Common use of Indemnities of the Concessionaire Clause in Contracts

Indemnities of the Concessionaire. (a) The Concessionaire shall indemnify and hold harmless each State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee (except for such Losses to the extent caused by the negligence or willful misconduct of such State Indemnitee), due to Third Party Claims that are based upon, arise out of, relate to, are occasioned by or are attributable to (i) any failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement or, any breach by the Concessionaire of its representations or warranties set forth herein, (ii) any actual or alleged misconduct, negligence or other culpable act, error or omission of a Concessionaire Party in connection with the Project, (iii) any actual or alleged patent or copyright infringement or other actual or alleged improper appropriation or use of trade secrets, patents, proprietary information, know-how, trade marked or service marked materials, equipment, devices or processes, copyright rights or inventions by a Concessionaire Party in connection with the Project, (iv) inverse condemnation, trespass, nuisance or similar taking of or harm to real property committed or caused by a Concessionaire Party in connection with the Project, (v) any tax attributable to any Transfer of the Concessionaire’s Interest or any part thereof or (vi) any claim for brokerage commissions, fees or other-compensation by any Person who acted on behalf of the Concessionaire, its Affiliates or their respective Representatives in connection with this Agreement, any Transfer of the Concessionaire’s Interest or any part thereof. (b) The indemnities of the Concessionaire shall survive the expiration or earlier termination of this Agreement and the other Project Agreements to which the Concessionaire is a party and shall continue for six years following the expiration or termination of this Agreement; provided, that such six-year limitation on survival shall not apply in the event of fraud or a material misrepresentation with respect to a particular covenant, agreement, representation or warranty, and, provided further, that additional indemnification agreements shall be as provided in any Design-Build Contract and any other Project Agreement. Notwithstanding the foregoing, the Concessionaire’s indemnification of any State Indemnitee shall be limited solely to its obligations under this Agreement and other Project Agreements to which the Concessionaire becomes a party. (c) (i) In the event that any Third-Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it shall as promptly as practicable notify the Concessionaire in writing of such Claim, and such notice shall include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure to give such prompt notice shall not constitute a waiver of any rights of the Department, except to the extent that the rights of the Concessionaire are actually and materially prejudiced thereby. If any Third- Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, shall constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Concessionaire are actually and materially prejudiced thereby.

Indemnities of the Concessionaire. (a) The Concessionaire shall indemnify indemnify, protect, defend and hold harmless each State Indemnitee from and against any Third Party Claims and Losses actually due to Third Party Claims, including attorneys’ fees, expert witness fees and court costs, suffered or incurred by such State Indemnitee (except for such Losses to the extent caused by the negligence or willful misconduct of such State Indemnitee), due to Third Party Claims that are based upon, arise out of, relate to, are occasioned by or are attributable to to: (ia) any Any failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement or, any breach by the Concessionaire of its representations or warranties set forth herein; (b) The failure or alleged failure by any Concessionaire Party to comply with the Governmental Approvals, any applicable Environmental Laws or other Laws; (iic) any Any actual or alleged misconduct, negligence or other culpable act, error or omission of a Concessionaire Party in connection with the Project; (d) Errors, inconsistencies, defects or deficiencies in the design or construction of the Project or of Utility Relocations; (iiie) any Any actual or alleged patent or copyright infringement or other actual or alleged improper appropriation or use by a Concessionaire Party of trade secrets, patents, proprietary information, know-how, trade marked or service marked materials, equipment, devices or processes, copyright rights or inventions by a Concessionaire Party in connection with the Project; (f) Any stop notices, liens and Claims filed in connection with the Work, and any other liability to Contractors, laborers and suppliers for failure to pay sums due for their work, services, materials, goods, equipment, machinery or supplies; (ivg) inverse Any dispute between the Concessionaire and a Utility Owner, or any Concessionaire Party’s performance of, or failure to perform, the obligations under any agreement with a Utility Owner; (i) Any Concessionaire Party’s breach of duty or obligation that the Department owes to a third party, including Governmental Authorities, under Law or under any agreement between the Department and a third party, where the Department has delegated performance of the duty or obligation to the Concessionaire pursuant to this Agreement, or (ii) the acts or omissions of any Concessionaire Party which render the Department unable to perform or abide by a duty or obligation that the Department owes to a third Person, including Governmental Authorities, under any agreement between the Department and a third Person, where the agreement is previously disclosed or known to the Concessionaire; (i) Any Concessionaire Party’s fraud, bad faith, arbitrary or capricious acts, willful misconduct, negligence or violation of Law or contract in connection with performance of real property acquisition services in connection with the Project; (j) Inverse condemnation, trespass, nuisance or similar taking of or harm to real property committed or caused by a Concessionaire Party in connection with the Project; (k) If applicable, any violation of any federal or state securities or similar law by any Concessionaire Party, or the Concessionaire's failure to comply with any requirement necessary to preserve the tax exempt status of interest paid on the PABs; (vl) any tax Any Tax attributable to any Transfer of the Concessionaire’s Interest or any part thereof or thereof; (vim) any claim Any Claim for brokerage commissions, fees or other-other compensation by any Person who acted on behalf of the Concessionaire, its Affiliates or their respective Representatives in connection with this Agreement, any Transfer of the Concessionaire’s Interest or any part thereof.; or (bn) The indemnities of the Concessionaire shall survive the expiration or earlier termination of this Agreement and the other Project Agreements to which the Concessionaire is a party and shall continue for six years following the expiration or termination of this Agreement; provided, that such six-year limitation on survival shall not apply in the event of fraud or a material misrepresentation with respect to a particular covenant, agreement, representation or warranty, and, provided further, that additional indemnification agreements shall be as provided in any Design-Build Contract and any other Project Agreement. Notwithstanding the foregoing, the Concessionaire’s indemnification of any State Indemnitee shall be limited solely to its obligations under this Agreement and other Project Agreements to which the Concessionaire becomes a party. (c) (i) In the event that any Third-Party Any Claim for which the liability arising from or based on a violation of Law by any Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it shall as promptly as practicable notify the Concessionaire in writing of such Claim, and such notice shall include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure to give such prompt notice shall not constitute a waiver of any rights of the Department, except to the extent that the rights of the Concessionaire are actually and materially prejudiced thereby. If any Third- Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, shall constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Concessionaire are actually and materially prejudiced therebyParty.

Indemnities of the Concessionaire. (a) The In addition to the Concessionaire’s indemnity obligations as set forth elsewhere in this Agreement, the Concessionaire shall indemnify will indemnify, defend, and hold harmless each a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee (except for such Losses to the extent such Losses are solely caused by the misconduct, negligence or willful misconduct other culpable act, error or omission of such a State Indemnitee), due to Third Third-Party Claims that are based upon, arise out of, relate to, are occasioned by or are attributable to : (ia) any actual or alleged failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement or a Project Agreement or, any actual or alleged breach by the Concessionaire of its representations or warranties set forth herein, herein or therein; (iib) any actual or alleged misconduct, negligence or other culpable act, error or omission of a Concessionaire Party in connection with the Project, ; (iiic) any actual or alleged patent or copyright infringement or other actual or alleged improper appropriation or use by a Concessionaire Party of trade secrets, patents, proprietary information, know-how, trade marked or service marked materials, equipment, devices or processes, copyright rights or inventions by a Concessionaire Party in connection with the Project, ; (ivd) any actual or alleged inverse condemnation, trespass, nuisance or similar taking of or harm to real property committed or caused by a Concessionaire Party in connection with the ProjectProject arising from any actual or alleged (i) failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement; (vii) breach by Concessionaire of its representations or warranties set forth in this Agreement or (iii) misconduct, negligence or other culpable act, error or omission of a Concessionaire Party; provided, however, that the Concessionaire will not be required to indemnify, defend or hold harmless a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee due to Third-Party Claims that are based upon any actual inverse condemnation arising from the establishment of the Project Right of Way as identified in the NEPA Documents; (e) any actual or alleged violation of any Federal or state securities or similar law by any Concessionaire Party, or the Concessionaire’s failure to comply with any requirement necessary to preserve the tax exempt status of interest paid on the PABs; (f) any actual or alleged Tax attributable to any Transfer of the Concessionaire’s Interest or any part thereof or thereof; or (vig) any actual or alleged claim for brokerage commissions, fees or other-other compensation by any Person who acted on behalf of the Concessionaire, its Affiliates or their EXECUTION VERSION – DECEMBER 5, 2011 respective Representatives in connection with this Agreement or a Project Agreement, any Transfer of the Concessionaire’s Interest or any part thereof. (b) The indemnities of the Concessionaire shall survive the expiration or earlier termination of this Agreement and the other Project Agreements to which the Concessionaire is a party and shall continue for six years following the expiration or termination of this Agreement; provided, that such six-year limitation on survival shall not apply in the event of fraud or a material misrepresentation with respect to a particular covenant, agreement, representation or warranty, and, provided further, that additional indemnification agreements shall be as provided in any Design-Build Contract and any other Project Agreement. Notwithstanding the foregoing, the Concessionaire’s indemnification of any State Indemnitee shall be limited solely to its obligations under this Agreement and other Project Agreements to which the Concessionaire becomes a party. (c) (i) In the event that any Third-Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it shall as promptly as practicable notify the Concessionaire in writing of such Claim, and such notice shall include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure to give such prompt notice shall not constitute a waiver of any rights of the Department, except to the extent that the rights of the Concessionaire are actually and materially prejudiced thereby. If any Third- Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, shall constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Concessionaire are actually and materially prejudiced thereby.

Indemnities of the Concessionaire. (a) The In addition to the Concessionaire’s indemnity obligations as set forth elsewhere in this Agreement, the Concessionaire shall indemnify will indemnify, defend, and hold harmless each a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee (except for such Losses to the extent such Losses are solely caused by the misconduct, negligence or willful misconduct other culpable act, error or omission of such a State Indemnitee), due to Third Third-Party Claims that are based upon, arise out of, relate to, are occasioned by or are attributable to : (ia) any actual or alleged failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement or a Project Agreement or, any actual or alleged breach by the Concessionaire of its representations or warranties set forth herein, herein or therein; (iib) any actual or alleged misconduct, negligence or other culpable act, error or omission of a Concessionaire Party in connection with the Project, ; (iiic) any actual or alleged patent or copyright infringement or other actual or alleged improper appropriation or use by a Concessionaire Party of trade secrets, patents, proprietary information, know-how, trade marked or service marked materials, equipment, devices or processes, copyright rights or inventions by a Concessionaire Party in connection with the Project, ; (ivd) any actual or alleged inverse condemnation, trespass, nuisance or similar taking of or harm to real property committed or caused by a Concessionaire Party in connection with the ProjectProject arising from any actual or alleged (i) failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement; (vii) breach by Concessionaire of its representations or warranties set forth in this Agreement or (iii) misconduct, negligence or other culpable act, error or omission of a Concessionaire Party; provided, however, that the Concessionaire will not be required to indemnify, defend or hold harmless a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee due to Third-Party Claims that are based upon any actual inverse condemnation arising from the establishment of the Project Right of Way as identified in the NEPA Documents; (e) any actual or alleged violation of any Federal or state securities or similar law by any Concessionaire Party, or the Concessionaire’s failure to comply with any requirement necessary to preserve the tax exempt status of interest paid on the PABs; (f) any actual or alleged Tax attributable to any Transfer of the Concessionaire’s Interest or any part thereof or thereof; or (vig) any actual or alleged claim for brokerage commissions, fees or other-other compensation by any Person who acted on behalf of the Concessionaire, its Affiliates or their respective Representatives in connection with this Agreement or a Project Agreement, any Transfer of the Concessionaire’s Interest or any part thereof. (b) The indemnities of the Concessionaire shall survive the expiration or earlier termination of this Agreement and the other Project Agreements to which the Concessionaire is a party and shall continue for six years following the expiration or termination of this Agreement; provided, that such six-year limitation on survival shall not apply in the event of fraud or a material misrepresentation with respect to a particular covenant, agreement, representation or warranty, and, provided further, that additional indemnification agreements shall be as provided in any Design-Build Contract and any other Project Agreement. Notwithstanding the foregoing, the Concessionaire’s indemnification of any State Indemnitee shall be limited solely to its obligations under this Agreement and other Project Agreements to which the Concessionaire becomes a party. (c) (i) In the event that any Third-Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it shall as promptly as practicable notify the Concessionaire in writing of such Claim, and such notice shall include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure to give such prompt notice shall not constitute a waiver of any rights of the Department, except to the extent that the rights of the Concessionaire are actually and materially prejudiced thereby. If any Third- Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, shall constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Concessionaire are actually and materially prejudiced thereby.

Indemnities of the Concessionaire. (a) The In addition to the Concessionaire’s indemnity obligations as set forth elsewhere in this Agreement, the Concessionaire shall indemnify will indemnify, defend, and hold harmless each a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee (except for such Losses to the extent such Losses are solely caused by the misconduct, negligence or willful misconduct other culpable act, error or omission of such a State Indemnitee), due to Third Third-Party Claims that are based upon, arise out of, relate to, are occasioned by or are attributable to : (ia) any actual or alleged failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement or a Project Agreement or, any actual or alleged breach by the Concessionaire of its representations or warranties set forth herein, in this Agreement or therein; 000 XXXXXX #00000000 x00 (iix) any actual or alleged misconduct, negligence or other culpable act, error or omission of a Concessionaire Party in connection with the Project, ; (iiic) any actual or alleged patent or copyright infringement or other actual or alleged improper appropriation or use by a Concessionaire Party of trade secrets, patents, proprietary information, know-how, trade marked or service marked materials, equipment, devices or processes, copyright rights or inventions by a Concessionaire Party in connection with the Project, ; (ivd) any actual or alleged inverse condemnation, trespass, nuisance or similar taking of or harm to real property committed or caused by a Concessionaire Party in connection with the ProjectProject arising from any actual or alleged (i) failure by the Concessionaire to comply with, observe or perform any of the covenants, obligations, agreements, terms or conditions in this Agreement; (vii) breach by Concessionaire of its representations or warranties set forth in this Agreement or (iii) misconduct, negligence or other culpable act, error or omission of a Concessionaire Party; provided, however, that the Concessionaire will not be required to indemnify, defend or hold harmless a State Indemnitee from and against any Losses actually suffered or incurred by such State Indemnitee due to Third-Party Claims that are based upon any actual inverse condemnation arising from the establishment of the Project Right of Way as identified in the NEPA Documents and any other real property or real property rights outside the Project Right of Way acquired pursuant to Section 8.05(b); (e) any actual or alleged violation of any Federal or state securities or similar law by any Concessionaire Party, or the Concessionaire’s failure to comply with any requirement necessary to preserve the tax exempt status of interest paid on the PABs; (f) any actual or alleged Tax attributable to any Transfer of the Concessionaire’s Interest or any part thereof or thereof; or (vig) any actual or alleged claim for brokerage commissions, fees or other-other compensation by any Person who acted on behalf of the Concessionaire, its Affiliates or their respective Representatives in connection with this Agreement or a Project Agreement, any Transfer of the Concessionaire’s Interest or any part thereof. (b) The indemnities of the Concessionaire shall survive the expiration or earlier termination of this Agreement and the other Project Agreements to which the Concessionaire is a party and shall continue for six years following the expiration or termination of this Agreement; provided, that such six-year limitation on survival shall not apply in the event of fraud or a material misrepresentation with respect to a particular covenant, agreement, representation or warranty, and, provided further, that additional indemnification agreements shall be as provided in any Design-Build Contract and any other Project Agreement. Notwithstanding the foregoing, the Concessionaire’s indemnification of any State Indemnitee shall be limited solely to its obligations under this Agreement and other Project Agreements to which the Concessionaire becomes a party. (c) (i) In the event that any Third-Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it shall as promptly as practicable notify the Concessionaire in writing of such Claim, and such notice shall include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure to give such prompt notice shall not constitute a waiver of any rights of the Department, except to the extent that the rights of the Concessionaire are actually and materially prejudiced thereby. If any Third- Party Claim for which the Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, shall constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Concessionaire are actually and materially prejudiced thereby.