virginia department of transportation u.s. … · 2010-10-22 · attachment g – proposal forms...

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms

VIRGINIA DEPARTMENT OF TRANSPORTATION U.S. ROUTE 460 CORRIDOR IMPROVEMENTS PROJECT

ATTACHMENT G

DETAILED PROPOSAL FORMS

Form 1 Submittal Letter Form 2 Non-Collusion Affidavit Form 3 Conflict of Interest Disclosure Statement Form 4 Equal Employment Opportunity Certification Form 5 Use of Contract Funds for Lobbying Certification Form 6 Debarment and Suspension Certification Form 7 Detailed Proposal Security Form 7-A Detailed Proposal Bond Form 7-B Detailed Proposal Letter of Credit Form 8 Financial Proposal Forms Form 8-A Maximum PVR (Present Value Of Gross Revenues) Form Form 8-B Initial Toll Rates & Illustrative Toll Rate Adjustment Policy Form 8-C Financial Statements Summary Table Form 8-D Financial Plan Tables Form 8-E Schedule of Values Form

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project


FORM 1

SUBMITTAL LETTER

Offeror: __________________________________________________________

Detailed Proposal Date: __________, 2009

Virginia Department of Transportation 1401 East Broad Street Richmond, VA 23219 Attn: Jeff Hetzer

The undersigned (“Offeror”) submits this detailed proposal (the “Detailed Proposal”) in response to the Request for Detailed Proposals issued by the Virginia Department of Transportation (“VDOT”), a department of the Commonwealth of Virginia, dated December 31, 2008, as amended (the “RFDP”), to finance, develop and operate the U.S. Route 460 Corridor Improvements Project (the “Project”), as more specifically described herein and in the documents provided with the RFDP.

Initially capitalized terms not otherwise defined in this Detailed Proposal shall have the meanings set forth in the RFDP, including the Instructions to Offerors (“Instructions”), Attachment A to the Instructions, and Exhibit A to the Comprehensive Agreement.

In consideration for VDOT supplying us, at our request, with the RFDP and agreeing to examine and consider this Detailed Proposal, the Offeror undertakes:

(a) to keep this Detailed Proposal open for acceptance for 180 days after the Detailed Proposal Due Date as established by Section 2.3 of the Instructions, without unilaterally varying or amending its terms and without any change being made in the composition of the Offeror or Major Participants, except as permitted by the RFDP; and

(b) if this Detailed Proposal is accepted by VDOT, to enter into the Comprehensive Agreement without varying or amending its terms (except for modifications agreed to by VDOT in its sole discretion), and to satisfy all other conditions to award of the Comprehensive Agreement, including compliance with all commitments contained in this Detailed Proposal.

The timely and complete performance of the foregoing obligations by the Offeror is secured by the Detailed Proposal Security, an original copy of which is enclosed with this Detailed Proposal. In submitting its Detailed Proposal, Offeror understands and agrees that the disposition of, and the parties’ respective rights with respect to, such Detailed Proposal Security shall be subject to the terms of Section 6.7 of the Instructions. Offeror further acknowledges that the forfeit of Detailed Proposal Security constitutes liquidated damages and not a penalty.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 1 – Submittal Letter

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Additional information pertaining to the Offeror and the other Major Participants is enclosed with this Detailed Proposal as Attachment A to this Submittal Letter. Offeror understands and agrees that if the Offeror is a joint venture or association other than a corporation, limited liability company or partnership, all members of the Offeror shall be jointly and severally liable for all obligations and representations of the Offeror under this Detailed Proposal, and each of the members shall execute and deliver this Submittal Letter.

The following individual(s) is/are authorized to represent the Offeror and to enter into negotiations with VDOT on behalf of the Offeror in connection with this Detailed Proposal and all other matters pertaining to the RFDP, the Project and the Comprehensive Agreement:

[List by name, title, address and phone and fax numbers, e-mail address]

Enclosed and, by this reference, incorporated in and made a part of this Detailed Proposal are the following:

• Executive Summary

• Technical Proposal, including Offeror Information, Certifications and Documents, Detailed Proposal Security

• Financial Proposal

• [List additional attachments]

Offeror acknowledges receipt of the following Addenda to the RFDP and sets of questions and responses:

[List all addenda and sets of questions and responses]

Offeror certifies the following:

(1) The Detailed Proposal is submitted without reservation, qualification, assumptions or conditions;

(2) The Design-Build Contractor and all other Contractors identified in the Detailed Proposal that will be responsible for the performance of construction work on the Project have been prequalified for such work by VDOT;


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(3) The Schedule of Values, O&M Work and Major Maintenance Work estimates shown in the Financial Model, the traffic and revenue forecast, and the base cases thereof were (a) used to generate the Maximum PVR price proposal and (b) form the basis for all loan commitments and credit ratings letters included in the Detailed Proposal;

(4) Offeror has carefully examined and is fully familiar with all of the provisions of all of the RFDP documents, including all materials posted on the Project website, the Addenda and VDOT’s responses to questions, and is satisfied that the RFDP Documents provide sufficient detail regarding the obligations to be performed by the Offeror and do not contain internal inconsistencies;

(5) Offeror has carefully checked all the words, figures and statements in this Detailed Proposal;

(6) Offeror has conducted such other field investigations and additional design development as is prudent and reasonable in preparing this Detailed Proposal; and

(7) Prior to the date of this Submittal Letter, Offeror has notified VDOT of any deficiencies in or omissions from any RFDP documents or other documents provided by VDOT and of any unusual site conditions observed.

Offeror represents that all statements made and information contained in the Conceptual Proposal and Preliminary Information submittal previously delivered to VDOT are true, correct and accurate as of the date hereof, except as otherwise specified in the enclosed Detailed Proposal. Offeror agrees that such Conceptual Proposal, except as modified by the enclosed Detailed Proposal, is incorporated as if fully set forth in this Detailed Proposal.

Offeror understands that VDOT shall be under no obligation to select the Offeror submitting the lowest priced Detailed Proposal or to make a selection at all. Should an initially selected Successful Offeror fail to execute a Comprehensive Agreement in accordance with the requirements of the RFDP, VDOT reserves the right, in VDOT’s sole discretion, to select an alternative Successful Offeror to execute a Comprehensive Agreement to finance, develop and operate the Project.

Offeror further understands that all costs and expenses incurred by it in preparing this Detailed Proposal and participating in the RFDP process will be borne solely by the Offeror.

Offeror consents to VDOT’s disclosure of its Detailed Proposal in accordance with Section 56-573.1:1 and Section 2.2-3700 et seq. of the Code of Virginia, to any Person, with the exception of those portions of the Detailed Proposal which VDOT has determined to be exempt as trade secrets or proprietary information pursuant to Section 2.2-3705.6 (11) of the Code of Virginia.

Offeror agrees that VDOT will not be responsible for any errors, omissions, inaccuracies or incomplete statements in this Detailed Proposal.


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This Detailed Proposal shall be governed by and construed in all respects according to the laws of the Commonwealth of Virginia.

The business address of Offeror is as follows:

(No.) (Street) (Floor or Suite)

(City) (State or Province) (ZIP or Postal Code) (Country)

State or Country of Incorporation/Formation/Organization: _________________

[Insert appropriate signature blocks for the Offeror and the proposed Concessionaire (if formed) or Equity Members (if the Concessionaire is not yet formed) from the following pages:]


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1. Sample signature block for corporation or limited liability company:

[Insert the entity’s name]

By: ______________________________________ Print Name: _______________________________ Title: ____________________________________

2. Sample signature block for partnership or joint venture:


By: [Insert general partner’s or member’s name]

By: ______________________________________ Print Name: _______________________________ Title: ____________________________________

[Add separate signature block for each joint venture member if the Offeror is a joint venture]

3. Sample signature block for attorney in fact:


By: ______________________________________ Print Name: _______________________________ Attorney in Fact


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ATTACHMENT A TO SUBMITTAL LETTER IDENTIFICATION OF OFFEROR AND MAJOR PARTICIPANTS

1. NAME OF ENTITIES AND CONTACT INFORMATION:

[Provide the name, title, address, phone number, fax numbers and e-mail address for the Offeror, the proposed Concessionaire and each Major Participant]

Entity Name Name of Contact Address Phone/Fax Numbers

E-mail Address

2. ROLE IN ORGANIZATION:

[Provide the following information for each Major Participant]

Description of Work/Services To Be Performed by Entity (if applicable):

______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

Virginia Contractor License and License Limit (if applicable): _________________________

3. ADDITIONAL REQUIREMENTS

[Provide the following information]

A. Describe the legal structure of the Offeror and provide a list of attached organizational and authorization documents.

[See Instructions to Attachment A, section A]

B. Describe the legal structure of the proposed Concessionaire and provide a list of attached organizational documents.

[See Instructions to Attachment A, section B]

C. Describe the location of the required provisions.

[See Instructions to Attachment A, section C]


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INSTRUCTIONS TO ATTACHMENT A

ADDITIONAL REQUIREMENTS

A. Describe the legal structure of the Offeror and provide organizational documents for the Offeror and evidence of authorization of execution and delivery of the Detailed Proposal and validity thereof. If the Offeror is a corporation, it shall provide evidence in the form of a resolution of its governing body certified by an appropriate officer of the corporation. If the Offeror is a partnership, such evidence shall be in the form of a partnership resolution and a general partner resolution (as to each general partner) providing such authorization, in each case, certified by an appropriate officer of the general partner. If the Offeror is a limited liability company, such evidence shall be in the form of a limited liability company resolution and a managing member(s) resolution providing such authorization, certified by an appropriate officer of the managing member(s). If there is no managing member, each member shall provide the foregoing information. If the Offeror is a joint venture, such evidence shall be in the form of a resolution of each joint venture member, certified by an appropriate officer of such joint venture member. If the Offeror is a joint venture, the Detailed Proposal must be executed by all joint venture members.

B. Describe the legal structure of the proposed Concessionaire, provide an organizational chart showing the Persons that will own direct or indirect equity interests in the proposed Concessionaire, and provide organizational documents for the proposed Concessionaire and such Persons, as follows:

1. If any such entity is a corporation or includes a corporation as a joint venture member, partner or member, provide articles of incorporation and bylaws for each such entity, certified by an appropriate individual. If any entity is not yet formed or if a modification to existing articles of incorporation and/or bylaws is contemplated prior to award, so state, indicate that these documents will be provided prior to award and provide applicable draft documents for each such entity.

2. If any such entity is a partnership or includes a partnership as a joint venture member, partner or member, (a) attach full names and addresses of all partners and the equity ownership interest of each entity, and (b) provide the incorporation, formation and organizational documentation for the entity (partnership agreement and certificate of partnership for a partnership, articles of incorporation and bylaws for a corporation, operating agreement for a limited liability company and joint venture agreement for a joint venture) certified by an appropriate individual. If any entity is not yet formed or if a modification to the organization documents is contemplated prior to award, so state, indicate that these documents will be provided for such entity prior to award and provide applicable draft documents for each such entity.


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3. If any such entity is a joint venture or includes a joint venture as a joint venture member, partner or member, attach full names and addresses of all joint venture members and the equity ownership interest of each entity, provide the incorporation, formation and organizational documentation for the Offeror/Developer/Equity Member (partnership agreement and certificate of partnership for a partnership, articles of incorporation and bylaws for a corporation, operating agreement for a limited liability company and joint venture agreement for a joint venture) certified by an appropriate individual. If any entity is not yet formed or if a modification to the organization documents is contemplated prior to award, so state, indicate that these documents will be provided prior to award and provide applicable draft documents for each such entity.

4. If the Offeror or proposed Concessionaire is a limited liability company or includes a limited liability company as a joint venture member, partner or member, attach full names and addresses of all members and the equity ownership interest of each entity, provide the incorporation, formation and organizational documentation for the Offeror or proposed Concessionaire (partnership agreement and certificate of partnership for a partnership, articles of incorporation and bylaws for a corporation, operating agreement for a limited liability company and joint venture) certified by an appropriate individual. If any entity is not yet formed or if a modification to the organization documents is contemplated prior to award, so state, and indicate that this information will be provided prior to award. Attach evidence to the Detailed Proposal and to each letter that the person signing has authority to do so and provide applicable draft documents for each such entity.

If any entity is not yet formed or if a modification is contemplated prior to award, so state and provide a brief description of the proposed legal structure of each such entity.

C. The partnership agreement, limited liability company operating agreement or joint venture agreement, as applicable, of the proposed Concessionaire must include an express provision satisfactory to VDOT, in its sole discretion, stating that, in the event of a dispute between or among joint venture members, partners or members, as applicable, no joint venture member, partner or member, as applicable, shall be entitled to stop, hinder or delay work on the Project. Offeror shall submit the applicable agreement to VDOT and identify on a cover page where in the agreement the provision can be found. If the proposed Concessionaire is not yet formed, provide draft organizational documents and indicate where the provision is found.


FORM 2

NON-COLLUSION AFFIDAVIT

Each of the undersigned, being first duly sworn, deposes and says that:

A. __________ is the __________ of __________ and __________ is the __________ of __________, which entity(ies) are the __________ of __________, the entity making the foregoing Detailed Proposal.

B. I, the firm, corporation or officers, agents or employees thereof have neither directly nor indirectly entered into any combination or arrangement with any person, firm or corporation or entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with such contract, the effect of which is to prevent competition or increase the cost of construction or maintenance of the Project.

Signed at , this day of , 2009

County (City), State By:

(Name of Firm) (Signature) Title (print) STATE of COUNTY (CITY) of

I , a Notary Public in and for the State and County(City) aforesaid, hereby certify that thisday

personally appeared before me and made oath that he/she is duly authorized to make the above statements and that such statements are true and correct. Subscribed and sworn to before me this day of , 2009 My Commission expires: Notary Public

[Duplicate or modify this form as necessary so that it accurately describes the entity submitting the Detailed Proposal and so that it is signed on behalf of the Offeror by an authorized representative thereof, or, if Offeror is a joint venture or other association other than a corporation, limited liability company or partnership, so that it is signed by an authorized representative of each member of the Offeror.]

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 2 – Non-Collusion Affidavit

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FORM 3

CONFLICT OF INTEREST DISCLOSURE STATEMENT

Offeror’s Name: _________________________________________________ (“Offeror”)

Offeror’s attention is directed to Section 10.1 of the Instructions and 23 CFR Part 636 Subpart A regarding organizational conflicts of interest and the restrictions applicable to such conflicts. Offerors are advised that certain firms will not be allowed to participate on any Offeror’s team for the Project because of their work with VDOT in connection with the Project procurement. Refer to Attachment A to the Instructions for the meaning of various capitalized terms and acronyms used but not defined herein, and refer to Exhibit A to the Comprehensive Agreement for the meaning of capitalized terms and acronyms used but not defined herein or in said Attachment A.

1. Required Disclosure of Conflicts

In the space provided below, and on supplemental sheets as necessary, identify all relevant facts relating to past, present or planned interest(s) of the Offeror’s team (including the Offeror and Major Participants, proposed consultants and proposed Contractors, and their respective chief executives, directors, and other key personnel for the project) which may result, or could be viewed as, an organizational conflict of interest in connection with this RFDP.

Offeror should disclose: (a) any current contractual relationships with VDOT, (b) any past, present or planned contractual or employment relationships with any officer or employee of VDOT, and (c) any other circumstances that might be considered to create a financial interest in the contract by any CTB member or any VDOT officer or employee if Offeror is awarded the Agreement. Offeror should also disclose matters such as ownership of 10% or more of the stock of, or having directors in common with, any of the individuals or entities involved in preparing the RFDP. Offeror should also disclose contractual relationships (i.e. joint ventures) with any of the individuals or entities involved in preparing the RFDP, as well as relationships wherein such individual or entity is a contractor or consultant (or subcontractor or subconsultant) to Offeror or a member of Offeror’s team. The foregoing is provided by way of example, and shall not constitute a limitation on the disclosure obligations.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 3 – Conflict of Interest Disclosure Statement

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2. Explanation

In the space provided below, and on supplemental sheets as necessary, identify steps the Offeror or other entities have taken or will take to avoid, neutralize or mitigate any organizational conflicts of interest described herein.


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3. Certification

The undersigned hereby certifies that, to the best of his or her knowledge and belief, no interest exists that is required to be disclosed in this Conflict of Interest Disclosure Statement, other than as disclosed above.

______________________________________________________ Signature

______________________________________________________ Name

______________________________________________________ Title

______________________________________________________ Name of Offeror

___________________ Date


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FORM 4

EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION

[To be executed by the Offeror, Major Participants and proposed Contractors]

The undersigned certifies on behalf of __________________________________________, that: (Name of entity making certification)

[check one of the following boxes]

It has developed and has on file at each establishment affirmative action programs pursuant to 41 CFR Part 60-2 (Affirmative Action Programs for nonconstruction (supply and service) contractors).

It is not subject to the requirements to develop an affirmative action program under 41 CFR Part 60-2 (Affirmative Action Programs for nonconstruction (supply and service) contractors).

[check one of the following boxes]

It has not participated in a previous contract or subcontract subject to the equal opportunity clause described in Executive Orders 10925, 11114 or 11246.

It has participated in a previous contract or subcontract subject to the equal opportunity clause described in Executive Orders 10925, 11114 or 11246 and, where required, it has filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President’s Committee on Equal Employment Opportunity, all reports due under the applicable filing requirements.

Signature:______________________________________

Name: ________________________________________

Title: ________________________________________

Date: ________________________________________

If not Offeror, relationship to Offeror: ________________________________________

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 4 – Equal Employment Opportunity Certification

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Note: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7(b)(1)) and must be submitted only in connection with contracts which are subject to the equal opportunity clause. Contracts that are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. (Generally, only contracts of $10,000 or under are exempt.)

Currently, Standard Form 100 (EEO-1) is the only report required by Executive Orders or their implementing regulations.

Offeror, Major Participants or proposed Contractors who have participated in a previous contract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b)(1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S. Department of Labor.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 4 – Equal Employment Opportunity Certification

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FORM 5

USE OF CONTRACT FUNDS FOR LOBBYING CERTIFICATION

[To be executed by Offeror, Major Participants, and Contractors to be paid in excess of $100,000]

1. The undersigned certifies that, to the best of its knowledge and belief:

a. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.

b. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions, and shall include a copy of said form in its proposal or bid, or submit it with the executed Agreement or Subcontract.

2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

3. Offeror shall require that the language of this certification be included in all lower tier sub-contracts which exceed $100,000 and that all such recipients shall certify and disclose accordingly.

4. The undersigned certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the undersigned understands and agrees that the provisions of 31 U.S.C. §3801, et seq., apply to this certification and disclosure, if any.

[Note: Pursuant to 31 U.S.C. §1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each expenditure or failure.]

Signature: _______________________________________ Name: __________________________________________ Title: ___________________________________________ Entity Making Certification: ________________________ Date: ___________________________________________

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 5 – Use of Contracting Funds for Lobbying Certification

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FORM 6

DEBARMENT AND SUSPENSION CERTIFICATION

The undersigned Offeror certifies on behalf of itself, all Major Participants and all proposed Contractors, to the best of its knowledge and belief, that each such entity and its principals:

a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions pursuant to an established debarment procedure by any public body, agency of another state or agency of the federal government, including debarment due to contravention of legal or safety regulations;

b. Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State or local) transaction or contract under a public transaction; violation of federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, State or local) with commission of any of the offenses enumerated in paragraph 1b of this certification;

d. Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, State or local) terminated for cause or default; and

e. Have not within the past ten years been convicted of a crime related to governmental or nongovernmental construction or contracting, including, but not limited to, a violation of (i) Article 6 (Section§ 2.2-4367 et seq.) of Chapter 43 (Virginia Public Procurement Act), (ii) the Virginia Governmental Frauds Act (Section§ 18.2-498.1 et seq.), (iii) Chapter 4.2 (Section§ 59.1-68.6 et seq.) of Title 59.1, or (iv) any substantially similar law of the United States or another state.

Where the Offeror is unable to certify to any of the statements in this certification, it shall attach a certification to its proposal or bid stating that it is unable to provide the certification and explaining the reasons for such inability. For any explanation noted, indicate below to whom it applies, initiating agency, and dates of action. Providing false information may result in federal criminal prosecution or administration sanctions. The Offeror shall provide immediate written notice to VDOT if at any time the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of change circumstances.

The undersigned makes the foregoing statements to be filed with the Detailed Proposal submitted on behalf of the Offeror.

Signature:

Name:

Title:

Offeror:

Date:

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 6 – Debarment and Suspension Certification

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FORM 7

DETAILED PROPOSAL SECURITY

Form 7-A Detailed Proposal Bond

Form 7-B Detailed Proposal Letter of Credit

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 7– Detailed Proposal Security

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FORM 7-A

DETAILED PROPOSAL BOND Bond No. _______

KNOW ALL PERSONS BY THESE PRESENTS, that the __________________ [Note: insert name of Offeror as Principal and delete this bracketed text], as Principal and ___________________, as Surety or as Co-Sureties, each a corporation duly organized under the laws of the State indicated on the attached page, having its principal place of business at the address listed on the attached page, in the State indicated on the attached page, and authorized as a surety in the Commonwealth of Virginia, are hereby jointly and severally held and firmly bound unto the Virginia Department of Transportation (“VDOT”), in the sum of Twenty Million U.S. dollars ($20,000,000) (the “Bonded Sum”).

WHEREAS, Principal is herewith submitting its Detailed Proposal (the “Detailed Proposal”) to finance, develop and operate the U.S. Route 460 Corridor Improvements Project (the “Project”) through a Comprehensive Agreement (“Agreement”), which Detailed Proposal is incorporated herein by this reference and has been submitted pursuant to VDOT’s Request for Detailed Proposals dated as of _______________, 2009 (as amended or supplemented, the “RFDP”), in accordance with the Instructions to Offerors (the “Instructions”);

NOW, THEREFORE,

1. The condition of this bond is such that, upon occurrence of any of the following events, this obligation shall be null and void; otherwise it shall remain in full force and effect:

(a) VDOT provides written notice to Principal and Surety or Principal and Sureties listed on the attached page (the “Co-Sureties”) that (i) VDOT will not approve execution of an Agreement pursuant to the RFDP, (ii) VDOT has entered into the Agreement with another Offeror, or (iii) VDOT has canceled the Project procurement;

(b) All requirements of Sections 6.7.2 and 6.7.3 of the Instructions have been satisfied, including execution and delivery of the Agreement by the proposed Concessionaire on or before the deadline specified therein, as such deadline may have been extended by VDOT;

(c) If VDOT has not previously delivered notice of forfeiture hereunder, failure of VDOT to deliver notice of approval to Principal under Section 6.7 of the Instructions within 180 days after the due date for the Detailed Proposal.

2. Principal and Surety or Co-Sureties hereby agree to pay to VDOT the full Bonded Sum hereinabove set forth, as liquidated damages and not as a penalty, within ten days after occurrence of any of the following events:

(a) Principal (i) withdraws any part or all of its Detailed Proposal (including withdrawing, repudiating or otherwise indicating in writing that it will not meet any commitment made in its Detailed Proposal) prior to 180 days following the Detailed Proposal Due Date,

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 7-A – Form of Detailed Proposal Bond

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without the consent of VDOT, except as specifically permitted under the Instructions; or (ii) refuses or is unable to enter into the Agreement as provided in the Instructions; or (iii) refuses or is unable to perform all of the acts or furnish all of the documents as provided in the Instructions (including failure to cooperate with the statutory audit process described therein or failure to reimburse VDOT for the costs of such audit); (iv) prior to execution of the Agreement, refuses or is unable to meet any commitments made in its Detailed Proposal; or (v) if negotiations are held, fails to negotiate in good faith; or

(b) Principal fails to satisfy all of the requirements of Sections 6.7.2 and 6.7.3 of the Instructions, including execution and delivery of the Agreement by the proposed Concessionaire on or before the deadline specified therein, as such deadline may have been extended by VDOT;

Principal and Surety or Co-Sureties hereby acknowledge that, in the event Principal is not selected as a Successful Offeror in accordance with Section 6.6 of the Instructions, VDOT’s recourse against the Bonded Sum is limited to Ten Million U.S. dollars ($10,000,000), as liquidated damages and not as a penalty.

Principal agrees and acknowledges that the liquidated damages set forth herein are reasonable in order to compensate VDOT for damages it will incur as a result of Principal’s failure to satisfy the obligations under the RFDP to which Principal agreed when submitting its Detailed Proposal. Such damages include potential harm to the credibility and reputation of VDOT’s Innovative Project Delivery Division with policy makers and with the general public, delays to the Project and additional costs of administering this or a new procurement (including engineering, legal, accounting, overhead and other administrative costs). Principal further acknowledges that these damages would be difficult and impracticable to measure and prove, are incapable of accurate measurement because of, among other things, the unique nature of the Project the efforts required to receive and evaluate Detailed Proposals, and the unavailability of a substitute for those efforts. The amounts of liquidated damages stated herein represent good faith estimates and evaluations as to the actual potential damages that VDOT would incur as a result of Principal’s failure to satisfy the obligations under the RFDP to which Principal agreed when submitting its Detailed Proposal, and do not constitute a penalty. Principal agrees to such liquidated damages in order to fix and limit Principal’s costs and to avoid later disputes over what amounts of damages are properly chargeable to Principal.

3. The following terms and conditions shall apply with respect to this bond:

(a) This bond shall not be subject to forfeiture in the event that VDOT disqualifies the Principal’s Detailed Proposal based on a determination that it is non-responsive or non-compliant.

(b) If suit is brought on this bond by VDOT and judgment is recovered, Principal and Surety or Co-Sureties shall pay all costs incurred by VDOT in bringing such suit, including, without limitation, reasonable attorneys’ fees and costs as determined by the court.


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(c) Any extension(s) of the time for approval of execution of the Agreement that Principal may grant, in accordance with the RFDP or otherwise, shall be subject to the reasonable approval of Surety or Co-Sureties.

(d) The Co-Sureties agree to empower a single representative with authority to act on behalf of all of the Co-Sureties with respect to this bond, so that VDOT will have no obligation to deal with multiple sureties hereunder. All correspondence from VDOT to the Co-Sureties and all claims under this bond shall be sent to such designated representative. The Co-Sureties also agree to designate a single agent for service of process with respect to any actions on this bond, which agent shall either be (a) a natural person or (b) a corporation qualified to act as an agent for service of process under Sections 13.1-634 and 13.1-763 of the Code of Virginia. The designated representative and agent for service of process may be changed only by delivery of written notice (by personal delivery, by certified mail, postage prepaid, return receipt requested, or by recognized overnight delivery service) to VDOT designating a single new representative and/or agent, signed by all of the Co-Sureties. The initial representative shall be:

[Name and Address] _____________________________________

_____________________________________

_____________________________________

and the initial agent for service of process shall be:

[Name and Address] _____________________________________

_____________________________________

_____________________________________


Page 3


SIGNED and SEALED this __________ day of ____________________, 2009

_____________________________________________________ Principal By: __________________________________________________

_____________________________________________________ Co-Surety [Note: if only one Surety is used, replace “Co-Surety” with

“Surety” on this line and delete Co-Surety blocks below.] By: __________________________________________________ Attorney in Fact

By: __________________________________________________ ______________________________________________________ Co-Surety By: ___________________________________________________ Attorney in Fact

By: ___________________________________________________ ______________________________________________________ Co-Surety By: __________________________________________________ Attorney in Fact [ADD APPROPRIATE SURETY ACKNOWLEDGMENTS]


Page 4


CO-SURETIES

SURETY NAME SURETY ADDRESS INCORPORATED IN


Page 5


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 7-B – Form of Detailed Proposal Letter of Credit

Page 1

FORM 7-B

DETAILED PROPOSAL LETTER OF CREDIT

IRREVOCABLE STANDBY LETTER OF CREDIT

ISSUER:

PLACE FOR PRESENTATION OF DRAFT: (Name and address of banking institution with offices in the Commonwealth of Virginia)

APPLICANT: __________________________

BENEFICIARY: VIRGINIA DEPARTMENT OF TRANSPORTATION INNOVATIVE PROJECT DELIVERY DIVISION 1401 EAST BROAD STREET RICHMOND, VA 23219 ATTN: MR. JEFF HETZER

LETTER OF CREDIT NUMBER: _______________

PLACE AND DATE OF ISSUE: _______________

AMOUNT: Twenty Million U.S. dollars ($20,000,000) [Note: The amount of a single Detailed Proposal letter of credit may be less on the condition that the Offeror submits more than one Detailed Proposal letter of credit and the sum of the Detailed Proposal letters of credit total $20,000,000.]

STATED EXPIRATION DATE: ______________________, 2009 [Note: Insert date that is 180 days after the Detailed Proposal Due Date and delete this bracketed text]

Issuer hereby issues this irrevocable standby letter of credit in favor of the Virginia Department of Transportation (“VDOT”), for any sum or sums up to the aggregate amount stated above, available by draft at sight drawn on Issuer. Any drawing under this irrevocable standby letter of credit shall be accompanied by a certificate (the “Draw Certificate”) in the form of Exhibit 1 attached hereto and appropriately completed and signed by an officer of the Beneficiary. Partial drawings and multiple drawings under this letter of credit are permitted.

All drafts will be honored if presented to ____________________________________________ _________________________________________________ [insert name and address of banking institution with offices in the Commonwealth of Virginia] on or before the Stated Expiration Date identified above or any extended expiration date.



Page 2

Drawings by facsimile to facsimile number ( ) _________ are acceptable (each such drawing, a "Fax Drawing") provided, however, that a Fax Drawing will not be effectively presented until Beneficiary confirms, by telephone, Issuer’s receipt of such Fax Drawing by calling Issuer at telephone number ( ) ________. Issuer will acknowledge Beneficiary’s presentment by e-mail to the e-mail address provided to Issuer in the Fax Drawing.

If a drawing is made by Beneficiary hereunder at or prior to 10:00 a.m., _________ time, on any weekday (i.e., Monday through Friday, excluding Virginia state holidays and U.S. federal holidays) (a “Business Day”), and provided that such drawing conforms to the terms and conditions hereof, payment shall be made by Issuer to Beneficiary in immediately available funds free and clear of and without deduction for any taxes, duties, fees, liens, set-offs or other deductions of any kind and regardless of any objection by any third party (subject to any court order or judgment), to the account designated below or such other account at a national bank in the United States of America that Beneficiary may designate in the draw certificate on the next Business Day after the demand is made. If a drawing is made by Beneficiary hereunder after 10:00 a.m., _________ time, on a Business Day, and provided that such drawing conforms to the terms and conditions hereof, such payment shall be made no later than the close of business, local time of the location of the account designated below or such other account at a national bank in the United States of America that Beneficiary may designate in the drawing, on the second Business Day after the demand is made.

Payment under this letter of credit shall be made in same day funds, by wire transfer to Beneficiary’s account described in its Draw Certificate. All bank charges and commissions incurred in connection with the issuance, administration, advisement, confirmation, negotiation or any other fees associated with this letter of credit (including any drawings hereunder) shall be paid by the Applicant.

Except so far as otherwise expressly stated, this letter of credit is subject to the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590 (the “Uniform Customs”), which shall in all respects be deemed a part hereof as fully as if incorporated herein except as modified hereby.

This letter of credit is issued under the laws of the Commonwealth of Virginia (the “State”) and applicable U.S. federal law, and shall, as to matters not governed by Uniform Customs, be governed by and construed in accordance with the laws of the State, without regard to principles of conflicts of law.

Any failure by Beneficiary to draw upon this letter of credit as permitted hereunder shall not cause this letter of credit to be unavailable for any future drawing, provided that this letter of credit has not expired prior to such future drawing and that all requirements of this letter of credit are independently satisfied with respect to any such future drawing.

If legal proceedings are initiated by any party with respect to payment of the letter of credit, Issuer and Beneficiary agree that such proceeding shall be subject to State courts and law.

Communications with respect to this letter of credit shall be in writing and shall be addressed to Issuer at ______________________________________________________________________, Attention: ____________________, specifically referring to the number of this letter of credit.



Page 3

[Authorized Signature of Issuer]

Signature:

Name:

Title:

Date:


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 1 to Form 7-B – Form of Detailed Proposal Letter of Credit

Page 1

EXHIBIT 1 to FORM 7-B

DRAW CERTIFICATE

[Insert Name and Address of Issuer] ____________________________________ ____________________________________ ____________________________________

RE: Letter of Credit No. [__________]

Ladies and Gentlemen:

The undersigned, an authorized officer of the Virginia Department of Transportation (the “Beneficiary”), hereby certifies to (Issuer’s Name) that the Beneficiary is drawing on the above-referenced letter of credit because of (Applicant’s Name) ’s failure to perform certain obligations under the Instructions to Offerors included in the Request for Detailed Proposals to finance, develop and operate the U.S. Route 460 Corridor Improvements Project issued on __________, 2009 by the Beneficiary.

Payment under the above-referenced letter of credit shall be made in same day funds, by wire transfer to the Beneficiary’s account described below or such other account as Beneficiary may designate in writing. [insert account information for wire transfer of funds]

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

Signature:

Name:

Title:

Date:


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8 – Certification Regarding Prequalification

Page 1

FORM 8

FINANCIAL PROPOSAL FORMS

Form 8-A Maximum PVR (Present Value Of Gross Revenues) Form

Form 8-B Initial Toll Rates & Illustrative Toll Rate Adjustment Policy

Form 8-C Financial Statements Summary Table

Form 8-D Financial Plan Tables

Form 8-E Schedule of Values Form


FORM 8-A

MAXIMUM PVR (PRESENT VALUE OF GROSS REVENUES) FORM

Offeror’s Name: _________________________________________________

Offeror’s attention is directed to Section C2 of Attachment C regarding the Maximum Present Value of Gross Revenues (“Maximum PVR”) proposed to be collected over the term of the Comprehensive Agreement, stated in January 1, 2009 U.S. dollars (to be calculated in accordance with the Comprehensive Agreement). Offerors are advised that the Maximum PVR shall be based on an Initial Base Case Financial Model assuming and/or calculating the Equity IRR and Project IRR as set forth herein.

Offeror shall provide the Maximum PVR, Equity IRR and Project IRR in the designated spaces below in both numbers and words. If there is a discrepancy between the amount indicated in numbers and the amount indicated in words, the lower amount will be the Maximum PVR amount proposed.

1. Maximum PVR = ________________________________________________________ U.S. dollars ($_____________________)

2. Equity IRR = ________________________________________________________ U.S. dollars ($_____________________)

3. Project IRR = ________________________________________________________ U.S. dollars ($_____________________)

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8-A – Maximum PVR (Present Value of Gross Revenues) Form

Page 1


FORM 8-B

INITIAL TOLL RATES & ILLUSTRATIVE TOLL RATE ADJUSTMENT POLICY

Offeror’s Name: _________________________________________________

Section 1. Initial Toll Rates

The Offeror shall complete separate tables providing the Initial Toll Rates to be charged for passenger vehicles and for the “Base Truck” vehicle as described in Section 2 below during the first calendar year of operation. All amounts shall be stated in January 1, 2009 U.S. dollars and will be subject to adjustment as specified in the Comprehensive Agreement, based on changes in the CPI from the Detailed Proposal Due Date until the Service Commencement Date.

The Initial Toll Rates shall be stated in dollars per mile for each Toll Segment as defined by the Offeror. The rate per mile of any category of road may vary by Toll Segment, by charging time period and according to any discount program. The Offeror may propose up to four different charging time periods. Examples demonstrating the layout of the forms setting forth the Initial Toll Rates are presented below.

U.S. 460 Passenger Vehicle Initial Toll Rate Schedule* Toll Segments

Toll Segment 1 Toll Segment 2 …. Toll Segment n From W Terminus

To E Terminus Length (miles)

_______ to ______ (AM Peak) ($/mile) _______ to _____ (PM Peak) _______ to ______ Mid Day _______ to ______ Night

* Offeror shall define the time periods and Toll Segments consistent with the assumptions in its traffic and revenue forecast

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8-B – Initial Toll Rates & Illustrative Toll Rate Adjustment Policy

Page 1


U.S. 460 "Base Truck"* Initial Toll Rate Schedule** Toll Segments

Toll Segment 1 Toll Segment 2 …. Toll Segment n From W Terminus

To E Terminus Length (miles)

_______ to ______ (AM Peak) ($/mile) _______ to _____ (PM Peak) _______ to ______ (Mid Day) _______ to ______ (Night) * "Base Truck" is the predominant truck type (i.e. 5 axle truck) in Offeror’s proposed truck

classification schedule

** Offeror shall define the time periods and Toll Segments consistent with the assumptions in its traffic and revenue forecast

Section 2. Truck Classification Methodology and Multiplier

The Offeror shall select one and only one truck classification methodology from the three alternatives in the Truck Classification Schedule below (axle, shape or weight based) and shall insert the chosen methodology on the Truck Classification Schedule to be included with the Detailed Proposal.

The Offeror shall also insert on the Truck Classification Schedule the predominant class to which the Base Truck Toll Rate Schedule shall apply. The Initial Toll Rates for all other truck classes shall be computed by applying a multiplier for each respective class. The Offeror shall insert in the Truck Classification Schedule below the proposed multiplier and forecasted participation for each truck classification (for the selected truck classification methodology only).


Page 2


Truck Classification Schedule

The classification methodology is: ______________________________________________________. (indicate Axle, Shape or Weight based above) The Base Truck class is: _______________________________________________________________. (indicate base class for above selected classification methodology)

Axle Truck Classification Multiplier*** Forecasted Percentage of total trucks

3 Axles 4 Axles 5 Axles

6 or more Axles Weighted Average Multiplier based on number of axles 100%

Shape Truck Classification Multiplier*** Forecasted Percentage of total trucks

Small trucks Large trucks Large trucks with one trailer Large trucks with more than one trailer Weighted Average Multiplier based on shape 100%

Gross Weight Truck Classification (1000 lbs.) Multiplier*** Forecasted Percentage of total trucks

7-15 15-19 19-30 30-45 45-62 62-80

80-100 Over 100

Weighted Average Multiplier based on weight 100%

*** Offeror shall use a Multiplier of 1.0 for the Base Class.


Page 3


Section 3. Illustrative Toll Rate Adjustment Policy

The Offeror shall submit an illustrative toll rate adjustment policy governing adjustment of toll rates during the Operating Period. The Offeror shall demonstrate the public benefit of private investment in public infrastructure. Specifically, the Offeror should explain how the U.S. Route 460 Corridor Improvements Project is aligned with the Commonwealth’s goals of continued economic growth, vitality, and competitiveness in national and world markets through tolling initiatives.

Section 4. Toll Marketing Strategy

The Offeror shall describe any discount or incentive programs that it will commit to offer and the duration thereof.


Page 4

RFDP Issue Date: DecemAt

ber 31, 2008 tachment G – Proposal Forms


Page 5

Section 5. Sample Trips

For purposes of clarity, Offeror shall provide the opening year toll in January 1, 2009 U.S. dollars for each of the following trips:

Passenger Vehicles

Toll Segments

Utilized East Bound

Total Trip Toll West Bound

Total Trip Toll Between I-295 and Rt. 58 in Suffolk in Peak period Between I-295 and Rt. 58 in Suffolk in Mid Day period

Truck Vehicles

Toll Segments

Utilized East Bound

Total Trip Toll West Bound

Total Trip Toll Between I-295 and Rt. 58 in Suffolk in Peak period Between I-295 and Rt. 58 in Suffolk in Mid Day period


FORM 8-C

FINANCIAL STATEMENTS SUMMARY TABLE

Offeror’s Name: _________________________________________________

SUMMARY OF FINANCIAL INFORMATION (**) FOR ALL EQUITY MEMBERS, DESIGN-BUILD CONTRACTOR AND GUARANTORS FOR THE LAST THREE FISCAL YEARS FOR WHICH AUDITED FINANCIAL STATEMENTS ARE AVAILABLE (1)

COMPANY ROLE/ RESPONSIBILITY

WITHIN THE OFFEROR TEAM

TOTAL REVENUES

PRE-TAX

PROFIT

RELEVANT REVENUES

(2)

FIXED ASSETS

TOTAL ASSETS

(3)

CONTINGENT LIABILITIES

LONG TERM LIABILITIES

SHORT TERM LIABILITIES

NET WORTH

GEARING (4)

(*) The Chief Financial Officer from the parent company for each reporting entity must certify the information on this form as complete, true and correct. Information should be derived from audited

financial statements where possible. Audited financial statements will prevail over this table. (**) Expressed in thousands (000s) of U.S. dollars. Where applicable, companies should indicate the conversion to U.S. dollars, using the exchange rate prevailing on the last day of each financial year.

Please identify the benchmark on which the exchange rate is based. Notes: (1) Complete separate forms for each calendar year. (2) Relevant revenue consists of revenue from design-build-finance-operate contracts on transportation projects. (3) Excludes goodwill and intangibles. (4) Long Term Liabilities / Net Worth

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8-C – Financial Statements Summary Table

Page 1


FORM 8-D

FINANCIAL PLAN TABLES

Offeror’s Name: _________________________________________________

1. SOURCES & USES OF FUNDS DURING WORK PERIOD1

1.a. USES OF FUNDS2

2009 2010 2011 2012 2013 20145 Total

A. Capital Expenditures B. Cash taxes C. Insurance D. Interest E. Debt Principal Repayment F. Reserves accounts funding amounts G. Other investments3

H. TOTAL ( H = A+B+C+D+E+F+G)4 1 All data stated in this summary must come from the Initial Base Case Financial Model, except for financial term description chart, which data will come from the Lenders’ terms &

conditions sheets. All data should be in inflated dollars (base reference date: January 1, 2009). Tables 1.a and 1.b must be provided on both a quarterly and annual basis per Section 1.3 of Attachment C-4.

2 As stated in the Initial Base Case Financial Model, according to definition in Section 4.1 of Attachment C-4 (data in gross amounts, inflated dollars) excluding sales tax. 3 Other investments such as legal, accounting and other advisory fees, Concessionaire operating cost and any other necessary costs incurred in developing the Project. 4 Total quarterly, annual and accrued uses figures must equal total quarterly, annual and accrued sources figures, respectively. 5 Add/remove columns as necessary to cover the entire Work Period. Indicate start and end dates for each period. The uses of funds indicated in the last column may not cover a

full year or quarter if the construction ends on a day other than the last day of a calendar year or quarter.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8-D – Financial Plan Tables

Page 1


1.b SOURCES OF FUNDS

2009 2010 2011 2012 2013 20149 Total

I. Committed Investment (I=J+K) J. Equity contributions K. Equity Member debt contributions L. Equity over total committed investment (L=J/I)5 M. Committed Investment % (M=I/A)6 N. Senior debt O. Other subordinated debt P. Interest income during construction7 Q. Others8

R. TOTAL (S=I+N+O+P+Q+R=H) 5 At least 50%. 6 At least 10%. 7 Interest income, including that earned on unutilized bond proceeds. 8 Additional sources/funds not stated in letters I, N, O, P or Q. 9 Add/remove columns as necessary to cover the entire Work Period. Indicate start and end dates for each period. The uses of funds indicated in the last column may not cover a full year or quarter if the

construction ends on a day other than the last day of a calendar year or quarter.


Page 2


1.b.1. COMMITTED INVESTMENT ANALYSIS /DESCRIPTION

Equity investment Equity Member Debt Total Committed Investment

Firm / Consortium member Q. Amount % over Total

Equity R. Amount % over Total

Equity Member Debt

S. Amount (S=Q+R)

% over total Committed Investment

TOTAL 100% 100% 100% 1.c MAXIMUM FINANCIAL LEVERAGE DURING CONSTRUCTION

2009 2010 2011 2012 2013 20141

Long-Term Debt (Cumulated N+ Cumulated O) Long-Term Debt and Capital (Cumulated I+ Cumulated N+ Cumulated O) FINANCIAL LEVERAGE (Cumulated N+ Cumulated O)/ (Cumulated I+ Cumulated N+ Cumulated O)

1 Add/remove columns as necessary to cover the entire Work Period. Indicate start and end dates for each period.


Page 3

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms 2. PROJECT COSTS NET OF AMORTIZATION

A. Total Project Costs incurred during Construction1 B. Annual Amortization (B=A/(Term – Work Period)) Table 2.a. Calculation of Unamortized Project Costs during Operations

Operating Year (calendar year basis) C. Starting Project Costs

D. Annual Amortization

(D=B)

E. Unamortized Project Costs

(E=C-D)

2014 2015 2016 2017 2018 2019 2020

… 2063

1Project costs are as defined in Attachment A and only include costs during the Work Period.


Page 4

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms 3. PROJECTED OPERATING CASH FLOW Calendar Year (January 1 - December 31) 2014 2015 2016 2017 2018 2019 Toll Revenues Other Revenues (if any) Less: operations and routine maintenance Less: insurance costs Less: general and administration costs Less: major maintenance Plus: draws on / (less: deposits to) cash-funded reserves / letters of credit1 Sub-total Sub-total as % of expected total revenues Less: cash taxes Project cash flow during operations

Plus: interest income Plus: draws on cash-funded debt service reserve / letter of credit Less: interest expense Less: principal amortization Debt service Less/Plus: net cash flow from swaps or other derivatives Less: financing fees


Page 5

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms 3. PROJECTED OPERATING CASH FLOW Calendar Year (January 1 - December 31) 2014 2015 2016 2017 2018 2019 Net financial costs and fees Cash available after debt service

Less: deposits to cash-funded debt service reserve Less: interest on letters of credit payback Less: credit payback of letters of credit Cash flow available for shareholders

Less: Equity Member debt service payments Less: dividends Less: equity repayments Cash flow not distributed


Page 6


4. FINANCING DATA 4.1 KEY FINANCING DATA Net Present Value of Project Cash Flows Project Internal Rate of Return (IRR) Equity IRR Minimum Debt Service Coverage Ratio (DSCR) Average DSCR Minimum Project Life Coverage Ratio (PLCR) Average PLCR Minimum Loan Life Coverage Ratio (LLCR) Average LLCR


Page 7

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms 4.2 DESCRIPTION OF FINANCING SOURCES AS STATED IN LENDERS' TERM AND CONDITIONS SHEETS

Debt type 1 Amount Base rate 2 Spread Up front fees Debt term Grace Period 1 Senior debt, bonds, mezzanine debt, etc. 2 Include the reference base rate for the variable part of interest, if applicable (e.g., LIBOR, MMD, BMA) and fixed rate, if hedged (e.g. 5.2%).


Page 8

RFDP Issue Date: December 31, 2008 Attachment G – Proposal Forms 4.3 COVERAGE RATIOS Calendar Year 2012 2013 2014 2015 2016 2017 … Cash Available for Debt Service Total Debt Service and Fees Debt Service Coverage Ratio (DSCR) Minimum DSCR Average DSCR Cash Flow Available for Debt Service Weighted Average Cost of Debt Net present value of cash flow available for debt service End of Period Outstanding Debt Loan Life Coverage Ratio (LLCR) Minimum LLCR Average LLCR Cash Flow Available for Debt Service Weighted Average Cost of Debt Net present value of cash flow available for debt service End of Period Outstanding Debt Project Life Coverage Ratio (PLCR) Minimum PLCR Average PLCR


Page 9

ber 31, 2008 tachment G – Proposal Forms


4.4 CASH-FUNDED RESERVES (IF APPLICABLE) Calendar Year 2012 2013 2014 2015 2016 2017 … OPERATIONS & MAINTENANCE Beginning Balance Deposits to Reserve Interest Earnings Draws on Reserve Ending Balance DEBT SE RVICE

Form 8-D – Financial Plan Tables Page 10

5. BENCHMARK INTEREST RATES UTILIZED

(indicate index, maturity and rate) 1) 2) 3) 4) 5) 6) 7) [Offeror to fill in as needed]



Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form 8-E – Schedule of Values Form

Page 1

FORM 8-E

SCHEDULE OF VALUES FORM

[See attached]



Page 1

U.S. Route 460 Corridor Improvements Project - Schedule of Values

1 Schedule of Values for Work before Service CommencementHeading Work Item Description Total Cost (nominal

dollars)Year 1 Year 2 Year 3 Year 4 Year 5

Pre-construction Items and Design Pre-Execution WorkEngineering design developmentPermits and approvals

General Items and Overheads MobilizationGeneral construction managementInsurancesBondsQA/QC, inspection and supervisionTraffic controlO&M during constructionThird party interfaces including railroadsDepartment's Initial Reimbursable CostDepartment's Annual Reimbursable Cost

Right of Way ROW surveys, packages and proceduresROW acquisition price, access control

Utilities Utility adjustment preparation and agreementsUtility work / payments to Utilities

Earthwork Clearing Right of WayExcavation and embankmentsLandscaping

New roadway main lanes Subgrade treatment, base and pavementNew interchanges Subgrade treatment, base and pavementNew frontage roads and service roads Subgrade treatment, base and pavementDrainage Culverts and headwalls

Water treatment facilitiesPipes, drains, ditches

Bridge substructure Abutments, bents, pilingApproach slabsExcavation and fill to structures

Bridge superstructure Beams and bearingsDeck slabs and panelsFittings and equipment

Retaining structures All work in connection with retaining structuresRoadway signing and pavement markings All work in connection with signing and markingsIllumination systems Poles, foundations, conduits, electricalTolling systems Gantries and roadside equipment

Back office and control systemsTMS systems All work for TMS systemsEnviromental mitigations and commitments All work for environmental mitigations and commitmentsRoadway incidentals Safety items, barriers

Rest areasTraffic signals

Notes: 1 Work Item coverage is for Offeror guidance and is not intended to be a complete or comprehensive description of the Work 2 The value of any Work item identified by the Offeror but not listed in the table shall be allocated proportionally to the Work items listed in the table

ber 31, 2008 ent G – Proposal Forms


Page 2

U.S.

2 Schedul

Route 460 Corridor Improvements Project - Schedule of Values

e of Values for Operations and MaintenanceHeading Work Item Decription Average Annualized Total

Cost (2009 dollars)Administr

Ordi

AccidentPavPaveBridOther M

ElectRev

Safety

No1 W2 T

ative costs General administration of operations and maintenanceInsuranceProfessional feesBonds

nary Maintenance Inspections, audits, records and reportingSafety response (debris removal etc.)Scheduled minor repairs (joint sealing etc.)Other regularly recurring maintenance activitiesAmenity operations (sweeping, cleaning etc.)

damage repair All work for accident damage repairement Major Maintenance main lanes Texturing, full/partial depth repair or rehabilitationment Major Maintenance other lanes Texturing, full/partial depth repair or rehabilitation

ges Major Maintenance Bearings, barriers, deckajor Maintenance Renewal and replacement of assets at end of useful life (signs,

barriers, lighting etc)rical/TMS/Toll Systems maintenance Renewal and replacement of assets at end of useful life

enue operations Back office operationsCustomer service and accountsEnforcement

and traffic operations Roadside assistance and incident managementDriver information systemEnvironmental management

tesork Item coverage is for Offeror guidance and is not intended to be a complete or comprehensive description of the Work

he value of any Work item identified by the Offeror but not listed in the table shall be allocated proportionally to the Work items listed in the table

RFDP Issue Date: DecemAttachm

RFDP Issue Date: December 31, 2008 Attachment H – Other Forms


VIRGINIA DEPARTMENT OF TRANSPORTATION

U.S. ROUTE 460 CORRIDOR IMPROVEMENTS PROJECT

ATTACHMENT H

OTHER FORMS

Form A Confidentiality Agreement Form B Critical Infrastructure Information/Sensitive Security Information (CII/SSI)

Multi-Purpose Non-Disclosure Agreement Form C Financial Statements Summary Table Form D Guaranty Forms Form D-1 Equity Funding Guaranty Form D-2 Guaranty of Performance and Completion Form E Independent Engineer Agreement Form F Escrow Agreement Form G Financial Close Security Form H Opinion of Counsel

Page 1


FORM A

CONFIDENTIALITY AGREEMENT

This CONFIDENTIALITY AGREEMENT ( this "Agreement") is made and entered into as of _______, 2009 (the “Effective Date”), by and between the VIRGINIA DEPARTMENT OF TRANSPORTATION, an Agency of the Commonwealth of Virginia (“VDOT”), whose address is 1401 East Broad Street, Richmond, Virginia 23219, and ____________________________________ [insert name of entity and form of entity and state of organization] ("Recipient"), whose address is _________________.

Explanatory Statement

A. In the course of its solicitation and evaluation of proposals and the negotiation of contracts in connection with the U.S. Route 460 Corridor Improvements Project (the “Project”), pursuant to the Public-Private Transportation Act of 1995, as amended (the “Act” or the “PPTA”), VDOT has prepared or will prepare or cause to be prepared certain studies, assessments, reports or other records, which are entitled to exemption from disclosure under the Freedom of Information Act (FOIA – Section 2.2-3700 et seq. of the Code of Virginia) (the “Records”).

B. VDOT may elect to disclose to Recipient certain of the Records which may be useful to Recipient’s preparation of a response to VDOT’s Request for Detailed Proposals for the Project.

C. The purpose of this Agreement is to provide for the confidentiality of the Records disclosed by VDOT to Recipient and to prevent the unauthorized disclosure of such Records by Recipient.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows:

1. Records.

(a) VDOT may elect to disclose certain of its Records to Recipient. Nothing herein shall require VDOT to disclose Records or any of its information.

(b) Records may include information disclosed or submitted orally, in writing or by any other media, to Recipient by VDOT and/or its consultants. VDOT shall designate the Records as confidential and exempt from disclosure pursuant to FOIA by conspicuous notation on written or other tangible Records and by delivery to Recipient of written confirmation of oral Records. In the event of any uncertainty as to the status of a Record as confidential or exempt, the Recipient shall promptly request clarification from VDOT, but shall otherwise hold the Record in confidence pursuant to this Agreement unless and until advised otherwise by VDOT.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form A – Confidentiality Agreement

Page 1



2. Recipient’s Obligations.

(a) Recipient agrees that the Records are to be considered confidential and proprietary to VDOT and Recipient shall hold the same in confidence, shall not use the Records other than for the purposes of Recipient’s response to VDOT’s Request for Detailed Proposals, and shall disclose it to no one, except officers, employees or consultants of Recipient who have agreed to observe the terms of this Agreement and for whom Recipient shall ensure compliance with the Agreement. Recipient will not disclose, publish or otherwise reveal any of the Records to any other party whatsoever, except with the specific prior written authorization of VDOT.

(b) All Records are and remain the property of VDOT. Records furnished in tangible form shall not be duplicated by Recipient without the prior written permission of VDOT. Upon the earlier of VDOT’s written request or the termination or expiration of this Agreement, Recipient shall return all Records received in written or tangible form, including copies or reproductions and any notes or memoranda of conversations relating to the Records, including any copies thereof or other media containing such Records, within ten calendar days of such request. At Recipient’s option and VDOT’s approval, any documents or other media developed by Recipient containing Records may be destroyed by Recipient, in which case Recipient shall provide VDOT’s authorized Point of Contact (POC) a notarized affidavit certifying destruction of such Records within ten calendar days thereafter.

3. Term of Agreement and Termination Requirements.

The obligations of Recipient under this Agreement shall begin on the Effective Date of this Agreement and shall remain in effect until terminated by a written instrument executed by both parties. Recipient’s obligations shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between VDOT and Recipient, by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the foregoing under the Code of Virginia.

4. Governing Law and Equitable Relief.

This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia. All litigation between the parties arising out of or pertaining to this Agreement or its breach shall be filed, heard and decided in the Circuit Court of the City of Richmond, Virginia, Division I, which shall be the exclusive jurisdiction and venue for any such civil actions brought by either party against the other. Recipient consents to the exclusive jurisdiction of the Circuit Court of the City of Richmond and agrees that, in the event of any breach or threatened breach by Recipient, VDOT may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect VDOT against any such breach or threatened breach.

Form A – Confidentiality Agreement Page 2



5. Limitations on Confidentiality.

(a) Nothing in this Agreement shall be interpreted as placing any obligation of confidentiality or nonuse by Recipient with respect to any information that:

1. is or becomes publicly available to Recipient, without breach of this Agreement, or is rightfully received by Recipient without an obligation or breach of confidentiality;

2. can be demonstrated to have been in the public domain as of the Effective Date of this Agreement, or legitimately comes into the public domain thereafter through no fault of the Recipient;

3. can be demonstrated to have been known to the Recipient prior to execution of this Agreement and was not acquired, directly or indirectly, from VDOT or from a third party under a continuing obligation of confidentiality;

4. is required to be disclosed pursuant to law or court order; provided that Recipient provides prior notice to VDOT and provides sufficient time to VDOT to assert any exclusions or privileges that may be available by law; or

5. is developed by Recipient without breach of this Agreement;

provided, however, such Records shall not be disclosed until 30 days after written notice of intent to disclose is given to VDOT’s POC along with the asserted grounds for disclosure.

(b) The Recipient will forward all written or oral requests for disclosure of Records to VDOT immediately upon receiving said request.

6. Entire Agreement.

This Agreement sets forth the parties’ entire understanding as to its subject matter and terminates and supersedes all prior understandings or agreements, oral or written, between VDOT and Recipient, relating to the subject matter of this Agreement, but shall neither nullify nor otherwise affect any other existing or future confidentiality or nondisclosure agreements between the Recipient and either the Commonwealth of Virginia or VDOT.

7. Amendments.

This Agreement may not be changed, modified, or discharged, released, abandoned, or otherwise terminated in whole or in part, except by an instrument in writing signed by duly authorized representatives of VDOT and Recipient.




8. Assignment.

Recipient may not sell, assign, or transfer, either voluntarily or by operation of law this Agreement or any interest herein without VDOT's express prior written consent. This Agreement shall inure to the benefit of and shall be binding upon VDOT and Recipient and VDOT’s and Recipient’s respective successors and permitted assigns.

9. Severability.

If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

10. Notices.

Any notice required by this Agreement, or given in connection with it, shall be in writing and shall be given to VDOT by delivery to the designated VDOT POC named below and to Recipient to its designated representative named below, by personal delivery, by certified mail, postage prepaid, return receipt requested, or by recognized overnight delivery service.

VDOT’s Representative (POC):

Innovative Project Delivery Division Virginia Department of Transportation 1401 East Broad Street Richmond, Virginia 23219

Recipient’s Representative:

11. No Implied Waiver.

Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

IN WITNESS WHEREOF, the parties have executed this Confidentiality Agreement as of the Effective Date above written.

VIRGINIA DEPARTMENT OF TRANSPORTATION an agency of the Commonwealth of Virginia



Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form A – Confidentiality Agreement

Page 5

Signature:

Name:

Title:

Date:

[RECIPIENT]

Signature:

Name:

Title:

Date:



FORM B Critical Infrastructure Information/Sensitive Security Information (CII/SSI)

Multi-Purpose Non-Disclosure Agreement Retain a copy of both the front and back sides of this form for future reference

VDOT requires CII/SSI be protected and not disclosed to unauthorized persons.

CII/SSI, which is valuable and sensitive, is protected by law and by strict VDOT policies. The intent of these laws and policies is to assure that CII/SSI will remain confidential - that is, it will be used only as necessary to accomplish VDOT’s mission. Disclosure of CII/SSI in any manner that permits interception by unauthorized persons could compromise safety and security and is prohibited. CII/SSI may be released only to persons with a need-to-know.

I might have access to this information in various formats including but not limited to documents and drawings, physical structures, and computer based systems. I have no right or ownership interest in any VDOT CII/SSI. VDOT may at any time revoke my authorization allowing access to CII/SSI.

Willful violation of this agreement may subject me to discipline which might include, but is not limited to, removal from current VDOT projects;

PART B: To Be Completed By Company Agent Only: In addition to the provisions above, I certify:

We will safeguard the confidentiality of all CII/SSI at all times. We will conduct ourselves in strict conformance to applicable laws and VDOT policies governing CII/SSI. Obligations with respect to the confidentiality and security of all CII/SSI disclosed to us shall survive the termination of any agreement or relationship with VDOT.

All employees of this company involved with this VDOT project, regardless of location, who will have access to CII/SSI, myself included, will complete Part A of the Critical Infrastructure Information/Sensitive Security Information Multi-Purpose Non-Disclosure Agreement. The Agreement will be signed by me and accepted by VDOT prior to being granted access to CII/SSI. We will only access CII/SSI for which we have a need-to-know.

Authorized Company Agent: __________________________________________ _________________________________________Signature of Authorized Agent Date ________________________________________ _________________________________________Printed Name Title ________________________________________ __________________________________________ Company Name Phone Number __________________________________________________________________________________________________ C Add

________________________________________ _____________________________________ Printed Name Date ________________________________________ _____________________________________ VDOT District/Division OR Company Name Phone Number _________________________________________________________________________________________ Company Address _________________________________________ _____________________________________ Signature Signature of Authorized Agent (Not required for VDOT employees)

Each provision of this agreement is severable. If any administrative or judicial tribunal should find any provision of this agreement to be unenforceable, all other provisions shall remain in full force and effect.

I make this agreement in good faith, without mental reservation or purpose of evasion.

exclusion from further VDOT related work; and legal liability. My obligations with respect to the confidentiality and security of all CII/SSI disclosed to me shall survive the termination of any agreement or relationship with VDOT. My execution of this agreement shall not nullify or affect in any manner any other agreement, non-disclosure or otherwise, which I have executed or may execute with VDOT or the Commonwealth of Virginia. I am obligated to protect this information from unauthorized disclosure in accordance with the terms of this agreement. I will only use CII/SSI that I obtain to perform my legitimate VDOT related duties. I will conduct myself in a strict conformance to applicable laws and VDOT policies governing CII/SSI. I will safeguard the confidentiality of all CII/SSI at all times. I will be responsible for my misuse or my wrongful disclosure of CII/SSI.

PART A: To Be Completed By Individual VDOT or Company Employee I agree with the following as a condition of being granted access to CII/SSI:

Form B – CII/SSI Multi-Purpose Non-Disclosure Agreement


ber 31, 2008 tachment H – Other Forms

R for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project equestForm B - CII/SSI Multi-Purpose Non-Disclosure Agreement

Page 2

Transmission - CII/SSI shall be transmitted only by VDOT courier, United States first class, express, certified or registered mail, or through secure electronic means.

Disposal - Material containing CII/SSI shall be disposed of by any method that prevents unauthorized retrieval (e.g. shredding, burning, returning to original source, etc.).

Reproduction - Documents or material containing CII/S SI may be reproduced to the minimum extent necessary consistent with the need to carry out official duties provided that the reproduced material is marked and protected in the same manner as the original material.

Use and Storage - During working hours, reasonable steps shall be taken to minimize the risks of access to CII/SSI by unauthorized personnel. After working hours, CII/SSI shall be secured in a secure container, such as a locked desk, file cabinet or facility where contract security is provided.

Protection - CII/S SI shall be protected at all times, either by appropriate storage or having it under the personal observation and control of a person authorized to receive it. Each person who works with protected CII/SSI is personally responsible for taking proper precautions to ensure that unauthorized persons do not gain access to it.

Critical Infrastructure Information/Sensitive Security Information (CII/SSI) Multi-Purpose Non-Disclosure Agreement

Retain a copy of both the front and back sides of this form for future reference.

Handling CII/SSI

You are responsible for safeguarding Critical Infrastructure Information/Sensitive Security Information (CII/S SI) in your custody or under your control.

The extent of protection afforded CII/SSI shall be sufficient to reasonably foreclose the possibility of its loss or compromise.

The terms of this clause (Handling CII/SSI), including this paragraph, must be included in any dissemination of any document, in whole or in part, that contains CII/SSI.

ber 31, 2008 tachment H – Other Forms

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form C – Financial Statements Summary Table

Page 1

FORM C

FINANCIAL STATEMENTS SUMMARY TABLE Offeror’s Name: _________________________________________________

SUMMARY FINANCIAL INFORMATION (**) FOR ALL EQUITY MEMBERS, DESIGN-BUILD CONTRACTOR AND GUARANTORS FOR THE LAST THREE FISCAL YEARS FOR WHICH AUDITED FINANCIAL STATEMENTS ARE AVAILABLE (1)

COMPANY ROLE/ RESPONSIBILITY

WITHIN THE OFFEROR TEAM

TOTAL REVENUES

PRE-TAX

PROFIT

RELEVANT REVENUES

(2)

FIXED ASSETS

TOTAL ASSETS

(3)

CONTINGENT LIABILITIES

LONG TERM LIABILITIES

SHORT TERM LIABILITIES

NET WORTH

GEARING (4)

(*) The Chief Financial Officer from the parent company for each reporting entity must certify the information on this form as complete, true and correct. Information should be derived from audited financial statements where possible. Audited financial statements will prevail over this table.

(**) Expressed in thousands (000s) of U.S. dollars. Where applicable, companies should indicate the conversion to U.S. dollars, using the exchange rate prevailing on the last day of each financial year. Please identify the benchmark on which the exchange rate is based.

Notes: (1) Complete separate forms for each calendar year. (2) Relevant revenue consists of revenue from design-build-finance-operate contracts on transportation projects. (3) Excludes goodwill and intangibles. (4) Long Term Liabilities / Net Worth




FORM D

GUARANTY FORMS

Form D-1 Equity Funding Guaranty

Form D-2 Guaranty of Performance and Completion

Form D – Guaranty Forms Page 1



FORM D-1

EQUITY FUNDING GUARANTY

This Equity Funding Guaranty (this “Guaranty”), dated as of_________, 200__, is entered into by _________________________ [insert name of Guarantor], a ____________________________ [insert applicable legal structure] ("Guarantor") in favor of ____________________________ [insert name of Concessionaire], a ____________________________ [insert applicable legal structure] (the “Concessionaire”), and the VIRGINIA DEPARTMENT OF TRANSPORTATION, an agency of the Commonwealth of Virginia (the “Department”), with reference to the following facts:

RECITALS

[Recitals to be added defining the Comprehensive Agreement and Equity Funding Agreement and parties thereto, describing the relationship of the Guarantor to Equity Member, and establishing the consideration for the Guaranty]

AGREEMENT

In consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:

Section 1. Definitions

All capitalized terms used in this Agreement but not otherwise defined herein shall have the respective meanings given to such terms in the Equity Funding Agreement or the Comprehensive Agreement, as applicable.

Section 2. Guaranty

2.1 Guaranty. Guarantor unconditionally, absolutely and irrevocably guarantees to the Concessionaire and the Department, the due and punctual payment of the equity contributions payable under the Equity Funding Agreement, when and as the same shall become due and payable (the “Guaranteed Obligations”).

2.2 Nature of Guaranty.

(a) Guarantor agrees that its obligations hereunder are primary obligations and in all events are an absolute, unconditional, continuing and irrevocable guaranty of payment and not of collectability or performance. If at any time, for any reason the Guaranteed Obligations, or any part thereof, shall not be paid promptly when due, then, in each such instance, upon receipt of demand from the Concessionaire or the Department, Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable and in accordance with the provisions of the Equity Funding Agreement, regardless of any defenses or rights of set-off or counterclaim, and regardless of whether steps shall have been taken by the Concessionaire or the Department to enforce its rights against the Guarantor, the

Form D-1 – Equity Member Investment Obligation Page 1



Equity Member or any other person, to collect such sums, or any part thereof, and regardless of any other condition or contingency. If any payment received by the Department or Concessionaire in respect of the Guaranteed Obligations is rescinded or avoided or must otherwise be restored or returned, this Guaranty will continue to be effective or will be reinstated, if necessary, as if that payment had not been made. Each failure by the Equity Member to pay any of its obligations and liabilities with respect to the Guaranteed Obligations shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each such cause of action arises.

(b) The Guaranteed Obligations are independent of any obligation of the Equity Member or any other person, and a separate action or actions may be brought and prosecuted against Guarantor under this Guaranty whether or not any action is brought or prosecuted against the Equity Member or any other person and whether or not the Equity Member or any other person is joined in any action under this Guaranty. This is a guaranty of payment and not merely of collection.

(c) Guarantor hereby unconditionally and irrevocably waives: (i) any requirement that the Concessionaire or the Department first make demand upon, or seek to enforce remedies against, any other person or any of the collateral or property of such other person before demanding payment from, or seeking to enforce this Guaranty against, Guarantor; and (ii) diligence, presentment, demand of payment, notice of dishonor or non-payment, protest or notice of protest, notice of the creation or incurrence of new or additional indebtedness of the Equity Member, notice of acceptance of this Guaranty, notice of default, and notices of any other kind whatsoever with respect to the obligations guaranteed hereunder,

(d) Guarantor hereby agrees that: (i) this Guaranty shall not be discharged except by complete satisfaction of the Guaranteed Obligations, subject to Section 5.2 hereof; (ii) this Guaranty shall remain in full effect without regard to, and shall not be affected or impaired by, any invalidity, illegality, irregularity or unenforceability in whole or in part of any portion of the Equity Funding Agreement or Comprehensive Agreement (and Guarantor hereby waives any defense relating to the enforceability of the Equity Funding Agreement or Comprehensive Agreement, or any provisions contained therein) or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever; (iii) the failure by the Department to file or enforce a claim against the estate (either in administration, bankruptcy or other proceedings) of the Equity Member shall not operate to release Guarantor from liability hereunder, and (iv) each and every right, power and remedy given under this Guaranty shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing.

2.3 Fees and Expenses. In addition to the obligations under Section 2.2 of this Guaranty, Guarantor agrees to pay on demand to the Department such further amounts as shall be sufficient to cover all costs and expenses incurred to collect such sums, or a part thereof, or of otherwise enforcing the Equity Funding Agreement and this Guaranty, including attorney’s fees and expenses. The obligation to pay the Department’s costs and expenses pursuant to this Section 2.3 shall survive the termination of this Guaranty.




2.4 Certain Waivers. Until the Guaranteed Obligations have been indefeasibly paid in full, Guarantor hereby waives, to the extent permitted by applicable law, any claim, remedy or right that it may now have or hereafter acquire against the Equity Member that arises from the existence, payment, performance or enforcement of the Guaranteed Obligations, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Concessionaire or the Department against the Equity Member, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Equity Member directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of all amounts payable under this Guaranty, such amount shall be held in trust for the benefit of the Department, and shall forthwith be paid to the Department and be credited and applied to the amounts payable under this Guaranty, whether matured or unmatured. Guarantor acknowledges that it will receive direct and indirect benefits from the transactions contemplated by the Comprehensive Agreement and that the waiver set forth in this Section 2.4 is knowingly made in contemplation of such benefits. Notwithstanding the foregoing, the obligation to hold amounts in trust shall not have effect to the extent that it would otherwise create or take effect as a charge or security interest over such amounts.

2.5 Non-Impairment of Obligations. The Department or Concessionaire may, at any time and from time to time, without the consent of or notice to Guarantor (except such notice as may be required by applicable law which cannot be waived), without incurring responsibility to Guarantor, and without impairing or releasing the obligations of Guarantor hereunder, upon or without any terms or conditions and in whole or in part:

(a) change the manner, place and terms of payment under the Equity Funding Agreement, change or extend the time of payment of, renew, or alter any obligation of the Equity Member under the Equity Funding Agreement, or any obligation incurred directly or indirectly in respect thereof, or in any manner modify, amend, or supplement the terms of the Equity Funding Agreement; and the guarantee made herein with respect to the Guaranteed Obligations shall apply to such obligations of the Equity Member as changed, extended, renewed, altered, modified, amended or supplemented;

(b) exercise or refrain from exercising any rights against the Equity Member or any other person (including Guarantor), or otherwise act or refrain from acting;

(c) release any guarantor (other than Guarantor) from its obligations without obtaining the consent of Guarantor and without affecting or impairing the obligations of Guarantor hereunder;

(d) settle or compromise any Guaranteed Obligation and/or any obligation (including any Guaranteed Obligation) incurred directly or indirectly in respect thereof or hereof;

(e) sell, exchange, release, surrender, realize upon, or otherwise deal with in any manner or in any order any property by whomsoever pledged or mortgaged to secure or




howsoever securing the Guaranteed Obligations or any liabilities or obligations (including any obligations hereunder) incurred directly or indirectly in respect thereof or hereof and/or offset there against;

(f) waive any breach of or default under, the Equity Funding Agreement;

(g) act or fail to act in any manner referred to in this Guaranty which may deprive Guarantor of its right to subrogation or reimbursement against the Guarantor to recover full indemnity for any payments made pursuant to the Equity Funding Agreement or of its right of contribution against any other party;

(h) take any other action in respect of this Guaranty or any collateral or guaranties securing the Guaranteed Obligations or any other action that might otherwise be deemed a legal or equitable discharge of a surety, without notice to or the consent of Guarantor, and irrespective of any change in the financial condition of the Equity Member, and/or

(i) until all the Guaranteed Obligations have been paid, performed and completed in full, (i) refrain from applying or enforcing any other moneys, security, guaranties or rights held or received in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and Guarantor shall not be entitled to the benefit of the same; and (ii) hold in a suspense account any moneys received from Guarantor or on account of Guarantor’s liability under this Guaranty, without liability to pay interest on those moneys.

2.6 Unenforceability of Equity Funding Agreement. No invalidity, irregularity, or unenforceability of the Equity Funding Agreement shall affect, impair, or be a defense to this Guaranty.

2.7 Additional Security. This Guaranty is in addition to and is not in any way prejudiced by any other guaranty or security now or subsequently held by the Concessionaire or the Department.

2.8 Waiver of Defenses. The obligations of Guarantor under this Guaranty will not be affected by, and Guarantor irrevocably waives any defense it might have by virtue of, any act, omission, matter or thing which, but for this Section 2.8, would reduce, release or prejudice any of the Guaranteed Obligations.

2.9 Equity Credit Support. Guarantor shall promptly notify the Department regarding any change in its long-term credit rating. If its credit rating is reduced below an “BBB minus” or “Baa3” by any Major Rating Agency then rating Guarantor, Guarantor shall, not later than 60 days after such reduction, (a) deliver to the Department, as security for its obligations hereunder, (i) an irrevocable standby letter of credit from a financial institution with a long-term credit rating in one of the top three rating categories , in the amount of the then remaining amount of the equity contributions of the Equity Member, and containing terms and conditions satisfactory to the Department, or (ii) cash collateral in such amount, or (b) make other liquidity arrangements satisfactory to the Department.




Section 3. Representations and Warranties of Guarantor

Guarantor makes the following representations and warranties as of the date hereof:

3.1 Guarantor is a _________________________ [insert applicable legal structure] duly formed, validly existing and in good standing under the laws of ______________________ [insert applicable state or country], and has full organizational power and authority and possesses all necessary government authorizations and approvals to carry on its business as now conducted, to own or hold under lease its properties, and to enter into and perform its obligations under this Guaranty.

3.2 Guarantor has taken all necessary action to authorize its execution and delivery of this Guaranty and the performance of the Guaranteed Obligations.

3.3 This Guaranty has been duly executed and delivered by Guarantor and constitutes the legal, valid and binding obligation of Guarantor, enforceable against it in accordance with the terms hereof and thereof, subject to applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and subject to general equitable principles.

3.4 All governmental authorizations and actions necessary in connection with the execution and delivery by Guarantor of this Guaranty and the performance of the Guaranteed Obligations have been obtained or performed and remain valid and in full force and effect.

3.5 Execution, delivery and performance of this Guaranty (a) do not and will not contravene any provisions of Guarantor’s constitutional documents, or any law, rule, regulation, order, judgment or decree applicable to or binding on Guarantor or any of its properties, (b) do not and will not contravene, or result in any breach of or constitute any default under, any agreement or instrument to which Guarantor is a party or by which Guarantor or any of its properties may be bound or affected, and (c) do not and will not require the consent of any person under any existing law or agreement which has not already been obtained.

3.6 There is no pending or, to the best of Guarantor’s knowledge, threatened action or proceeding affecting Guarantor before any court, governmental agency or arbitrator that would reasonably be expected to materially and adversely affect the financial condition, results of operations or business of Guarantor or the ability of Guarantor to perform the Guaranteed Obligations.

3.7 Guarantor possesses all franchises, certificates, licenses, permits and other governmental authorizations and approvals necessary for it to own its properties, conduct its business as now being conducted and perform the Guaranteed Obligations.

Section 4. Covenants of Guarantor.

Guarantor hereby agrees that:




4.1 It will maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Guaranty, and it will obtain any consents that may become necessary in the future.

4.2 It will comply in all material respects with all governmental laws to which it may be subject if failure so to comply would materially impair its ability to perform its obligations under this Guaranty.

4.3 Until all the Guaranteed Obligations have been irrevocably and indefeasibly paid in full, Guarantor shall not, after a claim has been made or by virtue of any payment or performance by it under this Guaranty claim, rank, prove or vote as a creditor of the Equity Member or its estate in competition with the Department with respect to the transactions contemplated under the Equity Funding Agreement.

Section 5. Termination.

5.1 Termination. In the absence of any termination of this Guaranty, Guarantor agrees that nothing shall discharge or satisfy its obligations created hereunder except for the full and irrevocable payment of the Guaranteed Obligations. Subject to the provisions of Section 5.2 hereof, this Guaranty shall automatically terminate on the date following such irrevocable payment in full of all amounts due with respect to the Guaranteed Obligations.

5.2 Reinstatement of Guaranty. Notwithstanding Section 5.1 hereof, this Guaranty shall be reinstated if at any time following the termination of this Guaranty pursuant to Section 5.1 hereof, any payment by Guarantor hereunder or by the Equity Member with respect to the Guaranteed Obligations is rescinded or must otherwise be returned by the Department, Concessionaire or any other person upon the insolvency, bankruptcy, reorganization, dissolution, or liquidation of the Guarantor or the Equity Member, or otherwise, and is so rescinded or returned to the party or parties making such payment, all as though such payment had not been made. Such period of reinstatement shall continue until such satisfaction of the conditions contained in, and shall continue subject to, the provisions of this Section 5.

Section 6. Separate Right of Action

Guarantor acknowledges and agrees that (a) the provisions of and rights created by this Guaranty shall inure to, and are intended for, the benefit of the Concessionaire and the Department, and (b) the Department and the Concessionaire may be entitled to enforce directly and in its own name any rights or claims it may have against Guarantor to enforce Guarantor’s obligations hereunder; provided that any moneys that are payable under this Guaranty or the Equity Funding Agreement in respect of the Guaranteed Obligations shall be paid over to the Department for deposit in accordance with its instructions. The grant of any right or power hereunder does not impose upon the Concessionaire or the Department any duty to exercise that right or power.




Section 7. Miscellaneous.

7.1 Amendments and Waivers.

(a) This Guaranty may not be amended, supplemented, waived or otherwise modified except in accordance with the provisions of this Section 7.1. The Department or the Concessionaire may, from time to time, (i) enter into with the Guarantor written amendments, supplements or modifications hereto for the purpose of adding any provisions to this Guaranty or changing in any manner the rights of the Department, the Concessionaire or Guarantor hereunder or (ii) waive, on such terms and conditions as the Department may specify in such instrument, any of the requirements of this Guaranty or the consequences thereof; provided, however, that no such waiver and no such amendment, supplement or modification shall reduce the amount or extend the scheduled date of maturity of any equity contribution affected thereby or amend, modify or waive any provision of this Section 7.1, or consent to the assignment or transfer by Guarantor of any of their rights and obligations under this Guaranty.

(b) No delay or failure to exercise any right, power or privilege accruing to the Department under this Guaranty shall impair any such right, power or privilege, nor shall it be construed to be a waiver thereof. No single or partial exercise of any right, power or privilege under this Guaranty shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. All remedies hereunder and under the Comprehensive Agreement are cumulative and are not exclusive of any other remedies that may be available to the Department, whether at law, in equity, or otherwise.

7.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand or, in the case of notice given by mail, private courier, overnight delivery service or facsimile, when received, addressed as follows, or to such other address as may be hereafter notified in accordance with this Section 7.2 by the respective parties hereto:

The Concessionaire:

[Insert name and address of Concessionaire] [_________________________] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]




with a copy to:

[Insert alternative contact information] [_________________________] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]

Virginia Department of Transportation:

1401 E. Broad Street Richmond, VA 23219 Attention: Chief Engineer Telephone: [_____________] Facsimile: [_____________]

with a copy to:


Guarantor:

[Insert name and address of Guarantor] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]

7.3 Successors and Assigns. Neither this Guaranty nor any of the rights, interests or

obligations hereunder shall be assigned or delegated by the Guarantor without the prior written consent of the Concessionaire and the Department. This Guaranty and all of the provisions hereof shall be binding upon the Guarantor and its successors and permitted assigns and shall inure to the benefit of Guarantor, the Concessionaire and the Department and their respective successors and assigns.

7.4 Governing Law. This Guaranty shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Virginia.




7.5 Submission To Jurisdiction. Guarantor hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Guaranty, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive jurisdiction of the courts of the Commonwealth of Virginia, Circuit Court for the City of Richmond, Virginia, Division I, and appellate courts from any thereof;

(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and

(c) agrees that nothing herein shall affect the right to effect service of process in any manner permitted by law or shall limit the right to sue in any other jurisdiction.

7.6 Severability. If any provision of this Guaranty shall for any reason be held invalid or unenforceable, to the fullest extent permitted by law, such invalidity or unenforceability shall not affect any other provisions hereof, but this Guaranty shall be construed as if such invalid or unenforceable provision had never been contained herein.

7.7 Headings. The table of contents and the headings herein have been included for convenience only and should not be considered in interpreting this Guaranty.

7.8 Limitation of Recourse. Guarantor shall have no other obligations or liabilities other than the obligations or liabilities set forth in this Guaranty. The obligations and liabilities of Guarantor are not in excess of the payment obligations with respect to the equity contributions under the Equity Funding Agreement.

7.9 Counterparts. This Guaranty may be executed in one or more counterparts, all of which shall constitute one and the same instrument.




IN WITNESS WHEREOF, Guarantor has caused this EQUITY FUNDING GUARANTY to be duly executed and delivered as of the day and year first written above.

GUARANTOR

Signature:

Name:

Title:

Date:

Accepted by: CONCESSIONAIRE

Signature:

Name:

Title:

Date:


Signature:

Name:

Title:

Date:




FORM D-2

GUARANTY OF PERFORMANCE AND COMPLETION

This GUARANTY OF PERFORMANCE AND COMPLETION (“Guaranty”) is made as of ______________ ____, 200__, by __________________ [insert name of Guarantor], a ________________________ [insert applicable legal structure] (the “Guarantor”), to __________________________ [insert name of Concessionaire] a __________________________ [insert applicable legal structure] (the “Concessionaire”) and the VIRGINIA DEPARTMENT OF TRANSPORTATION, an agency of the Commonwealth of Virginia (the “Department”), with respect to the obligations of ____________________________ [insert name of Design-Build Contractor], a ____________________________ [insert applicable legal structure] (the “Contractor”), with reference to the following facts:

RECITALS

A. The Department and the Concessionaire have entered into certain Comprehensive Agreement Relating to the U.S. Route 460 Corridor Improvements Project, dated as of ____________, 200__, between the Department and the Concessionaire (as amended, altered, varied or supplemented, the “Comprehensive Agreement”).

B. Pursuant to the Comprehensive Agreement, the Concessionaire and the Design-Builder have entered into that certain Design-Build Contract for the U.S. Route 460 Corridor Improvements Project, dated as of ____________, 200__ (as amended, altered, varied or supplemented, the “Design-Build Contract”). The Design-Build Contract is hereby incorporated by reference herein.

C. [Additional recitals to be added describing the relationship of the Guarantor to the Design-Build Contractor, and establishing the consideration for the Guaranty]

D. This Guaranty is required to be provided under Section ___ of the Design-Build Contract.

AGREEMENT

In consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:

Section 1. Definitions

All capitalized terms used but not otherwise defined herein shall have the respective meanings given to such terms in the Design-Build Agreement or the Comprehensive Agreement, as applicable.

Form D-2 – Guaranty of Performance and Completion Page 1



Section 2. Guaranty

2.1 Guaranty. The Guarantor hereby guarantees to the Concessionaire and the Department, absolutely, unconditionally and irrevocably, that each and every payment and performance obligation and other liability of the Contractor now or hereafter arising under the Design-Build Contract, including but not limited to all obligations and liabilities of the Contractor under any and all representations and warranties made or given by the Contractor under the Design-Build Contract, under any and all liquidated or stipulated damage provisions of the Design-Build Contract and under any and all indemnities given by the Contractor under the Design-Build Contract (collectively the “Guaranteed Obligations”) will be promptly paid and satisfied in full when due and without offset, and performed and completed when required.

2.2 Obligations. Except as otherwise provided in Section 5.6 below, the obligations of the Guarantor hereunder are absolute and unconditional and independent of the Guaranteed Obligations of the Contractor and shall remain in full force and effect until all the Guaranteed Obligations have been paid, performed and completed in full, irrespective of any assignment, amendment, modification or termination of the Design-Build Contract.

2.3 No Exoneration. Except as otherwise provided in Section 5.6 below, the obligations of the Guarantor hereunder shall not be released, discharged, exonerated or impaired in any way by reason of:

(a) any failure of the Concessionaire or the Department to retain or preserve any rights against any person;

(b) the lack of prior enforcement by the Concessionaire or the Department of any rights against any person and the lack of exhaustion of any bond, letter of credit or other security held by the Concessionaire or the Department;

(c) the lack of authority or standing of the Contractor or the dissolution of the Guarantor, the Contractor, the Concessionaire or the Department;

(d) with or without notice to the Guarantor, the amendment, alteration, acceleration, extension, waiver, retirement, suspension, surrender, compromise, settlement, release, revocation or termination of, or failure to assert, any portion of the Guaranteed Obligations, the Design-Build Contract, any rights or remedies of the Concessionaire or the Department (including rights of offset) against the Contractor, or any bond, letter of credit, other guaranty, instrument, document, collateral security or other property given or available to the Concessionaire or the Department to secure all or any part of the Guaranteed Obligations; provided that, notwithstanding the foregoing, the Guarantor shall have available to it any and all defenses to performance of the Guaranteed Obligations that may be available to the Contractor based on any such amendment, alteration, acceleration, extension, waiver, retirement, suspension, surrender, compromise, settlement, release, revocation or termination or failure to assert voluntarily made by the Concessionaire or the Department, except defenses available to the Contractor under any federal or state law respecting bankruptcy, arrangement, reorganization or similar relief of debtors;




(e) the extension of the time for payment of any amount owing or payable under the Design-Build Contract or of the time for performance or completion of any Guaranteed Obligation; provided, however, that to the extent the Concessionaire grants the Contractor an extension of time under the Design-Build Contract for performance of any of the obligations of the Contractor thereunder, such extension of time shall likewise extend the time for performance by the Guarantor;

(f) except as otherwise provided in subsections (d) and (e) above, the taking or the omission of any of the actions referred to in the Design-Build Contract or of any actions under this Guaranty;

(g) the existence now or hereafter of any other guaranty or endorsement by the Guarantor or anyone else of all or any portion of the Guaranteed Obligations;

(h) the acceptance, release, exchange or subordination of additional or substituted security for all or any portion of the Guaranteed Obligations;

(i) the taking of any action or the failure to take any action which would constitute a legal or equitable defense, release or discharge of a surety;

(j) any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law hereinafter initiated by or against the Contractor or any of its members, the Concessionaire or the Department;

(k) any full or partial payment or performance of any Guaranteed Obligation which is required to be returned as a result of or in connection with the insolvency, reorganization or bankruptcy of the Contractor or any of its members or otherwise;

(l) the rejection of the Design-Build Contract in connection with the insolvency, reorganization or bankruptcy of the Contractor or any of its members;

(m) an impairment of or limitation on damages due from the Contractor by operation of law in any insolvency, reorganization or bankruptcy proceeding by or against the Contractor or any of its members;

(n) failure by the Concessionaire or the Department to file or enforce a claim against the estate (either in administration, bankruptcy or other proceedings) of Contractor, any of its members, the Guarantor or any other guarantor;

(o) any merger, consolidation or other reorganization to which the Contractor, the Concessionaire, the Department or the Guarantor is a party;

(p) any sale or disposition of all or any portion of the Guarantor’s direct or indirect ownership in the Contractor, or any other event which results in discontinuation or interruption in the business relations of Contractor with the Guarantor;

(q) except as otherwise provided in subsection (d) above, the lack of genuineness, validity, regularity or enforceability of any of the Guaranteed Obligations or the Design-Build




Contract;

(r) the failure of the Concessionaire or the Department to assert any claim or demand, bring any action or exhaust its remedies against the Contractor or any security before proceeding against the Guarantor hereunder after the expiration of applicable notice and cure periods; or

(s) the termination of the Design-Build Contract by reason of the Contractor’s default thereunder.

2.4 Enforcement of the Design-Build Contract and Guaranteed Obligations.

(a) Nothing contained herein shall prevent or limit the Concessionaire or the Department from pursuing any of its respective rights and remedies under the Design-Build Contract or the Department from pursuing any of its rights under the Comprehensive Agreement or any provisions thereof. The Concessionaire and the Department may apply any available moneys, property or security in such manner and amounts and at such times to the payment or reduction or performance of any Guaranteed Obligation as they may elect, and may generally deal with the Contractor, the Guaranteed Obligations, such security and property as the Concessionaire or the Department may see fit. Notwithstanding the foregoing, the Guarantor shall remain bound by this Guaranty.

(b) Subject to Section 5.6 below, the Guarantor shall be obligated to undertake all curative action which may be agreed upon between the Concessionaire, the Department, the Guarantor and the Contractor. If following notice under Section 5.6 below, the Guarantor does not use commercially reasonable efforts to proceed promptly to effectuate such curative action within a reasonable time, or should no agreement on the curative action be reached within 14 days after the Concessionaire or the Department notifies the Contractor and the Guarantor (or such longer period as may be permitted under Section 5.6 below) of the need for curative action (or immediately, in the case of emergency conditions), the Concessionaire or the Department, without further notice to the Guarantor, shall have the right to perform or have performed by third parties the necessary curative action, and the costs thereof shall be borne by the Guarantor.

(c) The Concessionaire or the Department may bring and prosecute a separate action or actions against the Guarantor to enforce its liabilities hereunder, regardless of whether any action is brought against the Contractor and regardless of whether any other person is joined in any such action or actions. Nothing shall prohibit the Concessionaire or the Department from exercising its rights against any of the Guarantor, the Contractor, any other guarantor of the Guaranteed Obligations, a performance bond or other security, if any, which insures the payment of the Guaranteed Obligations, or any other person simultaneously, or any combination thereof jointly and/or severally.

Section 3. Representations and Warranties

3.1 Representations and Warranties. The Guarantor hereby represents and warrants, which shall be continuing representations and warranties until the expiration of the Guarantor’s obligations under this Guaranty, that:




(a) Consents. The Contractor is a ______________________ [insert applicable legal structure] duly organized, validly existing and in good standing under the laws of its state of formation. Consent of the Contractor to any modification or amendment of the Design-Build Contract constitutes knowledge thereof and consent thereto by the Guarantor;

(b) Organization and Existence. The Guarantor is a __________________________ [insert applicable legal structure] duly organized, validly existing and in good standing under the laws of its state of incorporation;

(c) Power and Authority. The Guarantor has the full power and authority to execute, deliver and perform this Guaranty, and to own and lease its properties and to carry on its business as now conducted and as contemplated hereby;

(d) Authorization and Enforceability. This Guaranty has been duly authorized, executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against it in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity;

(e) No Governmental Consents. No authorization, consent or approval of, notice to or filing with, any governmental authority, is required for the execution, delivery and performance by the Guarantor of this Guaranty;

(f) No Conflict or Breach. Execution, delivery and performance of this Guaranty (a) do not and will not contravene any provisions of Guarantor’s constitutional documents, or any law, rule, regulation, order, judgment or decree applicable to or binding on Guarantor or any of its properties, (b) do not and will not contravene, or result in any breach of or constitute any default under, any agreement or instrument to which Guarantor is a party or by which Guarantor or any of its properties may be bound or affected, and (c) do not and will not require the consent of any person under any existing law or agreement which has not already been obtained;;

(g) No Proceedings. There are no suits or proceedings pending, or, to the knowledge of the Guarantor, threatened in any court or before any regulatory commission, board or other governmental administrative agency against the Guarantor which could reasonably be expected to have a material adverse affect on the business or operations of the Guarantor, financial or otherwise, or on its ability to fulfill its obligations hereunder; and

(h) Design-Build Contract. The Guarantor is fully aware of and consents to the terms and conditions of the Design-Build Contract.

(i) Financial Statements. All financial statements and data that have been given to the Concessionaire and the Department by the Guarantor with respect to the Guarantor: (A) are complete and correct in all material respects as of the date given; (B) accurately present in all material respects the financial condition of the Guarantor as of the date thereof; and (C) have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby.




(j) No Adverse Change. There has been no material adverse change in the financial condition of the Guarantor since the date of the most recent financial statements given to the Concessionaire and the Department with respect to the Guarantor.

(k) No Default. The Guarantor is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions set forth in any agreement or instrument to which the Guarantor is a party, which default may materially and adversely affect the Guarantor's ability to fulfill its obligations hereunder.

(l) Accuracy of Information. All other reports, papers and written data and information given to the Concessionaire and the Department by the Guarantor with respect to the Guarantor are accurate and correct in all material respects and complete.

(m) Notice of Change. The Guarantor shall advise the Concessionaire and the Department in writing of any material adverse change in the business or financial condition of the Guarantor and promptly furnish to the Concessionaire and the Department such information about the financial condition of the Guarantor as the Concessionaire or the Department shall reasonably request.

Section 4. Waivers, Subrogation and Subordination

4.1 Waivers.

(a) The Guarantor hereby unconditionally waives:

(i) notice of acceptance of this Guaranty or of the intention to act in reliance hereon and of reliance hereon;

(ii) notice of the incurring, contracting, amendment, alteration, acceleration, extension, waiver, retirement, suspension, surrender, compromise, settlement, release, revocation or termination of, or of the failure to assert, any Guaranteed Obligation or any contract;

(iii) demand on the Guarantor in the event of default except demand as set forth in Section 5.6 below;

(iv) any invalidity of the Design-Build Contract due to lack of proper authorization of or a defect in execution thereof by the Contractor, its purported representatives or agents;

(v) demand for payment or performance, presentment, protest and notice of nonpayment or dishonor respecting any Guaranteed Obligation;

(vi) all other notices to which the Guarantor might otherwise be entitled, except notice as set forth in Section 5.6 below;

(vii) any demand for payment hereunder except as set forth in Section 5.6 below;




(viii) the provisions of Sections 49-25 and 49-26 of the Code of Virginia, as amended; and

(ix) any duty on the part of the Concessionaire or the Department to disclose to the Guarantor any facts the Concessionaire or the Department may now or hereafter know with regard to Contractor.

(b) The Guarantor also hereby waives any right to require, and the benefit of all laws now or hereafter in effect giving the Guarantor the right to require, any prior enforcement as referred to in Section 2.3(b), and the Guarantor agrees that any delay in enforcing or failure to enforce any such rights or in making demand on the Guarantor for the performance of the obligations of the Guarantor under this Guaranty shall not in any way affect the liability of the Guarantor hereunder.

(c) The Guarantor hereby waives, as against the Concessionaire, the Department or any person claiming under the Concessionaire or the Department, all rights and benefits which might accrue to the Guarantor by reason of any bankruptcy, arrangement, reorganization or similar proceedings by or against the Contractor and agrees that its obligations and liabilities hereunder shall not be affected by any modification, limitation or discharge of the obligations of the Contractor that may result from any such proceedings.

(d) Until the Contractor shall have fully and satisfactorily paid, performed, completed and discharged all the Guaranteed Obligations, the Guarantor hereby agrees not to file, or solicit the filing by others of, any involuntary petition in bankruptcy against the Contractor.

4.2 Subrogation. Until the Contractor shall have fully and satisfactorily paid, performed, completed and discharged all the Guaranteed Obligations, the Guarantor shall not claim or enforce any right of subrogation, reimbursement or indemnity against the Contractor, or any other right or remedy which might otherwise arise on account of any payment made by the Guarantor or any act or thing done by the Guarantor on account of or in accordance with this Guaranty.

4.3 Subordination.

(a) All existing or future indebtedness of the Contractor to the Guarantor is subordinated to all of the Guaranteed Obligations. Whenever and for so long as Contractor shall be in default in the performance or payment of any Guaranteed Obligation, no payments with respect to any such indebtedness shall be made by Contractor to the Guarantor without prior written notice to the Concessionaire and the Department.

(b) The Guarantor shall file all claims against Contractor in any bankruptcy or other proceedings in which the filing of claims is required or permitted by law upon any obligation or indebtedness of the Contractor to the Guarantor, and shall have assigned to the Concessionaire and the Department all of the Guarantor’s rights thereunder to the extent of outstanding and unsatisfied Guaranteed Obligations. If the Guarantor does not file any such claim, the Concessionaire or the Department is authorized as the Guarantor’s attorney-in-fact to




do so in the Guarantor’s name, or in the discretion of the Department and the Concessionaire, the Concessionaire or the Department is authorized to assign the claim to, and cause proof of claim to be filed in the name of the Concessionaire, the Department or their nominees. In all such cases, whether in administration, bankruptcy, or otherwise, the person or persons authorized to pay such claim shall pay to the Concessionaire, the Department or their nominees the full amount payable on the claim in the proceeding before making any payment to the Guarantor, and to the full extent necessary for that purpose, the Guarantor assigns to the Concessionaire and the Department all of its rights to any payments or distributions to which it otherwise would be entitled. If the amount so paid is in excess of the Guaranteed Obligations covered hereby, the Concessionaire and the Department shall pay the amount of the excess to the party determined by it to be entitled thereto.

Section 5. Miscellaneous

5.1 Enforcement of Guaranty.

(a) The terms and provisions of this Guaranty shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia applicable to contracts executed and to be performed within the Commonwealth of Virginia.

(b) No supplement, amendment, modification, waiver or termination of this Guaranty shall be binding unless executed in writing and duly signed by the Guarantor, the Concessionaire and the Department. No waiver of any of the provisions of this Guaranty shall be deemed or shall constitute a waiver of any other provisions hereof whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. No failure on the part of the Concessionaire or the Department to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise of any other right.

(c) All disputes between the Concessionaire or the Department and the Guarantor arising under or relating to this Guaranty or its breach shall be filed, heard and decided in the Circuit Court for the City of Richmond, Virginia, Division I, which shall have exclusive jurisdiction and venue. The Guarantor hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of any action or proceedings in such court arising out of or relating to this Guaranty. The Guarantor agrees that a final non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Guarantor agrees and consents to service of process by delivery in the manner and to the address set forth in Section 5.2 below. Nothing in this Section shall affect the right of the Concessionaire or the Department or to serve legal process in any other manner permitted by law.

(d) The rights of the Concessionaire and the Department hereunder are cumulative and shall not be exhausted by any one or more exercises of said rights against the Guarantor or other guarantors or by any number of successive actions until and unless all Guaranteed Obligations have been fully paid or performed.




(e) The Guarantor shall pay to the Concessionaire and the Department all reasonable out-of-pocket legal fees and other reasonable out-of-pocket costs and expenses (including fees and costs on appeal) they incur by reason of any permitted enforcement by of their rights hereunder, provided that they are the prevailing party with respect to a substantial portion of its claim.

5.2 Notices.

(a) All notices, demands or other communications under this Guaranty shall be in writing and shall not be effective for any purpose unless and until actually received by the addressee or unless served (i) personally, (ii) by independent, reputable, overnight commercial courier, (iii) by facsimile transmission, where the transmitting party includes a cover sheet identifying the name, location and identity of the transmitting party, the phone number of the transmitting device, the date and time of transmission and the number of pages transmitted (including the cover page), where the transmitting device or receiving device records verification of receipt and the date and time of transmission receipt and the phone number of the other device, and where the facsimile transmission is immediately followed by service of the original of the subject item in another manner permitted herein, or (iv) by deposit in the U.S. mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, addressed as follows

Concessionaire:


with a copy to:





Virginia Department of Transportation:

1401 E. Broad Street Richmond, VA 23219 Attention: Chief Engineer Telephone: [_____________] Facsimile: [_____________]

with a copy to:


Guarantor:

[Insert name and address of Guarantor] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]

(b) Any party may, from time to time, by notice in writing served upon the others as aforesaid, designate an additional and/or a different mailing address or an additional and/or a different person to whom all such notices, requests, demands, reports and communications are thereafter to be addressed. Any notice, request, demand, report or other communication served personally shall be deemed delivered upon receipt, if served by mail or independent courier shall be deemed delivered on the date of receipt as shown by the addressee’s registry or certification receipt or on the date receipt at the appropriate address is refused, as shown on the records or manifest of the U.S. Postal Service or independent courier, and if served by facsimile transmission shall be deemed delivered on the date of receipt as shown on the received facsimile (provided the original is thereafter delivered as aforesaid).

5.3 Severability. If any provision of this Guaranty shall for any reason be held invalid or unenforceable, to the fullest extent permitted by law, such invalidity or unenforceability shall not affect any other provisions hereof, but this Guaranty shall be construed as if such invalid or unenforceable provision had never been contained herein.

5.4 Assignment. Neither this Guaranty nor any of the rights, interest or obligations hereunder shall be assigned or delegated by the Guarantor without the prior written consent of the Concessionaire and the Department. This Guaranty and all of the provisions hereof shall be




binding upon the Guarantor and its successors and permitted assigns and shall inure to the benefit of the Concessionaire, the Department and their respective successors and assigns.

5.5 No Third Party Beneficiaries. Nothing in this Guaranty shall entitle any person other than the Concessionaire, the Department and their successors and assigns to any claim, cause or action, remedy or right of any kind.

5.6 Certain Rights, Duties, Obligations and Defenses. Notwithstanding Sections 2.2, 2.3 and 4.1, the Guarantor shall have all rights, duties, obligations and defenses available to the Contractor under the Design-Build Contract relating to waiver, surrender, compromise, settlement, release or termination voluntarily made by the Concessionaire, failure to give notice of default to the Contractor to the extent required by the Design-Build Contract, interpretation or performance of terms and conditions of the Design-Build Contract, or other defenses available to the Contractor under the Design-Build Contract except those expressly waived in this Guaranty and defenses available to the Contractor under any federal or state law respecting bankruptcy, arrangement, reorganization or similar relief of debtors. Action against the Guarantor shall be subject to no prior notice or demand except for 14 days’ prior written notice to the Guarantor setting forth the default or breach of Guaranteed Obligation on the part of the Contractor and demand for payment or performance of such Guaranteed Obligation, provided that (a) if such default or breach is incapable of cure within 14 days despite the Guarantor’ s exercise of commercially reasonable efforts, such 14 day cure period shall be extended for such additional time as reasonably may be required to effect such cure, and (b) immediate action after written notice may be required of the Guarantor in the case of emergency conditions.

5.7 Mergers, etc. The Guarantor shall not, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other person or sell, assign, convey, transfer, lease or otherwise dispose of any material portion of its properties and assets to any person or group of affiliated persons, unless:

(a) in case of a merger, the Guarantor shall be the continuing corporation; or

(b) the person (if other than the Guarantor) formed by such consolidation or into which the Guarantor merges or the person (or group of affiliated persons) that acquires by sale, assignment, conveyance, transfer, lease or other disposition a material portion of the properties and assets of the Guarantor shall expressly agree to perform all of the obligations of the Guarantor hereunder, as a joint and several obligor with the Guarantor if the Guarantor continues to exist after such transaction, by a writing in form and substance reasonably satisfactory to the Concessionaire and the Department.

Notwithstanding the agreement by any such person to perform the obligation of the Guarantor hereunder, the Guarantor shall not be released from its obligations hereunder unless released by operation of law or by consent.

5.8 Survival. The obligations and liabilities of the Guarantor hereunder shall survive termination of any or all of the Design-Build Contract or the Contractor’s rights thereunder due to default by the Contractor thereunder.




5.9 Headings. The table of contents and section headings herein have been included for convenience only and should not be considered in interpreting this Guaranty.

5.10 Counterparts. This Guaranty may be executed in one or more counterparts, all of which shall constitute one and the same instrument.

5.11 Entire Agreement. This Guaranty constitutes the entire agreement of the parties hereto with respect to the subject matter hereof. The Guarantor agrees to execute, have acknowledged and delivered to the Concessionaire and the Department such other and further instruments as may be reasonably required by the Concessionaire or the Department to effectuate the intent and purpose hereof.



IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed as of the day and year first above written by its duly authorized officer.

[Insert name of Guarantor], a [Insert applicable legal structure]

Signature:

Name:

Title:

Date: Receipt of this Guaranty is hereby acknowledged and accepted effective as of the _____________day of _______________, 200___.

[Insert name of Concessionaire], [Insert applicable legal structure]

Signature:

Name:

Title:

Date:


Signature:

Name:

Title:

Date:

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form D-2 – Guaranty of Performance and Completion

Page 13


FORM E

INDEPENDENT ENGINEER AGREEMENT

[See attached]

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form E – Independent Engineer Agreement



INDEPENDENT ENGINEER AGREEMENT

FOR

THE U.S. ROUTE 460 CORRIDOR IMPROVEMENTS PROJECT

AMONG

[The Independent Engineer]

AND

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

AND

[The Concessionaire]

[Date]

Form E – Independent Engineer Agreement



Page i

TABLE OF CONTENTS

Provision Page

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

ARTICLE 2 APPOINTMENT OF THE INDEPENDENT ENGINEER........................................1

Section 2.01 Appointment ...................................................................................................1 Section 2.02 No Interest in Project Agreements..................................................................2

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

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

ARTICLE 4 STANDARD OF PERFORMANCE; COOPERATION ............................................3

Section 4.01 Standard of Performance.................................................................................3 Section 4.02 Cooperation of the Parties...............................................................................3

ARTICLE 5 CONTRACTING PRACTICES..................................................................................4

Section 5.01 Obligation to Refrain from Discrimination ....................................................4 Section 5.02 FHWA Review and Reliance..........................................................................4

ARTICLE 6 BUDGET AND FEES.................................................................................................4

Section 6.01 Budget for Baseline Services..........................................................................4 Section 6.02 Budget for Additional Services.......................................................................4 Section 6.03 Fees .................................................................................................................5 Section 6.04 Payment Procedure .........................................................................................5

ARTICLE 7 INDEMNIFICATION AND INSURANCE ...............................................................6

Section 7.01 Professional Indemnification ..........................................................................6 Section 7.02 Independent Engineer’s Insurance Coverages................................................6 Section 7.03 Indemnification by Concessionaire ................................................................7 Section 7.04 Survival of Indemnification Provisions ..........................................................7

ARTICLE 8 AGREEMENT TERM, TERMINATION AND SUSPENSION OF WORK ............7

Section 8.01 Term................................................................................................................7 Section 8.02 Termination.....................................................................................................7 Section 8.03 Suspension of Work........................................................................................8

ARTICLE 9 LIMITATION OF LIABILITY ..................................................................................9

ARTICLE 10 LIMITATIONS ON THE INDEPENDENT ENGINEER’S AUTHORITY; INDEPENDENCE ...........................................................................................................................9

Section 10.01 Limitations, Generally ....................................................................................9



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Section 10.02 Independence of Independent Engineer..........................................................9

ARTICLE 11 DISPUTE RESOLUTION ......................................................................................10

Section 11.01 Dispute Resolution........................................................................................10 Section 11.02 Attorneys’ Fees .............................................................................................10

ARTICLE 12 MISCELLANEOUS ...............................................................................................10

Section 12.01 Assignment ...................................................................................................10 Section 12.02 Intellectual Property......................................................................................10 Section 12.03 Notices ..........................................................................................................11 Section 12.04 Binding Effect...............................................................................................12 Section 12.05 No Third-Party Beneficiaries........................................................................13 Section 12.06 Confidentiality ..............................................................................................13 Section 12.07 Waiver...........................................................................................................13 Section 12.08 Governing Law and Venue ...........................................................................13 Section 12.09 Survival .........................................................................................................13 Section 12.10 Construction and Interpretation of Agreement .............................................14 Section 12.11 Counterparts..................................................................................................15 Section 12.12 Entire Agreement ..........................................................................................15 Section 12.13 Amendment...................................................................................................15 Section 12.14 No Liens or Encumbrances...........................................................................15 Section 12.15 Concessionaire’s and Department’s Obligations under the Comprehensive

Agreement or Other Project Agreements......................................................15 Section 12.16 Subcontracting ..............................................................................................16

LIST OF EXHIBITS:

EXHIBIT 1 Definitions EXHIBIT 2 Scope of Services EXHIBIT 3 Fee; Hourly Rates EXHIBIT 4 Pro Forma Certifications


INDEPENDENT ENGINEER AGREEMENT (THIS “AGREEMENT”), FOR THE U.S. ROUTE 460 CORRIDOR IMPROVEMENTS PROJECT (the “Project”) entered into as of ____________ [insert date] between the Virginia Department of Transportation, an agency of the Commonwealth of Virginia (the “Department”); ____________ [insert name of Independent Engineer Firm], a ____________ [insert applicable legal structure] (the “Independent Engineer”); and ____________ [insert name of Concessionaire], a ____________ [insert applicable legal structure] (the “Concessionaire”).

RECITALS

A. The Department has entered into a comprehensive agreement relating to the Project, dated as of ____________ [insert date] (the “Comprehensive Agreement”), under which the Concessionaire will, among other things, finance, develop and operate the Project.

B. It is the purpose of this Agreement to engage an Independent Engineer as contemplated by the Comprehensive Agreement.

[Additional recitals to be added defining the Lenders and describing the relationship of the Lenders to the Concessionaire and the Department with respect to the Lenders’ rights and obligations hereunder.]

NOW, THEREFORE, in consideration of the forgoing and other good and valuable consideration, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

All capitalized terms used in this Agreement shall have the respective meanings given to them herein or, if not defined herein, shall have the respective meanings given to them in the Comprehensive Agreement.

ARTICLE 2

APPOINTMENT OF THE INDEPENDENT ENGINEER

Section 2.01 Appointment

The Department hereby appoints the Independent Engineer to perform the independent Baseline Services described in Exhibit 2 and Additional Services as may be directed by the Department from time to time, in each case subject to the terms, conditions and provisions set forth herein. The Independent Engineer accepts such appointment and further acknowledges and agrees that the objective of providing the Services is to provide an independent and objective assessment of the Project to the Department, Concessionaire and the Lenders in connection with the scope of work set forth in Article 3 and Exhibit 2. In furtherance of such objectives, the Independent Engineer shall reasonably cooperate with the Department, the Concessionaire


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Page 2

and/or the Lenders’ other consultants. The Independent Engineer shall provide copies of all independent reports it produces to the Department and the Concessionaire. Following receipt of notice regarding the identity of, and contact information for, the Lender(s), the Independent Engineer shall also provide copies of reports to the Lenders.

Section 2.02 No Interest in Project Agreements

The Independent Engineer shall have no interest in or rights under the Comprehensive Agreement or other Project Agreements.

ARTICLE 3

INDEPENDENT ENGINEER’S RESPONSIBILITIES AND AUTHORITY

Section 3.01 Scope of Independent Engineer’s Work

The Independent Engineer shall provide the Services in accordance with all applicable Laws, all Governmental Approvals, and the terms, conditions and standards set forth herein, and in performance of the Services shall use reasonable efforts to minimize the effect and duration of any disruption to or impairment of the Work or the Project. The Department may at any time require the Independent Engineer to perform Additional Services, by issuance of a notice to proceed identifying the scope of such Additional Services. The notice to proceed may be based on an agreed-upon work plan and budget produced in accordance with Section 6.02, or may require the Independent Engineer to proceed with such services based on the hourly rates specified herein, subject to a not-to-exceed limit. The Concessionaire may at any time ask the Department to authorize performance of Additional Services.

Section 3.02 Personnel

(a) The Independent Engineer shall provide and make available as necessary, in accordance with the requirements of Exhibit 2 and the budget established under Article 6, all such labor and professional, supervisory, administrative and managerial personnel as are required to perform the Services in accordance with this Agreement. Throughout the course of performance of the Services, all firms and personnel performing the Services, including subcontractor firms and personnel, shall meet the licensing and certification requirements imposed by applicable Laws and shall have the requisite experience and skills to perform the tasks assigned. The Independent Engineer shall enforce discipline and good order at all times among the Independent Engineer’s employees and all subcontractors engaged by the Independent Engineer. The Independent Engineer shall employ or engage and compensate engineers, subcontractors and other consultants to perform all engineering and other services required in connection with the Services, at its sole cost and expense.

(b) The Independent Engineer represents and warrants that it has adequately qualified and properly licensed personnel in its employment for the performance of the Services or that it will be able to obtain such personnel prior to the date Services are required to be performed.



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(c) The Department may require the removal of an employee, consultant or subcontractor for material breach of this Agreement. The Concessionaire may provide specific evidence of material breach by the Independent Engineer to the Department and may request the Department to investigate and request removal of an employee or subcontractor if it is found that a material breach of the Agreement has occurred. The Independent Engineer must notify the Department in the event of the removal or termination of a project manager or other key personnel, including the design manager and construction manager, associated with providing Services under this Agreement. Any change to key personnel shall be proposed to the Department for its review, consideration and approval.

(d) The Independent Engineer shall provide office space, in the vicinity of the Project location, for its personnel who are actively engaged in providing the Services during the Work Period.

ARTICLE 4

STANDARD OF PERFORMANCE; COOPERATION

Section 4.01 Standard of Performance

The Independent Engineer warrants to the Department and the Concessionaire that it will carry out the Services with the normal skill, care and diligence to be expected of an independent engineer experienced in providing similar services on projects of a similar size, scope and complexity. Moreover, the Independent Engineer shall owe a duty of care to the Department and the Concessionaire and shall at all times exercise its independent judgment on behalf of the Project.

Section 4.02 Cooperation of the Parties

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



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ARTICLE 5

CONTRACTING PRACTICES

Section 5.01 Obligation to Refrain from Discrimination

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

Section 5.02 FHWA Review and Reliance

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

(b) The Independent Engineer acknowledges and agrees that the Department, the Concessionaire and FHWA may rely on the reports, studies and other work product prepared by the Independent Engineer.

ARTICLE 6

BUDGET AND FEES

Section 6.01 Budget for Baseline Services

The budget and comprehensive work plan for the Baseline Services are set forth in Exhibit 3 hereto. Except as may be agreed upon pursuant to Section 6.02, the Independent Engineer agrees that, although it is obligated to complete performance of the Baseline Services and comply with all of its obligations set forth herein, it shall not be entitled to receive any compensation for performance of the Baseline Services in excess of the amount allowed by Exhibit 3 and Section 6.03.

Section 6.02 Budget for Additional Services

The Independent Engineer shall, promptly upon receipt of a request therefor from the Department, provide a budget and comprehensive work plan for the Additional Services identified in said request. The Department and the Concessionaire shall have the right to review



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and comment on such budget and work plan, and the Independent Engineer shall incorporate all such comments into the final budget and work plan.

Section 6.03 Fees

(a) The Department shall pay the Independent Engineer, in accordance with the hourly rates and charges as set forth in Exhibit 3, for the Baseline Services and such Additional Services as the Department has requested from the Independent Engineer (such payments being referred to as the “Fees”).

(b) The Concessionaire shall reimburse the Department:

(i) for all Fees paid by the Department to the Independent Engineer for all Services, which reimbursement shall be in addition to the Department’s compensation for Oversight Services pursuant to Section 10.04 of the Comprehensive Agreement.

(ii) for such Additional Services as may be authorized hereunder.

(iii) for all interest charges and costs incurred by the Department in connection with this Agreement.

Section 6.04 Payment Procedure

(a) Within 30 days of the end of each calendar month following the commencement of Services hereunder, the Independent Engineer shall submit to the Department and the Concessionaire, simultaneously, a detailed invoice (including supporting documentation) setting forth the Services rendered and the Fees due with respect to the just-ended month.

(b) If there is a dispute about any amount invoiced by the Independent Engineer under Section 6.04(a), the amount not in dispute shall be paid pursuant to this Section 6.04(b), and any disputed amount which is ultimately determined to have been payable shall be paid, when so determined to have been payable, with interest in accordance with the provisions of Section 6.04(c). All payments for Services made by the Department to the Independent Engineer under this Article 6 shall be paid to the Independent Engineer within 30 days of receipt of the invoice. All requests for reimbursement made by the Department to the Concessionaire for Services provided by the Independent Engineer under this Article 6 shall be paid to the Department within 30 days of receipt of the invoice.

(c) Any amount not paid when due under this Agreement, including payment to the Department by the Concessionaire for reimbursement of any Services, shall bear interest from the date such payment is due until payment is made at a rate equal to 3% per annum above the Bank Rate at all times, which interest shall be payable on demand.

(d) If the Department does not pay the Independent Engineer by the due date for three consecutive months for the Baseline Services already performed, subject to Section 6.04(b), the Independent Engineer may suspend performance of the applicable portion of the Baseline Services by delivery of written Notice of Suspension (the “Notice of Suspension”) to the



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Department and the Concessionaire until such overdue payment is received, provided, however, such Notice of Suspension may not take effect for at least 30 days after the delivery of the notice. If the Department does not pay the Independent Engineer by the due date for Additional Services already performed, subject to Section 6.04(b), the Independent Engineer may suspend performance of Additional Services by delivery of written Notice of Suspension to the Department and the Concessionaire until such overdue payment is received, provided however, such Notice of Suspension may not take effect for at least 30 days after the delivery of the notice.

(e) The Independent Engineer’s costs must comply with 48 CFR Part 31, Federal Acquisition Regulation (FAR 31), in order to qualify for reimbursement. The overhead rate shall be established by an audit by a cognizant government agency or independent certified public accounting firm. Subconsultant contracts may be lump sum if they are $2 million U.S. dollars or less, have a clearly defined scope and are two years or less in duration.

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

ARTICLE 7

INDEMNIFICATION AND INSURANCE

Section 7.01 Professional Indemnification

The Independent Engineer shall indemnify and hold harmless the Department, the Concessionaire and their respective agents, contractors, officers and employees (the “Department Indemnitees” and “Concessionaire Indemnitees,” respectively) from all third party claims and liability for death, personal injury or damage to property due to activities of the Independent Engineer, its agents, employees or subcontractors, which are caused by or result from the negligence or misconduct of the Independent Engineer or of any person employed by the Independent Engineer, together with any and all expenses, including, but not limited to, attorneys’ fees (notwithstanding Section 11.02) which may be incurred in litigation or otherwise defending said claim or liabilities which may be imposed on them as a result of such activities by the Independent Engineer, its agents, employees or subcontractors.

Section 7.02 Independent Engineer’s Insurance Coverages

(a) The Independent Engineer shall obtain and maintain professional indemnity insurance for the benefit of the Department Indemnitees and Concessionaire Indemnitees in the amount of at least five million U.S. dollars ($5,000,000.00) in respect of its negligence, omission or default in performance or nonperformance of the Services

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



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Section 7.03 Indemnification by Concessionaire

The Concessionaire shall indemnify and hold harmless the Independent Engineer and its officers, employees, agents, subcontractors and consultants from all third party claims and liability for death, personal injury or damage to property due to activities of the Concessionaire, its agents or employees, which are caused by or result from the negligence or misconduct of the Concessionaire or of any person employed by the Concessionaire together with any and all expense, including, but not limited to, attorneys’ fees (notwithstanding Section 11.02 which may be incurred in litigation or otherwise resisting said claim or liabilities which may be imposed on them as a result of such activities by the Concessionaire, its agents or employees. The Concessionaire shall include this provision, appropriately modified, in all Contracts for design or construction work for the Project, and shall require a comparable provision to be included in Contracts for design and construction work, at all tiers.

Section 7.04 Survival of Indemnification Provisions

The provisions of this Article 7 shall survive the termination or expiration of this Agreement.

ARTICLE 8

AGREEMENT TERM, TERMINATION AND SUSPENSION OF WORK

Section 8.01 Term

The term of this Agreement shall commence on the date on which the parties have executed and delivered this Agreement and shall terminate ten days after Final Acceptance, unless earlier terminated pursuant to Section 8.02 (the “IE Agreement Term”).

Section 8.02 Termination

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

(i) by mutual agreement and written consent from the Department and Independent Engineer;

(ii) by the Department by written notice to the Independent Engineer, for the failure of the Independent Engineer to perform the Services set forth herein in a satisfactory manner;

(iii) by the Independent Engineer: (A) upon the material breach by the Department of its obligations under this Agreement other than Article 6, following written notice to the Department and the Concessionaire and a 45-day cure period during which the Department shall have the opportunity to cure such material breach; or (B) upon the material breach by the Department of its obligations under Article 6, to the extent permitted by Section 6.04(d); or



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

(b) If the Department terminates this Agreement under Section 8.02(a), the Independent Engineer shall not incur any new costs following receipt of written notice of such termination.

(c) Upon the termination of this Agreement pursuant to this Section 8.02, the Independent Engineer shall be entitled to receive payments for fees and expenses properly incurred and payable prior to the termination date in accordance with the terms of this Agreement, subject to offsets (if any) for claims or deductions of the Department, respectively, from amounts otherwise due to the Independent Engineer. Upon its delivery or receipt of a termination notice, the Independent Engineer shall promptly prepare a final invoice as to the Services being terminated, and shall submit such invoice to the Department for payment in accordance with this Agreement.

(d) Except for those obligations under this Agreement which survive termination, including Article 7, the termination of this Agreement and payment of an amount in settlement of final invoice as prescribed above shall extinguish the rights, duties and obligations of the Department, the Concessionaire and the Independent Engineer under this Agreement.

(e) If this Agreement is terminated due to an Independent Engineer default pursuant to Section 8.02(a)(ii), the Independent Engineer shall pay to the Department all costs associated with replacing the Independent Engineer with another independent engineer, within 30 days of the Department’s delivery of an invoice for such costs.

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

Section 8.03 Suspension of Work

(a) The Department may direct the Independent Engineer to suspend performance of any Services, by delivery of a Notice of Suspension to the Independent Engineer. Upon receiving a written notice from the Department directing the Independent Engineer to resume suspended services, the Independent Engineer shall resume providing suspended services as soon as practicable.

(b) The Independent Engineer may suspend any Baseline Services or Additional Services provided under this Agreement in accordance with Section 6.04(d).



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ARTICLE 9

LIMITATION OF LIABILITY

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

ARTICLE 10

LIMITATIONS ON THE INDEPENDENT ENGINEER’S AUTHORITY; INDEPENDENCE

Section 10.01 Limitations, Generally

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

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

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

Section 10.02 Independence of Independent Engineer

The Independent Engineer shall act as an independent professional and not as the representative of the Department, the Concessionaire or the Lenders. The Independent Engineer shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement.



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ARTICLE 11

DISPUTE RESOLUTION

Section 11.01 Dispute Resolution

Any dispute arising out of, relating to or in connection with this Agreement shall be resolved as set forth in this Article 11. The parties shall attempt in good faith to resolve the dispute within 15 days of notice of the dispute or such other time period as may be specifically established for such dispute under this Agreement. If the parties are unable to resolve the dispute within that timeframe, then any party may litigate the matter in a court of law as set forth in Section 12.08, provided that the foregoing does not affect any claims or matters which are governed by a different dispute resolution procedure in the Comprehensive Agreement or any other Project Agreement.

Section 11.02 Attorneys’ Fees

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

ARTICLE 12

MISCELLANEOUS

Section 12.01 Assignment

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

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

Section 12.02 Intellectual Property

The Independent Engineer hereby acknowledges and agrees that the Concessionaire (to the extent provided in the Comprehensive Agreement) shall hold free and clear title to all specialized equipment, tools, parts, reports, records, books, plans, designs, papers print outs, other information and all intellectual property developed by or supplied to Concessionaire and made available to Independent Engineer pursuant to Section 3.01, to enable Independent Engineer to perform its obligations hereunder (“Concessionaire Property”). Any software or



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other intellectual property developed by Independent Engineer in performing its services under this Agreement shall be the property of the Department.

Section 12.03 Notices

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

If to the Concessionaire:


with a copy to: [Insert alternative contact information] [_________________________] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]

If to the Department

Virginia Department of Transportation [_________________________] [_________________________] Attention: Hampton Roads District Telephone: [_____________] Facsimile: [_____________]



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If to the Independent Engineer:

[Insert name and address of Independent Engineer] [_________________________] [_________________________] [_________________________] Attention: Project Manager Telephone: [_____________] Facsimile: [_____________]

with a copy to:

[Insert alternative contact information] [_________________________] [_________________________] Attention: [_____________] Telephone: [_____________] Facsimile: [_____________]

(b) Any party may, from time to time, by notice in writing served upon the other party as aforesaid, designate an additional and/or a different mailing address or an additional and/or a different person to whom all such notices, requests, demands, reports and communications are thereafter to be addressed. Any notice, request, demand, report or other communication served personally shall be deemed delivered upon receipt, if served by mail or independent courier shall be deemed delivered on the date of receipt as shown by the addressee’s registry or certification receipt or on the date receipt at the appropriate address is refused, as shown on the records or manifest of the United States Postal Service or independent courier, and if served by facsimile transmission shall be deemed delivered on the date of receipt as shown on the received facsimile (provided the original is thereafter delivered as aforesaid).

Section 12.04 Binding Effect

Subject to the limitations of Section 12.01, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns, and wherever a reference in this Agreement is made to any of the parties hereto, such reference also shall be deemed to include, wherever applicable, a reference to the legal representatives, successors and permitted assigns of such party, as if in every case so expressed. The Department and the Independent Engineer hereby consent to the collateral assignment (the “Assignment”) of this Agreement by the Concessionaire to the Lenders as security for the performance of the Concessionaire's obligations under the Project Financing Agreements. Pursuant to the Assignment, the Lenders and their designee or assignee shall have the right to assume the benefits and obligations of the Concessionaire under this Agreement. In the event that the Lenders or such designee or assignee exercise such right by notice to the Department and the Independent Engineer, as of the date of such assumption of benefits and obligations of the Concessionaire hereunder, the term “Concessionaire” as used in this Agreement shall be deemed to mean the Lenders or such designee or assignee of the



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Lenders, and such Lenders or such designee or assignee shall have all rights accorded to the Concessionaire in this Agreement.

Section 12.05 No Third-Party Beneficiaries

Nothing contained in this Agreement is intended or shall be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the parties hereto toward, any person or entity not a party to this Agreement.

Section 12.06 Confidentiality

The Independent Engineer hereby undertakes to keep confidential all documents and information concerning the Project and the other parties, including information furnished to each party in connection with the duties contemplated by this Agreement, and not otherwise lawfully available to each receiving party (“Confidential Information”). Confidential Information shall include all data and information obtained by the Independent Engineer through the Independent Engineer’s access to the computer monitoring system for the Project and all information provided to the Project. The Independent Engineer shall use the Confidential Information only in connection with its duties and obligations hereunder, and shall not disclose the Confidential Information to third parties, except to the extent (a) such information is disclosed to Lenders, (b) such information can be shown to have been previously known by it, in the public domain through no fault of the Independent Engineer or its subproviders, (c) such disclosure is required by law, or (d) the owner of such Confidential Information approves such use or disclosure in writing.

Section 12.07 Waiver

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

Section 12.08 Governing Law and Venue

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

Section 12.09 Survival

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



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Section 12.10 Construction and Interpretation of Agreement

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

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

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

(d) References in this instrument to this “Agreement” mean, refer to and include this instrument as well as any riders, exhibits, addenda and attachments hereto (which are hereby incorporated herein by reference) or other documents expressly incorporated by reference in this instrument. Any references to any covenant, condition, obligation and/or undertaking “herein,” “hereunder” or “pursuant hereto” (or language of like import) mean, refer to and include the covenants, conditions, obligations and undertakings existing pursuant to this instrument and any riders, exhibits, addenda, attachments or other documents affixed to or expressly incorporated by reference in this instrument. All terms defined in this instrument shall be deemed to have the same meanings in all riders, exhibits, addenda, attachments or other documents affixed to or expressly incorporated by reference in this instrument unless the context thereof clearly requires the contrary. Unless expressly provided otherwise, all references to Articles and Sections refer to the Articles and Sections set forth in this Agreement. Unless otherwise stated in this Agreement or other Project Agreements, words which have well-known technical or construction industry meanings are used in this Agreement or other Project Agreements in accordance with such recognized meaning.

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



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

Section 12.11 Counterparts

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

Section 12.12 Entire Agreement

THIS AGREEMENT CONSTITUTES THE ENTIRE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SPECIFIC MATTERS COVERED HEREIN AND THEREIN. ALL PRIOR WRITTEN AND PRIOR OR CONTEMPORANEOUS ORAL AGREEMENTS, UNDERSTANDINGS, REPRESENTA-TIONS AND/OR PRACTICES RELATIVE TO THE FOREGOING ARE HEREBY SUPERSEDED, REVOKED AND RENDERED INEFFECTIVE FOR ANY PURPOSE. THIS AGREEMENT MAY BE ALTERED, AMENDED OR REVOKED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY EACH PARTY HERETO, OR ITS PERMITTED SUCCESSOR OR ASSIGNEE. NO ORAL AGREEMENT OR IMPLIED COVENANT SHALL BE HELD TO VARY THE TERMS HEREOF, ANY STATUTE, LAW OR CUSTOM TO THE CONTRARY NOTWITHSTANDING.

Section 12.13 Amendment

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

Section 12.14 No Liens or Encumbrances

The Independent Engineer shall keep and maintain the Project or the Rights of Way, as applicable, free and clear of all liens and encumbrances arising out of its performance of, or failure to perform, the Services.

Section 12.15 Concessionaire’s and Department’s Obligations under the Comprehensive Agreement or Other Project Agreements

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



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Section 12.16 Subcontracting

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


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

CONCESSIONAIRE

Signature:

Name:

Title:

Date:

VIRGINIA DEPARTMENT OF TRANSPORTATION

Signature:

Name:

Title:

Date:

INDEPENDENT ENGINEER

Signature:

Name:

Title:

Date:


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EXHIBIT 1 TO INDEPENDENT ENGINEER AGREEMENT

DEFINITIONS

Additional Services means services other than the Baseline Services requested from time to time by the Department within the scope described by Exhibit 2.

Baseline Services means the primary scope of the services described in Exhibit 2 and Article 3 of this Agreement to be provided by the Independent Engineer and paid for by the Department pursuant to the terms of this Agreement.

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

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

Confidential Information is as defined in Section 12.06.

Department has the meaning given to it in the Recitals.

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

Fees means the compensation arrangement described in Section 6.04 and Exhibit 3 hereto.

Governmental Authority is as defined in the Comprehensive Agreement.

IE Agreement Term is as defined in Section 8.01.

Notice of Suspension is as defined in Section 6.04(d).

Project Agreements is as defined in the Comprehensive Agreement.

Services means the Baseline Services and the Additional Services.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 1 to Independent Engineer Agreement – Definitions

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SCOPE OF SERVICES

The Independent Engineer shall provide the Baseline Services set forth in subsection (I) below:

I. BASELINE SERVICES AS INDEPENDENT VERIFIER/CERTIFIER

1. Monthly Reporting. The Independent Engineer shall attend the Concessionaire’s monthly progress meetings held during the Work Period (as described more fully in the Technical Requirements) and monitor design and construction progress in order to provide a monthly report to the Department regarding the technical aspects of the Project, including the Concessionaire’s compliance with the Comprehensive Agreement, Technical Requirements and other Project Agreements. Those duties include, but are not limited to, a review of construction progress, including the definition of and progress toward milestones, and advice on possible and observed delays. Such duties shall also include the Independent Engineer’s opinions on the cause of potential delays, proposed corrective measures the Concessionaire should consider implementing, and any other material issues the Department, the Concessionaire and/or the Lenders should be made aware of.

2. Progress of the Work: The Independent Engineer shall visit the Project regularly and report on the progress of Work as described above. In addition, the Independent Engineer shall review and provide written evaluations, opinions, findings, reports, recommendations, objections, decisions, certifications or other determinations on:

i. the Concessionaire’s and Contractors’ (i) design procedures and design life considerations, (ii) quality control and quality assurance procedures, documentation and records, and (iii) adherence to the Quality Management System Plan (“QMSP”) with verification including certifications for various stages of the Work and acceptance of the Work, and (iv) certifications that all procedures and methods prepared or used in the prosecution of the Work are sufficient and appropriate to comply with the requirements of the Construction Documentation and that such procedures and methods have been applied correctly. If the Independent Engineer’s review determines a nonconformance in Concessionaire’s performance of the QMSP or finds a specific procedure in the QMSP otherwise ineffective or inadequate, the Independent Engineer shall inform all parties of the non-conformance and/or ineffective or inadequate procedure and provide the Department with a recommendation as how to rectify the nonconformance or how the QMSP may be modified to correct the ineffective or inadequate procedure;

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 2 to Independent Engineer Agreement – Scope of Services

Page 1


ii. the interaction and coordination among the Concessionaire, the Design-Build Contractor and other Contractors;

iii. the Transportation Management Plan and the ability of the Concessionaire and Contractors to execute the Work while maintaining adequate capacity on the existing network;

iv. compliance with all Governmental Approvals by the Concessionaire and Contractors;

v. compliance with all other third party agreements by the Concessionaire and Contractors;

vi. compliance by the Concessionaire and Contractors with reporting procedures, including documentation of compliance with Federal Requirements or State requirements applicable to federal-aid highway projects, including but not limited to, Buy America, Davis-Bacon Act and DBE-SWaM participation;

vii. handling of Hazardous Substances by the Concessionaire and Contractors;

viii. compliance by the Concessionaire and Contractors with health and safety requirements which includes monitoring and inspecting for the purpose of determining whether any circumstances exist that warrant issuance of a Safety Compliance Order (and, if so, providing the Department with a report regarding the implementation of such order in accordance with the Comprehensive Agreement);

ix. implementation of the test strategy for the ETTM System in accordance with the Technical Requirements;

x. the implementation of the approved Project Development Plans (PDP)compliance by the Concessionaire and Contractors with;

xi. the reporting and inspecting requirements, consistent with the approved PDP, imposed by Concessionaire on any Contractors, and their adequacy for the purpose of providing the Department, the Concessionaire and/or the Lenders (as applicable) with appropriate documentation of the construction progress;

xii. the Concessionaire’s requests for draws and supporting documentation for such requests, including Contractor invoices and backup, are correct, satisfy the requirements of the QMSP and are for work completed and, if applicable, approved by the Department; and

xiii. the existence of Nonconforming Work and/or Defects and whether Concessionaire and its Contractors are taking appropriate steps to remediate the Nonconforming Work and avoid future recurrences.

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 2 to Independent Engineer Agreement– Scope of Services

Page 2


3. Review of Construction Documentation. The Independent Engineer shall review Construction Documentation submitted by the Concessionaire to the Department and provide written evaluations, opinions, findings, reports, recommendations, objections, decisions, certifications or other determinations on the following: (i) level of Project completion for purposes of determining payments owing the Design-Build Contractor and other Contractors; (ii) design and design review process for conformity to the requirements of the Contract Documents and its overall effectiveness; (iii) the implementation and prosecution of the QMSP; (iv) opportunities for process improvements that will facilitate more proficient, quality design work; and (v) potential quality Work related issues, observed in the course of the review as noted above, that warrant additional attention by the quality assurance manager and/or Concessionaire’s engaged engineer in responsible charge of the Work. The Independent Engineer shall provide the relevant written evaluations, opinions, findings, reports, recommendations, objections, decisions, certifications or other determinations of the Construction Documentation within ten days of receipt of the submittal. During the design phase of the Work, the Independent Engineer shall review and monitor the Concessionaire’s design development process, attend informal review meetings on a periodic basis, and provide comments regarding the Work in progress with respect to clarity, consistency and conformity to the Technical Requirements.

4. Substantial Completion, Service Commencement and Final Acceptance: In accordance with Sections 8.11 and 9.01 of the Comprehensive Agreement, the Independent Engineer shall assist the Department in determining whether requirements of Substantial Completion, Service Commencement and Final Acceptance have been satisfied.

5. Any other reasonable request from the Department that does not have a material cost implication for the Independent Engineer. However, if additional work is requested outside the agreed cost of this scope of services, the Independent Engineer shall immediately inform the Department and the Department shall determine if the scope and nature of the request is outside the Baseline Services.

II. ADDITIONAL SERVICES:

The Independent Engineer shall perform the following Additional Services to the extent directed to do so by the Department in accordance with the Independent Engineer Agreement:

1. Department Change Proposals: The Independent Engineer shall prepare a comprehensive report analyzing Concessionaire’s written response to the Department’s Request for Change Proposal in accordance with the terms of Section 14.03 of the Comprehensive Agreement.

2. Project Document Changes: If requested by the Department, the Independent Engineer shall review, analyze and provide a report related to the benefits,


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consequences and risk assessment for any proposed amendments or contract changes to the Project Agreements.

3. Supplemental Reporting: The Independent Engineer shall provide supplemental reports on any urgent matters, as deemed necessary, within ten working days after any such request. The Department will define the scope, terms and conditions of the supplemental report. The findings under the supplemental report shall be provided to all parties.

4. Significant Force Majeure Events. During a period following receipt of a Force Majeure Extension Notice under the Comprehensive Agreement, in connection with the Department’s review of such notice, and at the request of the Department, the Independent Engineer shall provide a report to the Department of its evaluation, opinions, findings and recommendations, in respect to sufficient mitigation efforts and restoration measures, and any extension of Term essential for prompt restoration of the Project in accordance with the terms of the Comprehensive Agreement.

5. Compensation Events. If the Concessionaire or the Department submits a Compensation Event Notice in accordance with Section 14.01 of the Comprehensive Agreement, at the request of either party (and at the expense of the requesting party) the Independent Engineer shall prepare a comprehensive report of its evaluation, opinions, findings, objections and recommendations, in respect to the Compensation Event Notice’s estimate of the Net Cost Impact and any time impacts attributable to the Compensation Event and participate in any subsequent dispute resolution that may arise between the Department and the Concessionaire in pursuit of settlement of such Compensation Event.

6. Termination for Failure to Achieve Substantial Completion; Recovery Plan. In the event of a termination of the Comprehensive Agreement due to the Concessionaire’s failure to achieve Substantial Completion by the Outside Substantial Completion Date or failure to diligently pursue a recovery plan as required by the Comprehensive Agreement, then at the request and in coordination with the Department, the Independent Engineer shall determine or confirm, as appropriate: (a) construction value of the Project completed as of the date of termination; (b) the Department’s estimated cost to complete the Project; and (c) the estimated additional costs, including any wrap-up costs associated with the termination, to be incurred in order for the Project to achieve Substantial Completion under the Comprehensive Agreement.

7. Technical Assistance – Dispute Resolution. If requested by the Department, the Independent Engineer shall provide technical assistance and documentation to assist in resolving an outstanding issue that is being pursued in accordance with Section 22.01 of the Comprehensive Agreement.


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8. Other Services. The Independent Engineer shall provide such other services within the general scope of this Agreement, as may be required by the Department.


Page 5


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 3 to Independent Engineer Agreement – Fee; Hourly Rates

Page 1


FEE; HOURLY RATES

[Schedule to be provided based on Independent Engineer proposal]


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 4 to Independent Engineer Agreement – Pro Forma Certification

Page 1


PRO FORMA CERTIFICATION

This Exhibit establishes and provides pro-forma certification documents for use by the Independent Engineer in the prosecution of its duties, responsibilities and other obligations as set out under this Agreement and the Comprehensive Agreement.

The certification documents shall be utilized by the Independent Engineer for services related to Substantial Completion, Service Commencement, Final Acceptance and the monthly report as described in Section 1.10 of the Technical Requirements.



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SUBSTANTIAL COMPLETION CERTIFICATION

REPORT NO.: DATE OF REPORT:

PROJECT NO.: CONCESSIONAIRE:

LOCATION:

ITEM INDEPENDENT

ENGINEER (INITIAL)

DATE REMARKS

CONDITIONS TO ACHIEVE SUBSTANTIAL COMPLETION

All lanes of traffic (including ramps, interchanges, overpasses, under-passes, and other crossings) are in their final configuration and available for normal and safe use and operation.

All major safety features are installed and functional, including shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators.

All required illumination is installed and functional in accordance with the Technical Requirements.

All required signs and signals are installed and functional in accordance with the Technical Requirements.



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The need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures during hours of low traffic volume in accordance with and as permitted by a Department-approved traffic manage-ment plan solely in order to complete Punch List items).

The ETTM System is completed, has passed all demonstration and performance testing, including demonstration of interoperability with the E-ZPass network or any successor to E-ZPass then utilized on State Highways, and is ready for normal operation.

The TMS (if any) and safety features for TMS components are installed and functional.

The Concessionaire has otherwise completed the construction Work such that the Project is in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit, subject only to Punch List items.

I certify, based on observations and inspections performed by myself or personnel under my authority, the Project has achieved all the requisites of Substantial Completion as defined by Section 8.11 of the Comprehensive Agreement. The Independent Engineers’ inspection of the Project found that all Work, except as noted on the attached punch list, has been completed in place or otherwise has been constructed in conformity with the Comprehensive Agreement, Technical Requirements and other Project Agreements and as shown on the as-built drawings.

Signature:

Name:

Title:

Date:



Page 1

SERVICE COMMENCEMENT CERTIFICATION



LOCATION:

ITEM INDEPENDENT

ENGINEER (INITIAL)

DATE REMARKS

CONDITIONS TO ACHIEVE SERVICE COMMENCEMENT

The Department has issued (or waived) the Substantial Completion Certificate, or it has been determined pursuant to the dispute resolution procedures set forth herein that the Department should have issued such certificate.

The Department has approved the Life Cycle Maintenance Plan, the Operations and Maintenance Plan, and the updated Performance Requirements Baseline Tables.

The Concessionaire and the Depart-ment have agreed in writing to a Punch List.

The Concessionaire has received and delivered to the Department copies of all Governmental Approvals necessary to operate the Project and has satisfied all conditions and requirements which must be satisfied before the Project can be lawfully opened for regular public use, all Governmental Approvals are in full force and effect, and there exists no uncured material violation of the terms and conditions of any such Governmental Approval.



Page 2

All required insurance policies under Section 18.01 for the Operating Period have been obtained and are in full force and effect (with coverage as of the Service Commencement Date) and the Concessionaire has delivered to the Department duplicate originals or copies thereof certified by the Concessionaire’s insurance broker to be true and correct copies of the originals.

The Concessionaire is not in receipt of any notice of Concessionaire Default, except as to any such noticed default that has been cured or for which Service Commencement will effect its cure, and there exists no event or condition that, with notice or lapse of time, would constitute a Concessionaire Default.

All Operations and Maintenance Agreements and agreements relating to toll collection and violation enforcement are in full force and effect.

The Concessionaire has implemented the Maintenance Management System in accordance with the Technical Requirements.

The Concessionaire has certified to the Department in writing that the conditions set forth in Section 9.01(ix) have been satisfied.

The Department has issued or is deemed to have issued a written Service Commencement Notice evidencing its concurrence that the conditions in Section 9.01 have been satisfied.

I certify, based on observations and inspections performed by myself or personnel under my authority, the Project has achieved all the requisites of Service Commencement as defined by Section 9.01 of the Comprehensive Agreement. The Independent Engineers’ inspection of the



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Project found that all Work, except as noted on the attached punch list, has been completed in place or otherwise has been constructed in conformity with the Comprehensive Agreement, Technical Requirements and other Project Agreements and as shown on the as-built drawings.

Signature:

Name:

Title:

Date:



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FINAL ACCEPTANCE CERTIFICATION



LOCATION:

ITEM INDEPENDENT

ENGINEER (INITIAL)

DATE REMARKS

CONDITIONS TO ACHIEVE FINAL ACCEPTANCE

All requirements for Substantial Completion have been fully satisfied, including completion of or satisfactory resolution of Punch List items.

All Punch List items have been completed and delivered.

Concessionaire has delivered to Department correct and complete copies of all as-built drawings of the Project

Concessionaire has provided written evidence, other than items under dispute, that all Work the Concessionaire is obligated to perform for on behalf of third parties has been accepted by such third parties and paid for by the Concessionaire.

Concessionaire has delivered to all necessary Governmental Authorities and to the Department all required certifications from the engineer of record and architect of record for the Project.

Concessionaire has made all deliveries of Work Product to the Department that are then required to be made under the Comprehensive Agreement.

RFDP Issue Date: December 31, 2008 Attachment H – Other Forms Concessionaire has prepared and is adhering to a timetable for planting and establishing the vegetative ground cover landscaping for the Project.

I certify, based on observations and inspections performed by myself or personnel under my authority, the Project has achieved all the requisites of Final Acceptance as defined by Section 8.11 of the Comprehensive Agreement. The Independent Engineers’ inspection of the Project found that all Work has been completed in place or otherwise has been constructed in conformity with the Comprehensive Agreement, Technical Requirements and other Project Agreements and as shown on the as-built drawings.

Signature:

Name:

Title:

Date:


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REPORT OF DESIGN WORK IN PROGRESS:

Status and Type of Work Underway: Schedule Progress: Quality of Project Management and Design Staff Undertaking the Work: Adherence to QMSP: Design Safety Compliance Controls: Other Observations and Recommendations:

REPORT OF CONSTRUCTION WORK IN PROGRESS:

Status and Type of Work Underway: Construction Safety Control Plans: Adequate Document of Control Processes and Record Keeping: Quality of Project Management and Construction Staff Undertaking the Work: Other Observations and Recommendations: Work Approaching Milestones or Substantial Completion:

QUALITY VERIFICATION TESTING ACCOMPLISHED ITEM TESTED LOCATION:

FROM LOCATION:

TO QUANTITY

TESTED/LOT RESULT SPECIFICATIO

N

Exhibit 4 to Independent Engineer Agreement – Pro Forma Certification Page 6



REPORT OF CONSTRUCTION DOCUMENTATION REVIEW:

Concessionaire’s Progress of the Design and Construction respecting Payment Application: Concessionaire’s Design and Design Review Conformity with QMSP and Technical Requirements: Concessionaire’s Implementation and Conformity in prosecution of QMSP:

Recommendations for Process Improvements and Design Quality (respecting design life and efficiency): Quality Matters Requiring attention of Quality Assurance Manager and/or Concessionaire’s Responsible Engineer in Charge: Other Comments and Recommendations:

REPORT OF CONCESSIONAIRE COORDINATION AND INTERACTION

Concessionaire’s Management, Coordination and Oversight of Design and Construction Compliance: Concessionaire’s Progress of the Design and Construction respecting, time, budget and quality and any risk of delay or cost increase: Satisfaction of Federal and State Oversight (federal project) Requirements:

Concessionaire’s Implementation of Project Development Plans:

Matters Concerning Dispute Resolution:

Public Relations, Outreach and Involvement Matters:

Governmental, Regulatory or Third Party Interactions:

Recommendations for Improvements:

Other Comments and Observations:

REPORT OF QUALITY MANAGEMENT SYSTEM PLAN PERFORMANCE

Design and Design Review Process (procedures and design life considerations):

Governmental Approval Compliance:

Technical Requirement Compliance (Design and Construction):

Schedule and Milestone Performance and Progress:

Federal and State Reporting Compliance (Davis Bacon, etc):

Document Management Performance:

Project Development Plan Performance:

Independent Verification tests performed (reporting period and to date):




Independent Assurance performed (reporting period and to date):

Preparatory Inspections attended (reporting period and to date):

Intermediate Inspections performed (reporting period and to date):

Final Inspections performed (reporting period and to date):

Non-conformance reports received (reporting period and to date):

Reports of corrected and pending actions to correct Non-conformance Reports(reporting period and to date):

As-Built and Record Document Process:

Health and Safety Compliance – site security and access:

Environmental Monitoring and Compliance (including Hazardous Substances):

Traffic Control and Surveillance Compliance:

Payment Application Compliance with QMSP:

Recommendations for Improvements:

Other Comments and Observations:

I do hereby certify, based on observations and inspections performed by myself or personnel under my authority:

(i) represent and warrant all services performed have been completed with adequately qualified and properly licensed personnel;

(ii) completed the monitoring, reviews, inspection, testing, verifications, audits, reporting, auditing and other oversight functions pursuant to the Independent Engineer’s Agreement;

(iii) examined and are familiar with the information contained in the monthly report, including any and all documents attached or referenced in this report and this certification statement; and

(iv) that the information contained in this report and certification statement is to the best of my knowledge, true, accurate and complete.

Signature:

Name:

Title:

Date:




REPORT ON ADDITIONAL SERVICES (Required to be added to the monthly report only when activated by Task Order in accordance with the Independent Engineer Agreement):

DEPARTMENT REQUESTED CHANGE PROPOSALS REPORT Analysis and Findings of Risk Implications:

Project Benefits:

Time and Cost Implications:

Regulatory, Changes in Law or Safety Compliance Concerns:

Other Comments and Recommendations:

PROJECT DOCUMENT CHANGES REPORT Analysis and Findings of Risk Implications:

Project Benefits:

Time and Cost Implications:

Regulatory, Changes in Law or Safety Compliance Concerns:


SIGNIFICANT FORCE MAJEURE AND COMPENSATION EVENT REPORT Analysis and Findings of Respecting Restoration:

Time and Cost Implications to Concession Term:

Sufficiency of Concessionaire’s Mitigation Efforts:


TERMINATION AND DISPUTE RESOLUTION EVENTS Analysis and Findings of Respecting Restoration:

Time and Cost Implications to Concession Term:





FORM F

ESCROW AGREEMENT

This ESCROW AGREEMENT (“Escrow Agreement”) is made and entered into as of _________, 2009 by and among the VIRGINIA DEPARTMENT OF TRANSPORTATION, an agency of the Commonwealth of Virginia (the “Department”), ___________________________ (the “Concessionaire”), a Delaware limited liability company, and SUNTRUST BANK, a Georgia banking corporation, as escrow agent hereunder (the “Escrow Agent”) (the Department, the Concessionaire and the Escrow Agent are herein referred to collectively as the “Parties”).

RECITALS:

WHEREAS, the Department and the Concessionaire have entered into a Comprehensive Agreement Relating to the U.S. Route 460 Corridor Improvements Project dated as of ____ ___, 2009 (the “Comprehensive Agreement”), pursuant to which the Department has granted to the Concessionaire a permit to finance, develop, design and construct the Project, to manage, operate, maintain, improve and equip the Project, and to establish, impose, charge, collect, use and enforce payment of tolls;

WHEREAS, pursuant to Section 19.05 of the Comprehensive Agreement, the Concessionaire is required to submit to the Department the EPDs and the Initial Base Case Financial Model and updates (as such terms are defined in the Comprehensive Agreement);

WHEREAS, the Concessionaire and the Department desire to appoint the Escrow Agent to act as escrow agent hereunder in the manner hereinafter set forth, and the Escrow Agent is willing to act in such capacity; and

WHEREAS, it is a condition to the execution and delivery by the Department of the Comprehensive Agreement that this Escrow Agreement be entered into among the Parties.

NOW, THEREFORE, in consideration of these premises and in consideration of the mutual covenants herein contained, and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties hereto, the Parties do hereby agree as follows:

1. Definitions.

All capitalized terms used in this Escrow Agreement, but not otherwise defined herein, shall have the respective meanings given to such terms in the Comprehensive Agreement. The Initial Base Case Financial Model and updates thereto are referred to herein as the “Financial Documents.”

Form F – Escrow Agreement Page 1



2. Appointment of Escrow Agent.

The Concessionaire and the Department hereby appoint SunTrust Bank to serve as escrow agent hereunder, and SunTrust Bank hereby accepts such appointment, subject to the terms and conditions set forth in this Escrow Agreement. The Escrow Agent shall hold, manage, provide access to and dispose of the EPDs and the Financial Documents in accordance with the terms hereof.

3. Deposit of EPDs and Financial Documents.

The Department (or, at the request of the Department, the Concessionaire) shall deliver and deposit with the Escrow Agent the EPDs and Financial Documents. The Escrow Agent shall provide written acknowledgment of the receipt of the EPDs and Financial Documents, and any subsequent additions, modifications or updates thereto, promptly upon receipt thereof. The Escrow Agent is not required to take notice of the EPDs or Financial Documents or the contents thereof, which the Escrow Agent shall hold only for custodial purposes.

4. Ownership; Use and Review of EPDs and Financial Documents.

(a) The Parties hereby acknowledge and agree that the EPDs and Financial Documents are, and shall always be, the property of the Concessionaire.

(b) The Escrow Agent shall provide prompt access to the documents held by the Escrow Agent hereunder to the individuals designated in a written notice signed by the authorized representatives of the Department and the Concessionaire. The Escrow Agent shall also provide access to said documents as designated in a written notice signed by the Department’s authorized representative, which notice must be delivered at least 24 hours prior to the date specified for access. The Department shall deliver a copy of any such unilateral notice to the Concessionaire at least 24 hours prior to the date designated for access. The authorized representatives for this purpose shall initially be ______________________________ for the Department and __________________________ for the Concessionaire, and may be changed at any time by notice delivered in accordance with Section 11.

(c) The Escrow Agent shall not permit access to the EPDs or the Financial Documents to any person other than the designated representatives of the Department and the Concessionaire. Such designated representatives of the Concessionaire and the Department shall be entitled to conduct examinations and reviews of the EPDs and Financial Documents for the purposes and in accordance with the provisions set forth in Section 19.05 of the Comprehensive Agreement.

(d) Notwithstanding the foregoing, the Parties hereby acknowledge and agree that nothing within this Escrow Agreement shall limit VDOT’s rights with regard to the Financial Documents to the extent that copies or versions of the Financial Documents are in the possession of VDOT.




5. Release and Return of Escrow Pricing Documents.

(a) The Escrow Agent shall hold the EPDs and Financial Documents in its possession at its offices in Richmond, Virginia until directed to deliver such EPDs or Financial Documents upon receipt of a written certification delivered pursuant to paragraph 5(b) or 5(c) below or a final adjudication, as applicable, whereupon the Escrow Agent shall deliver the appropriate EPDs or Financial Documents to the Concessionaire.

(b) The Escrow Agent shall release the EPDs to the Concessionaire upon receipt by the Escrow Agent of a certification from the Concessionaire and the Department stating that the Design-Build Contractor has achieved Final Acceptance, final payment has been made to the Design Build Contractor, and all claims or disputes arising under or related to the Design-Build Contract have been fully and finally resolved and/or adjudicated.

(c) The Escrow Agent shall release the Financial Documents to the Concessionaire upon receipt by the Escrow Agent of a certification from the Concessionaire and the Department stating that the Comprehensive Agreement has terminated in accordance with the provisions thereof and all claims or disputes arising under or related to the Comprehensive Agreement have been fully and finally resolved and/or adjudicated.

6. Termination.

This Escrow Agreement shall continue in effect and shall automatically terminate at such time as all EPDs and Financial Documents are released to the Concessionaire as provided in paragraph 6 hereof. It is agreed and understood that in the event of disagreement between the Parties hereto, the Escrow Agent will, and does, reserve the right to hold the EPDs and Financial Documents in its possession, and all papers in connection with or concerning this escrow, until mutual agreement has been reached between the Parties or until delivery thereof is ordered pursuant to a final disposition reached pursuant to the dispute resolution provisions of the Comprehensive Agreement.

7. Liability of Escrow Agent.

The Escrow Agent shall have no responsibility to any person in connection with this Escrow Agreement, except as specifically provided, and shall not be responsible for anything done or omitted to be done by it except for its own gross negligence or willful default in the performance of any obligation imposed on it hereunder. Unless specifically provided herein, the Escrow Agent has no duty to determine or inquire into the happening or occurrence of any event or contingency or the performance or failure of performance of the other Parties with respect to arrangements or contracts with others, the Escrow Agent’s sole duty hereunder being to safeguard the EPDs and Financial Documents and to dispose of and deliver the same in accordance with this Escrow Agreement. If the Escrow Agent is called upon by the terms of this Escrow Agreement to determine the occurrence of any event or contingency, the Escrow Agent may request from the other Parties or any other person such reasonable additional evidence as the Escrow Agent in its discretion may deem necessary to determine any fact relating to the occurrence of such event or contingency, and in this connection may inquire and consult with the other Parties, among others, at any time. The Escrow Agent may request an opinion of counsel




for a determination of any legal issue which might arise in the performance of its duties hereunder and such opinion of counsel shall be full and complete authorization for any action taken, suffered or omitted by the Escrow Agent in reliance thereon. This Escrow Agreement sets forth exclusively the duties of the Escrow Agent with respect to any and all matters pertinent hereto and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent.

8. Payment of Escrow Agent.

The Escrow Agent acknowledges receipt of good and valuable consideration for the services rendered or to be rendered by it pursuant to this Escrow Agreement. The Concessionaire shall pay the Escrow Agent’s reasonable fees and expenses in connection with the performance of its duties under this Escrow Agreement. The annual administrative fee is $1,500.00 and shall be payable by the Concessionaire within 30 days of receipt of an invoice from the Escrow Agent.

9. Resignation and Replacement of Escrow Agent.

The Escrow Agent may resign and thereby become discharged from the trusts, duties and obligations hereby created, by notice given to the Department and the Concessionaire, not less than 15 days before such resignation shall take effect. Such resignation shall take effect immediately, however, upon the earlier appointment of a new Escrow Agent hereunder and acceptance of the trusts hereby created. The Escrow Agent shall continue to serve as Escrow Agent until a successor is appointed and the EPDs and Financial Documents have been properly transferred to the successor Escrow Agent. In the event of the resignation of the Escrow Agent prior to the expiration of this Escrow Agreement, the Escrow Agent shall rebate to the Concessionaire a ratable portion of any prepaid fee theretofore paid by the Concessionaire to the Escrow Agent for its services hereunder. After any notice of resignation of the Escrow Agent, the Concessionaire shall undertake to appoint a replacement Escrow Agent on terms reasonably acceptable to the Concessionaire and the Department.

10. Benefit of Agreement; Amendments.

(a) This Escrow Agreement is made for the benefit of the Concessionaire and the Department, except as otherwise expressly provided herein.

(b) This Escrow Agreement shall not be amended without the written consent of the Concessionaire, the Department and the Escrow Agent.

11. Notices.

Unless otherwise provided herein, all demands, notices, approvals and other communications hereunder shall be in writing and shall not be effective for any purpose unless and until actually received by the addressee or unless served (a) personally, (b) by independent, reputable, overnight commercial courier, (c) by facsimile transmission, where the transmitting party includes a cover sheet identifying the name, location and identity of the transmitting party, the phone number of the transmitting device, the date and time of transmission and the number




of pages transmitted (including the cover page), where the transmitting device or receiving device records verification of receipt and the date and time of transmission receipt and the phone number of the other device, and where the facsimile transmission is immediately followed by service of the original of the subject item in another manner permitted herein, or (d) by deposit in the U.S. mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, addressed as follows:

If to the Department:

Virginia Department of Transportation 1401 E. Broad Street Richmond, VA 23219 Attention: Chief Engineer Facsimile: (804) 786-2940

With a copy to:

Office of the Attorney General 900 E. Main Street Richmond, VA 23219 Attention: Chief Transportation Section Facsimile: (804) 786-9136

If to the Concessionaire:

Phone: Facsimile:

With a copy to:

Phone: Facsimile:

If to the Escrow Agent:

SunTrust Bank 919 East Main Street, Floor 7 Richmond, Virginia 23219 Attention: Corporate Agency Services Telephone: 804-782-5400 Facsimile: 804-782-7855




The above parties may by notice given hereunder designate any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed.

12. Successors and Assigns.

This Escrow Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns. The Department and the Escrow Agent hereby consent to the collateral assignment (the “Assignment”) of this Escrow Agreement in whole by the Concessionaire to the Lenders as security for the performance of the Concessionaire's obligations under the Project Financing Agreements. Pursuant to the Assignment, the Lenders and their designee or assignee shall have the right to assume the benefits and obligations of the Concessionaire under this Escrow Agreement. In the event that the Lenders or such designee or assignee exercise such right by notice to the Escrow Agent, as of the date of such assumption of benefits and obligations of the Concessionaire hereunder, the term “Beneficiary” as used in this Escrow Agreement shall be deemed to mean the Lenders or such designee or assignee as assignee of the Concessionaire, and as such assignee the Lenders or such designee or assignee shall have all rights accorded to the Concessionaire in this Escrow Agreement. Any Lender may, in connection with any default under any financing document relating to the Project to which the Concessionaire is a party, assign any rights assigned to it hereunder to any other entity. However, the Escrow Agent shall have no obligation in performing this Escrow Agreement to recognize any successor or assign of the Concessionaire unless the Escrow Agent receives clear, authoritative and conclusive written evidence of the change of Party.

13. Counterparts.

This Escrow Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument.

14. Governing Law.

This Escrow Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia.

15. Waiver.

Any term of this Escrow Agreement may be waived by the Party entitled to the benefits thereof, provided that any such waiver must be in writing and signed by the Party against whom the enforcement of the waiver is sought. No waiver of any condition or breach of any provision of this Escrow Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy.

IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed by their duly authorized representatives as of the date first written above.




VIRGINIA DEPARTMENT OF TRANSPORTATION an agency of the Commonwealth of Virginia By:_____________________________________ _____________________________________ Commonwealth Transportation Commissioner

_____________________________________ By:______________________________________ Name: ________________________________ Title: _________________________________

SUNTRUST BANK, as Escrow Agent By:______________________________________ Name: ________________________________ Title: _________________________________



Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form G – Financial Close Security

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FORM G

FINANCIAL CLOSE SECURITY

IRREVOCABLE STANDBY LETTER OF CREDIT

ISSUER: ________________________________________________________

PLACE FOR PRESENTATION OF DRAFT: (Name and address of banking institution with offices in the Commonwealth of Virginia)

APPLICANT: ____________________________________________________

BENEFICIARY: VIRGINIA DEPARTMENT OF TRANSPORTATION INNOVATIVE PROJECT DELIVERY DIVISION 1401 EAST BROAD STREET RICHMOND, VA 23219 ATTN: MR. JEFF HETZER LETTER OF CREDIT NUMBER: ___________________________________

PLACE AND DATE OF ISSUE: _____________________________________

AMOUNT: Seventy-Five Million U.S. dollars ($ 75,000,000) [Note: The amount of a single Financial Close letter of credit may be less on the condition that the Offeror submits more than one Financial Close letter of credit and the sum of the Financial Close letters of credit total 75,000,000]

STATED EXPIRATION DATE: _________________, 2009 [Note: Insert the date which is one business day after the Financial Close Deadline set forth in Exhibit A to the Agreement and delete this bracketed text.]

The Issuer hereby issues this irrevocable standby letter of credit in favor of the Virginia Department of Transportation (“VDOT”), for any sum or sums up to the aggregate amount stated above , available by draft at sight drawn on the Issuer. Any drawing under this irrevocable standby letter of credit shall be accompanied by a certificate (the “Draw Certificate”) in the form of Exhibit 1 attached hereto and appropriately completed and signed by an officer of the Beneficiary. Partial drawings and multiple drawings under this letter of credit are permitted.

All drafts will be honored if presented to __________________________________________ [insert name and address of banking institution with offices in the Commonwealth of Virginia] on or before the Stated Expiration Date identified above or any extended expiration date.



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Drawings by facsimile to facsimile number ( ) _________ are acceptable (each such drawing, a "Fax Drawing") provided, however, that a Fax Drawing will not be effectively presented until Beneficiary confirms, by telephone, Issuer’s receipt of such Fax Drawing by calling Issuer at telephone number ( ) ________. Issuer will acknowledge Beneficiary’s presentment by e-mail to the e-mail address provided to Issuer in the Fax Drawing.

If a drawing is made by Beneficiary hereunder at or prior to 10:00 a.m., ________ time, on any weekday (i.e., Monday through Friday, excluding Virginia state holidays and U.S. federal holidays) (a “Business Day”), and provided that such drawing conforms to the terms and conditions hereof, payment shall be made by Issuer to Beneficiary in immediately available funds free and clear of and without deduction for any taxes, duties, fees, liens, set-offs or other deductions of any kind and regardless of any objection by any third party (subject to any court order or judgment), to the account designated below or such other account at a national bank in the United States of America that Beneficiary may designate in the draw certificate on the next Business Day after the demand is made. If a drawing is made by Beneficiary hereunder after 10:00 a.m., __________ time, on a Business Day, and provided that such drawing conforms to the terms and conditions hereof, such payment shall be made no later than the close of business, local time of the location of the account designated below or such other account at a national bank in the United States of America that Beneficiary may designate in the drawing, on the second Business Day after the demand is made.

Payment under this letter of credit shall be made in same day funds, by wire transfer to Beneficiary’s account described in its Draw Certificate. All bank charges and commissions incurred in connection with the issuance, administration, advisement, confirmation, negotiation or any other fees associated with this letter of credit (including any drawings hereunder) shall be paid by the Applicant.

Except so far as otherwise expressly stated, this letter of credit is subject to the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590 (the “Uniform Customs”), which shall in all respects be deemed a part hereof as fully as if incorporated herein except as modified hereby.

This letter of credit is issued under the laws of the Commonwealth of Virginia (the “State”) and applicable U.S. federal law, and shall, as to matters not governed by Uniform Customs, be governed by and construed in accordance with the laws of the State, without regard to principles of conflicts of law.

Any failure by Beneficiary to draw upon this letter of credit as permitted hereunder shall not cause this letter of credit to be unavailable for any future drawing, provided that this letter of credit has not expired prior to such future drawing and that all requirements of this letter of credit are independently satisfied with respect to any such future drawing.

If legal proceedings are initiated by any party with respect to payment of the letter of credit, Issuer and Beneficiary agree that such proceeding shall be subject to State courts and law.



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Communications with respect to this letter of credit shall be in writing and shall be addressed to Issuer at ___________________________________________________________, Attention: ____________________, specifically referring to the number of this letter of credit.

[Authorized Signature of Issuer]

Signature:

Name:

Title:

Date:


Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Exhibit 1 to Form G – Financial Close Security

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EXHIBIT 1 to FORM G

DRAW CERTIFICATE

[Insert Name and Address of Issuer] ____________________________________ ____________________________________ ____________________________________

RE: Letter of Credit No. [__________]

Ladies and Gentlemen:

The undersigned, an authorized officer of the Virginia Department of Transportation (the “Beneficiary”), hereby certifies to (Issuer’s Name) that the Beneficiary is drawing on the above-referenced letter of credit because of (Applicant’s Name) ’s failure to achieve Financial Close by the Financial Close Deadline set forth in Exhibit A to the Comprehensive Agreement for the U.S. Route 460 Corridor Improvements Project.

Payment under the above-referenced letter of credit shall be made in same day funds, by wire transfer to the Beneficiary’s account described below or such other account as Beneficiary may designate in writing.

[insert account information for wire transfer of funds]


Signature:

Name:

Title:

Date:


FORM H

OPINION OF COUNSEL

[LETTERHEAD OF INDEPENDENT LAW FIRM OR IN-HOUSE COUNSEL – SEE SECTION 6.7.3(E) OF THE INSTRUCTIONS FOR LEGAL COUNSEL

REQUIREMENTS]

Virginia Department of Transportation 1401 East Broad Street Richmond, VA 23219 Attn: Jeff Hetzer

Re: Comprehensive Agreement for the U.S. Route 460 Corridor Improvements Project dated as of ___________, 2009, by and between Virginia Department of Transportation, and ____________________ (the “Concessionaire”)

Gentlemen:

[Insert description of relationship to Concessionaire and its joint venture members, general partners, members, as applicable, and any other entities whose approval is required in order to authorize delivery of the Detailed Proposal and execution of the Comprehensive Agreement.] This letter is provided to you pursuant to Section 6.7.3 of the Instructions to Offerors contained in that certain Request for Detailed Proposals issued by the Virginia Department of Transportation (“VDOT”) on December 31, 2008, as amended.

In giving this opinion, we have examined ____________________________________. We have also considered such questions of law and we have examined such documents and instruments and certificates of public officials and individuals who participated in the procurement process as we have deemed necessary or advisable. [if certificate used/obtained from Concessionaire or Guarantor, such certificate should also run in favor of VDOT and should be attached to opinion]

In giving this opinion, we have assumed that all items submitted to us or reviewed by us are genuine, accurate and complete, and if not originals, are true and correct copies of originals, and that all signatures on such items are genuine.

Subject to the foregoing, we are of the opinion that:

1. [opinion regarding organization/formation and existence of Concessionaire and that Concessionaire has corporate power to own its properties and assets, carry on its business, make the Detailed Proposal, enter into the Comprehensive Agreement and to perform its obligations under the Comprehensive Agreement] [if Concessionaire is a partnership/joint venture, these opinions are also required for each of its joint venture members and general partners]

Request for Detailed Proposals • Part 1 – Instructions to Offerors • U.S. Route 460 Corridor Improvements Project Form H – Opinion of Counsel

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2. [opinion regarding good standing and qualification to do business in Commonwealth of Virginia for Concessionaire] [if Concessionaire is a partnership/joint venture, these opinions are also required for each of its joint venture members and general partners]

3. [opinion regarding organization/formation and existence of Guarantor and that Guarantor has corporate power to own its properties and assets, to carry on its business, to enter into the Guaranty and to perform its obligations under the Guaranty] [if Guarantor is a partnership/joint venture, these opinions are also required for each of its joint venture members and general partners] [if there is no Guaranty, this opinion may be omitted]

4. [opinion that the Detailed Proposal and Comprehensive Agreement have been duly authorized by all necessary corporate action on the part of the Concessionaire and the Detailed Proposal and Comprehensive Agreement have been duly executed and delivered by Concessionaire] [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners after the first and second “Concessionaire”]

5. [opinion that Guaranty has been duly authorized by all necessary corporate action on the part of Guarantor and the Guaranty has been duly executed and delivered by Guarantor] [if Guarantor is a partnership/joint venture, add: and its joint venture members/general partners after the first and second “Guarantor”] [if there is no Guaranty, this opinion may be omitted]

6. [opinion that the Comprehensive Agreement constitutes a legal, valid and binding obligation of the Concessionaire enforceable against the Concessionaire in accordance with its terms] [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners after the second “Concessionaire”]

7. [opinion that the Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms] [if Guarantor is a partnership/joint venture, add: and its joint venture members/general partners after the second “Guarantor”] [if there is no Guaranty, this opinion may be omitted]

8. [opinion that all required approvals have been obtained with respect to execution, delivery and performance of the Detailed Proposal and the Comprehensive Agreement; and that neither the Detailed Proposal nor the Comprehensive Agreement conflict with any agreements to which Concessionaire is a party] [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners are a party] or with any orders, judgments or decrees by which Concessionaire is bound [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners are bound]

9. [opinion that all required approvals have been obtained with respect to execution, delivery and performance of the Guaranty; and that the Guaranty does not conflict with any agreements to which Guarantor is a party] [if Guarantor is a partnership/joint venture, add: and its joint venture members/general partners are a party] or with any orders, judgments or decrees by which Guarantor is bound] [if Guarantor is a partnership/joint venture, add: and its joint venture members/general partners are bound] [if there is no Guaranty, this opinion may be omitted]



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10. [opinion that execution, delivery and performance of all obligations by Concessionaire under the Detailed Proposal and the Comprehensive Agreement do not conflict with, and are authorized by, the articles of incorporation and bylaws of Concessionaire] [if Concessionaire is a partnership, replace articles of incorporation and bylaws with partnership agreement and (if applicable) certificate of limited partnership); if Concessionaire is a joint venture, replace articles of incorporation and bylaws with joint venture agreement; if Concessionaire is a limited liability company, replace articles of incorporation and bylaws with operating agreement and certificate of formation]

11. [opinion that execution, delivery and performance of all obligations by Guarantor under the Guaranty does not conflict with, and is authorized by, the articles of incorporation and bylaws of Guarantor] [if Guarantor is a partnership, replace articles of incorporation and bylaws with partnership agreement and (if applicable) certificate of limited partnership); if Guarantor is a joint venture, replace articles of incorporation and bylaws with joint venture agreement; if Guarantor is a limited liability company, replace articles of incorporation and bylaws with operating agreement and certificate of formation] [if there is no Guaranty, this opinion may be omitted]

12. [opinion that execution and delivery by the Concessionaire of the Detailed Proposal and the Comprehensive Agreement do not, and the Concessionaire’s performance of its obligations under the Detailed Proposal and the Comprehensive Agreement will not, violate any current statute, rule or regulation applicable to the Concessionaire or to transactions of the type contemplated by the Detailed Proposal or the Comprehensive Agreement]

13. [opinion that execution and delivery by the Guarantor of the Guaranty do not, and the Guarantor’s performance of its obligations under the Guaranty will not, violate any current statute, rule or regulation applicable to the Guarantor or to transactions of the type contemplated by the Guaranty] [if there is no Guaranty, this opinion may be omitted]

14. [opinion that the Escrow Agreement and the Independent Engineer Agreement have been duly authorized by all necessary corporate action on the part of the Concessionaire and the Agreements have been duly executed and delivered by Concessionaire] [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners after the first and second “Concessionaire”]

15. [opinion that the Escrow Agreement and the Independent Engineer Agreement constitute legal, valid and binding obligations of the Concessionaire enforceable against the Concessionaire in accordance with their terms] [if Concessionaire is a partnership/joint venture, add: and its joint venture members/general partners after the second “Concessionaire”]

16. [opinion that execution and delivery by the Concessionaire of the Escrow Agreement and the Independent Engineer Agreement do not, and the Concessionaire’s performance of its obligations under such agreements will not, violate any current statute, rule or regulation applicable to the Concessionaire or to transactions of the type contemplated by the agreements]