Common use of Toll Exemptions; Excess High Occupancy Vehicle Usage Clause in Contracts

Toll Exemptions; Excess High Occupancy Vehicle Usage. (a) Subject to Section 20.18, if any Governmental Authority enacts, adopts, promulgates, modifies, or repeals any Law during the Term that (i) permits vehicles other than as provided by Section 4.04(b)(i) or (ii) to travel on the HOT Lanes without paying the full tolls established by the Concessionaire, including by any decrease in the High Occupancy Requirement to HOV-2 or below, or (ii) permits vehicles other than Permitted Vehicles to travel on the HOT Lanes, and the effect of such action has a Net Revenue Impact, the Department shall pay to the Concessionaire any Concessionaire Damages with respect thereto in accordance with Sections 13.02 and 13.03. (b) The Department agrees to pay the Concessionaire, subject to Section 20.18, amounts equal to 70% of the Average Toll applicable to vehicles paying tolls for the number of High Occupancy Vehicles exceeding a threshold of 24% of the total flow of all Permitted Vehicles that are then using such Toll Section going in the same direction for the first 30 consecutive minutes during any day, and any additional 15 consecutive minute periods in such day, during which average traffic for a Toll Section going in the same direction exceeds a rate of 3,200 vehicles per hour based on two lanes. Notwithstanding the foregoing, (A) this Section 13.05(b) shall apply only with respect to periods beginning one year after the Service Commencement Date and ending not later than 40 years after the Closing Date, (B) this Section 13.05(b) shall cease to apply once a pre-tax internal rate of return (rounded up, if necessary, to a whole multiple and 1/1000 of 1%) on Total Invested Project Funds of 12.98%, calculated based on the nominal Net Cash Flow of the HOT Lanes Project for the period from the Service Commencement Date to the end of a calendar year, has been achieved, and (C) for purposes of determining the High Occupancy Vehicles as a percentage of flow, HOV-2 or below vehicles and Permitted Vehicles violating the High Occupancy Requirement shall not be counted as High Occupancy Vehicle usage but shall be counted as part of total flow. Failure by the Concessionaire to notify the Department in writing of its claim for a payment pursuant to this Section 13.05(b), and to provide audited or otherwise independently verified information relevant to this calculation, within 30 days after the end of each calendar month with respect to which this provision applies shall constitute a permanent waiver of any such claim with respect to such month. The Department will have 30 days upon receipt of this information to review the information and calculations provided and if the Department agrees with the calculation, make the calculated payment, together with interest on such amount, which interest shall commence accruing 30 days after the month to which the payment relates. To the extent there are amounts on deposit in the Project Enhancement Account, such payments shall be made first from the Project Enhancement Account and the interest due shall be calculated based on the average earnings rate on the Project Enhancement Account, during such period. If there are no amounts on deposit therein then interest shall be based on the average earnings rate on the State’s Transportation Trust Fund or any successor thereto, during such period. Any disputes with regards to the information or the calculation will be subject to the dispute resolution process in Section 17.06.