CONCESSION AGREEMENT for the PRESIDIO PARKWAY PROJECT

impose any fee, toll, charge or other amount for the use of the Project.17.2 Department Representations and WarrantiesThe Department hereby represents and warrants to Developer as follows:17.2.1 The Department is a public agency, duly formed and validly existing under thelaws of the State, and has full status, power, right and authority to execute, deliver and performthis Agreement, the Lease, the Direct Agreement, and the other Contract Documents to whichthe Department is a party and to perform each and all of the obligations of the Departmentprovided for herein and therein.17.2.2 This Agreement, the Lease the Direct Agreement, and the other ContractDocuments to which the Department is a party have each been duly authorized by theDepartment, and each constitutes a legal, valid and binding obligation of the Departmentenforceable against the Department in accordance with its terms.17.2.3 Each person executing this Agreement, the Lease, the Direct Agreement and theother Contract Documents to which the Department is a party has been (or at the time ofexecution will be) duly authorized to execute and deliver each such document on behalf of theDepartment; and this Agreement, the Lease, the Direct Agreement and the other ContractDocuments to which the Department is a party have been (or will be) duly executed anddelivered by the Department.17.2.4 Neither the execution and delivery by the Department of this Agreement, theLease, the Direct Agreement and the other Contract Documents to which the Department is aparty nor the consummation of the transactions contemplated hereby or thereby, is (or at thetime of execution will be) in conflict with or will result in a default under or violation of theDepartment’s organizational documents or any other agreements or instruments to which it is aparty or by which it is bound.17.2.5 There is no action, suit, proceeding, investigation or litigation pending and servedon the Department which challenges the Department’s authority to execute, deliver or perform,or the validity or enforceability of, this Agreement, the Lease, the Direct Agreement or the otherContract Documents to which the Department is a party, or which challenges the authority of theDepartment official executing this Agreement, the Lease, the Direct Agreement, or the otherContract Documents to which the Department is a party; and the Department has disclosed toDeveloper any pending and un-served or threatened action, suit, proceeding, investigation orlitigation with respect to such matters of which the Department is aware.17.2.6 In executing this Agreement, the Department is in full compliance, and shallremain in compliance, with the PPP Law, as the PPP Law may be amended and with anysuccessor thereto. As of the Effective Date, the Project is included in the Department’s longrangetransportation plan for the applicable metropolitan planning organization, all annualpayments, subject to appropriation, payable under this Agreement have been included in theproposed State Transportation Improvement Program Fund Estimate submitted to the CaliforniaTransportation Commission for adoption.The Department agrees to prioritize annual payments relating to public-privatepartnerships, including those related to the Project, ahead of new capacity projects in thedevelopment and updating of the Department’s State Transportation Improvement ProgramCALIFORNIA DEPARTMENT OF TRANSPORTATION - 88 - DraftPresidio Parkway ProjectCONCESSION AGREEMENTContract # [XXXXXX]Financial Management # [XXXXXXXXXX]