Common use of Limitations on the Concessionaire’s Right to Rely Clause in Contracts

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) to review, comment on, approve, disapprove and/or accept designs, plans, specifications, work plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans and Financing Assignments, (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractors, architects, engineers or other Consultants of the Concessionaire, and (iii) to perform Oversight Services: (A) exist solely for the benefit and protection of the Department, (B) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, (C) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and (D) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements. (c) No rights of the Department described in Section 10.05(a) above, no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance of the Route 495 HOT Lanes in Virginia Project or any Project Enhancement shall: (i) relieve the Concessionaire of its responsibility for the selection and the competent performance of all contractors, subcontractors, architects, engineers and other Consultants (except those hired by the Department); (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(a), 10.05(b) and 10.05(c) above, (i) the Concessionaire shall be entitled to rely on specific written deviations and interpretative engineering decisions the Department gives under this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, and

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) to review, comment on, approve, disapprove and/or accept designs, plans, specifications, work plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans and Financing Assignments, (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractors, architects, engineers or other Consultants of the Concessionaire, and (iii) to perform Oversight Services: : (A) exist solely for the benefit and protection of the Department, (B) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, (C) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and (D) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements. (c) No rights of the Department described in Section 10.05(a) above, no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance or NEXT Final Completion of the Route 495 HOT Lanes in Virginia Project Project, as applicable, or any Project Enhancement shall: (i) relieve the Concessionaire of its responsibility for the selection and the competent performance of all contractors, subcontractors, architects, engineers and other Consultants (except those hired by the Department); (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(a), 10.05(b) and 10.05(c) above, (i) the Concessionaire shall be entitled to rely on specific written deviations and interpretative engineering decisions the Department gives under this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, andand (iii) the Department is not relieved from its obligations under any Development Contract.

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) to review, comment on, approve, disapprove and/or accept designs, plans, specifications, work plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans Debt and Financing Assignments,; (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractors, architects, engineers or other Consultants of the Concessionaire, Contractors; and (iii) to perform Oversight Services: (A) ; exist solely for the benefit and protection of the Department, (B) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, (C) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and (D) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements; provided, that the foregoing will not limit the Department’s liabilities or obligations pursuant to this Agreement. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights Project Right of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements; provided, that the foregoing will not limit the Department’s liability or obligations under this Agreement. The Department will be entitled to remedies for Non-Conforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of this Agreement, regardless of whether previous review, comment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by the Department. (c) No rights of the Department described in Section 10.05(a) above10.06(a), no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance of the Route 495 HOT Lanes in Virginia any Project Assets or any Project Enhancement shallwill: (i) relieve the Concessionaire from performance of the Work or of its responsibility for the selection and the competent performance of all contractors, subcontractors, architects, engineers and other Consultants (except those hired by the Department)its Contractors; (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(aSection 10.06(a), 10.05(b(b) and 10.05(c(c) above, (i) the Concessionaire shall will be entitled to rely on specific written deviations approved Deviations and interpretative engineering decisions the Department gives under pursuant to this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, anddelivers and (iii) the Department is not relieved from its obligations under any Development Contract.

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) Agreements to review, comment oncomment, approve, disapprove and/or accept disapprove, object, reject, accept, consent, certify, concur, monitor, test, inspect spot check, audit or perform other Oversight Services with respect to designs, plans, specifications, work plans, the Project Development Plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or policing, Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans Debt and Financing Assignments, (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractorsContractors, architects, engineers or other Consultants consultants of the Concessionaire, and (iii) to perform Oversight Services: (Ai) exist solely for the benefit and protection of the Department, , (Bii) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, , (Ciii) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and and (Div) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights Project Right of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements. The Department shall be entitled to remedies for Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Agreement, regardless of whether previous review, comment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by the Department or the Independent Engineer. (c) No rights of the Department described in Section 10.05(a) above10.04(a), no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance of the Route 495 HOT Lanes in Virginia Project or any Project Enhancement shall: (i) relieve the Concessionaire of its responsibility for the selection and the competent performance of all contractors, subcontractorsContractors, architects, engineers and other Consultants (except those hired by the Department); (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(a10.04(a), 10.05(b(b) and 10.05(c) above(c), (i) the Concessionaire shall be entitled to rely on specific written deviations approved Deviations and interpretative engineering decisions the Department gives under this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, andand (iii) the Department is not relieved from its obligations under any Development Contract.

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) to review, comment on, approve, disapprove and/or accept designs, plans, specifications, work plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans Debt and Financing Assignments, (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractors, architects, engineers or other Consultants of the ConcessionaireContractors, and (iii) to perform Oversight Services: (A) , exist solely for the benefit and protection of the Department, (B) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, (C) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and (D) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the 103 DMEAST #27287336 v26 Concessionaire’s obligation to fulfill such standards and requirements; provided, that the foregoing will not limit the Department’s liabilities or obligations pursuant to this Agreement. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights Project Right of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements; provided, that the foregoing will not limit the Department’s liability or obligations under this Agreement. The Department will be entitled to remedies for Non-Conforming Work pursuant to Section 8.11(b). (c) No rights of the Department described in Section 10.05(a) above10.06(a), no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance or 395 Final Completion of the Route 495 HOT Lanes in Virginia Project or any Project Enhancement shallwill: (i) relieve the Concessionaire from performance of the Work or of its responsibility for the selection and the competent performance of all contractors, subcontractors, architects, engineers and other Consultants (except those hired by the Department)its Contractors; (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(aSection 10.06(a), 10.05(b(b) and 10.05(c(c) above, : (i) any Notices to Proceed and certificates or notices of Substantial Completion, Service Commencement, 395 Final Completion and Final Acceptance will be binding on the Department and the Concessionaire shall will be entitled to rely thereon; provided however, that the delivery of such notices and certificates will not constitute a waiver by the Department of any breach of this Agreement by the Concessionaire or relieve the Concessionaire of any of its obligations hereunder; (ii) the Concessionaire will be entitled to rely on specific approved written deviations Deviations and interpretative engineering decisions the Department gives under pursuant to this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, ; (iiiii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, and; and (iv) the Department is not relieved from its obligations under this Agreement or any Development Contract.

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) to review, comment on, approve, disapprove and/or accept designs, plans, specifications, work plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans Debt and Financing Assignments,; (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractors, architects, engineers or other Consultants of the Concessionaire, Contractors; and (iii) to perform Oversight Services: (A) ; exist solely for the benefit and protection of the Department, (B) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, (C) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and (D) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements.; provided, that the foregoing will not limit the Department’s liabilities or obligations pursuant to this Agreement. EXECUTION VERSION – DECEMBER 5, 2011 (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisition, Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights Project Right of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements; provided, that the foregoing will not limit the Department’s liability or obligations under this Agreement. The Department will be entitled to remedies for Non-Conforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of this Agreement, regardless of whether previous review, comment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by the Department. (c) No rights of the Department described in Section 10.05(a) above10.06(a), no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance of the Route 495 HOT Lanes in Virginia any Project Assets or any Project Enhancement shallwill: (i) relieve the Concessionaire from performance of the Work or of its responsibility for the selection and the competent performance of all contractors, subcontractors, architects, engineers and other Consultants (except those hired by the Department)its Contractors; (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(aSection 10.06(a), 10.05(b(b) and 10.05(c(c) above, (i) the Concessionaire shall will be entitled to rely on specific written deviations approved Deviations and interpretative engineering decisions the Department gives under pursuant to this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, anddelivers and (iii) the Department is not relieved from its obligations under any Development Contract.

Limitations on the Concessionaire’s Right to Rely. (a) The Concessionaire expressly acknowledges and agrees that the Department’s rights, if any, under the Project Agreements: (i) Agreements to review, comment oncomment, approve, disapprove and/or accept disapprove, object, reject, accept, consent, certify, concur, monitor, test, inspect, spot check, audit or perform other Oversight Services with respect to designs, plans, specifications, work plans, the Project Development Plans, construction, equipment, installation, plans for maintenance, traffic management, policing and/or policing, Project management, books, records, reports or statements, or documents pertaining to Concessionaire Loans Debt and Financing Assignments, (ii) to review, comment on and approve or disapprove qualifications and performance of, and to communicate with, contractors, subcontractorsContractors, architects, engineers or other Consultants consultants of the Concessionaire, and (iii) to perform Oversight Services: (Ai) exist solely for the benefit and protection of the Department, , (Bii) do not create or impose upon the Department any standard or duty of care toward any Concessionaire Party, all of which are hereby disclaimed, , (Ciii) may not be relied upon, nor may the Department’s exercise or failure to exercise any such rights be relied upon, by the Concessionaire in determining whether the Concessionaire has satisfied the standards and requirements set forth in this Agreement or any other Project Agreement, and and (Div) may not be asserted, nor may the Department’s exercise or failure to exercise any such rights be asserted, against the Department by the Concessionaire as a defense, legal or equitable, to the Concessionaire’s obligation to fulfill such standards and requirements. (b) To the maximum extent permitted by Law, and subject to the provisions of this Agreement, the Concessionaire hereby releases and discharges the Department from any and all duty and obligation to cause permitting, Project Right of Way acquisitionacquisition (except as otherwise provided by Section 14.01 for Department-Caused Delay related to the Department’s failure to timely provide a certificate of take for recordation to the Concessionaire), Utility Relocation, construction, equipping, operations, maintenance, policing, renewal, replacement, traffic management or other management of or for the Project or the Rights Project Right of Way, by the Department, to satisfy the standards and requirements set forth in the Project Agreements. The Department shall be entitled to remedies for Nonconforming Work and to identify additional Work which must be done to bring the Work and Project into compliance with requirements of the Agreement, regardless of whether previous review, comment, objection, rejection, approval, disapproval, acceptance, certification, concurrence, monitoring, testing, inspection, spot checking, auditing or other oversight were conducted or given by the Department or the Independent Engineer. (c) No rights of the Department described in Section 10.05(a) above), no exercise or failure to exercise such rights, no failure of the Department to meet any particular standard of care in the exercise of such rights, no issuance of permits or certificates of completion or acceptance and no Final Acceptance of the Route 495 HOT Lanes in Virginia Project or any Project Enhancement shall: (i) relieve the Concessionaire of its responsibility for the selection and the competent performance of all contractors, subcontractorsContractors, architects, engineers and other Consultants (except those hired by the Department); (ii) relieve the Concessionaire of any of its obligations or liabilities under the Project Agreements; (iii) be deemed or construed to waive any of the Department’s rights and remedies under the Project Agreements; or (iv) be deemed or construed as any kind of representation or warranty, express or implied, by the Department. (d) Notwithstanding Sections 10.05(a), 10.05(b(b) and 10.05(c) above(c), (i) the Concessionaire shall be entitled to rely on specific written deviations approved Deviations and interpretative engineering decisions the Department gives under this Agreement in accordance with the Technical Requirements, the Design-Build Contract or any Development Contract, and any applicable Law, (ii) the Department is not relieved from any liability arising out of a knowing, intentional material misrepresentation under any written statement the Department delivers, andand (iii) the Department is not relieved from its obligations under any Development Contract.