Defense and Indemnification Procedures. 21.2.1 If Owner receives notice of or otherwise has actual knowledge of a Claim which it believes is within the scope of Contractor’s indemnification under Section 21.1, it shall by writing as soon as practicable: (a) inform Contractor of such Claim; (b) send to Contractor a copy of all written materials Owner has received asserting such Claim; and (c) notify Contractor that either: (i) the defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to conduct its own defense for a reason set forth in Section 21.2.5 below. 21.2.2 If the insurer under any applicable insurance policy accepts tender of defense, Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers under potentially applicable insurance policies, then Sections 21.2.3 through 21.2.7 below shall apply. 21.2.3 If the defense is tendered to Contractor, it shall within forty-five (45) days of said tender deliver to Owner a written notice stating that Contractor: (a) accepts the tender of defense and confirms that the Claim is subject to full indemnification hereunder without any “reservation of rights” to deny or disclaim full indemnification thereafter; (b) accepts the tender of defense but with a “reservation of rights” in whole or in part; or (c) rejects the tender of defense if it reasonably determines it is not required to indemnify against the Claim under Section 21.1. If such notice is not delivered within such forty-five (45) days, the tender of defense shall be deemed rejected. 21.2.4 If Contractor gives notice under Sections 21.2.3(a) above, Contractor shall have the right to select legal counsel for the Owner Indemnitees, subject to reasonable approval of Owner, and Contractor shall otherwise control the defense of such Claim, including settlement, and bear the fees and costs of defending and settling such Claim. During such defense: (a) Contractor shall at Contractor’s expense, fully and regularly inform Owner of the progress of the defense and of any settlement discussions; and (b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, fully cooperate in said defense, provide to Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and maintain the confidentiality of all communications between it and Contractor concerning such defense to the extent allowed by Laws, Regulations and Ordinances. 21.2.5 Owner shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) the defense is tendered to Contractor and it refuses the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Owner, at the time it gives notice of the Claim or at any time thereafter, reasonably determines that: (i) a conflict exists between it and Contractor which prevents or potentially prevents Contractor from presenting a full and effective defense; or (ii) Contractor is otherwise not providing an effective defense in connection with the Claim and Contractor lacks the financial capability to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28. 21.2.6 If Owner is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of the proceeding. 21.2.7 If Owner is entitled to and elects to conduct its own defense, then it shall have the right to settle or compromise the Claim with Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the court, and with the full benefit of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.
Appears in 3 contracts
Samples: Design Build Contract, Design Build Contract, Design Build Contract
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.118.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Capital Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim claim or at any time thereafter, reasonably determines that: :
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this Capital Maintenance Agreement, contemplates that Maintenance Contractor will have responsibility for certain claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such claims and liabilities. In such case, where either Party believes a claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealable resolution of the matter in question, whether by arbitration or by judicial proceedings, the Parties shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees and expenses relating thereto. other litigation and defense costs, in accordance with the indemnification arrangements of Section 15.9, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the third party claim.
15.9.9 In additiondetermining responsibilities and obligations for defending suits pursuant to this Section 15.9, if Owner elects specific consideration shall be given to conduct its own defense because it perceives a conflict the following factors: (a) the party performing the activity in question; (b) the location of interest, Owner shall pay its own costs the activity and expenses relating theretoincident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.
Appears in 2 contracts
Samples: Capital Maintenance Agreement, Capital Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.118.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policies, then Sections 21.2.3 through 21.2.7 below shall apply.policies provides defense,
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Capital Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim claim or at any time thereafter, reasonably determines that: :
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this Capital Maintenance Agreement, contemplates that Maintenance Contractor will have responsibility for certain claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such claims and liabilities. In such case, where either Party believes a claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealable resolution of the matter in question, whether by arbitration or by judicial proceedings, the Parties shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees and expenses relating thereto. other litigation and defense costs, in accordance with the indemnification arrangements of Section 15.9, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the third party claim.
15.9.9 In additiondetermining responsibilities and obligations for defending suits pursuant to this Section 15.9, if Owner elects specific consideration shall be given to conduct its own defense because it perceives a conflict the following factors: (a) the party performing the activity in question; (b) the location of interest, Owner shall pay its own costs the activity and expenses relating theretoincident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.
Appears in 2 contracts
Samples: Capital Maintenance Agreement, Capital Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.115.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Comprehensive Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim claim or at any time thereafter, reasonably determines that: :
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this Comprehensive Maintenance Agreement, contemplates that Maintenance Contractor will have responsibility for certain claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such claims and liabilities. In such case, where either Party believes a claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealable resolution of the matter in question, whether by arbitration or by judicial proceedings, the Parties shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees and expenses relating thereto. other litigation and defense costs, in accordance with the indemnification arrangements of Section 15.9, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the third party claim.
15.9.9 In additiondetermining responsibilities and obligations for defending suits pursuant to this Section 15.9, if Owner elects specific consideration shall be given to conduct its own defense because it perceives a conflict the following factors: (a) the party performing the activity in question; (b) the location of interest, Owner shall pay its own costs the activity and expenses relating theretoincident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.
Appears in 2 contracts
Samples: Comprehensive Maintenance Agreement, Comprehensive Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.115.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Comprehensive Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and maintain the confidentiality of all communications between it and Contractor concerning such defense to the extent allowed by LawsIndemnified Party, Regulations and Ordinances.
21.2.5 Owner shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) the defense is tendered to Contractor and it refuses the tender of defenseand, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Owner, at the time it gives notice of the Claim or at any time thereafter, reasonably determines that: (i) a conflict exists between it and Contractor which prevents or potentially prevents Contractor from presenting a full and effective defense; or (ii) Contractor is otherwise not providing an effective defense in connection with the Claim and Contractor lacks the financial capability to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense except as may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 If Owner is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of the proceeding.
21.2.7 If Owner is entitled to and elects to conduct its own defense, then it shall have the right to settle or compromise the Claim with Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the court, and with the full benefit of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.required
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 17.6.1 If Owner IFA receives notice Notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.117.5, it and if IFA gives Notice thereof pursuant to Section 17.1.4.3, then IFA shall by writing as soon as practicable: (a) inform Contractor of such Claim; (b) send to Contractor a copy of all written materials Owner has received asserting such Claim; and (c) notify Contractor that either: (i) have the defense of such Claim is being tendered to Contractor; or (ii) Owner has elected right to conduct its own defense for a reason set forth unless either an insurer accepts defense of the claim within the time required by Law or Developer accepts the tender of the claim in accordance with Section 21.2.5 below17.6.3.
21.2.2 17.6.2 If the insurer under any applicable insurance policy Insurance Policy accepts the tender of defense, Contractor IFA and Owner Developer shall cooperate in the defense as required by the insurance policyInsurance Policy. If no defense is provided by insurers insurer under potentially applicable insurance policiesInsurance Policies provides defense, then Sections 21.2.3 through 21.2.7 below shall apply.Section
21.2.3 17.6.3 If the defense is tendered to ContractorDeveloper, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice Notice stating that Contractor: (a) accepts Developer:
17.6.3.1 Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; (b) accepts ;
17.6.3.2 Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or (c) rejects or
17.6.3.3 Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Agreement.
17.6.4 If such notice is not delivered within such forty-five (45) days, Developer accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 17.6.3.1, Contractor Developer shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Contractor Developer shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: (a) Contractor :
17.6.4.1 Developer shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and (b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, and
17.6.4.2 The Indemnified Party shall fully cooperate in said defense, provide to Contractor Developer all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner the Indemnified Party, and maintain the confidentiality of all communications between it and Contractor Developer concerning such defense defense.
17.6.5 If Developer responds to the extent allowed by Lawstender of defense as specified in Section 17.6.3.2 or 17.6.3.3, Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
17.6.6 Notwithstanding Sections 17.6.3.1 and 17.6.3.2, the Indemnified Party may revocably assume its own defense is tendered at any time by delivering to Contractor Developer written Notice of such election and it refuses the tender of defensereasons therefor, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Ownerif the Indemnified Party, at the time it gives notice Notice of the Claim claim or at any time thereafter, reasonably determines that: (i) a :
17.6.6.1 A conflict exists between it and Contractor Developer which prevents or potentially prevents Contractor Developer from presenting a full and effective defense; or (ii) Contractor ;
17.6.6.2 Developer is otherwise not providing an effective defense in connection with the Claim and Contractor claim; or
17.6.6.3 Developer lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 17.6.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) indemnification, Developer shall reimburse on a
17.6.7.1 In the case of a defense that otherwise would be reimbursed by Contractor after completion of conducted under Section 17.6.3.1, the proceeding.
21.2.7 If Owner is entitled to and elects to conduct its own defense, then it Indemnified Party shall have the right to settle or compromise the Claim claim with ContractorDeveloper’s prior written consent, which shall not be unreasonably withheld or delayed;
17.6.7.2 In the case of a defense that otherwise would be conducted under Section 17.6.3.2, the Indemnified Party shall have the right to settle or compromise the claim with Developer’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or Arbitrator following reasonable Notice to Developer and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Developer; and
17.6.7.3 In the case of a defense conducted under Section 17.6.3.3, the Indemnified Party shall have the right to settle or compromise the claim without Developer's prior written consent and with without prejudice to its rights to be indemnified by Developer.
17.6.8 A refusal of, or failure to accept, a tender of defense, as well as any Dispute over whether an Indemnified Party which has assumed control of defense is entitled to do so under Section 17.6.6, shall be resolved according to the full benefit Dispute Resolution Procedures. Developer shall be entitled to contest an indemnification claim and pursue, through the Dispute Resolution Procedures, recovery of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and indemnity payments it is later determined that no indemnification obligation existed as has made to or on behalf of the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating theretoIndemnified Party.
Appears in 1 contract
Samples: Public Private Agreement
Defense and Indemnification Procedures. 21.2.1 17.6.1 If Owner IFA receives notice Notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.117.5, it and if IFA gives Notice thereof pursuant to Section 17.1.4.3, then IFA shall by writing as soon as practicable: (a) inform Contractor of such Claim; (b) send to Contractor a copy of all written materials Owner has received asserting such Claim; and (c) notify Contractor that either: (i) have the defense of such Claim is being tendered to Contractor; or (ii) Owner has elected right to conduct its own defense for a reason set forth unless either an insurer accepts defense of the claim within the time required by Law or Developer accepts the tender of the claim in accordance with Section 21.2.5 below17.6.3.
21.2.2 17.6.2 If the insurer under any applicable insurance policy Insurance Policy accepts the tender of defense, Contractor IFA and Owner Developer shall cooperate in the defense as required by the insurance policyInsurance Policy and, for purposes of the PPA Documents and proceedings relating to such matter, the applicable Indemnified Party/ies shall be deemed to be (an) Insured Party/ies. If no defense is provided by insurers insurer under potentially applicable insurance policiesInsurance Policies provides defense, then Sections 21.2.3 through 21.2.7 below Section 17.6.3 shall apply.
21.2.3 17.6.3 If the defense is tendered to ContractorDeveloper, it shall then within forty-five thirty (4530) days after receipt of said tender the tender, Developer shall notify the Indemnified Party whether it has tendered the matter to an insurer, and, if not tendered to an insurer or if the insurer has rejected the tender, shall deliver to Owner a written notice Notice stating that Contractor: (a) accepts Developer:
17.6.3.1 Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; (b) accepts ;
17.6.3.2 Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or (c) rejects or
17.6.3.3 Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1the terms of this Agreement. If Developer has tendered the matter to an insurer, and the insurer has not rejected the tender, then, for purposes of the PPA Documents and proceedings relating to such notice is not delivered within such forty-five matter, the applicable Indemnified Party/ies shall be deemed to be (45an) days, Insured Party/ies.
17.6.4 If Developer accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) above17.6.3.1 or 17.6.3.2, Contractor Developer shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Contractor Developer shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: (a) Contractor :
17.6.4.1 Developer shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and (b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, and
17.6.4.2 The Indemnified Party shall fully cooperate in said defense, provide to Contractor Developer all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner the Indemnified Party, and maintain the confidentiality of all communications between it and Contractor Developer concerning such defense defense.
17.6.5 If Developer responds to the extent allowed by Lawstender of defense as specified in Section 17.6.3.3, Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
17.6.6 Notwithstanding Sections 17.6.3.1 and 17.6.3.2, the Indemnified Party may revocably assume its own defense is tendered at any time by delivering to Contractor Developer Notice of such election and it refuses the tender of defensereasons therefor, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Ownerif the Indemnified Party, at the time it gives notice Notice of the Claim claim or at any time thereafter, reasonably determines that: (i) a :
17.6.6.1 A conflict exists between it and Contractor Developer which prevents or potentially prevents Contractor Developer from presenting a full and effective defense; or (ii) Contractor ;
17.6.6.2 Developer is otherwise not providing an effective defense in connection with the Claim and Contractor claim; or
17.6.6.3 Developer lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume .
17.6.7 If the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto of a claim for which it is entitled to indemnification, Developer shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending such claim. If the Indemnified Party is entitled to and elects to conduct its own defense, then:
17.6.7.1 In the case of a defense that otherwise would be conducted under Section 21.2.5(b) above by delivering 17.6.3.1, the Indemnified Party shall have the right to Contractor settle or compromise the claim with each of Developer’s and Developer’s relevant insurer(s)’ prior written notice consent, which, in each case, shall not be unreasonably withheld or delayed;
17.6.7.2 In the case of such election a defense that otherwise would be conducted under Section 17.6.3.2, the Indemnified Party and Developer shall consult with each other on a regular basis to determine whether settlement is appropriate and, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, and the reasons therefor. Indemnified Party shall have the right to settle or compromise the claim with Developer’s prior written consent without prejudice to the Indemnified Party’s rights to be indemnified by Developer; and
17.6.7.3 In the case of a defense conducted under Section 17.6.3.3, the Indemnified Party shall, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, have the right to settle or compromise the claim without Developer's prior written consent and without prejudice to its rights to be indemnified by Developer.
17.6.8 A refusal of, or failure to accept, a tender of defense, as well as any Dispute over whether an Indemnified Party which has assumed control of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 If Owner is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) do so under Section 17.6.6, shall be reimbursed by Contractor after completion resolved according to the Dispute Resolution Procedures. Developer shall be entitled to contest an indemnification claim and pursue, through the Dispute Resolution Procedures, recovery of defense and indemnity payments it has made to or on behalf of the proceedingIndemnified Party.
21.2.7 If Owner is entitled to and elects to conduct its own defense, then it shall have the right to settle or compromise the Claim with Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the court, and with the full benefit of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.
Appears in 1 contract
Samples: Public Private Agreement
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a Claim or otherwise has actual knowledge of a Claim which that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.115.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the Claim: (a) inform Maintenance Contractor of such the Claim; , (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; Claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the Claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the Claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth Claim or otherwise has actual knowledge of a Claim, it shall tender the Claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such Claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim under Section 21.1. the terms of this CMA.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claim, including settlement, and bear the fees and costs of defending and settling such Claim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) Claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim or at any time thereafter, reasonably determines that: reasonably
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and Claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and hereto of a Claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the Claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other Dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the Claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this CMA, contemplates that Maintenance Contractor will have responsibility for certain Claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such Claims and liabilities. In such case, where either Party believes a Claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe Claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealable resolution of the matter in question, whether by arbitration or by judicial proceedings, the Parties shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees and expenses relating thereto. other litigation and defense costs, in accordance with the indemnification arrangements of Section 15.9, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the third party Claim.
15.9.9 In additiondetermining responsibilities and obligations for defending suits pursuant to this Section 15.9, if Owner elects specific consideration shall be given to conduct its own defense because it perceives a conflict the following factors: (a) the party performing the activity in question; (b) the location of interest, Owner shall pay its own costs the activity and expenses relating theretoincident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the Claim.
Appears in 1 contract
Samples: Capital Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.118.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Capital Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim claim or at any time thereafter, reasonably determines that: reasonably
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this Capital Maintenance Agreement, contemplates that Maintenance Contractor will have responsibility for certain claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such claims and liabilities. In such case, where either Party believes a claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealable resolution of the matter in question, whether by arbitration or by judicial proceedings, the Parties shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees and expenses relating thereto. other litigation and defense costs, in accordance with the indemnification arrangements of Section 15.9, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the third party claim.
15.9.9 In additiondetermining responsibilities and obligations for defending suits pursuant to this Section 15.9, if Owner elects specific consideration shall be given to conduct its own defense because it perceives a conflict the following factors: (a) the party performing the activity in question; (b) the location of interest, Owner shall pay its own costs the activity and expenses relating theretoincident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.
Appears in 1 contract
Samples: Capital Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 If Owner receives notice of or otherwise has actual knowledge of a Claim which it believes is within the scope of Contractor’s indemnification under Section 21.1, it shall by writing as soon as practicable: (a) inform Contractor of such Claim; (b) send to Contractor a copy of all written materials Owner has received asserting such Claim; and (c) notify Contractor that either: (i) the defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to conduct its own defense for a reason set forth in Section 21.2.5 below.
21.2.2 If the insurer under any applicable insurance policy accepts tender of defense, Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers under potentially applicable insurance policies, then Sections 21.2.3 through 21.2.7 below shall apply.
21.2.3 If the defense is tendered to Contractor, it shall within forty-five (45) days of said tender deliver to Owner a written notice stating that Contractor: (a) accepts the tender of defense and confirms that the Claim is subject to full indemnification hereunder without any “reservation of rights” to deny or disclaim full indemnification thereafter; (b) accepts the tender of defense but with a “reservation of rights” in whole or in part; or (c) rejects the tender of defense if it reasonably determines it is not required to indemnify against the Claim under Section 21.1. If such notice is not delivered within such forty-five (45) days, the tender of defense shall be deemed rejected.of
21.2.4 If Contractor gives notice under Sections 21.2.3(a) above, Contractor shall have the right to select legal counsel for the Owner Indemnitees, subject to reasonable approval of Owner, and Contractor shall otherwise control the defense of such Claim, including settlement, and bear the fees and costs of defending and settling such Claim. During such defense: (a) Contractor shall at Contractor’s expense, fully and regularly inform Owner of the progress of the defense and of any settlement discussions; and (b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, fully cooperate in said defense, provide to Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and maintain the confidentiality of all communications between it and Contractor concerning such defense to the extent allowed by Laws, Regulations and Ordinances.
21.2.5 Owner shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) the defense is tendered to Contractor and it refuses the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Owner, at the time it gives notice of the Claim or at any time thereafter, reasonably determines that: (i) a conflict exists between it and Contractor which prevents or potentially prevents Contractor from presenting a full and effective defense; or (ii) Contractor is otherwise not providing an effective defense in connection with the Claim and Contractor lacks the financial capability to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 If Owner is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of the proceeding.
21.2.7 If Owner is entitled to and elects to conduct its own defense, then it shall have the right to settle or compromise the Claim with Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the court, and with the full benefit of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.if
Appears in 1 contract
Samples: Design Build Contract
Defense and Indemnification Procedures. 21.2.1 15.9.1 If Owner any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a Claim which claim that it believes is within the scope of Contractor’s indemnification the indemnities under Section 21.115.1, it or otherwise herein where Maintenance Contractor is obligated to defend any of the Indemnified Parties, then TxDOT, on behalf of itself or any of the other Indemnified Parties, shall by writing as soon as practicablepracticable after receipt of the claim: (a) inform Maintenance Contractor of such Claim; the claim, (b) send to Maintenance Contractor a copy of all written materials Owner TXDOT has received asserting such Claim; claim and (c) notify Maintenance Contractor that either: (i) the should no insurer accept defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to the claim, the Indemnified Party will conduct its own defense for unless Maintenance Contractor accepts the tender of the claim in accordance with Section 15.9.3. As soon as practicable after Maintenance Contractor receives notice of a reason set forth claim or otherwise has actual knowledge of a claim, it shall tender the claim in Section 21.2.5 belowwriting to the insurers under all potentially applicable insurance policies. TxDOT and other Indemnified Parties also shall have the right to tender such claims to such insurers.
21.2.2 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers insurer under potentially applicable insurance policiespolicies provides defense, then Sections 21.2.3 through 21.2.7 below Section 15.9.3 shall apply.
21.2.3 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it shall within forty-five notify the Indemnified Party whether it has tendered the matter to an insurer and (45if not tendered to an insurer or if the insurer has rejected the tender) days of said tender shall deliver to Owner a written notice stating that Maintenance Contractor: :
(a) accepts Accepts the tender of defense and confirms that the Claim claim is subject to full indemnification hereunder without any “"reservation of rights” " to deny or disclaim full indemnification thereafter; ;
(b) accepts Accepts the tender of defense but with a “"reservation of rights” " in whole or in part; or or
(c) rejects Rejects the tender of defense if it reasonably determines based on a determination that it is not required to indemnify against the Claim claim under Section 21.1. the terms of this Comprehensive Maintenance Agreement.
15.9.4 If such notice is not delivered within such forty-five (45) days, Maintenance Contractor accepts the tender of defense shall be deemed rejected.
21.2.4 If Contractor gives notice under Sections 21.2.3(a) aboveSection 15.9.3(a), Maintenance Contractor shall have the right to select legal counsel for the Owner IndemniteesIndemnified Party, subject to reasonable approval of Ownerby the Indemnified Party, and Maintenance Contractor shall otherwise control the defense of such Claimclaim, including settlement, and bear the fees and costs of defending and settling such Claimclaim. During such defense: :
(a) Maintenance Contractor shall at Contractor’s expense, fully and regularly inform Owner the Indemnified Party of the progress of the defense and of any settlement discussions; and and
(b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, The Indemnified Party shall fully cooperate in said defense, provide to Maintenance Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and the Indemnified Party, and, except as may be required pursuant to the Public Information Act, maintain the confidentiality of all communications between it and Maintenance Contractor concerning such defense defense.
15.9.5 If Maintenance Contractor responds to the extent allowed by Lawstender of defense as specified in Section 15.9.3(b) or 15.9.3(c), Regulations and Ordinances.
21.2.5 Owner the Indemnified Party shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) claim, including settlement.
15.9.6 The Indemnified Party may assume its own defense by delivering to Maintenance Contractor written notice of such election and the defense is tendered to Contractor and it refuses reasons therefor, if the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) OwnerIndemnified Party, at the time it gives notice of the Claim claim or at any time thereafter, reasonably determines that: :
(ia) a A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a full and effective defense; or ;
(iib) Maintenance Contractor is otherwise not providing an effective defense in connection with the Claim and claim; or
(c) Maintenance Contractor lacks the financial capability capacity to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 15.9.7 If Owner the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim hereto of a claim for which it is entitled to indemnification hereunder (indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of expenses the proceeding.
21.2.7 If Owner Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then then:
(a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise the Claim claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense conducted under Section 15.9.3(b), it shall have the right to settle or compromise the claim with Maintenance Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the courtcourt or other dispute resolver following reasonable notice to Maintenance Contractor and opportunity to be heard and without prejudice to the Indemnified Party’s rights to be indemnified by Maintenance Contractor; and
(c) In the case of a defense conducted under Section 15.9.3(c), it shall have the right to settle or compromise the claim without Maintenance Contractor's prior written consent and without prejudice to its rights to be indemnified by Maintenance Contractor.
15.9.8 The Parties acknowledge that while Section 15.1, or otherwise pursuant to this Comprehensive Maintenance Agreement, contemplates that Maintenance Contractor will have responsibility for certain claims and liabilities arising out of its obligations to indemnify, circumstances may arise in which there may be shared liability of the Parties with respect to such claims and liabilities. In such case, where either Party believes a claim or liability may entail shared responsibility and that principles of comparative negligence and indemnity are applicable, it shall confer with the full benefit other Party on management of Contractor’s indemnitythe claim or liability in question. Notwithstanding If the foregoingParties cannot agree on an approach to representation in the matter in question, if Owner elects each shall arrange to conduct its own defense represent itself and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay bear its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.in connection therewith pending the outcome
Appears in 1 contract
Samples: Comprehensive Maintenance Agreement
Defense and Indemnification Procedures. 21.2.1 If Owner receives notice of or otherwise has actual knowledge of a Claim which it believes is within the scope of Contractor’s indemnification under Section 21.1, it shall by writing as soon as practicable: (a) inform Contractor of such Claim; (b) send to Contractor a copy of all written materials Owner has received asserting such Claim; and (c) notify Contractor that either: (i) the defense of such Claim is being tendered to Contractor; or (ii) Owner has elected to conduct its own defense for a reason set forth in Section 21.2.5 below.
21.2.2 If the insurer under any applicable insurance policy accepts tender of defense, Contractor and Owner shall cooperate in the defense as required by the insurance policy. If no defense is provided by insurers under potentially applicable insurance policies, then Sections 21.2.3 through 21.2.7 below shall apply.
21.2.3 If the defense is tendered to Contractor, it shall within forty-five (45) days of said tender deliver to Owner a written notice stating that Contractor: (a) accepts the tender of defense and confirms that the Claim is subject to full indemnification hereunder without any “reservation of rights” to deny or disclaim full indemnification thereafter; (b) accepts the tender of defense but with a “reservation of rights” in whole or in part; or (c) rejects the tender of defense if it reasonably determines it is not required to indemnify against the Claim under Section 21.1. If such notice is not delivered within such forty-five (45) days, the tender of defense shall be deemed rejected.any
21.2.4 If Contractor gives notice under Sections 21.2.3(a) above, Contractor shall have the right to select legal counsel for the Owner Indemnitees, subject to reasonable approval of Owner, and Contractor shall otherwise control the defense of such Claim, including settlement, and bear the fees and costs of defending and settling such Claim. During such defense: (a) Contractor shall at Contractor’s expense, fully and regularly inform Owner of the progress of the defense and of any settlement discussions; and (b) Owner shall, at Contractor’s expense for all of Owner’s reasonable out-of-pocket third party expenses, fully cooperate in said defense, provide to Contractor all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to Owner and maintain the confidentiality of all communications between it and Contractor concerning such defense to the extent allowed by Laws, Regulations and Ordinances.
21.2.5 Owner shall be entitled to select its own legal counsel and otherwise control the defense of such Claim if: (a) the defense is tendered to Contractor and it refuses the tender of defense, or fails to accept such tender within forty-five (45) days, or reserves any right to deny or disclaim such full indemnification thereafter; or (b) Owner, at the time it gives notice of the Claim or at any time thereafter, reasonably determines that: (i) a conflict exists between it and Contractor which prevents or potentially prevents Contractor from presenting a full and effective defense; or (ii) Contractor is otherwise not providing an effective defense in connection with the Claim and Contractor lacks the financial capability to satisfy potential liability or to provide an effective defense. Owner may assume its own defense pursuant to Section 21.2.5(b) above by delivering to Contractor written notice of such election and the reasons therefor. A refusal of, or failure to accept, a tender of defense may be treated by Owner as a Claim against Contractor subject to resolution pursuant to Article 28.
21.2.6 If Owner is entitled and elects to conduct its own defense pursuant hereto, all reasonable costs and expenses it incurs in investigating and defending and Claim for which it is entitled to indemnification hereunder (and any settlements or judgments resulting therefrom) shall be reimbursed by Contractor after completion of the proceeding.
21.2.7 If Owner is entitled to and elects to conduct its own defense, then it shall have the right to settle or compromise the Claim with Contractor’s prior written consent, which shall not be unreasonably withheld or delayed, or with approval of the court, and with the full benefit of Contractor’s indemnity. Notwithstanding the foregoing, if Owner elects to conduct its own defense and it is later determined that no indemnification obligation existed as to the particular Claim, Owner shall pay its own costs and expenses relating thereto. In addition, if Owner elects to conduct its own defense because it perceives a conflict of interest, Owner shall pay its own costs and expenses relating thereto.
Appears in 1 contract
Samples: Design Build Contract
