Resolution of the Council of Ministers No. 198-B/2008 the Bases of the Concession Awarded to BRISA
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Resolution of the Council of Ministers no. 198-B/2008 The bases of the concession awarded to BRISA - Auto-Estradas de Portugal, S. A. pursuant to Decree-law 467/72 of 22 November suffered profound changes under the terms of Decree-Law 294/97 of 24 October, since with the Company's forthcoming privatization, it was important to clarify and ensure the stability of relations between the grantor , i.e. the State and the concessionaire. Now, more than eleven years following the above mentioned revision, it became necessary to again alter the bases of the concession, taking into account the profound and recent changes in the laws governing the road sector, at both technical and financial levels as well as in terms of road user protection and given the fact that, except for the construction of the road link to the new Lisbon airport, the entire road network subject to concession to BRISA is already completed and operating. In the light of the above, the opportunity arose to improve the rules of relationship between the Parties in the concession agreement, the State and BRISA having to this effect, started negotiations in compliance with procedures set forth in Decree-law 86/2003 of 26 April, as amended by Decree-law 141/2006 of 27 July. Changes to the concession bases were provided in Decree-law 247-C/2008 of 30 December, which also empowered the Ministers of State, Finance and Public Works, Transports and Communications to execute the respective concession contract, the respective draft of which must now be approved by the Council of Ministers. Now therefore: Under the terms of article 2 of Decree-law 247-C/2008 of 30 December and paragraph g) of article 199 of the Constitution, the Council of Ministers hereby decrees as follows: 1 – To approve the draft contract relating to the motorway construction, maintenance and operation concession attached to this resolution to be entered between the Portuguese State, represented by the Ministers of State and Finance and Public Works, Transports and Communications and BRISA – Auto- estradas de Portugal, S.A.. 2 – To determine that this resolution will be effective as from the entry into force of Decree-law 247-C/2008 of 30 December. Presidency of the Council of Ministers, December 30, 2008 – On behalf of the Prime-Minister, Luís Filipe Marques Amado , Minister of State and Foreign Affairs. EXHIBIT Concession Contract By and Between: First Party: the Portuguese State, represented for the purposes hereof by [...], hereinafter referred to as Concession Grantor; and Second Party: BRISA - Auto-estradas de Portugal S.A., represented for the purposes hereof by [...], hereinafter referred to as Concessionaire or BRISA, and, whereas: (A) The bases of the concession awarded to BRISA - Auto-Estradas de Portugal, S. A., pursuant to Decree- law 467/72 of 22 November were last thoroughly reviewed pursuant to Decree-Law 294/97 of 24 October, (B) Very recently, major changes were introduced in the laws governing the national road sector, particularly at technical and financial level and in what concerns road user protection; (C) Except for the construction of the road link to the new Lisbon airport, the entire road network concession awarded to BRISA is already completed and operating; (D) In view of the considerations hereinabove, it became necessary to again revise the bases of the concession to BRISA, seeking to adapt the contractual relation between the State and the concessionaire to the new regulatory model for road infrastructures; (E) Viewing to fulfil the objective referred in Whereas Clause (D) above, the State and BRISA started negotiations in compliance with procedures set forth in Decree-law 86/2003 of 26 April, as amended by Decree-law 141/2006 of 27 July; (F) Following the negotiations referred hereinabove, the Government pursuant to Decree-law 247-C/2008 of 30 December undertook the fifth amendment to Decree-law 294/97 of 24 October, which reviews BRISA concession contract; (G) The Government approved this Contract's draft, pursuant to Resolution of the Council of Ministers no. 198-B/2008; (H) The Minister of State and Finance, [...], and the Minister of Public Works, Transport and Communications, [...], were appointed representatives of the Concession Grantor, with the powers to delegate, pursuant to Article 2 of Decree-law 247-C/2008, of 30 December, and [...] was appointed representative of the Concessionaire pursuant to [...], for the purposes of executing this contract: Now therefore, this concession contract is concluded and mutually agreed between the Parties as follows: 1 - Object of the concession 1 - The object of the concession is the construction, maintenance and tolled operation of the following motorways: a) 1/IP – Auto-estrada do Norte - from Vila Franca de Xira to Carvalhos, totalling 266.9 km in length; b) 2/IP – Auto-estrada do Sul - from Fogueteiro to the Algarve longitudinal road, totalling 225.8 km in length; c) 3/IP 1 - Porto-Valença motorway – from Maia intersection to Valença, with 98.1 km in length; d) 4/IP 4 - Porto-Amarante motorway – from Ermesinde intersection to Amarante, with 48.3 km in length; e) 5/IC 15 - Costa do Estoril Motorway, from Estádio Nacional to Cascais, totalling 16.9 km in length; f) 6/IP 7 – auto-estrada Marateca (A2) from the A2 to Elvas, with 138.8 km in length; g) 10/IC 2 - Bucelas Motorway (CREL), from Carregado to the IC3, totalling 39.8 km in length; h) 12/IC 3 - motorway linking Setúbal to Montijo, totalling 24.8 km in length; i) 13/IC 3/IC11 - motorway between Almeirim and Marateca, totalling 78.7 km in length; j) 14/IC 3 - motorway between Santa Eulália and Coimbra (Norte), totalling 39.9 km in length; l) Connection to the new Lisbon airport, the length of which will depend on the location of the airport; m) 9/IC 18 - CREL – Lisbon Regional Ring Road – from Estádio Nacional (A5) to Alverca, with 34.4 km in length; 2 - For the purposes of maintenance and operation, the following motorways and roads will also be included in the concession: a) Built by the State and subject to tolls which will revert to the concessionaire: Auto-estrada do Norte: Lisboa-Vila Franca de Xira stretch, with 10.9 km in length; b) Built by the State but not subject to tolls: Auto-estrada do Norte: Carvalhos-santo Ovídio section, with 4,4 km and Lisboa-Alverca section with 13 km; Auto-estrada do Sul: section between the interchange of the highway to Costa da Caparica (south end) and Fogueteiro, with 9 km length; Auto-estrada da Costa do Estoril: Lisboa-Estádio Nacional section, (except for the Duarte Pacheco Viaduct) with 8.1 km in length. Auto-estrada Figueira da Foz -Coimbra (Norte): Figueira da Foz –Santa Eulália Section, with 12 km in length; Auto-estrada Marateca -Caia: Elvas-Caia section, with 19.1 km in length; c) Built by the concessionaire and subject to tolls, to be collected by the concessionaire but reverting to EP — Estradas de Portugal, S. A., only as from the date of entry into operation of respective lane widening and as expressly determined by the Concession Grantor: Auto-estrada Porto-Valença: Águas Santas-Maia sub-section, with 5.3 km in length; Auto-estrada Águas Santas -Amarante: between Águas Santas and Ermesinde intersection, with 3.0 km in length; d) Built by the concessionaire but not subject to tolls: Auto-estrada Porto-Valença: Porto (VCI) / EN12 sub-section, with 1.0 km in length; EN12 — Águas Santas sub-section, with 2.1 km; Braga southern ring road and respective connection to the A3 — in a total length of 3.1 km from the A3 to EN101, EN309 and intersection with EN14. e) Built by the concessionaire and subject to tolls which will revert to the concessionaire: Auto-estrada Porto-Valença: Braga Sul — Celeirós, with 2.2 km; Celeirós — EN14, with 1.0 km. Auto-estrada Setúbal -Montijo: Alto da Guerra Junction, on the N10 to the A12, with 4.3 km; Junction to the Logistics Platform of Lisboa Norte Junction to the Logistics Platform of Poceirão 3 - The motorways referred in paragraphs 1 and 2 hereinabove are divided into the sections and sub-sections as described in table in paragraph 1 of Clause 7. 4 - The lengths of section or sub-section shall be measured according to the motorway axis and determined, as the case may be, under the terms provided in the following paragraphs. 5 - If the section or sub-section is located between other section already built, the following shall apply: a) If comprised between two intersections, its length shall be determined by the distance between the axes of the interchanges of the said intersections; b) If one of its ends begins or ends on a motorway built by the State, its length shall be determined by the distance between the contact section of the two roads and the axis of the interchange on the other end. 6 - If the section or sub-section has no continuity, the following shall apply: a) If one of its ends meets a national road, its length shall be determined by the distance from the line of the edge of the verge of the road which first meets the motorway axis and the axis of the interchange on the other end; b) For as long as the construction of a continuing section or sub-section is not foreseen, its length shall be temporarily determined by the distance between the last motorway cross-section built and entering into operation and the axis of the interchange on the other end. 7 - The layouts of each section and sub-section, as well as respective intersections and links, shall be those described in approved design plans.