casualty 130

(A) Repair of Property 130

(B) Lease Not Affected 130

Section 17.3 Application Of Insurance Proceeds 131 Section 17.4 Uninsurable Risks 131

(A) Notice 131

(B) Consequences of Uninsurable Risk 131 xii

(C) Obligations in Respect of Uninsurable Risks 132

Section 17.5 Unavailable Insurance Conditions 132

(A) Notice 132

(B) Consequences of Unavailable Insurance Condition 133

(C) Obligations in Respect of Unavailable Insurance Conditions 133

(D) Alternative Terms and Conditions 134

Section 17.6 Notice And Prosecution Of Insurance Claims 134

(A) Reporting and Processing Claims 134

(B) Operator Notice and Consultation 134

(C) MassDOT Notice 135

(D) Failure of Performance; Inability to Collect 135

ARTICLE 18

SUPERVENING EVENTS

Section 18.1 Supervening Events Generally 135

(A) Extent of Relief Available to Operator 135

(B) Effect of Force Majeure on Obligations 135

(C) Mitigation Given Effect 136

(D) Applicable Law Compliance 136

(E) Limitations on Operator Relief 136

(F) No Relief from Payment Obligations Accrued and Owing 136

(G) Services Not Affected; Resumption of Performance 136

(H) Certain Adjustments in the Scheduled Opening Dates 136

Section 18.2 Procedures Relating To Supervening Events 136

(A) Notice and Written Report 137

(B) Updates 137

(C) Submittal of Relief Request 137

(D) Delay in Notification 137

(E) Multiple and Overlapping Claims 138

(F) Burden of Proof and Mitigation 138

(G) MassDOT Response 138

(H) Agreement or Dispute 138

(I) Certifications 138

Section 18.3 Allowable Relief For Supervening Events 138

(A) Entitlement to Relief 138

(B) Relief Events 138 xiii

(C) Force Majeure 139

Section 18.4 Schedule Relief 139

(A) Conditions to Schedule Relief 139

(B) Concurrent Delay 139

Section 18.5 Compensation Relief 139

(A) Extent of Compensation Relief 139

(B) Method of Compensation 140

(C) Avoided Cost 140

(D) Offset for Available Insurance 140

(E) Information Required for Compensation Relief 140

Section 18.6 Release 141

ARTICLE 19

INDEMNIFICATION

Section 19.1 Operator Indemnification Obligations 141 Section 19.2 Notice Of Claims 142

ARTICLE 20

SECURITY FOR PERFORMANCE

Section 20.1 Performance Bond 142 Section 20.2 Construction Performance Bonds And Payment Bonds 143 Section 20.3 General Bond Requirements 143 Section 20.4 Letter Of Credit 144

(A) Letter of Credit in Lieu of Performance Bond 144

(B) MassDOT Drawing Rights 144

(C) Return of Letter of Credit 145

Section 20.5 Project Contract Guarantors 145 Section 20.6 Additional Security For Contract Services 145

ARTICLE 21

DISPUTE RESOLUTION PROCEDURES

Section 21.1 Process And Requirements 146

(A) Generally 146 xiv

(B) Informal Negotiations 146

(C) MassDOT Contract Representative’s Final Decision 146

(D) Rights to Request and Decline Non-Binding Mediation 147

(E) Procedure 147

(F) Non-Binding Effect 147

(G) Relation to Judicial Legal Proceedings 147

Section 21.2 Forum For Legal Proceedings 147 Section 21.3 Continuance Of Performance During Dispute 147

ARTICLE 22

EVENTS OF DEFAULT AND MASSDOT REMEDIES

Section 22.1 Remedies Upon Breach 148

(A) Generally 148

(B) Remedies Available to the Operator 148

(C) MassDOT Remedies Cumulative 148

(D) MassDOT Liquidated Damage Rights 148

Section 22.2 Event Of Default 149

(A) Event of Default Defined 149

(B) Notice by Operator 152

Section 22.3 Massdot Remedies Upon An Event Of Default 152 Section 22.4 No Duplicative Recovery 153 Section 22.5 Waiver Of Remedies 153 Section 22.6 Waiver Of Consequential Damages 153 Section 22.7 Massdot Step-In Rights 153

(A) Right to Step-In 153

(B) Notice 154

(C) MassDOT Step-In Action 154

(D) Operator Relief 155

(E) Operator Fault 155

Section 22.8 Massdot Default 155

ARTICLE 23

EXPIRATION OR TERMINATION

Section 23.1 Exclusive Rights Of Termination 155 Section 23.2 Termination For An Event Of Default 156

(A) MassDOT Right 156 xv

(B) Termination Date 156

(C) No Termination Payment 156

Section 23.3 Continuity Following Termination For An Event Of Default 156 Section 23.4 Rights Of Massdot Upon Termination 156

(A) MassDOT Rights Generally 156

(B) Termination for Event of Default 157

Section 23.5 Assignments And Transfers On Termination 158

(A) Transfer Responsibilities 158

(B) No Additional Compensation 161

Section 23.6 Transitional Obligations 161 Section 23.7 Operator To Cooperate 162 Section 23.8 Cooperation With New Operator At Service Plazas 162

ARTICLE 24

MISCELLANEOUS PROVISIONS

Section 24.1 Cooperation 163 Section 24.2 Consents And Approvals 163 Section 24.3 Independent Contractor 163 Section 24.4 Personnel, Equipment And Supplies 163 Section 24.5 Ethics 163 Section 24.6 Confidentiality And Non-Disclosure 164

(A) Confidential Information, Defined 164

(B) Restrictions on Disclosure of Confidential Information 164

(C) Legally Demanded Disclosure Procedures 164

(D) Use of Confidential Information 165

(E) Safeguard and Security of Confidential Information 165

(F) Return of Confidential Information 166

(G) Consequences of Improper Disclosure 166

(H) Survival of Confidentiality Provisions 166

Section 24.7 Trademark License Rights 166 Section 24.8 Commonwealth Certifications 167

(A) Massachusetts General Laws, Chapter 62C, Section 49A 167

(B) Massachusetts General Laws, Chapter 7C, Section 38 167

(C) Massachusetts General Laws, Chapter 7, Section 22C 167

(D) Conflict of Interest/Collusion Certification 167

(E) Section 7 of Chapter 521, Acts of 1990 167

Section 24.9 Limitation Of Massdot’s Liability 167 xvi

Section 24.10 General Responsibility Provisions 168 Section 24.11 General Duty To Mitigate 168

(A) Mitigation by the Operator 168

(B) Mitigation by MassDOT 168

Section 24.12 Lease Agreement Administration 169

(A) Designation of Authorized Representatives 169

(B) Authority of MassDOT Contract Representative 169

(C) Administrative Communications 169

(D) Contract Administration Memoranda 169

(E) Procedure 170

(F) Effect 170

Section 24.13 Amendments 170 Section 24.14 Massdot Approvals And Consents 170 Section 24.15 Waivers 170 Section 24.16 Binding Effect 171 Section 24.17 Notices 171 Section 24.18 Notice Of Litigation 172 Section 24.19 Further Assurances 172 Section 24.20 No Accord And Satisfaction 172 Section 24.21 Relationship Of The Parties 172 Section 24.22 Counterparts, Applicable Law, Entire Agreement And Reproductions 173 Section 24.23 Payments Of Interest 173 Section 24.24 Rule Against Perpetuities 173 Section 24.25 Time Of The Essence 173 Section 24.26 Submission Not An Offer 173 Section 24.27 Business Day 173 Section 24.28 Expenses On Consents And Approvals 173 Section 24.29 Transfer Of Massdot’s Interest 174 Section 24.30 No Dedication 174 Section 24.31 Severability 174 Section 24.32 Drafting Responsibility 174 Section 24.33 Third-Party Rights 174 Section 24.34 No Relocation Benefits 174 Section 24.35 Negative Impacts 174 Section 24.36 Reservation Of Rights In Favor Of Massdot And Others 175 Section 24.37 Contribution Of Capital By Massdot 176 xvii

EXHIBITS

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

PLAZAS

APPENDICES

APPENDIX A DEFINITIONS

APPENDIX B SCOPE OF WORK

APPENDIX C MASTER REVITALIZATION PLAN [TO BE COMPLETED WITH

SELECTED OPERATOR]

APPENDIX D PLAZA MANAGEMENT PLANS

APPENDIX E DESIGN, CONSTRUCTION AND ENVIRONMENTAL

REQUIREMENTS[TO BE COMPLETED WITH SELECTED

OPERATOR IN CONNECTION WITH MASTER REVITALIZATION

PLAN]

APPENDIX F FORM OF LENDERS’ REMEDIES AGREEMENT [TO BE

COMPLETED WITH SELECTED OPERATOR IN CONNECTION

WITH MASTER REVITALIZATION PLAN]

APPENDIX G OPERATIONS AND MAINTENANCE PERFORMANCE

STANDARDS

APPENDIX H PROHIBITED USE

APPENDIX I FOOD, BEVERAGE AND FUEL SURVEY AND PRICING

REQUIREMENTS[TO BE COMPLETED WITH SELECTED

OPERATOR IN CONNECTION WITH MASTER REVITALIZATION

PLAN]

`APPENDIX J FORM OF MASSACHUSETTS COMMISSION FOR THE BLIND

PERMIT

APPENDIX K ELECTRIC VEHICLE INFRASTRUCTURE REQUIREMENTS

APPENDIX L SURRENDER REQUIREMENTS[TO BE COMPLETED WITH

SELECTED OPERATOR IN CONNECTION WITH MASTER

REVITALIZATION PLAN]

APPENDIX M ENVIRONMENTAL REMEDIATION PROTOCOL [TO BE

COMPLETED WITH SELECTED OPERATOR IN CONNECTION

WITH MASTER REVITALIZATION PLAN]

APPENDIX N KEY PERSONNEL PROJECT CONTRACTORS AND

SUBCONTRACTORS[TO BE COMPLETED WITH SELECTED

OPERATOR IN CONNECTION WITH MASTER REVITALIZATION

PLAN]

APPENDIX O WORKFORCE AND ECONOMIC DEVELOPMENT DISCLOSURES

[TO BE COMPLETED WITH SELECTED OPERATOR PRIOR TO

EXECUTION OF THE LEASE]

APPENDIX P MEMORANDUM OF UNDERSTANDING BY AND BETWEEN

EVERSOURCE ENERGY AND MASSDOT

i

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:

ARTICLE 1

DEFINITIONS AND INTERPRETATION

SECTION 1.1 DEFINITIONS.

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

SECTION 1.2 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.

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

(B) 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.

(C) 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.

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

(E) 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.

(F) 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.

(G) 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.

(H) 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.

(I) 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.

(J) 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.

(K) 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.

(L) 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:

(1) Take any action which is contrary to the public interest, as determined by MassDOT in its discretion; or

(2) 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.

(M) 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.

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

(O) 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.

(P) 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.

(Q) 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.

(R) 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.

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

(T) 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.

(U) Deposits. TheAn amount equal to the Initial Deposit and the Additional Deposit shall be applied to Rent due under this Lease.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES AND OPERATOR DELIVERABLES

SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF MASSDOT.

MassDOT represents and warrants, as of the Effective Date, that:

(A) 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.

(B) 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.

(C) 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:

(1) Conflicts with, violates or results in a breach of any law or governmental regulation applicable to MassDOT; or

(2) 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.

(D) 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.

(E) 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:

(1) The Operator’s rights under this Lease; and

(2) 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.

(F) 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.

(G) 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.

(H) 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.

SECTION 2.2 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:

(A) 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.

(B) 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.

(C) 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:

(1) 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

(2) 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.

(D) 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.

(E) 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.

(F) 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.

(G) 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.

(H) 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.

(I) 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.

(J) 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.

(K) 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.

(L) 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.

(M) 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.

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

(O) 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):

(1) 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

(2) 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.

SECTION 2.3 OPERATOR DELIVERABLES. The Operator has delivered to MassDOT on the Effective Date the following:

(A) 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

(B) 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.

ARTICLE 3

EFFECTIVE DATE AND TERM

SECTION 3.1 TERM.

(A) 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”).