Common use of Independent Engineer Clause in Contracts

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in the performance of its services under the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions with respect to such information.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”a) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ be selected out of the panel prepared for the purpose by the Indian Ports Association or an industry expert who may be an individual or an agency from the industry having relevant experience of development or construction of Marina as per Adopted Standards mentioned in this Agreement. The Concessioning Authority shall in the provision procurement documents6 published by it, set out in reasonable detail the scope of services that are work as indicated in Appendix 7 and shortlist bidders based on their technical capability. The Concessioning Authority shall within 30 (thirty) Days of the same as those contemplated date of this Agreement forward to be provided the Concessionaire a list consisting of the names accompanied by their respective profile in brief of Persons so shortlisted. If within 15 (fifteen) Days of forwarding the list, the Concessioning Authority does not receive any objection from the Concessionaire with reasons therefor, the Concessioning Authority shall call for a financial bid from the shortlisted Persons and select the Independent Engineer hereunderordinarily based on the lowest fee quote. Any objection raised by the Concessionaire shall be considered by the Concessioning Authority and Persons against whom such objections are raised will at the discretion of the Concessioning Authority, which discretion shall be used with the highest degree of prudence and fairness, be disqualified prior to seeking a financial bid. (b) The Independent Engineer selected pursuant to the aforesaid process shall be appointed for a period commencing from the Date of Award of Concession to the date of expiry of 6 (six) months from the Commercial Operation Date. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses be substantially as set out in Appendix 7. Work of both Parties that are related to the engagement certification of a successor Independent Engineer. The Independent Engineer Performance Parameters as stipulated in this Agreement shall include provision for be done by Indian Ports Association during the equal allocation, between Developer and TxDOT, of remaining concession period (During the operations period). (c) The costs and expenses of the Independent Engineer in and Indian Ports Association for their services shall be borne by the performance Concessioning Authority and Concessionaire, equally. (d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court appoint another firm in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act its place in accordance with the provisions preceding clause (a) above. (e) If either Party disputes any advice, instruction or decision of the foregoing non-disclosure provisions Independent Engineer, the dispute shall be resolved in accordance with respect the dispute resolution procedure set out in Article 19. 6The Concessioning Authority shall to such informationthe extent possible use standard bidding documents prescribed by the Ministry of Finance for appointment of consultants and make available the relevant documents to the Concessionaire.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”a) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience be selected through a tender process. The Concessioning Authority shall in the provision procurement documents published by it, set out in reasonable detail the scope of services that are work as indicated in Appendix 7 and shortlist bidders based on their technical capability. The Concessioning Authority shall within 30 (thirty) Days of the same as those contemplated date of this Agreement forward to be provided the Concessionaire a list consisting of the names accompanied by their respective profile in brief of Persons so shortlisted. If within 15 (fifteen) Days of forwarding the list, the Concessioning Authority does not receive any objection from the Concessionaire with reasons therefore, the Concessioning Authority shall call for a financial bid from the shortlisted Persons and select the Independent Engineer hereunderordinarily based on the lowest fee quote. Any objection raised by the Concessionaire shall be considered by the Concessioning Authority and Persons against whom such objections are raised will at the discretion of the Concessioning Authority, which discretion shall be used with the highest degree of prudence and fairness, be disqualified prior to seeking a financial bid. (b) The Independent Engineer selected pursuant to the aforesaid process shall be appointed for a period commencing from the Date of Award of Concession to the date of expiry of 6 (six) months from the Date of Commercial Operations. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. be substantially as set out in Appendix 7. (c) The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in shall be borne by the performance Concessioning Authority and Concessionaire, equally. (d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court appoint another firm in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act its place in accordance with the provisions preceding clause (a) above. (e) If either Party disputes any advice, instruction or decision of the foregoing non-disclosure provisions Independent Engineer, the dispute shall be resolved in accordance with respect to such informationthe dispute resolution procedure set out in Article 19.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in the performance of its services under the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT the imposition of Non-Compliance Points hereunderPoints)] [include bracketed provision if Cost Plus cost plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. 31. Independent Auditor [include this Section 31 if cost plus pricing is selected.] On or before the first day of the ninth full calendar month before the end of the tenth Service Year (or, if this Tolling Services Agreement is executed thereafter, then within 90 days after the date of execution), the Parties shall mutually select and engage the Independent Auditor for purposes of providing the services described in Section 6(d)(iv). The Independent Auditor shall have the qualifications set forth in Section 6(d)(iv). The Parties agree not to disclose the findings, reports or other work product of shall engage the Independent Engineer Auditor pursuant to any person a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Auditor (the “Independent Auditor Agreement”), which Independent Auditor Agreement shall provide for, among other than a Permitted Personthings, the right by each Party to unilaterally remove the then acting Independent Auditor (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Auditor without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Auditor. The Independent Auditor Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Auditor in the performance of its services under the Independent Auditor Agreement [(and TxDOT shall include its portion of such non-disclosure restriction shall not apply to any information as costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement or in connection with the imposition of this restrictionNon-Compliance Points)] [include bracketed provision if cost plus pricing is selected]. The Independent Auditor’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Auditor following the Independent Auditor’s review in respect thereof, and such non-disclosure restriction also disagreement shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding be resolved pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions with respect to such information20 hereof.

Independent Engineer. As soon as practicable following 5.1 Independent Engineer shall be a technical consultancy firm selected by the Parties’ execution and delivery Authority through a tender process within a period of 3 months of the date of this Tolling Services AgreementContract.. The Authority shall within 30 (thirty) Days of the date of this Agreement forward to the Contractor a list consisting of the names accompanied by their respective profile in brief of persons/firms so shortlisted. 5.2 Any objection raised by the Contractor shall be considered by the Authority and Persons against whom such objections are raised will at the discretion of the Authority, which discretion shall be used with the highest degree of prudence and in any event no later than 6 months thereafterfairness, be disqualified prior to seeking a financial bid. 5.3 If within 15 (fifteen) Days of forwarding the list, the Parties Authority does not receive any objection from the Contractor with reasons therefor, the Authority shall engage an independent third party engineering firm (call for financial bids from the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by shortlisted persons/ firms and select the Independent EngineerEngineer r ordinarily based on the lowest fee quote for respective position. 5.4 The Independent Engineer selected pursuant to the aforesaid process shall be appointed within 90 (Ninety) Days of the date of this Contract. The Independent Engineer shall have discharge its duties and functions substantially in accordance with the terms of reference set forth in Annexure -V. The Independent Engineer shall submit regular periodic reports (at least ten years’ experience once every month) to the Authority in respect of its duties and functions set forth in Annexure -V. 5.5 On expiry or termination of the provision of services that are aforesaid appointment, the same as those contemplated to be provided by the Authority shall appoint an Independent Engineer hereunder. for a further term of 3 (three) years in accordance with the provisions of Annexure -V, and such procedure shall be repeated after expiry of each appointment. 5.6 The Parties shall engage the scope of work of Independent Engineer pursuant to a threeshall inter-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the alia include work of certification of Performance Parameters as stipulated in this Agreement 5.7 The scope of work of Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party inter-alia include work of validating insufficient LAD as stipulated in this Contract. Validating occasions of unsuccessful vessel passage due to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that physical obstruction in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related vessel passage including but not limited to the engagement of a successor Independent Engineerinsufficient LAD. The Independent Engineer Agreement shall include provision for validate/ certify that unsuccessful passage is not due to Contractor default subject to the equal allocation, between Developer and TxDOT, following conditions: (a) Contractor has taken an informed decision about the size of the vessel and volume of cargo that can pass through the waterway by checking the LAD information updated weekly by the Authority on their website or any other source of information used in the future. (b) Contractor has adhered to the waterway channel as declared by the Authority in their navigational charts updated periodically. 5.8 The costs and expenses of the Independent Engineer in for their services shall be borne by the performance Authority and Contractor, equally. 5.9 If the Authority either on its own or on a report of its services under the Contractor has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under appointment of the Agreement. The Independent Engineer/ Independent Engineer is to perform and appoint another firm in its place in accordance with the functions provided for under this Tolling Services Agreement and preceding Article 5.1 above. 5.10 If either Party disputes any advice, instruction or decision of the Independent Engineer Agreement , the dispute shall be resolved in accordance with the dispute resolution procedure set out in Article 19. 5.11 The Authority shall require the Independent Engineer to designate and notify to assist the Authority and advise the Parties concerning Contractor up to 2 (two) persons employed in its findings firm to sign for and recommendations. The on behalf of the Independent Engineer’s determinations are not final , and binding. If there is a continuing disagreement between the Parties concerning any matter subject communication or document required to review be signed by the Independent Engineer following shall be valid and effective only if signed by any of the designated persons; provided that the Independent Engineer may, by notice in writing, substitute any of the designated persons by any of its employees. 5.12 In the event that the Authority has not appointed an Independent Engineer’s review and recommendation , or the Independent Engineer so appointed has relinquished its functions or defaulted in respect discharge thereof, such disagreement shall be resolved pursuant the Authority may, in the interim, designate and authorise any person for a maximum duration of 90 days to Section 20 hereof. The Parties agree not to disclose discharge the findings, reports or other work product functions of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of this Contract, save and except that such person shall not exercise any functions relating to review, comment, approval or inspection as specified in this Contract for and in respect of the foregoing non-disclosure Independent Engineer, and such functions shall be discharged as and when an Independent Engineer is appointed in accordance with the provisions with respect of this Contract. Provided, however, that nothing contained in this Article 5.11 shall in any manner restrict the rights of the Authority to such informationenforce compliance of the provisions of this Contract.

Independent Engineer. As soon as practicable following a) Independent Engineer shall be a technical consultancy firm selected in accordance with provisionsof the Parties’ execution and delivery Model Request for Proposals for Selection of Technical Consultants, issued by the Ministry of Finance, GOI vide OM 24(23)/PF-II/2008 dated May 21, 2009, or any substitute thereof. If any panel of such firms is prepared by Indian Ports Association for the purpose, then Independent Engineer shall be selected out of that panel. The Concessioning Authority shall complete the selection process within a period of 3 months of the date of this Tolling Services Agreement. The Concessioning Authority shall in the procurement documents published by it, and set out in any event no later than 6 months thereafter, reasonable detail the Parties shall engage an independent third party engineering firm (the “Independent Engineer”scope of work as indicated in Appendix 7. b) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer selected pursuant to the aforesaid process shall have at least ten years’ experience in be appointed for aperiod commencing from the provision Date of services that are Award of Concession to [the same as those contemplated to be provided by date of expiry of 6 (six) months from the Independent Engineer hereunderCOD]. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without causeshall be substantially as set outin Appendix 7. On expiry or termination of the aforesaid appointment, the Party effecting the removal Concessioning Authority shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The appoint an Independent Engineer Agreement for a further term of 3 (three) years in accordance with the provisions of Appendix 7, and such procedure shall include provision for the equal allocation, between Developer and TxDOT, be repeated after expiry of the each appointment. c) The costs and expenses of the Independent Engineer in for their services shall be borne by the performance Concessioning Authority and Concessionaire, equally. d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reasonto believe that the Independent Engineer Agreement [(and TxDOT shall include is not discharging its portion of such costs and expenses duties in the calculation of the Cost of TxDOT’s Services hereundera fair, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to beappropriate anddiligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in dueopportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer to and appoint another firm in its place in accordance with the preceding clause (a) above. e) If either Party disputes any advice, instruction or decision of the Independent Engineer, thedispute shall be resolved in accordancewiththedisputeresolutionproceduresetout in Article 19. f) In the event that the Concessioning Authority has not appointed an Independent Engineer, or the Independent Engineer so appointed has relinquished its functions or defaulted in dischargethereof, the Concessioning Authority may, in the interim, designate and authorise any person other than a Permitted Person; providedfora maximum duration of 90 days to discharge the functions of the Independent Engineer inaccordance with the provisions of this Agreement, however, save and except that such non-disclosure restriction person shall not apply exercise any functions relating to any information review, comment, approval or inspection as specified in thisAgreement for and to in respect of the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restrictionIndependent Engineer, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons functions shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act discharged as andwhen an Independent Engineer is appointed in accordance with the provisions of this Agreement. Provided, however, that nothing contained in this Clause 5.1 (f) shall in anymanner restrict the foregoing non-disclosure provisions with respect rights of the Concessioning Authority to such informationenforce compliance of the provisionsof this Agreement.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in the performance of its services under the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-non- disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions with respect to such information.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in the performance of its services under the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 2020 hereof. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions with respect to such information.

Independent Engineer. (a) As soon as practicable following a Condition Precedent under Clause 2.2(b), within 90 Days of the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafterExecution Date, the Parties Authority and the Project SPV shall engage jointly appoint an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by appropriately qualified Person as the Independent Engineer. The term of appointment of the Independent Engineer shall, unless mutually agreed by the Authority and the Project SPV, be until the Transfer Date. The procedure for appointment, replacement and the scope of work of the Independent Engineer are set out at Schedule 4. (b) All fees, costs, charges and expenses payable to the Independent Engineer shall be agreed in advance of its appointment and shall be equally shared by the Authority and the Project SPV. The Authority shall pay such amounts to the Independent Engineer. The Project SPV shall reimburse the Authority for its part of the payment made to the Independent Engineer within 10 Business Days of such payment. In the event that the Project SPV, within 10 Business Days of the payment made to the Independent Engineer, fails to reimburse the Authority for such payments then the Authority shall have at least ten years’ experience the right to set off such payments under Clause 13.4. (c) The Authority and the Project SPV may mutually decide to replace the Independent Engineer in any of the provision following circumstances: (i) if either of services them have a reason to believe that are the same as those contemplated Independent Engineer has not discharged its duties in accordance with the terms of this Agreement; (ii) if they decide not to be renew the appointment of the Independent Engineer; or (iii) if the Independent Engineer tenders its resignation in accordance with the terms of its appointment letter. (d) The Authority shall ensure that the Independent Engineer is provided with all the information required or sought by the Independent Engineer, in order for the Independent Engineer to perform its functions, duties and obligations in relation to this Agreement, along with relevant extracts of this Agreement annexed to the appointment letter of the Independent Engineer highlighting all the rights and obligations of the Independent Engineer. The appointment letter signed and returned by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs and expenses of the Independent Engineer in the performance acknowledge acceptance of its services under the Independent Engineer Agreement [(rights and TxDOT shall include its portion of such costs and expenses obligations set out in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is shall also have the right to perform seek additional information from the functions provided for Authority and the Project SPV in order to fulfil its obligations under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions with respect to such information's appointment letter.

Independent Engineer. As soon as practicable following a) Independent Engineer shall be a technical consultancy firm selected in accordance with provisions of the Parties’ execution and delivery Model Request for Proposals for Selection of Technical Consultants, issued by the Ministry of Finance, GOI vide OM 24(23)/PF-II/2008 dated May 21, 2009, or any substitute thereof. If any panel of such firms is prepared by Indian Ports Association for the purpose, then Independent Engineer shall be selected out of that panel. The Concessioning Authority shall complete the selection process within a period of 3 months of the date of this Tolling Services Agreement. The Concessioning Authority shall in the procurement documents20 published by it, and set out in any event no later than 6 months thereafter, reasonable detail the Parties shall engage an independent third party engineering firm (the “Independent Engineer”scope of work as indicated in Appendix 7. b) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer selected pursuant to the aforesaid process shall have at least ten years’ experience in be appointed for a period commencing from the provision Date of services that are Award of Concession to [the same as those contemplated to be provided by date of expiry of 6 (six) months from the Independent Engineer hereunderCOD]. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without causeshall be substantially as set out in Appendix 7. On expiry or termination of the aforesaid appointment, the Party effecting the removal Concessioning Authority shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The appoint an Independent Engineer Agreement for a further term of 3 (three) years in accordance with the provisions of Appendix 7, and such procedure shall include provision for the equal allocation, between Developer and TxDOT, be repeated after expiry of the each appointment. c) The costs and expenses of the Independent Engineer in for their services shall be borne by the performance Concessioning Authority and Concessionaire, equally. d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer to and appoint another firm in its place in accordance with the preceding clause (a) above. e) If either Party disputes any advice, instruction or decision of the Independent Engineer, the dispute shall be resolved in accordance with the dispute resolution procedure set out in Article 19. f) In the event that the Concessioning Authority has not appointed an Independent Engineer, or the Independent Engineer so appointed has relinquished its functions or defaulted in discharge thereof, the Concessioning Authority may, in the interim, designate and authorise any person other than for a Permitted Person; provided, however, that such non-disclosure restriction shall not apply maximum duration of 90 days to any information as and to discharge the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed functions of the confidential nature of the information disclosed to them and shall be required to agree to act Independent Engineer in accordance with the provisions of this Agreement, save and except that such person shall not 20 The Concessioning Authority shall to the foregoing non-disclosure extent possible use standard bidding documents prescribed by the Ministry of Finance for appointment of consultants and make available the relevant documents to the Concessionaire. exercise any functions relating to review, comment, approval or inspection as specified in this Agreement for and in respect of the Independent Engineer, and such functions shall be discharged as and when an Independent Engineer is appointed in accordance with the provisions with respect of this Agreement. Provided, however, that nothing contained in this Clause 5.1 (f) shall in any manner restrict the rights of the Concessioning Authority to such informationenforce compliance of the provisions of this Agreement.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”a) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience be selected out of the panel prepared for the purpose by the Indian Ports Association or through an open bidding process. The Concessioning Authority shall in the provision procurement documents published by it, set out in reasonable detail the scope of services that are work as indicated in Appendix 7 and shortlist Bidders based on their technical capability. The Concessioning Authority shall within 30 (thirty) days of the same as those contemplated date of this Agreement forward to be provided the Concessionaire a list consisting of the names accompanied by their respective profile in brief of Persons so shortlisted. If within 15 (fifteen) Days of forwarding the list, the Concessioning Authority does not receive any objection from the Concessionaire with reasons therefor, the Concessioning Authority shall call for a financial bid from the shortlisted Persons and select the Independent Engineer hereunderordinarily based on the lowest fee quote. Any objection raised by the Concessionaire shall be considered by the Concessioning Authority and Persons against whom such objections are raised will at the discretion of the Concessioning Authority, which discretion shall be used with the highest degree of prudence and fairness, be disqualified prior to seeking a financial bid. (b) The Independent Engineer selected pursuant to the aforesaid process shall be appointed for a period commencing from the Appointed Date up to such time as may be determined by the Concessioning Authority. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses be substantially as set out in Appendix 7. Work of both Parties that are related to the engagement certification of a successor Independent Engineer. The Independent Engineer Performance Parameters as stipulated in this Agreement shall include provision for be done by expert or qualified person (“nodal officer”) as may be appointed by the equal allocationConcessioning Authority, between Developer and TxDOT, of during the remaining concession period. (c) The costs and expenses of the Independent Engineer in shall be borne by the performance Concessioning Authority and Concessionaire, equally. (d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer and appoint another firm in its place in accordance with the preceding clause (a) above. (e) If either Party disputes any advice, instruction or decision of the Independent Engineer, the dispute shall be resolved in accordance with the dispute resolution procedure set out in Article 19. (f) In case of absence of Independent Engineer due to any person other than a Permitted Person; providedreasons whatsoever, however, that such non-disclosure restriction the Nodal Officer appointed by Concessioning Authority shall not apply perform the duties as specified in this Agreement in capacity of Independent Engineer. (g) (g)Concessioning Authority shall have the right to appoint any information as and of its agencies or 1. The provisions of this Agreement with respect to the extent required Independent Engineer shall apply mutatis mutandis to be disclosed by applicable law such agency or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of department until the confidential nature of the information disclosed to them and shall be required to agree to act Independent Engineer is appointed in accordance with the provisions of the foregoing non-disclosure Appendix 7 and this Article 5.1 and such provisions with respect to such informationshall be repeated after expiry of each appointment.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties a. The Concessioning Authority shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are appoint a person to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer under this Agreement (the “Independent Engineer Agreement”). The appointment shall be made not later than 180 (one hundred eighty) days from Appointed Date for a period of 1 (one) year, which Independent Engineer Agreement shall provide for, among other thingsfor a period starting from the beginning of Construction Period till 6 (six) months from the COD. On expiry or termination of the aforesaid period, the right by each Party Authority may in its discretion renew the appointment, or appoint person to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of be the Independent Engineer without causefor a term of 1 (one) year, the Party effecting the removal atleast 30 (thirty) days before such Termination and such procedure shall bear the costs be repeated after expiry of each appointment. b. The roles and expenses functions of both Parties that are related to the engagement of a successor Independent Engineer. Engineer shall be as mentioned in Schedule 8. c. The Independent Engineer Agreement shall include provision for the equal allocationsubmit regular periodic reports (atleast once every quarter) to Concessioning Authority. d. The remuneration, between Developer and TxDOT, of the costs cost and expenses of the Independent Engineer in shall be paid by the performance of its services under NRDA. e. If the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties and TxDOT shall include its portion functions in a fair, efficient and diligent manner, it may make a written representation to the NRDA and seek termination of the appointment of the Independent Engineer. Upon receipt of such costs representation, the NRDA shall hold a tripartite meeting with the Concessionaire and expenses in the calculation Independent Engineer for an amicable resolution of the Cost of TxDOT’s Services hereunderDispute, except to the extent and if any such costs and expenses are incurred as a result of a breach difference or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by NRDA and the Independent Engineer following Concessionaire remains unresolved, the Independent Engineer’s review and recommendation in respect thereof, such disagreement Dispute shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act settled in accordance with the provisions Dispute Resolution Procedure. In the event that the appointment of the foregoing non-disclosure provisions Independent is terminated hereunder, NRDA shall appoint forthwith another Independent in accordance with respect Clause 4.3. f. If either Party disputes any advice, instruction, decision, direction or award of the Independent Engineer, or, as the case may be, the assertion or failure to such informationassert jurisdiction, the Dispute shall be resolved in accordance with the Dispute Resolution Procedure.

Independent Engineer. As soon Before the Effective Date, the Concessionaire shall propose the Contracting Authority a list with at least three (3) Persons experienced in construction and construction works execution in Airports similar in size and activity with the Airport to be constructed in the framework of the Project. The Concessionaire shall prepare as practicable following well the Parties’ execution terms of reference for the selection of the Independent Engineer, in line with Annex 7.The Contracting Authority shall select one of the experts proposed by the Concessionaire and delivery of this Tolling Services Agreement, and in any event shall notify the Concessionaire no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (the “Independent Engineer”) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to be provided by the Independent Engineer hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent EngineerFinal Date. The Independent Engineer Agreement shall include provision for enter in force in the equal allocationEffective Date and shall end 30 days after the Operation Date. According to the Independent Engineer Agreement, between Developer the Independent Engineer shall not exercise a similar function or any other function on behalf of third parties, thus including lenders or any other Financial Institution that may finance time to time the Concessionaire’s debt. The Independent Engineer duties shall be laid down in the Independent Engineer Agreement, in line with the Agreement and TxDOTAnnex 7, but the title or engagement of the costs Independent Engineer, or the fulfillment or non-fulfillment of the relevant duties from the Independent Engineer shall in no way relief the Concessionaire from any responsibility or obligation as per this Agreement, unless this Agreement or the Independent Engineer Agreement expressly charges the Independent Engineer to exercise the relevant duties with respect to the Concessionaire’s responsibilities. Before settling a dispute, the Independent Engineer shall provide to the Contracting Authority and expenses the Concessionaire the opportunity to express their opinion with respect to the relevant issue. The Concessionaire and the Contracting Authority shall cooperate and recognize the rights granted to the Independent Engineer and each Party shall ensure access to information and assistance, so that the Independent Engineer be able to fulfill his/her duties as per the Independent Engineer Agreement. The Concessionaire and the Contracting Authority shall agree to accept as final and binding any decision made by the Independent Engineer when exercising his/her duties, according to the Independent Engineer Agreement, even if it has not been otherwise agreed upon in the Independent Engineer Agreement. In case the activity of the Independent Engineer pursuant to the implementation of this Agreement and Independent Engineer Agreement is suspended, banned or abandoned for whatever reason, the Parties shall agree that the Contracting Authority or any other duly authorized representative performs the Independent Engineer function until the Independent Engineer is appointed or replaced, as per article 8.1. The Contracting Authority is forced to appoint and/or substitute the Independent Engineer no later than 30 calendar days from the notice that the Concessionaire will send to the Contracting Authority on Independent Engineer appointment or replacement. In event of unjustified delays from the Contracting Authority with respect to Independent Engineer appointment or replacement, causing in turn a delay in Construction Works from the Concessionaire, the latter shall benefit a term extension equaling the length of the delays. The Concessionaire shall undertake: to ensure that the Independent Engineer has been granted anytime sufficient access to the Site or any other premises where the design or the Construction Works are being executed for monitoring purposes, provided that the Independent Engineer or his/her representatives, as the case may be, adhere to and act in line with the applicable safety procedures implemented by the Concessionaire for individuals having access to the Site; to ensure that the Independent Engineer is granted access to people, including subcontractors of the Concessionaire, and the documentation deemed necessary to perform his/her duties, by reasonable notice and within normal business hours; to notify in advance the participation of the Independent Engineer in meetings related to Construction Works progress, held between the performance Concessionaire and its subcontractors; to ensure any assistance and access to equipment or materials, as may be requested by the Independent Engineer; to allow the Independent Engineer, through an advance notice of its services under one (1) Business Day, to inspect, control, inquire, and test any Construction Works aspect and their progress, provided that the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation is reasonably engaged to avoid any unnecessary interruption of the Cost of TxDOT’s Services hereunder, except Construction Works; to the extent any such costs and expenses are incurred as a result of a breach not interfere with or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to be, the same Person engaged as hinder the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under from meeting his/her duties stemming from this Tolling Services Agreement and or the Independent Engineer Agreement and Agreement; to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning immediately correct any matter subject to review defect, mistake, delay or non-compliance identified by the Independent Engineer following the Independent Engineer’s review Engineer fees and recommendation in respect thereof, such disagreement expenses shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose borne by the findings, reports or other work product of Concessionaire in line with the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to Agreement. Any cost covered by the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act in accordance with the provisions of the foregoing non-disclosure provisions Concessionaire with respect to such informationthe Independent Engineer shall be considered a Project expense for investment realization purposes.

Independent Engineer. As soon as practicable following (a) Independent Engineer shall be a technical consultancy firm selected in accordance with provisions of the Parties’ execution and delivery Model Request for Proposals for Selection of Technical Consultants, issued by the Ministry of Finance, GOI vide OM 24(23)/PF-II/2008 dated May 21, 2009, or any substitute thereof. If any panel of such firms is prepared by Indian Ports Association for the purpose, then Independent Engineer shall be selected out of that panel. The Concessioning Authority shall complete the selection process within a period of 3 months of the date of this Tolling Services Agreement. The Concessioning Authority shall in the procurement documents20 published by it, and set out in any event no later than 6 months thereafter, reasonable detail the Parties shall engage an independent third party engineering firm scope of work as indicated in Appendix 7. (the “Independent Engineer”b) to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer selected pursuant to the aforesaid process shall have at least ten years’ experience in be appointed for a period commencing from the provision Date of services that are Award of Concession to [the same as those contemplated to be provided by date of expiry of 6 (six) months from the Independent Engineer hereunderCOD]. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and containing terms and conditions reasonably acceptable to, Developer, TxDOT and the Independent Engineer (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement scope of work of the Independent Engineer without causeshall be substantially as set out in Appendix 7. On expiry or termination of the aforesaid appointment, the Party effecting the removal Concessioning Authority shall bear the costs and expenses of both Parties that are related to the engagement of a successor Independent Engineer. The appoint an Independent Engineer Agreement for a further term of 3 (three) years in accordance with the provisions of Appendix 7, and such procedure shall include provision for the equal allocation, between Developer and TxDOT, be repeated after expiry of the each appointment. (c) The costs and expenses of the Independent Engineer in for their services shall be borne by the performance Concessioning Authority and Concessionaire, equally. (d) If the Concessioning Authority either on its own or on a report of its services under the Concessionaire has reason to believe that the Independent Engineer Agreement [(is not discharging its duties in a fair, appropriate and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such costs and expenses are incurred as a result of a breach or default under this Tolling Services Agreement by TxDOT or in connection with an inaccurate determination by TxDOT of Non-Compliance Points hereunder)] [include bracketed provision if Cost Plus pricing is selected]. The Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall not be required to bediligent manner, the same Person engaged as Concessioning Authority may after giving the Independent Engineer (as defined in due opportunity of being heard, terminate the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any matter subject to review by the Independent Engineer following the Independent Engineer’s review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. The Parties agree not to disclose the findings, reports or other work product appointment of the Independent Engineer to any person other than a Permitted Person; provided, however, that such non-disclosure restriction shall not apply to any information as and to the extent required to be disclosed by applicable law or to information that becomes public other than by virtue of a breach of this restriction, and such non-disclosure restriction also shall not preclude disclosure of information to any applicable arbitrator or court appoint another firm in a dispute resolution proceeding pursuant to Section 20. Permitted Persons shall be informed of the confidential nature of the information disclosed to them and shall be required to agree to act its place in accordance with the provisions preceding clause (a) above. (e) If either Party disputes any advice, instruction or decision of the foregoing non-disclosure provisions Independent Engineer, the dispute shall be resolved in accordance with respect the dispute resolution procedure set out in Article 19. (f) In the event that the Concessioning Authority has not appointed an Independent Engineer, or the Independent Engineer so appointed has relinquished its functions or defaulted in discharge thereof, the Concessioning Authority may, in the interim, designate and authorise any person for a maximum duration of 90 days to such information.discharge the functions of the Independent Engineer in