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 or in connection with the imposition of Non-Compliance Points)] [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. 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 shall engage the Independent Auditor pursuant to 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 things, 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 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 or in connection with the imposition of Non-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, such disagreement shall be resolved pursuant to Section 20 hereof.

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 the imposition an inaccurate determination by TxDOT of Non-Compliance PointsPoints hereunder)] [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 The Parties agree not to disclose the findings, reports or before the first day other work product 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 shall engage the Independent Auditor pursuant Engineer to any person other than 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 things, the right by each Party to unilaterally remove the then acting Independent Auditor (i) for cause or (ii) once every five years without causePermitted Person; provided, however, that in connection with the removal such non-disclosure restriction shall not apply to any information as 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 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 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 default under this Tolling Services Agreement or court in connection with the imposition of Non-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, such disagreement shall be resolved dispute resolution proceeding pursuant to Section 20 hereof20. 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 For purposes of this Tolling Services Agreement, the "Independent Engineer" shall be X.X. Xxxx, Inc. or such other replacement engineering consulting firm selected in accordance with this Section 10.1. Borrower or the Majority Banks may remove the Independent Engineer in the event that such Independent Engineer (a) ceases to be a engineering consulting firm of recognized international standing, (b) has become an Affiliate of NEG or (c) has developed a conflict of interest that reasonably calls into question such firm's capacity to exercise independent judgment. If the Independent Engineer is removed or resigns and thereby ceases to act as Independent Engineer for purposes of this Agreement, the Majority Banks and Borrower shall, within 30 days of such removal or resignation, jointly designate a replacement engineering consulting firm from the list contained in any event no later than 6 months Exhibit M hereto and, thereafter, Administrative Agent shall promptly notify the Parties Banks and the Lender Group Agents on behalf of their respective Lender Groups of such designation. At any time and from time to time, the Majority Banks shall engage an have the right to add to Exhibit M hereto one or more independent third party engineering firm consulting firms and shall notify Borrower, the Banks and the Lender Group Agents on behalf of their respective Lender Groups of any such addition. Exhibit M hereto shall automatically be deemed amended to reflect such addition unless, within 30 days of such notification, Borrower notifies Administrative Agent that it objects, on the basis of the criteria set out in clauses (the “Independent Engineer”a) to provide the services that this Tolling Services Agreement states are to be provided by through (c) above for removal of the Independent Engineer, to the firm or firms so added. The Independent Engineer At any time while the Obligations are outstanding, Administrative Agent, the Arrangers, the Banks and the Lender Group Members shall have at least ten years’ experience the right, but shall not be obligated (other than as expressly provided herein or in the provision of services that are the same as those contemplated other Credit Documents), to be provided by consult with 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 on matters related to the engagement of a successor Independent Engineerthis Agreement or any other Credit Document. The Independent Engineer Agreement shall include provision for the equal allocation, between Developer and TxDOT, of the costs All reasonable fees and expenses of the Independent Engineer in (whether 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 original one or default under this Tolling Services Agreement or in connection with the imposition of Non-Compliance Points)] [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 Agreementreplacements) 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 selectedpaid by Borrower.] 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 shall engage the Independent Auditor pursuant to 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 things, 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 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 or in connection with the imposition of Non-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, such disagreement shall be resolved pursuant to Section 20 hereof.

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 the imposition an inaccurate determination by TxDOT of Non-Compliance PointsPoints hereunder)] [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 The Parties agree not to disclose the findings, reports or before the first day other work product 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 shall engage the Independent Auditor pursuant Engineer to any person other than 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 things, the right by each Party to unilaterally remove the then acting Independent Auditor (i) for cause or (ii) once every five years without causePermitted Person; provided, however, that in connection with the removal such non-disclosure restriction shall not apply to any information as 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 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 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 default under this Tolling Services Agreement or court in connection with the imposition of Non-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, such disagreement shall be resolved dispute resolution proceeding pursuant to Section 20 hereof20. 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 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 or in connection with the imposition of Non-Compliance Points)] [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 Independent Engineer fees and expenses shall be borne by the Concessionaire in line with the Independent Engineer’s review and recommendation in Engineer Agreement. Any cost covered by the Concessionaire with respect thereof, such disagreement to the Independent Engineer shall be resolved pursuant to Section 20 hereof. 31. Independent Auditor [include this Section 31 if cost plus pricing is selectedconsidered a Project expense for investment realization purposes.] 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 shall engage the Independent Auditor pursuant to 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 things, 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 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 or in connection with the imposition of Non-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, such disagreement shall be resolved pursuant to Section 20 hereof.

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 the imposition an inaccurate determination by TxDOT of Non-Compliance PointsPoints hereunder)] [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 The Parties agree not to disclose the findings, reports or before the first day other work product 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 shall engage the Independent Auditor pursuant Engineer to any person other than 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 things, the right by each Party to unilaterally remove the then acting Independent Auditor (i) for cause or (ii) once every five years without causePermitted Person; provided, however, that in connection with the removal such non-disclosure restriction shall not apply to any information as 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 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 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 default under this Tolling Services Agreement or court in connection with the imposition of Non-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, such disagreement shall be resolved dispute resolution proceeding pursuant to Section 20 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.