VOLUME I

CONCESSION AGREEMENT


for


I-4 ULTIMATE PROJECT


Between


Florida Department of Transportation


and


I-4 Mobility Partners OpCo LLC

Contract # E5W13

Financial Management # 432193-1-52-01

Federal Aid # 0041(228)I


EXECUTION VERSION

 

CONCESSION AGREEMENT

I-4 ULTIMATE PROJECT

 
This Concession Agreement (“Agreement”) is entered into and effective as of September 4, 2014 between:
(a)
the Florida Department of Transportation, a public agency of the State of Florida ("FDOT"); and
(b)
I-4 Mobility Partners OpCo LLC, a limited liability company organized under the laws of the State of Delaware (“Concessionaire”).
 

BACKGROUND:

A.
FDOT wishes to develop, design, construct, finance, operate and maintain the I-4 Ultimate Project (“Project”) through a public-private partnership. The Project consists of the reconstruction of 21 miles of the I-4 from west of Kirkman Road in Orange County to east of State Road 434 in Seminole County, including the addition of four tolled express lanes, reconstruction or new construction of interchanges and bridges, and all associated improvements to adjacent cross-roads, frontage roads and ramps. The Project is being undertaken in cooperation with FTE, CFX, Orange and Seminole Counties, and other local stakeholders.
B.
FDOT issued a Request for Qualifications for the Project on March 8, 2013 and addenda thereto (collectively, the “RFQ”). FDOT issued these and all subsequent procurement documents for the Project pursuant to Section 334.30, Florida Statutes (“PPP Law”). The PPP Law grants FDOT the authority to solicit proposals from and enter into agreements with private entities, or consortia thereof, for the building, operation, ownership or financing of transportation facilities such as the Project.
C.
On June 5, 2013, pursuant to the procurement process outlined in the RFQ, FDOT selected four (4) short-listed proposers based on their respective financial and technical qualifications as detailed in their responses to the RFQ. FDOT then issued a Request for Proposals to these short-listed proposers, which included various RFP documents and addenda thereto (collectively, the “RFP”).
D.
On April 23, 2014, FDOT selected Concessionaire as the best value proposer. FDOT’s decision was based on its overall evaluation of the proposals, and FDOT’s conclusion that Concessionaire has offered the best value in its Proposal, together with its approach to project management, design and construction, quality assurance and control, and operations and maintenance of the Project within the O&M Limits.
 

NOW, THEREFORE, in consideration of the sums to be paid by FDOT to Concessionaire, the Work to be financed and performed by Concessionaire, the foregoing covenants and agreements set forth herein, the Parties agree as follows:



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ARTICLE 20. TERMINATION

20.1

Termination for Convenience

20.1.1
FDOT may, in its sole discretion, terminate this Agreement in whole if the Secretary determines that a termination is in FDOT’s best interest (a “Termination for Convenience”). The Secretary will deliver to Concessionaire a written Notice of Termination for Convenience specifying the election to terminate and its effective date. Termination of this Agreement shall not relieve Concessionaire or any Guarantor or Surety of its obligation for any claims arising from the Work performed prior to such termination.
20.1.2
In the event of a Termination for Convenience, FDOT shall pay compensation to Concessionaire (or to the Collateral Agent as provided in the Direct Agreement) in an amount equal to either (i) the Backward Looking Termination for Convenience Amount, or (ii) the Forward Looking Termination for Convenience Amount, as selected by Concessionaire in Appendix 2-O.
20.1.3
The Backward Looking Termination for Convenience Amount shall be calculated as follows (calculated at the Early Termination Date and without double-counting):
1.
The Project Debt Termination Amount; plus
2.
An amount which, upon the Early Termination Date, is added to all Distributions described in clause (a) of the definition thereof actually paid to Equity Members or their Affiliates on or before the Early Termination Date, gives an internal rate of return on Committed Investment described in clause (a) of the definition thereof (taking into account the timing of such Distributions and Committed Investment), equal to the Initial Equity IRR; plus
3.
Redundancy Payments for employees of Concessionaire that have been or will be reasonably incurred by Concessionaire as a direct result of termination of this Agreement; plus
4.
Subject to Section 19.4.3, any Losses that have been incurred and will be incurred by Concessionaire as a direct result of termination of this Agreement arising out of the termination of contracts with Contractors, including reasonable and documented out-of-pocket costs to demobilize, but only to the extent that (a) such Losses are incurred in connection with the Project and in respect of the provision of services or the completion of work required to be provided by Concessionaire, (b) such Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on reasonable commercial terms, and (c) Concessionaire and the relevant Contractors have each used reasonable efforts to mitigate the Losses; minus
5.
All amounts standing to the credit of any bank account held by or on behalf of Concessionaire (including any such account controlled by the Collateral Agent).
20.1.4
The Forward Looking Termination for Convenience Amount shall be calculated as follows (calculated at the Early Termination Date and without double-counting):
1.
The Project Debt Termination Amount; plus
2.
The amount of all Distributions described in clause (a) of the definition thereof to Equity Members or their Affiliates anticipated in the Financial Model to be paid between the Early Termination Date until the date of expiration of the Term, each amount discounted back at the Initial Equity IRR from the date on which it is shown to be payable in the Financial Model to the Early Termination Date; plus
3.
Redundancy Payments for employees of Concessionaire that have been or will be reasonably incurred by Concessionaire as a direct result of termination of this Agreement; plus
4.
Subject to Section 19.4.3, any Losses that have been incurred and will be incurred by Concessionaire as a direct result of termination of this Agreement arising out of the termination of contracts with Contractors, including reasonable and documented out-of-pocket costs to demobilize, but only to the extent that (a) such Losses are incurred in connection with the Project and in respect of the provision of services or the completion of work required to be provided by Concessionaire, (b) such Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on reasonable commercial terms, and (c) Concessionaire and the relevant Contractors have each used its reasonable efforts to mitigate the Losses; minus
5.
All amounts standing to the credit of any bank account held by or on behalf of Concessionaire (including any such account controlled by the Collateral Agent); minus
6.

Any amount of direct investment guaranteed under clause (b) of the definition of Committed Investment that has not yet been made at the Early Termination Date.



[ Pages 139 to 175 to be added ]