Independent Engineer Agreement execution version...2015/12/01 · Independent Engineer, entered into an Engagement Letter dated effective as of March 2,2007 (the “Engagement Letter”)

Execution Copy

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INDEPENDENT ENGINEER AGREEMENT

FOR

THE CAPITAL BELTWAY HOT LANES PROJECT

BETWEEN

CAPITAL BELTWAY EXPRESS LLC,a Delaware limited liability company

AND

VIRGINIA DEPARTMENT OF TRANSPORTATION,an Agency of the Commonwealth of Virginia

AND

ARUP NORTH AMERICA LTD.,a United Kingdom corporation

December 20, 2007

TABLE OF CONTENTS

Page

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ARTICLE 1 DEFINITIONS................................................................................................... 2

ARTICLE 2 APPOINTMENT OF THE INDEPENDENT ENGINEER ................................. 2

ARTICLE 3 INDEPENDENT ENGINEER’S RESPONSIBILITIES AND AUTHORITY............................................................................................... 2

Section 3.01 Scope of Independent Engineer’s Work............................................. 2Section 3.02 Personnel .......................................................................................... 5

ARTICLE 4 STANDARD OF PERFORMANCE; COOPERATION ..................................... 6Section 4.01 Standard of Performance ................................................................... 6

Section 4.02 Cooperation of the Parties ................................................................. 6ARTICLE 5 CONTRACTING PRACTICES.......................................................................... 6

Section 5.01 Obligation to Refrain from Discrimination ........................................ 6Section 5.02 Compliance with Applicable Law ..................................................... 6

ARTICLE 6 FEES.................................................................................................................. 7Section 6.01 Fees .................................................................................................. 7

Section 6.02 Payment Procedure ........................................................................... 7ARTICLE 7 INDEMNIFICATION AND INSURANCE........................................................ 8

Section 7.01 Professional Indemnification............................................................. 8Section 7.02 Independent Engineer’s Insurance Coverages.................................... 9

Section 7.03 Indemnification by Concessionaire.................................................... 9ARTICLE 8 AGREEMENT TERM, TERMINATION AND SUSPENSION OF

WORK ......................................................................................................... 9Section 8.01 Term ................................................................................................. 9

Section 8.02 Termination ...................................................................................... 9Section 8.03 Suspension of Work ........................................................................ 10

ARTICLE 9 LIMITATIONS OF LIABILITY ...................................................................... 11Section 9.01 Limitation on Consequential Damages ............................................ 11

Section 9.02 Limitation on Independent Engineer’s Liability............................... 11ARTICLE 10 LIMITATIONS ON THE INDEPENDENT ENGINEER’S

AUTHORITY; INDEPENDENCE ............................................................. 11Section 10.01 Limitations, Generally..................................................................... 11

TABLE OF CONTENTS(continued)

Page

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Section 10.02 Independence of Independent Engineer ........................................... 11ARTICLE 11 DISPUTE RESOLUTION................................................................................ 12

Section 11.01 Dispute Resolution.......................................................................... 12ARTICLE 12 MISCELLANEOUS......................................................................................... 12

Section 12.01 Assignment ..................................................................................... 12Section 12.02 Reliance .......................................................................................... 12

Section 12.03 Reserved ......................................................................................... 13Section 12.04 Intellectual Property........................................................................ 13

Section 12.05 Notices............................................................................................ 13Section 12.06 Binding Effect................................................................................. 15

Section 12.07 No Third-Party Beneficiaries........................................................... 15Section 12.08 Confidentiality ................................................................................ 15

Section 12.09 Waiver ............................................................................................ 15Section 12.10 Governing Law and Venue.............................................................. 16

Section 12.11 Survival .......................................................................................... 16Section 12.12 Construction and Interpretation of Agreement ................................. 16

Section 12.13 Counterparts.................................................................................... 17Section 12.14 Entire Agreement ............................................................................ 17

Section 12.15 Amendment .................................................................................... 18Section 12.16 No Liens or Encumbrances ............................................................. 18

Section 12.17 Concessionaire’s and Department’s Obligations under the ARCA or Other Project Agreements................................................ 18

Section 12.18 Subcontracting ................................................................................ 18LIST OF EXHIBITS:EXHIBIT A DefinitionsEXHIBIT B Scope of ServicesEXHIBIT C Fee; Hourly Rates

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INDEPENDENT ENGINEER AGREEMENT FOR THE ROUTE 495 HOT LANES IN VIRGINIA PROJECT (this “Agreement”), entered into as of December 20, 2007 between Capital Beltway Express LLC, a Delaware limited liability company (the “Concessionaire”); and Virginia Department of Transportation, an agency of the Commonwealth of Virginia (the “Department”); and Arup North America Ltd., United Kingdom corporation (the “Independent Engineer”).

RECITALS

(A) The Concessionaire and the Department have entered into an Amended and Restated Comprehensive Agreement relating to the Route 495 Hot Lanes in Virginia Project, dated as of December 19, 2007 (the “ARCA”), under which the Concessionaire, among other things, will construct, operate and maintain the Route 495 Hot Lanes in Virginia Project (as defined in the ARCA).

(B) The Concessionaire and Fluor-Lane LLC have entered into a Turnkey Lump-Sum Design-Build Contract for the Route 495 HOT Lanes in Virginia Project dated as of December 18, 2007 (the “Design-Build Contract”), under which Fluor-Lane LLC, among other things, will design and construct the Route 495 HOT Lanes in Virginia Project.

(C) The Concessionaire and Transurban (USA) Operations, Inc. have entered into an Operating and Support Services Agreement for the Capital Beltway HOT Lanes Project, dated as of December 19, 2007 (the “Operating and Support Services Agreement”), under which Transurban (USA) Operations, Inc., among other things, will operate, manage and maintain the HOT Lanes (as defined in the ARCA).

(D) The Concessionaire and Ove Arup & Partners California Ltd., an affiliate of the Independent Engineer, entered into an Engagement Letter dated effective as of March 2, 2007 (the “Engagement Letter”) pursuant to which the Concessionaire appointed Ove Arup & Partners California Ltd. to serve as the Technical and Traffic & Revenue Adviser to the banks, bondholders and other financial institutions providing debt facilities in connection with the Route 495 HOT Lanes in Virginia Project (the “Lenders”).

(E) The Concessionaire and the Department wish to appoint the Independent Engineer to perform the independent engineer services required to be preformed by an independent engineer under the ARCA, to perform the services contemplated under the Engagement Letter in favor of the Lenders (with the Engagement Letter being terminated and replaced by this Agreement), and to perform certain other services specified herein, and the Independent Engineer wishes to accept such appointments and perform such services, subject to, and in accordance with, the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereto agree as follows:

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ARTICLE 1

DEFINITIONS

All capitalized terms used herein shall have the respective meanings given to them in this Agreement or in the Schedule of Definitions attached as Exhibit A or, if not defined herein or therein, in the ARCA, the Design-Build Contract and the Operating and Support Services Agreement.

ARTICLE 2

APPOINTMENT OF THE INDEPENDENT ENGINEER

The Concessionaire and the Department hereby appoint the Independent Engineer to perform the independent quality assurance services and other services described herein in favor of the Department, and the Concessionaire appoints the Independent Engineer to perform the independent verifier and certifier services and other services described herein in favor of the Lenders (collectively, the “Services”), in each case subject to the terms, conditions and provisions set forth herein. The Independent Engineer accepts such appointment and agrees to perform such Services in accordance with the terms, conditions and provisions set forth herein. The Independent Engineer further acknowledges and agrees that the objective of providing the Services is to provide an independent and objective assessment of the Route 495 HOT Lanes in Virginia Project to the Department and the Lenders in connection with the scope of work set forth in Article 3 and Exhibit B. In furtherance of such objectives, the Independent Engineer shall reasonably cooperate with the Concessionaire, the Department and/or the Lenders’ other consultants. The Independent Engineer shall have no interest in or rights under the ARCA, the Design-Build Contract, the Operating and Support Services Agreement or the Route 495 HOT Lanes in Virginia Project.

ARTICLE 3

INDEPENDENT ENGINEER’S RESPONSIBILITIES AND AUTHORITY

Section 3.01 Scope of Independent Engineer’s Work

The Independent Engineer shall, from and after the Agreement Date, provide the Services in accordance with all applicable Laws, all Regulatory Approvals, and the terms, conditions and standards set forth in this Agreement. The Independent Engineer shall also provide such other services from time to time requested by the Concessionaire and/or the Department and/or the Lender (as applicable) and agreed to by the Independent Engineer. In the course of performing the Services, the Independent Engineer shall use reasonable efforts to minimize the effect and duration of any disruption to or impairment of the Work or the HOT Lanes. Without limiting the foregoing, the Independent Engineer agrees to undertake the following activities as part of the Services:

(a) Approved for Construction (AFC) Documents The Independent Engineer shall review the submission for AFC Documents, including drawings, specifications, revisions thereto,

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and provide an opinion in the following areas: (i) level of completion for payment purposes; (ii) design and design review process is being performed to conform to the requirements of the Contract Documents; (iii) the QC/QA protocols have been followed; (iv) skill level of individuals assigned to the design and design review process is appropriate; (v) the design review comment resolution process is being followed and is effective; (vi) opportunities for process improvements that will facilitate more effective, quality design work; and (vii) potential issues, observed in the course of the review noted above, that warrant additional review by the quality assurance manager or designers. The Independent Engineer will provide the relevant opinion of the design work within ten (10) days of receipt of the AFC Documents. During the design phase the Independent Engineer shall review the Concessionaire’s design development process, attend informal review meetings on a periodic basis and provide comments to the working documents to address conformity to Technical Requirements, clarity, and consistency.

(b) Construction Quality Assurance. During the construction phase of the Project, the Independent Engineer shall verify that the construction has been subject to the necessary quality control and quality assurance in accordance with the Design-Build Contractor’s Quality Management System Plan. Such verification includes providing verification certifications for various stages of the Work and acceptance of the Work, including certifications that all procedures and methods prepared or used in the construction of the Work are sufficient and appropriate to comply with the requirements of the AFC Documents and that such procedures and methods have been applied correctly.

(c) Change Orders. The Independent Engineer shall prepare a comprehensive report reviewing Concessionaire’s or Contractor’s requests for Scope Change Orders (at the Concessionaire’s expense) under the Design-Build Contract and, if requested by the Department(and at the Department’s expense), analyzing Concessionaire’s written response to the Department’s Request for Change Proposal in accordance with the terms of the ARCA.

(d) Substantial Completion. Upon receiving a written notice of the anticipated achievement of Substantial Completion of the entire Route 495 HOT Lanes in Virginia Project or any applicable portion or segment thereof, the Independent Engineer agrees to meet, confer and exchange information with the Department and the Concessionaire on a regular basis to enable the Department to timely review and inspect the Route 495 HOT Lanes in Virginia Project (or applicable portion or segment of the Route 495 HOT Lanes in Virginia Project) and relevant final design and construction documents and undertake such other activities as may be necessary to determine whether Substantial Completion has been achieved under the ARCA and the Design-Build Contract, and shall deliver a written report of its findings and recommendations to the Department, the Lenders and the Concessionaire. If the Independent Engineer determines that Substantial Completion has been achieved, the Independent Engineer agrees to countersign the Substantial Completion Certificate submitted by the Contractor in accordance with the terms of the Design-Build Contract.

(e) Final Acceptance and Final Completion. Upon receiving a written notice of the anticipated achievement of Final Completion of the Route 495 HOT Lanes in Virginia Project under the Design-Build Contract or Final Acceptance of the Route 495 HOT Lanes in Virginia Project under the ARCA, the Independent Engineer agrees to meet, confer and exchange information with the Department and the Concessionaire on a regular basis to enable the

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Department to timely review and inspect the Route 495 HOT Lanes in Virginia Project and relevant final design and construction documents and undertake such other activities as may be necessary to determine whether Final Completion has been achieved under the Design-Build Contract and Final Acceptance has been achieved under the ARCA, and shall deliver a written report of its findings and recommendations to the Department, the Lenders and the Concessionaire. If the Independent Engineer determines that Final Completion has been achieved under the Design-Build Contract, the Independent Engineer agrees to countersign the Final Completion Certificate submitted by the Contractor in accordance with the terms of the Design-Build Contract.

(f) Compensation Events; Independent Engineer’s Review. If the Concessionaire or the Department submits a Compensation Event Notice under the ARCA, at the request of either party (and at the expense of the requesting party) the Independent Engineer shall prepare a comprehensive report as to the Compensation Event Notice’s estimate of the Net Cost Impact attributable to the Compensation Event. If the Concessionaire and Department are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, within 30 days after commencement of negotiations, at the request of either party, the Independent Engineer shall review the matters under dispute (if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute) and make a non-binding recommendation to the parties.

(g) Significant Force Majeure Events. During a period following receipt of a Force Majeure Extension Notice under the ARCA, in connection with the Department’s review of such notice, and at the request of the Department, the Independent Engineer shall provide a professional opinion to the Department establishing what constitutes prompt restoration in accordance with the terms of the ARCA.

(h) Termination for Failure to Achieve Substantial Completion; Recovery Plan. If the ARCA is terminated because (x) the Concessionaire failed to achieve Substantial Completion by the Outside Substantial Completion Date or (y) if a recovery plan has been approved in accordance with the ARCA, (A) the Concessionaire fails to diligently pursue such recovery plan or (B) the Concessionaire fails to achieve Substantial Completion by the Revised Outside Substantial Completion Date, then in coordination with the Department, but as Additional Services at the Concessionaire’s expense, the Independent Engineer shall determine or confirm, as appropriate: (x) construction value of the Route 495 HOT Lanes in Virginia Project completed to the date of termination; (y) the Department’s estimated cost to complete the Route 495 HOT Lanes in Virginia Project; and (z) the estimated additional costs to be incurred in order for the Route 495 HOT Lanes in Virginia Project to achieve Substantial Completion under the ARCA.

(i) Reports, Opinions and Other Deliverables. The Independent Engineer shall timely prepare and deliver to the Concessionaire and the Department reports, opinions, and other deliverables required under the ARCA and other Project Agreements in accordance with the applicable time periods set forth in the ARCA and other Project Agreements, as applicable.

(j) Other Services to the Department. The Independent Engineer shall provide such other administrative and independent engineer services from time to time requested by the

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Concessionaire and/or the Department, which may include but not be limited to: determining the condition of any HOT Lanes Asset every five years after the Service Commencement Date to assess ratings against the Baseline Report; monitoring and reporting to the Department of any performance breaches or failures, investigating Department’s claims of performance breaches or failures, and providing a written recommendation as to whether Performance Points should be assessed, all in accordance with the ARCA; monitoring and inspecting for the purpose of determining whether any circumstances exist that warrant issuance of a Safety Compliance Order and giving the Department and the Concessionaire reports and recommendations related to such matters; and requesting that certain portion of the Work not observed prior to being covered be uncovered by Contractor so that the progress and other aspects of the Work can be properly ascertained.

(k) Optional Services. The Independent Engineer shall perform the Independent Assurance Services as described in Section II of Exhibit B at the sole discretion of the Department.

Section 3.02 Personnel

(a) The Independent Engineer shall provide and make available as necessary, in accordance with the requirements of the approved scope of services and budget, all such labor and professional, supervisory, administrative and managerial personnel as are required to perform the Services in accordance with this Agreement. All firms and personnel performing the independent engineer services during the Term, including subcontractor firms and personnel, shall meet the licensing and certification requirements imposed by applicable Laws. The Independent Engineer shall enforce discipline and good order at all times among the Independent Engineer’s employees and all subcontractors engaged by the Independent Engineer. All persons engaged by the Independent Engineer for the Services shall have requisite experience and skills for the tasks assigned. The Independent Engineer shall employ or engage and compensate engineers and other consultants to perform all engineering and other services required in connection with the Services.

(b) The Independent Engineer represents and warrants that it presently has adequatelyqualified and properly licensed personnel in its employment for the performance of the Services or that it will be able to obtain such personnel by the Agreement Date.

(c) Either VDOT or the Concessionaire may require the removal of an employee for material breach of this Agreement. The Independent Engineer must notify the Department and the Concessionaire in the event of the removal or termination of a project manager or other key personnel associated with providing Services under this Agreement. Any change to key personnel shall be proposed to the Department and the Concessionaire for its review, consideration and approval (not to be unreasonably withheld).

(d) The Independent Engineer shall provide office space (in the vicinity of the Project location ) for its personnel who are active engaged in providing the Services during the Work Period. During the Operating Period, the Concessionaire shall provide visitor space for Independent Engineer personnel in the HOT Lanes Operations Center.

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ARTICLE 4

STANDARD OF PERFORMANCE; COOPERATION

Section 4.01 Standard of Performance

The Independent Engineer warrants to the Department, the Concessionaire and the Lenders that it will carry out the Services with the normal skill, care and diligence to be expected of an independent engineer experienced in providing similar services on projects of a similar size, scope and complexity. Moreover, the Independent Engineer shall owe a duty of care to the Department and the Lenders, but not to the Concessionaire, and shall at all times exercise its independent judgment on behalf of the Department and the Lenders.

Section 4.02 Cooperation of the Parties

The Department, the Concessionaire and the Independent Engineer will each reasonably cooperate with each other in the performance of its respective obligations and enforcement of its respective rights and remedies under this Agreement, including providing such other party with assistance and information that is reasonably necessary for such purposes. Without limiting the foregoing, the Concessionaire agrees to promptly provide to the Independent Engineer: (i) copies of all reports and test results relevant to the Project and the Work within 10 days of receipt of such reports and results by the Concessionaire; and (ii) notice of all meetings to be held pursuant to the ARCA or the Design-Build Contract and all scheduled inspections and tests of the Project or the Work, at least 10 days prior to such meetings, inspections or tests.

ARTICLE 5

CONTRACTING PRACTICES

Section 5.01 Obligation to Refrain from Discrimination

The Independent Engineer covenants and agrees that it shall not discriminate and it shall require all contractors not to discriminate against any person, or group of persons, on account of age, sex, marital status, race, creed, color, national origin, religion or the presence of any sensory, mental or physical handicap during the course of providing independent engineering services pursuant to this Agreement, nor shall the Independent Engineer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, use, hiring, firing, promotion or termination of employees, contractors, subcontractors and vendors; provided, that the prohibition against discrimination on the basis of sensory, mental or physical handicap shall not apply if the particular disability prevents the proper performance of the particular person involved.

Section 5.02 Compliance with Applicable Law

The Independent Engineer shall comply with applicable Law in performing the Services.

Section 5.03 FHWA Review

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The parties hereby acknowledge that all work performed and payments made under this Agreement shall be subject to periodic review by the Federal Highway Administration (the “FHWA”) or its representatives, and agree to reasonably cooperate with the FHWA and its representatives in connection with such reviews, as appropriate.

ARTICLE 6

FEES

Section 6.01 Fees

(a) The Concessionaire shall pay the Independent Engineer (the “Concessionaire Base Fee”) as set forth in Exhibit C for the Independent Verifier and Certifier portion of the Baseline Services (Exhibit B, Section I) (the “Concessionaire Baseline Services”), which Concessionaire Base Fee shall be payable in arrears commencing with the month in which the Agreement Date occurs.

(b) The Concessionaire shall pay the Independent Engineer (the “Department Base Fee”) as set forth in Exhibit C for the Independent Quality Assurance portion of the Baseline Services (Exhibit B, Section II) (the “Department Baseline Services”), which Department Base Fee shall be offset against and limited by the Department’s compensation for oversight services pursuant to Section 10.03 of the ARCA; provided, however, that the Department has first authorized the Independent Engineer to perform the services as noted by issuance of a written work order (a copy of which shall be provided to the Concessionaire) and the Department has received and accepted such services.

(c) The Concessionaire shall pay the Independent Engineer for such Additional Services as it has requested from the Independent Engineer in accordance with the hourly rates and charges set forth in Exhibit C. The Department shall pay the Independent Engineer for such Additional Services as the Department has requested from the Independent Engineer in accordance with the hourly rates and charges set forth in Exhibit C. Any such requests for Additional Services shall be made in writing by the requesting party to the Independent Engineer with copies of any such request provided to the other party in accordance with Section 12.05.

(d) Commencing on April 1, 2009, and on April 1 of each subsequent calendar year, the hourly rates and charges for Additional Services may be increased based on the compensation circumstances of the affected individuals but in any case by no more than 10 percent (10%) of the previous calendar year’s rates. All payments shall be made in U.S. dollars.

Section 6.02 Payment Procedure

(a) Within thirty (30) days of the end of each calendar month following the Agreement Date, the Independent Engineer shall submit to the Concessionaire and to the Department, simultaneously, a detailed invoice (including supporting documentation) setting forth 1) the Concessionaire Base Fee due with respect to the just-ended month, 2) the Department Base Fee due with respect to the just-ended month, 3) the costs Additional Services performed for the Concessionaire with respect to the just-ended month and 4) the costs of Additional Services performed for the Department with respect to the just-ended month.

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(b) If there is a dispute about any amount invoiced by the Independent Engineer under Section 6.02(a), the amount not in dispute shall be paid pursuant to this Section 6.02(b), and any disputed amount which is ultimately determined to have been payable shall be paid, when so determined to have been payable, with interest in accordance with the provisions of Section 6.02(c). All payments made by the Concessionaire or an Additional Service Party to the Independent Engineer under this Article 6 shall be paid to the Independent Engineer within thirty (30) days of receipt of the invoice by the Concessionaire or the Additional Service Party, respectively.

(c) Any amount not paid when due under this Agreement shall bear interest from the date such payment is due until payment is made at a rate equal to three (3) percent per annum above the Bank Rate at all times, which interest shall be payable on demand.

(d) If the Concessionaire or the Department does not pay the Independent Engineer by the due date for three consecutive months for the Baseline Services already performed, subject to Section 6.02(b), the Independent Engineer may suspend performance of the applicable portion of the Baseline Services by delivery of written notice of suspension to the Concessionaire, the Department and the Trustee (such notice shall provide that the suspension may not take effect for at least thirty (30) days after the delivery of the notice) until such overdue payment is received. If an Additional Service Party does not pay the Independent Engineer by the due date for Additional Services already performed, subject to Section 6.02(b), the Independent Engineer may suspend performance of Additional Services for such Additional Services Party by delivery of written notice of suspension to the Additional Service Party (such notice shall provide that the suspension may not take effect for at least thirty (30) days after the delivery of such notice) until such overdue payment is received.

(f) The Independent Engineer’s costs must comply with 48 CFR Part 31, Federal Acquisition Regulation (FAR 31), in order to qualify for reimbursement.

(g) Notwithstanding any contrary provision in this Agreement, all payments due from the Department shall be subject to the provisions of the Virginia Prompt Payment Act (VA Code Section 2.2-4347 et seq. and successor provisions) and other applicable Laws.

ARTICLE 7

INDEMNIFICATION AND INSURANCE

Section 7.01 Professional Indemnification

The Independent Engineer shall indemnify and hold harmless the Department, the Concessionaire, and their respective agents, contractors, officers and employees (the “Department Indemnitees” and “Concessionaire Indemnitees”, respectively) from all third party claims and liability for death, personal injury or damage to property due to activities of the Independent Engineer, its agents, or employees, which are caused by or result from the negligence or misconduct of the Independent Engineer or of any person employed by the Independent Engineer, together with any and all expense, including, but not limited to, attorneys’fees (notwithstanding Section 11.01(d)) which may be incurred in litigation or otherwise

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resisting said claim or liabilities which may be imposed on them as a result of such activities by the Independent Engineer, its agents, or employees.

Section 7.02 Independent Engineer’s Insurance Coverages

(a) The Independent Engineer shall obtain and maintain professional indemnity insurance for the benefit of the Concessionaire Indemnitees and Department Indemnitees in the amount of at least U.S. five million dollars (U.S. $5,000,000) in respect of its negligence, omission or default in performance or nonperformance of the Services. The Independent Engineer shall obtain the insurance required by this Section 7.01 so long as the same is available at commercially reasonable rates.

(b) The Independent Engineer shall obtain and maintain workers’ compensation insurance, employer’s liability insurance, and such other insurance coverages as may be required by applicable Law.

Section 7.03 Indemnification by Concessionaire

The Concessionaire shall indemnify and hold harmless the Independent Engineer and its agents, contractors, officers and employees from all third party claims and liability for death, personal injury or damage to property due to activities of the Concessionaire, its agents, or employees, which are caused by or result from the negligence or misconduct of the Concessionaire or of any person employed by the Concessionaire together with any and all expense, including, but not limited to, attorneys’ fees (notwithstanding Section 11.01(d)) which may be incurred in litigation or otherwise resisting said claim or liabilities which may be imposed on them as a result of such activities by the Concessionaire, its agents, or employees.

ARTICLE 8

AGREEMENT TERM, TERMINATION AND SUSPENSION OF WORK

Section 8.01 Term

The term of this Agreement shall commence on the Agreement Date, and shall remain in effect until the end of the Term (as such term is defined in the ARCA), or earlier termination of this Agreement pursuant to Section 8.02 (the “IE Agreement Term”).

Section 8.02 Termination

(a) This Agreement may be terminated before the expiration of its term upon occurrence of any of the following conditions:

(i) by mutual agreement and written consent from all parties;

(ii) by the Department and the Concessionaire, by mutual written notice to the Independent Engineer, for the failure by the Independent Engineer to perform the Services set forth herein in a satisfactory manner (unless such failure is excused by a force majeure event);

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(iii) by the Independent Engineer, upon the material breach by the Concessionaire of its obligations under this Agreement, following written notice to the Concessionaire and the Department and a 45-day cure period during which the Concessionaire (or the Department in its sole discretion) shall have the opportunity to cure such default; or

(iv) by the Department and the Concessionaire, by mutual 30-day (business days) written notice to the Independent Engineer, for its convenience and without cause.

(b) If the Department and Concessionaire terminate this Agreement under Section 8.02(a)(iv) above, the Independent Engineer shall not incur any new costs during such 30-day notice period in excess of the costs already incurred during the preceding 30-day period.

(c) Upon the termination of this Agreement pursuant to this Section, the IndependentEngineer shall be entitled to receive payments for fees and expenses properly incurred and payable prior to the termination date in accordance with the terms of this Agreement, subject to offsets (if any) for claims or deductions of the Department or the Concessionaire, respectively, from amounts otherwise due to the Independent Engineer. Upon its delivery or receipt of a termination notice, the Independent Engineer shall promptly prepare a final invoice as to the Services being terminated, and shall submit such invoice to the Concessionaire or the Department for payment in accordance with this Agreement.

(d) Except for those obligations under this Agreement which survive termination, the termination of this Agreement and payment of an amount in settlement of final invoice as prescribed above shall extinguish the rights, duties, and obligations of the Department, the Concessionaire, and the Independent Engineer under this Agreement.

(e) If this Agreement is terminated due to an Independent Engineer default pursuant to Section 8.02(a)(ii), the Independent Engineer shall pay to the Department and the Concessionaire the costs associated with replacing the Independent Engineer with another independent engineer.

(f) In the event of the termination of this Agreement or the Independent Engineer hereunder, the Concessionaire and the Department shall retain a mutually acceptable replacement independent engineer, on substantially the same terms and conditions as set forth in this Agreement, as soon as reasonably practicable following notice of termination.

Section 8.03 Suspension of Work.

(a) The Department and the Concessionaire may mutually direct the Independent Engineer to suspend any Baseline Services, and a party who has requested Additional Services may direct the Independent Engineer to suspend such Additional Services, by delivery of a suspension notice to the Independent Engineer. Upon receiving a written notice directing the Independent Engineer to resume suspended services from the party or parties that initiated such suspension, the Independent Engineer shall resume providing suspended services as soon as practicable.

(b) The Independent Engineer may suspend any Baseline Services or Additional Services provided under this Agreement in accordance with Section 6.02(d).

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ARTICLE 9

LIMITATIONS OF LIABILITY

Section 9.01 Limitation on Consequential Damages

Except as expressly provided in this Agreement to the contrary, no party shall be liable to the other hereunder for indirect, incidental or consequential damages of any nature, whether arising in contract, tort (including negligence) or any other legal theory. The foregoing limitation shall not, however, in any manner limit the Independent Engineer’s liability for damages to the extent covered by insurance required to be maintained by it hereunder.

Section 9.02 Limitation on Independent Engineer’s Liability

The Independent Engineer’s total liability under this Agreement, whether based in contract, negligence, breach of statutory duty or otherwise, shall be limited to U.S. five million dollars (U.S. $5,000,000).

ARTICLE 10

LIMITATIONS ON THE INDEPENDENT ENGINEER’S AUTHORITY; INDEPENDENCE

Section 10.01 Limitations, Generally

(a) The Independent Engineer has authority to act under the ARCA and this Agreement only where and to the extent that the ARCA or this Agreement expressly provides. The Independent Engineer is required to deliver its reports, opinions and other deliverables within the time periods set forth in the ARCA and this Agreement.

(b) The Independent Engineer shall have no authority to give instructions to the Concessionaire, deviate from or amend the ARCA, or relieve the Concessionaire of any duty or obligation under the ARCA or otherwise act on behalf of the Department under the ARCA.

(c) The Independent Engineer has no powers under the ARCA or this Agreement to: (i) arbitrate or render binding decisions or judgments; (ii) approve or disapprove submittals or Work, unless expressly provided otherwise in the ARCA or this Agreement for specific submittals; (iii) direct design, construction, operations or maintenance of the Project, or order suspensions of work, except to give such direction or order or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; (iv) act as an agent of the Department or the Concessionaire; or (v) undertake primary responsibility for quality assurance and quality control.

Section 10.02 Independence of Independent Engineer

The Independent Engineer shall act as an independent professional and not as the representative of the Department, the Concessionaire, the Lenders or the Collateral Agent. The Independent Engineer shall not be required to execute certificates that would require knowledge,

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services or responsibilities beyond the scope of this Agreement.

ARTICLE 11

DISPUTE RESOLUTION

Section 11.01 Dispute Resolution

(a) Any dispute arising out of, relating to, or in connection with this Agreement shall be resolved as set forth in this Section 11.01.

(b) The parties shall attempt in good faith to resolve the dispute within 15 days or such other time period as may be specifically established for such dispute under this Agreement. If the parties are unable to resolve the dispute within that timeframe, then any Party may litigate the matter in a court of law as set forth in Section 11.01(c).

(c) All litigation between the parties arising out of or pertaining to this Agreement or its breach shall be filed, heard and decided in the Circuit Court for the City of Richmond, Virginia, Division I, which shall have exclusive jurisdiction and venue; provided that the foregoing does not affect any claims or matters which are governed by a different dispute resolution procedure set forth in any other Project Agreement.

(d) Each party shall bear its own attorneys’ fees and costs in any dispute or litigation arising out of or pertaining to this Agreement or any other Project Agreement, and no party shall seek or accept an award of attorneys’ fees or costs.

ARTICLE 12

MISCELLANEOUS

Section 12.01 Assignment

(a) No party hereto shall have any right, power or authority to assign or delegate this Agreement or any portion thereof, either voluntarily or involuntarily, or by operation of law, without the prior written consent of the other Parties, which consent may be granted or withheld in the sole discretion of each such other Party; provided, that the Department or the Concessionaire may assign its rights hereunder in the event of a permitted assignment of its interests in the ARCA to the permitted assignee, in accordance with the requirements of the ARCA.

(b) All of the rights, benefits, duties, liabilities and obligations of the Parties hereto shall inure to the benefit of and be binding upon their respective successors and permitted assigns.

Section 12.02 Reliance

The Independent Engineer acknowledges and agrees that the Concessionaire, the Department, the Lenders and the FHWA may rely on the reports, studies, and other work product

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prepared by the Independent Engineer. The Department shall be provided copies with copies of all reports, studies, and other work product prepared by the Independent Engineer for the Concessionaire or the Lenders.

Section 12.03 Reserved

Section 12.04 Intellectual Property

The Independent Engineer hereby acknowledges and agrees that the Concessionaire (to the extent provided in the ARCA) shall hold free and clear title to all specialized equipment, tools, parts, reports, records, books, plans, designs, papers print outs, other information and all intellectual property developed by or supplied to Concessionaire and made available to Independent Engineer pursuant to Section 3.01, to enable Independent Engineer to perform its obligations hereunder (“Concessionaire Property”). Any software or other intellectual property developed by Independent Engineer in performing its services under this Agreement shall be the property of Independent Engineer, who shall provide a royalty-free license of such software or intellectual property to Concessionaire during the IE Agreement Term.

Section 12.05 Notices

(a) Whenever under the provisions of this Agreement it shall be necessary or desirable for one party to serve any notice, request, demand, report or other communication on another party, the same shall be in writing and shall not be effective for any purpose unless and until actually received by the addressee or unless served (i) personally, (ii) by independent, reputable, overnight commercial courier, (iii) by facsimile transmission, where the transmitting party includes a cover sheet identifying the name, location and identity of the transmitting party, the phone number of the transmitting device, the date and time of transmission and the number of pages transmitted (including the cover page), where the transmitting device or receiving device records verification of receipt and the date and time of transmission receipt and the phone number of the other device, and where the facsimile transmission is immediately followed by service of the original of the subject item in another manner permitted herein, or (iv) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, addressed as follows:

If to the Concessionaire:

Capital Beltway Express LLC565 5th Avenue, 18th FloorNew York, NY 10017Attention: PresidentTelephone: (646) 278-0870Facsimile: (646) 278-0839

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With a copy to:

Transurban (USA), Inc.1421 Prince StreetSuite 200Alexandria, VA 22314Attention: Vice President-DevelopmentTelephone: (571) 527-2050Facsimile: (571) 527-2060

If to the Department:

Virginia Department of Transportation1401 E. Broad StreetRichmond, VA 23219Attn: Chief EngineerTelephone: (804) 786-4798Facsimile: (804) 786-2940

With a copy to:

Virginia Department of TransportationWoodrow Wilson Bridge ProjectAttn: Regional Transportation Program Director,

Northern Virginia District2901 Eisenhower Avenue, Unit CAlexandria, VA 22314Telephone: (703) 329-0300Facsimile: (703) 329-3741

If to the Independent Engineer:

Arup North America Ltd.901 Market StreetSuite 260San Francisco, CA 94103Attn: Mike KayeTelephone:Facsimile:

(b) Any party may, from time to time, by notice in writing served upon the other party as aforesaid, designate an additional and/or a different mailing address or an additional and/or a different person to whom all such notices, requests, demands, reports and communications are thereafter to be addressed. Any notice, request, demand, report or other communication served personally shall be deemed delivered upon receipt, if served by mail or independent courier shall be deemed delivered on the date of receipt as shown by the addressee’s

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registry or certification receipt or on the date receipt at the appropriate address is refused, as shown on the records or manifest of the United States Postal Service or independent courier, and if served by facsimile transmission shall be deemed delivered on the date of receipt as shown on the received facsimile (provided the original is thereafter delivered as aforesaid).

(c) Any party providing a notice or an instruction to the Independent Engineer shall also provide a copy of such notice or instruction to the other parties to this Agreement. Any directions or notices required to be given mutually by both the Department and the Concessionaire to the Independent Engineer (e.g., termination or suspension) shall not be effective unless executed by both parties.

Section 12.06 Binding Effect

Subject to the limitations of Section 12.01, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns, and wherever a reference in this Agreement is made to any of the parties hereto, such reference also shall be deemed to include, wherever applicable, a reference to the legal representatives, successors and permitted assigns of such party, as if in every case so expressed.

Section 12.07 No Third-Party Beneficiaries

Nothing contained in this Agreement is intended or shall be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the parties hereto toward, any person or entity not a party to this Agreement, except rights expressly contained herein for the benefit of the Lenders and any agent or trustee acting on behalf of the Lenders.

Section 12.08 Confidentiality

The Independent Engineer hereby undertakes to keep confidential, except as may be explicitly approved in writing by the other Party, all documents and information concerning the other party including information furnished to each Party in connection with the duties contemplated by this Agreement and not otherwise lawfully available to each receiving Party (“Confidential Information”). Confidential Information shall include all data and information obtained by the Independent Engineer through the Independent Engineer’s access to the computer monitoring system for the Route 495 HOT Lanes in Virginia Project and all information provided to the Route 495 HOT Lanes in Virginia Project. The Independent Engineer agrees to use the Confidential Information only in connection with its respective duties and obligations hereunder, except to the extent such information can be shown to have been previously known by it, in the public domain through no fault of the Independent Engineer or its subproviders, or if such disclosure is required by law.

Section 12.09 Waiver

No provision of this Agreement may be waived except in a writing by the waiving Party. The waiver of any breach of any term or condition hereof shall not be deemed a waiver of any other or subsequent breach, whether of like or different nature.

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Section 12.10 Governing Law and Venue

This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia. Venue for any legal action arising out of this Agreement shall lie in the Circuit Court in the City of Richmond, Virginia, Division I.

Section 12.11 Survival

All covenants, agreements, representations and warranties made in or pursuant to this Agreement shall be deemed continuing and made at and as of the date of this Agreement and at and as of all other applicable times during the IE Agreement Term. All covenants, agreements, representations and warranties made in or pursuant to this Agreement shall survive the expiration or earlier termination of this Agreement and shall not be waived by the execution and delivery ofthis Agreement, by completion of construction, by any investigation by the Department or by any other event except a specific written waiver by the party against whom waiver is asserted.

Section 12.12 Construction and Interpretation of Agreement

(a) The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm’s length and careful negotiation over a considerable period of time, that each party has been given the opportunity to independently review this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized.

(b) If any term or provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by either party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each other term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties to this Agreement, and the parties hereto agree, that in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, the parties in good faith shall supply as a part of this Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible.

(c) The captions of the articles and sections herein are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this instrument.

(d) References in this instrument to this “Agreement” mean, refer to and include this instrument as well as any riders, exhibits, addenda and attachments hereto (which are hereby incorporated herein by reference) or other documents expressly incorporated by reference in this instrument. Any references to any covenant, condition, obligation and/or undertaking “herein,” “hereunder” or “pursuant hereto” (or language of like import) mean, refer to and include the

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covenants, conditions, obligations and undertakings existing pursuant to this instrument and any riders, exhibits, addenda, attachments or other documents affixed to or expressly incorporated by reference in this instrument. All terms defined in this instrument shall be deemed to have the same meanings in all riders, exhibits, addenda, attachments or other documents affixed to or expressly incorporated by reference in this instrument unless the context thereof clearly requires the contrary. Unless expressly provided otherwise, all references to Articles and Sections refer to the Articles and Sections set forth in this Agreement. Unless otherwise stated in this Agreement or other Project Agreements, words which have well-known technical or construction industry meanings are used in this Agreement or other Project Agreements in accordance with such recognized meaning.

(e) As used in this Agreement and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa.

(f) To the extent any provisions of this Agreement conflict with any provisions of the ARCA, the parties agree that the ARCA’s provisions shall govern.

Section 12.13 Counterparts

This instrument may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 12.14 Entire Agreement

THIS AGREEMENT CONSTITUTES THE ENTIRE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SPECIFIC MATTERS COVERED HEREIN AND THEREIN. ALL PRIOR WRITTEN AND PRIOR OR CONTEMPORANEOUS VERBAL AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS AND/OR PRACTICES RELATIVE TO THE FOREGOING ARE HEREBY SUPERSEDED, REVOKED AND RENDERED INEFFECTIVE FOR ANY PURPOSE. THIS AGREEMENT MAY BE ALTERED, AMENDED OR REVOKED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY EACH PARTY HERETO, OR ITS PERMITTED SUCCESSOR OR ASSIGNEE. NO VERBAL AGREEMENT OR IMPLIED COVENANT SHALL BE HELD TO VARY THE TERMS HEREOF, ANY STATUTE, LAW OR CUSTOM TO THE CONTRARY NOTWITHSTANDING. ON THE DATE HEREOF THE ENGAGEMENT LETTER IS HEREBY TERMINATED; THE CONCESSIONAIRE AND THE INDEPENDENT ENGINEER SHALL NOT HAVE ANY FURTHER OBLIGATIONS THEREUNDER, OTHER THAN OBLIGATIONS THAT HAVE ACCRUED PRIOR TO THE DATE HEREOF.

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Section 12.15 Amendment

No modification, amendment, or other changes will be binding on any party unless consented to in writing and signed by Concessionaire’s, Department’s and Independent Engineer’s authorized representatives. To the extent requirements and rights and responsibilities of the Concessionaire, the Department and/or the Independent Engineer have not been addressed in this Agreement and the Project Agreements or a party requests to change one or more existing requirements and rights and responsibilities of the Concessionaire, the Department and/or the Independent Engineer, the parties agree to negotiate in good faith regarding their respective existing or new responsibilities in the spirit of cooperation contemplated by this Agreement and other Project Agreements.

Section 12.16 No Liens or Encumbrances

Independent Engineer shall keep and maintain the Route 495 HOT Lanes in Virginia Project or the Rights of Way, as applicable, free and clear of all liens and encumbrances arising out of its performance of, or failure to perform, the independent engineer services.

Section 12.17 Concessionaire’s and Department’s Obligations under the ARCA or Other Project Agreements

This Agreement shall not amend, modify or relieve the Concessionaire and the Department of respective obligations, duties or liability under the ARCA or other Project Agreements.

Section 12.18 Subcontracting

The Independent Engineer shall not assign, subcontract or transfer any portion of the professional services related to the work under this Agreement without prior written approval from the Department and the Concessionaire. All subcontracts for professional services shall include the provisions of this Agreement and other provisions required by applicable Law. No subcontract shall relieve the Independent Engineer of any obligations, duties or liability under this Agreement.

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IN WITNESS WHEREOF, the parties, intending to be legally bound, have executed this Agreement as of the date first above written above.

CAPITAL BELTWAY EXPRESS LLC

By:Name:Title:

VIRGINIA DEPARTMENT OF TRANSPORTATION

By:Name:Title:

ARUP NORTH AMERICA LTD.

By:Name:Title:

The undersigned hereby agrees to thetermination of the Engagement Lettereffective as of the date hereof:

OVE ARUP & PARTNERS CALIFORNIA LTD.

By:__________________________________Name: ____Title: ____

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EXHIBIT A – DEFINITIONS

Additional Services means services other than the Baseline Services requested from time to time by the Concessionaire, the Department or the Trustee and agreed to by the Independent Engineer.

ARCA has the meaning given in the Recitals.

Baseline Services means the primary scope of the services described in Exhibit B and Article 3 of this Agreement (other than the portion of those services set forth in Sections 3.1(c),3.1(f), 3.1(g) and 3.1(h) that are stated to be performed at the expense of a specified party, which shall be deemed to be “Additional Services”) to be provided by the Independent Engineer and paid for by the Concessionaire pursuant to the terms of this Agreement.

Claims means any and all claims, disputes, disagreements, causes of action, demands, suits, proceedings, damages, injuries, liabilities, obligations, losses, costs and expenses.

Concessionaire has the meaning given to it in the Recitals.

Concessionaire Baseline Fee is defined in Section 6.01(a).

Concessionaire Baseline Services is defined in Section 6.01(a).

Concessionaire Indemnitee means the Concessionaire, its members and their respective affiliates, appointed officers, employees, Representatives, agents, consultants and contractors.

Concessionaire Property is defined in Section 12.04.

Department has the meaning given to it in the Recitals.

Department Baseline Fee is defined in Section 6.01(b).

Department Baseline Services is defined in Section 6.01(b).

Department Indemnitee means and includes the Department, the Commonwealth Transportation Commissioner or any successor in function, the Commonwealth Transportation Board, the Commonwealth of Virginia and their respective representatives.

Governmental Authority is as defined in the ARCA.

IE Agreement Term is defined in Section 8.01.

Law means any current or future order, writ, injunction, decree, judgment, law, ordinance, decision, opinion, ruling, statute, code, rule or regulation of any Governmental Authority.

Operating Company is as defined in the ARCA.

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Oversight Services means those services and functions the Department has the right or obligation to perform or to cause to be performed under Laws or any Project Agreement in order to monitor, review, approve, administer or audit the Project Agreements or the work or performance of the Operating Company thereunder.

Project Agreements means the Project Agreements as defined in the ARCA

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EXHIBIT B – SCOPE OF SERVICES

The Independent Engineer shall provide independent engineering services set forth in this Exhibit B and Section 3.01 in accordance with all applicable Laws, all Regulatory Approvals, the Technical Requirements, and the terms, conditions and standards set forth in this Agreement. Without limiting the foregoing, the Independent Engineer agrees to be responsible for the following, at its sole cost and expense:

I. INDEPENDENT VERIFIER AND CERTIFIER

1. Construction Progress and Technical Report. If requested by the Lenders, the Independent Engineer shall be required to monitor construction progress and provide annual (or more frequently if required) technical report to the Lenders regarding the technical aspects of the Route 495 HOT Lanes in Virginia Project.

2. Work Period; Construction. During the Work Period, the Independent Engineer shall be required to carry out regular site visits and report on construction progress. The Independent Engineer shall comment on compliance with Route 495 HOT Lanes in Virginia Project(including the Technical Requirements) and financing obligations (including budgets, minimum design and build requirements etc.), including but not limited to the following:

A. Review the Contractor’s (i) design and construction schedule, (ii) design life considerations, (iii) quality control records, and (vi) interface with the Operating Company’s start-up personnel.B. The Independent Engineer shall review the submission for AFC Documents, including drawings, specifications, revisions thereto, and provide an opinion in the following areas: (i) level of completion for payment purposes; (ii) design and design review process is being performed to conform to the requirements of the Contract Documents; (iii) the QC/QA protocols have been followed; (iv) skill level of individuals assigned to the design and design review process is appropriate; (v) the design review comment resolution process is being followed and is effective; (vi) opportunities for process improvements that will facilitate more effective, quality design work; and (vii) potential issues, observed in the course of the review noted above, that warrant additional review by the quality assurance manager or designers. The Independent Engineer will provide the relevant opinion of the design work within ten (10) days of receipt of the AFC Documents.C. Monitor the Contractor’s Maintenance of Traffic (“MOT”) program and report on the Contractor’s ability to carry out the works out whilst maintaining adequate capacity on the existing network.D. Monitor the proposed tolling program.E. Monitor and confirm compliance with all required government approvals (e.g. permits, environmental approvals and licenses for the work).F. Monitor and comment on all utility agreements.G. Monitor and report on the actual construction progress and drawdown schedule including comparison to the forecast monthly construction progress.H. Compliance with reporting procedures, including documentation of compliance with federal or state requirements for the Use of Domestic Material regulations, Davis-

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Bacon Act, prevailing wage rates, and DBE/SWAM participation, permit renewal requirements and associated deadlines for such reporting and renewals as required by the Route 495 HOT Lanes in Virginia Project’s permits and applicable environmental regulations.I. Report and comment on the Contractor’s expenses and adequacy of future budgets.J. Compliance with Hazardous Substances and wastes handling, management and disposal regulations.K. Compliance with health and safety requirements.

Moreover, the Independent Engineer shall also be required to:A. Attend regularly scheduled progress meetings on the site.B. Conduct site visits at the frequency and duration Independent Engineer deems necessary to achieve objectives and provide advice to the Department, the Concessionaire and the Lenders (as applicable).C. Establish a schedule with the Department, the Concessionaire and the Lenders, as necessary, to obtain all relevant documents and information in a manner that will allow the Independent Engineer to provide timely advice to the Department, the Concessionaire and/or the Lenders (as applicable).D. Establish meaningful milestones against which to measure ongoing construction progress.E. Monitor to assure that all construction permits or any other authorizations are obtained as required during the construction phase.F. Monitor and verify that all design, construction and commissioning works have been subject to the necessary quality control and assurance in accordance with the Contractor’s Quality Management System Plan during the construction phase.G. The Independent Engineer shall review and comment and/or recommend action by Concessionaire and/or Department, as appropriate, concerning the Performance Testing and Commissioning Plan and Programs, complete test procedures and test results submitted by Contractor pursuant to the terms of the Design-Build Contract.H. Monitor change orders and report to the Department, the Concessionaire and the Lenders, as necessary, the impact on cost, schedule and feasibility of the Route 495 HOT Lanes in Virginia Project. Advise the Department, the Concessionaire and/or the Lenders (as applicable), as to the appropriateness of each requested change order.Review any proposed amendments to the Project documents that are of a technical nature; review all proposed contract changes; where requested, provide Independent Engineer’s opinion on technical matters under dispute.I. Review all future claims for additional costs and extensions of time from Contractor and provide professional opinions on their merit.J. Review, assess and report on key commercial and technical issues in relation to the tolling equipment.K. Prepare regular memos/reports on a monthly basis on design and construction progress, including the definition of and progress toward milestones, tolling aspects and credit agreement compliance, and advice on possible and observed delays. It should also include Independent Engineer’s opinions on reasons for delays, corrective measures and any material issues the Department, the Concessionaire and/or the Lenders (as applicable)

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should be aware of. The report should include qualitative advice and recommendations on how to overcome delays and mitigate potential risks. Independent Engineer’s report should:

(i) Determine the actual progress of construction and its percentage of completion. Independent Engineer’s report should include Independent Engineer’s view as to the most likely and realistic Substantial Completion date(s)for the Route 495 HOT Lanes in Virginia Project, including any portion thereof pertaining to the New Lanes.(ii) Determine the actual progress of property expropriations/acquisitions, percentages of completion, and impacts to the construction schedule or progress.(iii) Include observations on the Contractor’s ability to meet any revised schedules.(iv) Comment on how the Contractor’s management can be improved and what corrective measures the Contractor could implement.(v) Comment on all the Performance Testing and Commissioning Plan and Program.(vi) Provide analysis of the detailed Route 495 HOT Lanes in Virginia Project implementation schedule and cost disbursement. Determine the likelihood that the Route 495 HOT Lanes in Virginia Project can be completed on time and within the budget. Provide new estimates for Route 495 HOT Lanes in Virginia Project completion and costs in case of significant changes.(vii) In the lead up to construction completion and commercial operation, Independent Engineer’s technical report should also cover progress on Route 495 HOT Lanes in Virginia Project commissioning, in particular communications systems and tolling equipment, and preparedness for commencing operations and maintenance.(viii) Track progress toward resolution of significant issues adversely impacting the Route 495 HOT Lanes in Virginia Project’s schedule and costs.(ix) Provide a detailed cost to complete analysis (updated each month) in a format acceptable to the Department, the Concessionaire and/or the Lenders (as applicable). Include reasons for each line item deviation from the approved budget.(x) Review and certify that all of Contractor’s applications for payment and supporting documentation are correct and are for work completed and approved by the Department. Review the Contractor’s weekly payrolls for conformance with applicable civil rights requirements (i.e., DBE/SWAM), the Davis-Bacon Act, and prevailing wage rates. Upon receiving a payment request from Contractor, the Independent Engineer shall determine whether a portion of the Work claimed to be performed in such payment request was actually performed in accordance with the Payment and Values Schedule. If the Independent Engineer determines that such portion of the Work has been satisfactorily performed, the Independent Engineer shall inform the Concessionaire and the Lenders of such progress and execute such certifications as specified in the Project Agreements in connection with the draw of any loan proceeds provided by the Lenders.(xi) With respect to each payment to be made to the Contractor, certify that there are sufficient available funds to meet the cost to complete test.

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(xii) Assess non-compliant work and, if Concessionaire is addressing it appropriately, identify any significant items that are deficient in quality.

L. Provide supplemental reports on any urgent matters, as deemed necessary, within 10 working days after completion of this particular task. In this respect, the Independent Engineer will issue a report(s) informing the Department, the Concessionaire and/or the Lenders (as applicable) of the status of the Route 495 HOT Lanes in Virginia Project and its related infrastructures, providing details regarding construction schedule and budget, and summarizing major issues and problem areas addressed in the construction reports furnished by the Contractor to the Independent Engineer.M. Advise on how coordination with the Department can be improved to ensure consistent determinations on the acceptance of work.N. Review the Route 495 HOT Lanes in Virginia Project management philosophy and the procedures developed to ensure an appropriate follow-up of the engineering and construction progress with a special focus on change orders. Discuss the adequacy of controls proposed to ensure adherence to the schedule and budget. Review the reporting requirements imposed on any of the engaged sub-contractors, if any, and their adequacy for the purpose of providing the Department, the Concessionaire and/or the Lenders (as applicable) with an appropriate follow-up of the construction.O. Participate in joint inspections at Substantial Completion, Construction Completion and Final Acceptance (such Completions and Acceptance as defined in the relevant documents).P. Certify Substantial Completion and Final Acceptance.Q. Any other reasonable request from the Department, the Concessionaire and/or the Lenders (as applicable) that does not have a material cost implication for the Independent Engineer. However, if additional work is requested outside the agreed cost of this scope of services, the Independent Engineer shall immediately inform the Department, the Concessionaire and/or the Lenders (as applicable).

II. INDEPENDENT QUALITY ASSURANCE (OPTIONAL)

In cooperation with and to the extent expressly authorized by the Department, the Independent Engineer shall perform the following, provided that such activities are not duplicative with work to be performed pursuant to Section I (“Independent Verifier and Certifier”) above.

1. Oversight Services. (a) In cooperation with the Department, the Independent Engineer shall perform independent assurance services with respect to all aspects of the design, permitting, financing, acquisition, construction, installation, equipping, maintenance, repair, preservation, modification, enhancement, operation, management and administration of the Route 495 HOT Lanes in Virginia Project and the HOT Lanes, as the case may be, and any Change Orders or Project Enhancements in accordance with the Project Agreements.

(i) If at any given time the Concessionaire makes multiple submittals to the Department, the Independent Engineer shall expedite the review of prioritized submittals based on priority provided by the Concessionaire.

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(ii) The Independent Engineer shall audit and monitor the activities described in the Project Development Plans to access the Concessionaire’s compliance.

(b) Without limiting the foregoing, the Independent Engineer agrees to undertake the following activities as part of the Services: observe the business operations (in connection with the Project) of the Concessionaire and its Contractors and confirm their conformance to the requirements of the ARCA and other Project Agreements; Escrowed Pricing Documents and, upon request, the books and records maintained by the Concessionaire and its Contractors in connection with the Project.

2. Independent Assurance. The Independent Engineer shall perform Department’s Independent Assurance activities including but not limited to:

During the construction period the Independent Engineer will be required to perform inspection activities to independently evaluate all sampling, equipment and testing procedures used in the Design-Build Contractor’s Quality Management System Plan. The intent of this role is to satisfy the Independent Assurance requirements as identified in Department’s “Minimum Quality Control & Quality Assurance Requirements for Design-Build & Public-Private Transportation Act Projects” dated August 2007 (the “Design-Build QC/QA Manual”) on behalf of the Department. The Independent Engineer shall accomplish this by following the guidelines set out below:

A. Attend required meetings on the project site;

B. Perform inspection, sampling and testing activities using the methods and frequency described as “VDOT’s IA Frequency” in accordance with Table 105-4 in the Design-Build QC/QA Manual; and

C. Report all findings and results to the VDOT Area Construction Engineer assigned to the Route 495 HOT Lanes in Virginia Project.The Independent Engineer shall provide copies of all such reports to the Concessionaire.

3. Operating Period; Operations and Maintenance

A. Procedures Relating to Major Maintenance Work.

Every five years after the Service Commencement Date, Independent Engineer shall review the Concessionaire’s reassessment analysis of the physical condition of the HOT Lanes Assets and determine if the condition of any HOT Lanes Asset is below its assessment rating in the Baseline Report (or the original condition of such Project Enhancement).

B. Performance Point System; Monitoring by Independent Engineer

In accordance with Section 8.16(g) of the ARCA, the Department may, in its discretion, request the Independent Engineer to undertake routine inspection responsibilities for monitoring and reporting to the Department any breaches or failures described in Exhibit

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T of the Comprehensive Agreement and providing written recommendations as to whether Performance Points should be assessed.

C. Safety Compliance Orders

Except in the case of an emergency, the Department will consult with the Concessionaire, and may consult with the Independent Engineer, prior to issuing a Safety Compliance Order concerning the risk to public or worker safety, alternative compliance measures, cost impacts and the availability of Concessionaire resources to fund the Safety Compliance Work. The Department may, in its discretion, request the Independent Engineer to monitor and inspect for the purpose of determining whether any circumstances exist that warrant issuance of a Safety Compliance Order and giving the Department and the Concessionaire reports and recommendations related to such matters.

D. Access and Inspection.

E. Compensation Events

After a party hereto submits a Compensation Event Notice, the other party shall be entitled to obtain from the Independent Engineer a comprehensive report regarding any such Compensation Event pursuant to Section 13.02(c) of the ARCA.

F. Significant Force Majeure Event

For purposes of the Department’s review of any Force Majeure Extension Notice, what constitutes prompt restoration may be established by an opinion of the Independent Engineer.

G. Termination for Significant Force Majeure Event.

H. Handback Obligations and Reserve

The Department and its duly authorized agents and the Independent Engineer shall have unrestricted access at all times to enter upon, inspect, sample, measure and physically test any part of the Project or the Rights of Way. In the course of performing its inspections, sampling, measurements and tests hereunder, the Department shall use reasonable efforts to minimize the effect and duration of any disruption to or impairment of the Work or the HOT Lanes Operations, as the case may be, or the Concessionaire’s rights or responsibilities under this Agreement.

The Independent Engineer will review any Force Majeure Election of a Significant Force Majeure Event submitted by the Concessionaire and provide an opinion as to whether complete restoration of the HOT Lanes to at least the same condition as they would have been had such Force Majeure Event not occurred, can reasonably be completed using all reasonable diligent efforts before the end of such existing Term.

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Beginning 20 years prior to the expiration of the Term and every five years thereafter, the Concessionaire, the Department, and the Independent Engineer will jointly conductinspections of the HOT Lanes Project, for the purposes of jointly (i) determining and verifying the condition of all HOT Lanes Project assets and their residual lives, and (ii) determining, revising and updating the Life Cycle Maintenance Plan to reflect the Handback Requirements.

Beginning five years prior to the expiration of the Term, the Concessionaire, the Department and the Independent Engineer will jointly conduct annual inspections of the HOT lanes to ensure that the Handback Requirements will be met.

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EXHIBIT C – FEE; HOURLY RATES

See attached schedule.

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Text1: EXHIBIT G

INDEPENDENT ENGINEER AGREEMENT