Common use of Conditions Precedent to Service Commencement of the HOT Lanes Clause in Contracts

Conditions Precedent to Service Commencement of the HOT Lanes. (a) The Concessionaire shall not initiate Service Commencement of the HOT Lanes until all of the following conditions have been satisfied: (i) The Department has issued the Substantial Completion Certificate, or it has been determined pursuant to the dispute resolution procedures set forth herein that the Department should have issued such certificate; (ii) The Concessionaire and the Department have agreed to a Punch List; (iii) The Concessionaire shall have received and delivered to the Department copies of all Regulatory Approvals necessary to operate the HOT Lanes Project and shall have satisfied all conditions and requirements thereof which must be satisfied before the HOT Lanes can be lawfully opened for regular public use, all such Regulatory Approvals remain in full force and effect, and there exists no uncured material violation of the terms and conditions of any such Regulatory Approval; (iv) All insurance policies required under this Agreement have been obtained and shall be in full force and effect (with coverage as of the Service Commencement Date) and the Concessionaire has delivered to Department the originals or copies thereof certified by the Concessionaire’s insurance broker to be true and correct copies of the originals; (v) The Concessionaire shall not then be in receipt of any notice of Concessionaire Default under this Agreement except as to any such noticed default that has been cured or for which Service Commencement will effect its cure; (vi) All Project Agreements are in full force and effect; (vii) The Concessionaire has certified to the Department in writing that the conditions set forth in subsections (iii) through (vi) have been satisfied as of the date of such certification, and the Independent Engineer has confirmed to the Department in writing that the condition set forth in subsection (iii) has been satisfied as of the date of such certification; and (viii) Subject to the provisions of Section 8.01(b), the Department issues, or shall have been deemed to have issued, a written notice (the “Service Commencement Notice”), evidencing its concurrence with the Concessionaire that the foregoing conditions of this Section 8.01 have been satisfied. (b) If the Department has determined that all of the conditions to Service Commencement set forth in the preceding Section 8.01(a) have not been satisfied, it shall notify the Concessionaire in writing setting forth, as applicable, why the conditions to Service Commencement have not been satisfied. If the Concessionaire and the Department, despite good faith efforts, cannot reach agreement as to such matters, such dispute shall be resolved in accordance with the dispute resolution procedures set forth in Section 17.06. In the event that the Department has not notified the Concessionaire of a determination that all such conditions have not been satisfied or has delayed the issuance of the Service Commencement Notice by more than 21 days beyond the date on which Certificates from the Concessionaire and the Independent Engineer were received by the Department pursuant to Section 8.01(a), the Concessionaire shall give notice of such delay to the Department, and if the Department has not either notified the Concessionaire of such non-satisfaction or issued the Service Commencement Notice within 15 days after such Concessionaire notice, if the delay is not a result of a Concessionaire Party action or inaction, then such Service Commencement Notice shall be deemed to have been issued upon expiration of such 15 day period, but shall not be deemed a waiver of the other conditions set forth in Section 8.01(a) (i) through (vi). (c) All the conditions precedent set forth in Section 8.01(a) above are for the sole benefit of the Department. The Department may waive any condition precedent; provided, that no person or entity shall be entitled to assume that the Department will waive or refuse to waive any condition precedent in the absence of strict compliance therewith. Unless the Department waives a condition precedent which requires action by the Concessionaire to be satisfied, the Concessionaire shall remain bound to use diligent efforts to satisfy the condition precedent. The Department’s issuance of the Service Commencement Notice shall not constitute a waiver by the Department of any then-existing Concessionaire Default.

Conditions Precedent to Service Commencement of the HOT Lanes. (a) The Concessionaire shall not initiate Service Commencement of the HOT Lanes until all of the following conditions have been satisfied: (i) The Department has issued the Substantial Completion Certificate, or it has been determined pursuant to the dispute resolution procedures set forth herein that the Department should have issued such certificate; (ii) The Concessionaire and the Department have agreed to a Punch List; (iii) The Concessionaire shall have received and delivered to the Department copies of all Regulatory Approvals necessary to operate the HOT Lanes Project and shall have satisfied all conditions and requirements thereof which must be satisfied before the HOT Lanes can be lawfully opened for regular public use, all such Regulatory Approvals remain in full force and effect, and there exists no uncured material violation of the terms and conditions of any such Regulatory Approval; (iv) All insurance policies required under this Agreement have been obtained and shall be in full force and effect (with coverage as of the Service Commencement Date) and the Concessionaire has delivered to Department the originals or copies thereof certified by the Concessionaire’s insurance broker to be true and correct copies of the originals; (v) The Concessionaire shall not then be in receipt of any notice of Concessionaire Default under this Agreement except as to any such noticed default that has been cured or for which Service Commencement will effect its cure; (vi) All Project Agreements are in full force and effect; (vii) The Concessionaire has certified to the Department in writing that the conditions set forth in subsections (iii) through (vi) have been satisfied as of the date of such certification, and and, with respect to the Original Project, the Independent Engineer has confirmed to the Department in writing that the condition set forth in subsection (iii) has been satisfied as of the date of such certification; and (viii) Subject to the provisions of Section 8.01(b), the Department issues, or shall have been deemed to have issued, a written notice (the “Service Commencement Notice”), evidencing its concurrence with the Concessionaire that the foregoing conditions of this Section 8.01 have been satisfied. (b) If the Department has determined that all of the conditions to Service Commencement set forth in the preceding Section 8.01(a) have not been satisfied, it shall notify the Concessionaire in writing setting forth, as applicable, why the conditions to Service Commencement have not been satisfied. If the Concessionaire and the Department, despite good faith efforts, cannot reach agreement as to such matters, such dispute shall be resolved in accordance with the dispute resolution procedures set forth in Section 17.06. In the event that the Department has not notified the Concessionaire of a determination that all such conditions have not been satisfied or has delayed the issuance of the Service Commencement Notice by more than 21 days beyond the date on which Certificates certificates from the Concessionaire and the Independent Engineer (for the Original Project only) were received by the Department pursuant to Section 8.01(a), the Concessionaire shall give notice of such delay to the Department, and if the Department has not either notified the Concessionaire of such non-satisfaction or issued the Service Commencement Notice within 15 days after such Concessionaire notice, if the delay is not a result of a Concessionaire Party action or inaction, then such Service Commencement Notice shall be deemed to have been issued upon expiration of such 15 day period, but shall not be deemed a waiver of the other conditions set forth in Section 8.01(a) (i) through (vi). (c) All the conditions precedent set forth in Section 8.01(a) above are for the sole benefit of the Department. The Department may waive any condition precedent; provided, that no person or entity shall be entitled to assume that the Department will waive or refuse to waive any condition precedent in the absence of strict compliance therewith. Unless the Department waives a condition precedent which requires action by the Concessionaire to be satisfied, the Concessionaire shall remain bound to use diligent efforts to satisfy the condition precedent. The Department’s issuance of the Service Commencement Notice shall not constitute a waiver by the Department of any then-existing Concessionaire Default.