MassDOT Service Plazas RFP - Form of Transition Agreement Addendum 5.pdf

MassDOT Bid No. BD-25-1030-CP01-CP01-107836 1 RFP

Service Plaza Operator Transition Agreement 709336753v1

TRANSITION AGREEMENT

THIS TRANSITION AGREEMENT (the “Agreement”) is made and entered into

___________________, 20__, to be effective as of ____________________20__ (the “Effective

Date”), by and between the MASSACHUSETTS DEPARTMENT OF TRANSPORTATION

(“MassDOT” or the “Department”), a body politic and corporate established and operating pursuant to Chapter 6C of the General Laws of the Commonwealth of Massachusetts, as amended, with a principal place of business at Ten Park Plaza, Boston, Massachusetts 02116, and ___________ (“Operator”), an entity qualified to conduct business in the Commonwealth of

Massachusetts, with a principal place of business at ________________.

WITNESSETH:

The following recitals set forth certain agreed upon facts relevant to the execution and delivery of this Agreement:

WHEREAS, MassDOT is the owner of eighteen service plazas located along various highways in the Commonwealth of Massachusetts, as described more particularly below; and

WHEREAS, MassDOT has prepared a Request for Proposals for Service Plaza Operator dated September 30, 2024 (together with all attachments, exhibits, and schedules thereto, the

“RFP”), inviting proposals from parties interested in, inter alia, leasing, operating and revitalizing the service plazas; and

WHEREAS, in response to the RFP, Operator submitted a proposal to lease, operate and revitalize said service plazas; and

WHEREAS, MassDOT has selected Operator’s proposal to lease, operate and revitalize said service plazas; and

WHEREAS, MassDOT and Operator desire to set forth a clear statement of Operator’s obligations to be performed between the Effective Date of this Agreement and January 1, 2026;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, MassDOT and Operator hereby covenant and agree as follows:

ARTICLE I - Definitions

Commencement Date – for Group 1 Service Plazas, January 1, 2026 and for Group 2 Service

Plazas, July 1, 2027.

Contract Documents - collectively, (a) the Lease (which includes all addenda, exhibits and appendices thereto, including the Scope of Work, the Operations and Maintenance Performance

Standards and the Electric Vehicle Infrastructure Requirements); (b) amendments to the Lease;

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(c) any plan or other deliverable approved by MassDOT pursuant to the terms of this Agreement or the Lease, as appropriate, including the Master Revitalization Plan to be approved by

MassDOT pursuant to this Agreement; (d) this Agreement; and (e) the successful Proposer’s proposal in response to the RFP.

Effective Date – The date set forth above, and if no date is entered, the date this Agreement is executed by both parties.

Governmental Approval – any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit or other approval or determination of rights from any municipal, regional, state or federal governmental entity, including any agency, department, commission or other instrumentality thereof.

Group 1 Service Plazas – The service plazas along the Massachusetts Turnpike, in both directions, and the service plazas in Lexington on the northbound side of I-95, Newton on the southbound side of I-95 and Plymouth on the southbound side of state Route 3, the leases for which expire on December 31, 2025.

Group 2 Service Plazas – The service plazas in Barnstable on Route 6 and Route 132, in Beverly on the northbound side of state Route 128 and in Bridgewater on the northbound and southbound sides of state Route 24, the leases for which expire on June 30, 2027.

Group 2 Transition Period – the period beginning on January 1, 2027 and ending at 11:59 p.m.

on June 30, 2027.

Lease – the Lease and Concessions Agreement to be executed by Operator and MassDOT.

“MassDOT” or the “Department” – the Massachusetts Department of Transportation, a body politic and corporate established and operating pursuant to Chapter 6C of the General Laws of the Commonwealth of Massachusetts, as amended, with a principal place of business at Ten Park

Plaza, Boston, Massachusetts 02116.

Master Revitalization Plan – the plan to be submitted to MassDOT by Operator pursuant to

Article III of this Agreement.

“Operator” - ___________ , an entity qualified to conduct business in the Commonwealth of

Massachusetts, with a principal place of business at ________________.

Parties – MassDOT and the Operator, individually and collectively.

Service Plazas – All of the service plazas currently owned by MassDOT, encompassing both

Group 1 and Group 2 Service Plazas.

Term – The period of time starting with the Effective Date and ending at 11:59 p.m. on

December 31, 2025.

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Transition Period or Group 1 Transition Period – the period beginning with the Effective Date and ending at 11:59 p.m. on December 31, 2025.

Transition Plan – the plan to be submitted to MassDOT by Operator pursuant to Article II of this

Agreement.

ARTICLE II – Transition Plan

Section 1.

(A) Transition to Operator Responsibility for Service Plazas. The primary purpose of the Transition Period is to enable the Parties to provide for a smooth, seamless and orderly transition of management, operations, and maintenance of the Service Plazas from the current operators to the Operator while continuously serving customers. The Operator may perform further investigations of the Group 1 Service Plazas during the Transition Period in accordance with any requirements and restrictions set forth in Section 2. The Operator shall diligently perform its Transition Period responsibilities during the Transition Period.

(B) Transition Plan. The Operator’s responsibilities during the Transition

Period shall be performed in compliance with the Transition Plan, which plan shall be prepared by the Operator and approved by MassDOT. The Operator shall prepare and submit, for

MassDOT’s review and comment, a draft Transition Plan no later than 5 business days (or such later date as may be mutually agreed upon in writing by the Parties) following the Effective

Date. Within 10 business days following the Operator’s receipt of MassDOT’s Transition Plan comments, the Operator shall address those comments and shall submit a final Transition Plan to MassDOT for its approval. All modifications to the Transition Plan shall be subject to

MassDOT approval in accordance with this subsection (B). MassDOT agrees that it shall not unreasonably withhold, condition or delay its approval of the Transition Plan, including any modifications thereto, and that it shall use all reasonable efforts to approve or disapprove the

Transition Plan, including any modifications thereto, within 20 days of receipt of same. It shall be reasonable for MassDOT to withhold its approval of the Transition Plan, including any modifications thereto, if (1) the Transition Plan or the modifications thereto assume or are conditioned upon any changes to the terms of the Contract Documents (other than the proposed modifications to the Transition Plan), (2) MassDOT’s obligations or liabilities would be increased or (3) the Transition Plan would result in noncompliance by the Operator with any provision of this Agreement. Upon the disapproval of any modifications to the Transition Plan, the Operator and MassDOT agree to cooperate with each other to address and resolve any reasonable concerns of MassDOT as soon as reasonably possible. MassDOT’s approval of the

Transition Plan or any modifications thereto, will be for its sole benefit and will not transfer any liability to MassDOT or relieve the Operator of responsibility for the contents and adequacy of the Transition Plan.

(C) Operator Transition Period Responsibilities. The Operator shall perform the following Transition Period responsibilities during the Transition Period:

(1) The Operator shall carry out all of its responsibilities under the approved

Transition Plan to ensure the smooth, seamless and orderly transfer of management, MassDOT Bid No. BD-25-1030-CP01-CP01-107836 4 RFP

709336753v1 operations, and maintenance responsibility for the Service Plazas from the current operators to the Operator and shall provide all management, technical, administrative, labor relations and other personnel necessary in connection therewith;

(2) The Transition Plan shall, at minimum, address the continuity of service for food, convenience store and fuel services, and the availability of electric vehicle charging at each of the Service Plazas;

(3) The Operator shall make all reasonable efforts to reach an agreement with the current operator in pursuit of the goals referenced in clauses (1) and (2), above, which agreement shall designate MassDOT as a third-party beneficiary. If no such agreement can be reached, Operator shall notify MassDOT and collaborate with MassDOT on other measures to achieve the goals referenced in clauses (1) and (2), above;

(4) The Operator shall prepare, finalize and provide to MassDOT the Master

Revitalization Plan required to be submitted and approved during the Transition Period pursuant to Article III;

(5) The Operator shall submit complete applications and take all other steps which are necessary under Applicable Law to obtain all Governmental Approvals required to be obtained by the Operator to enable the Operator to commence the performance of its obligations under the Contract Documents on the applicable

Commencement Date;

(6) The Operator shall identify generally the buildout location for electric vehicle supply equipment (“EVSE”) at the Natick, Framingham, Ludlow (eastbound and westbound), Blandford (eastbound and westbound) and Lee (eastbound and westbound) service plazas in locations that are expected to be compatible with future revitalization plans of the Operator for those service plazas, and shall coordinate with MassDOT and the electric distribution company in each service territory to facilitate expansion of EVSE capacity at those facilities during the first year of the Lease term;

(7) The Operator shall include in its Transition Plan and implement a risk management plan, subject to MassDOT approval, in anticipation of and to ensure immediate recovery of any potential failure of continuity of delivering services at Service

Plazas. These efforts are to minimize the risk of disruption of services provided to customers;

(8) The Operator shall include in its Transition Plan a Concessions Plan, to be approved by MassDOT, which shall set forth the Operator’s plan for food providers, fuel providers, convenience store providers and any other subtenants in accordance with the Contract Documents, including those subtenants with existing agreements and those subtenants to be in place and serving customers on the applicable Commencement Date, and which shall also set forth acceptable types of uses, approved brands and Sublease rental guidelines that comply with Section 7.9 of the Lease, as well as proposals for granting the necessary rights and licenses to MassDOT and MassDOT Persons for the use of a brand’s or concept’s existing and subsequently created Intellectual Property

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709336753v1 assets and associated logos, branding elements, images or service and trademarks in connection with MassDOT’s signage, mobile apps, websites or via other digital platforms or technology to inform the public about the particular brands or concepts and traveler services at each Service Plaza;

(9) The Operator shall obtain initial approval of its food and beverage and non-food and beverage pricing for Group 1 Service Plazas that will be open on the applicable Commencement Date in accordance with the Contract Documents;

(10) The Operator shall obtain approval by MassDOT of its Operations and

Maintenance Plan for each Group 1 Service Plaza, and of its detailed Marketing Plan for the Operator’s intended marketing, promotional and advertisement activities with respect to the Group 1 Service Plazas for the first six (6) months of the term of the Lease;

(11) The Operator shall provide MassDOT with surveys for each Service

Plaza, which meet 2021 ALTA minimum standards, with such table “A” items as

MassDOT reasonably requests, which are certified to MassDOT, and were prepared and signed by a Massachusetts licensed professional engineer or surveyor reasonably acceptable to MassDOT; and

(12) The Operator shall propose specifications, to be approved by MassDOT, for measuring the Operator’s satisfaction of performance requirements established in the

Lease.

Section 2.

(A) Operator Access Rights. After the Effective Date, the execution of this

Agreement shall be deemed to constitute the granting to the Operator of a right of access to the

Group 1 Service Plazas during the Transition Period, and a right of access to Group 2 Service

Plazas during the Group 2 Transition Period, which shall survive past the termination of this

Agreement and last until June 30, 2027, solely for the purposes of:

(1) Carrying out its responsibilities pursuant to the Transition Plan and under this Agreement;

(2) Performing all necessary on-site investigations of the Service Plazas in accordance with any requirements and restrictions established by MassDOT as a condition of such access; and

(3) Performing the surveys called for in clause (11) of Section 1.

Such right of access shall be subject to subsection (B) and the rights of the current operators of the Service Plazas under the existing operating agreements. MassDOT, upon written request by the Operator, shall provide true and correct copies of such existing lease agreements and any amendments thereto to the Operator. The Operator may, for the same purposes (and subject to the same restrictions) described in this subsection (A), grant to any person performing obligations set forth in this subsection (A) on behalf of the Operator a corresponding right to

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709336753v1 access the Service Plazas. The Operator shall assume all risks associated with such activities and shall indemnify, defend and hold harmless MassDOT and the current operators for any damage incurred as a result of such activities.

(B) Maintenance of Existing Operations. The Operator shall undertake and perform the obligations referred to in subsection (A) in a manner which does not unreasonably interfere with or impair the ongoing operations of MassDOT or any current operator in respect of the Service Plazas during the Transition Period. The Operator shall coordinate the performance of all such obligations with MassDOT and any current operator in accordance with the Transition Plan, including by providing reasonable notice to MassDOT of proposed activities at the Service Plazas and of persons performing those activities, and by keeping MassDOT reasonably informed of its activities at the Service Plazas. If the Operator does not comply with the Transition Plan in respect of accessing and performing said obligations at any Service Plaza during the Transition Period, MassDOT shall have the right, by written notice to the Operator specifying the failure of compliance, to deny the Operator access to the Service Plaza until such time as the Operator demonstrates to the reasonable satisfaction of MassDOT that it will correct the issue and resume compliance.

(C) MassDOT Cooperation Generally. Subject to the terms and conditions of this Section 2, MassDOT shall reasonably cooperate with the Operator to allow the Operator reasonable and timely access to the Service Plazas for the performance of the obligations described in subsection (A) during the Transition Period.

ARTICLE III – Master Revitalization Plan Process.

(A) Within thirty (30) days of the Effective Date, the parties shall hold an initial scoping meeting, in person or via video conference, to discuss topics and provisions to be addressed in the Operator’s Master Revitalization Plan.

(B) The Master Revitalization Plan shall address, at a minimum, the following subjects:

a. Sequencing for when the Operator will revitalize each of the Service

Plazas.

b. An initial description of the scale of work at each Service Plaza, anticipated schedule of such work, and the potential impact on service and access to each Service Plaza facility.

c. Provisions for additional services and revenue sources to be introduced to the Service Plazas as part of the Operator’s Proposal.

d. A truck parking assessment that includes an analysis of demand vs.

current capacity and includes proposals for mitigating any shortfall in capacity.

e. Any applicable design, construction and environmental requirements identified by MassDOT.

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f. Locations identified by MassDOT to accommodate programs that promote the Commonwealth and provide for the safety and well-being of motorists and their passengers at the Service Plazas.

g. Provisions for the early expansion of NEVI compliant EVSE at the

Natick, Framingham, Ludlow (eastbound and westbound), Blandford

(eastbound and westbound) and Lee (eastbound and westbound) service plazas, using two (2) megawatts of electrical capacity at each site, for which MassDOT has submitted a work order to the electric distribution company in the service territory for each of those service plazas, and undertaken in accordance with Appendix [XX]: Electric Vehicle

Infrastructure Requirements.

h. An Electric Vehicle Infrastructure Expansion plan that presents a roadmap for EVSE installation over the course of the Lease term that complies with the requirements of Appendix [XX]: Electric Vehicle

Infrastructure Requirements, and best accomplishes the goals set forth in the Contract Documents and future-proofs the Service Plazas against market developments and evolving demands.

i. A market study that includes analysis of current key trends and forecasts, economic factors and financial indicators that inform the scope of work under the Master Revitalization Plan, and that supports the financial plan described below and the rationale for the schedule of such work.

j. A preliminary financial plan and financial model for all work anticipated in the Master Revitalization Plan which shall include, at a minimum, the following:

1. The timeframe for achieving financial close

2. Anticipated financing cost for the Revitalizations of the Service

Plazas, including Revitalization Improvements thereto, including the weighted average cost of capital and gearing

3. Anticipated capital costs for the Revitalizations in total broken out by major category such as hard costs, soft costs, and contingency.

4. Anticipated capital costs for the Revitalizations on a dollar per square footage basis by use type

5. Anticipated operating costs on a dollar per square foot basis by use type

6. Base case post-tax return on equity

7. Visitation estimates for each Service Plaza and estimates of revenue generated per visit by use (retail, food & beverage, EV chargers), both prior to and following Revitalization.

k. Estimates of the manner in which the Minimum Annual Guaranteed

Rent and Operational Rent applicable to a Service Plaza may change if the Operator completes Revitalization Improvements at a Service Plaza pursuant to a MassDOT approved Service Plaza specific Plaza

Management Plan.

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l. Provisions regarding the amounts to be maintained in the Renewal and

Replacement Reserve Account after the completion of all work anticipated in the Master Revitalization Plan, and the procedure for the withdrawal of funds from such account after the completion of the

Revitalization Improvements at all of the Service Plazas, which shall not be used for Fuel Service Equipment.

m. Upon approval by MassDOT, the Concessions Plan referenced in clause

(8) of Section 1 of Article II.

n. The identity of Key Personnel and Project Contractors, as those terms are used in the Lease, who are expected to perform work under the

Master Revitalization Plan.

(C) Not later than October 31, 2025, the Operator shall submit an updated draft Master Revitalization Plan from that submitted with the Operator’s Proposal satisfying the foregoing requirements.

(D) Within 15 days following the Operator’s receipt of MassDOT’s Master

Revitalization Plan comments, the Operator shall address those comments and shall submit a final Master Revitalization Plan to MassDOT for its approval.

(E) Approval by MassDOT of the Master Revitalization Plan shall be a condition of MassDOT executing the Lease.

(F) MassDOT agrees that it shall not unreasonably withhold, condition or delay its approval of the Master Revitalization Plan, and that it shall use all reasonable efforts to approve the final submitted Master Revitalization Plan within 20 days of receipt of same. It shall be reasonable for MassDOT to withhold its approval of the Master Revitalization Plan, including any modifications thereto, if (1) the Master Revitalization Plan or the modifications thereto assume or are conditioned upon any changes to the terms of the Contract Documents

(other than the proposed modifications to the Master Revitalization Plan), (2) MassDOT’s obligations or liabilities would be increased, or (3) the Master Revitalization Plan would result in noncompliance by the Operator with any provision of the Lease. MassDOT’s approval of the

Master Revitalization Plan will be for its sole benefit and will not transfer any liability to

MassDOT or relieve the Operator of responsibility for the contents and adequacy of the Master

Revitalization Plan.

ARTICLE IV – Default

The occurrence of one or more of the following events shall constitute an “Event of Default” by

Operator under this Agreement.

(a) A default in the timely payment of any amounts due to MassDOT during the

Transition Period;

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(b) Default in the performance or observance of any covenant, condition, obligation, or agreement on the part of Operator to be performed or observed under this Agreement, including but not limited to those set forth in Articles II and III of this Agreement, and such default shall continue for a period of ten (10) business days after written notice specifying such default shall have been given to Operator; provided, however, that (i) if

Operator has commenced to cure within such initial ten (10) business day period and is continuing to proceed to cure such default with due diligence, and (ii) if such default is susceptible to cure but cannot, with due diligence, be remedied by Operator within ten

(10) business days, then the period of time to cure the default shall be extended for such period as may be reasonably necessary to cure the same with all due diligence, provided further, however, that in no event shall such cure period be extended by more than thirty

(30) business days;

(c) The insolvency of Operator or a guarantor, as determined under applicable bankruptcy law;

(d) The filing by Operator or a guarantor of a petition of voluntary bankruptcy under applicable bankruptcy law, the consenting of Operator or a guarantor to the filing of any bankruptcy or reorganization petition against Operator or a guarantor of a petition to reorganize Operator or the guarantor pursuant to applicable bankruptcy law;

(e) The issuance of an order of a court of competent jurisdiction appointing a receiver, liquidator, custodian or trustee for Operator or a guarantor or the filing against

Operator or a guarantor of a petition to reorganize Operator or a guarantor pursuant to applicable bankruptcy law, which order shall not have been discharged or which filing shall not have been dismissed within 90 days after such issuance or filing; or

(f) The Operator’s failure to execute the Lease by November 3, 2025.

Section 2.

If an Operator Event of Default shall have occurred and be continuing then MassDOT may, at its option, exercise any or all of the following remedies:

(a) By written notice to Operator, MassDOT may terminate this Agreement. If terminated by MassDOT, Operator shall have no further rights with respect to the Service

Plazas, and MassDOT shall have no further obligations with respect to Operator under any award to the Operator or under this Agreement. If terminated by MassDOT, MassDOT may undertake a new procurement with respect to the Service Plazas without any obligation to the Operator.

(b) By written notice to Operator, MassDOT may retain the initial depositany deposits paid by the Operator.

(c) All other legal or equitable remedies.

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ARTICLE V - Lease Framework for Finalization

(A) Operator will be required to enter into a Lease with MassDOT.

(B) MassDOT will provide Operator a draft Lease not later than sixty (60) days after award.

(C) Operator shall execute the Lease not later than November 3, 2025. On or about the same date, MassDOT shall execute a separate signature page. The executed Lease and separate signature page shall be placed into escrow pending the satisfaction of remaining obligations under this Agreement and other Contract Documents.

(D) The following events shall be conditions precedent to full execution of the

Lease and release from escrow:

a. Approval by MassDOT of the Operator’s Transition Plan, including the risk management plan;

b. The Operator’s satisfactory performance under its Transition Plan and this

Agreement;

c. Receipt by MassDOT of a satisfactory performance bond as required under the

Lease;

d. Receipt by MassDOT of satisfactory certificates of insurance evidencing the

Operator’s coverage as required under the Lease;

e. Receipt by MassDOT of owner’s title insurance policies for each Service Plaza, in amounts reasonably acceptable to MassDOT and issued by a title insurance company licensed to do business in Massachusetts which is reasonably acceptable to MassDOT;

f. Receipt of an ALTA survey for each service plaza which is acceptable to

MassDOT consistent with clause (C)(11) of Section 1 of Article II;

g. Approval by MassDOT of the Master Revitalization Plan;

h. Approval by MassDOT of the Operator’s Safety and Security Plan in accordance with Section 7.5(A) of the Lease;

i. Approval by MassDOT of the Operator’s Quality Assurance and Quality Control

Plan in accordance with Section 7.5(D) of the Lease;

j. Approval by MassDOT of the Operations and Maintenance Plan for each Group 1

Service Plaza;

k. Approval by MassDOT of the Operator’s Concessions Plan;

l. Approval by MassDOT of the Operator’s Marketing Plan;

m. Approval by MassDOT of specifications proposed by the Operator for measuring satisfaction of performance requirements established in the Lease;

n. A certification by the Operator and any organizing union of the existence of the any labor peace agreement that may be required under subsection (G) of Section

13.1 of the Lease;

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o. The documents and legal opinion(s) required pursuant to Section 2.3 of the Lease;

p. Establishment of the Renewal and Replacement Reserve Account required under

Section 10.6 of the Lease;

q. Receipt by MassDOT of a pollution legal liability insurance policy obtained by

MassDOT for its obligation under Paragraph (B) of Section 11.1 of the Lease, or written indication of MassDOT’s desire to execute the Lease without such a pollution legal liability insurance policy; and

r. Completion of any appendices to the Lease that are not completed as of the date of this Agreement.

(E) Upon the satisfaction of the conditions set forth in subsection (D), MassDOT’s signature page will be joined with Operator’s signature page and the fully-executed

Lease will be released from escrow and circulated to the parties.

(F) The Operator shall not take possession of any Group 1 Service Plazas until

MassDOT has executed the Lease and the fully-executed Lease has been released from escrow.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

MASSACHUSETTS DEPARTMENT

OF TRANSPORTATION: OPERATOR:

By:_________________________________ By:___________________________

Names:______________________________ Name:________________________

Title:________________________________ Title:_________________________