Common use of Defense and Indemnification Procedures Clause in Contracts

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon as is practicable inform the Developer in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer are actually and materially prejudiced thereby. (b) The Developer will be entitled and obligated to appoint counsel of its choice at the expense of the Developer to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the Developer’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌15.9.1 If any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a claim that it believes is within the scope of the indemnities under Section 18.1, 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 practicable after receipt of the claim: (a) inform Maintenance Contractor of the claim, (b) send to Maintenance Contractor a copy of all written materials TXDOT has received asserting such claim and (c) notify Maintenance Contractor that should no insurer accept defense of the claim, the Indemnified Party will conduct its own defense 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 claim or otherwise has actual knowledge of a claim, it shall tender the claim in writing 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. 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor shall cooperate in the defense as required by the insurance policy. If no insurer under potentially applicable insurance policies provides defense, then Section 15.9.3 shall apply. 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it 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 a written notice stating that Maintenance Contractor: (a) In Accepts the event tender of defense and confirms that the claim is subject to full indemnification hereunder without any Third-Party Claim for which "reservation of rights" to deny or disclaim full indemnification thereafter; (b) Accepts the Developer may be tender of defense but with a "reservation of rights" in whole or in part; or (c) Rejects the tender of defense based on a determination that it is not required to indemnify a State Indemnitee hereunder is asserted in writing against the Departmentclaim under the terms of this Capital Maintenance Agreement. 15.9.4 If Maintenance Contractor accepts the tender of defense under Section 15.9.3(a), it will as soon as is practicable Maintenance Contractor shall have the right to select legal counsel for the Indemnified Party, subject to reasonable approval by 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 fully and regularly inform the Developer in writing of such Claim, and such notice will include a copy Indemnified Party of the Claim progress of the defense and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer are actually and materially prejudiced thereby.settlement discussions; and (b) The Developer will 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 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. 15.9.5 If Maintenance Contractor responds to the tender of defense as specified in Section 15.9.3(b) or 15.9.3(c), the Indemnified Party shall be entitled to select its own legal counsel and obligated otherwise control the defense of such claim, including settlement. 15.9.6 The Indemnified Party may assume its own defense by delivering to appoint counsel Maintenance Contractor written notice of its choice such election and the reasons therefor, if the Indemnified Party, at the expense time it gives notice of the Developer to represent a State Indemnitee in claim or at any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); providedtime thereafter, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, ifreasonably determines that: (ia) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a conflict of interestfull and effective defense; (iib) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer Maintenance Contractor is otherwise not providing an effective defense in connection with the action.claim; or (c) The Developer will not be liable Maintenance Contractor lacks the financial capacity to satisfy potential liability or to provide an effective defense. 15.9.7 If the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto of a claim for any settlement which it is entitled to indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then: (a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise by an affected State Indemnitee of a Third Party Claim except the claim with the DeveloperMaintenance Contractor’s prior written consent, which consent will 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 except where the settlement or compromise is approved by with approval of the court after the Developer receives or other dispute resolver following reasonable notice to Maintenance Contractor and the 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 court approval has become final 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 other Party on management of the claim or liability in question. If the Parties cannot agree on an approach to representation in the matter in question, each shall arrange to represent itself and to bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealableappealable 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 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 determining responsibilities and obligations for defending suits pursuant to this Section 15.9, specific consideration shall be given to the following factors: (a) the party performing the activity in question; (b) the location of the activity and incident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.

Defense and Indemnification Procedures. ‌15.9.1 If any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a claim that it believes is within the scope of the indemnities under Section 18.1, 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 practicable after receipt of the claim: (a) inform Maintenance Contractor of the claim, (b) send to Maintenance Contractor a copy of all written materials TXDOT has received asserting such claim and (c) notify Maintenance Contractor that should no insurer accept defense of the claim, the Indemnified Party will conduct its own defense 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 claim or otherwise has actual knowledge of a claim, it shall tender the claim in writing 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. 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor shall cooperate in the defense as required by the insurance policy. If no insurer under potentially applicable insurance policies provides defense, 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it 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 a written notice stating that Maintenance Contractor: (a) In Accepts the event tender of defense and confirms that the claim is subject to full indemnification hereunder without any Third-Party Claim for which "reservation of rights" to deny or disclaim full indemnification thereafter; (b) Accepts the Developer may be tender of defense but with a "reservation of rights" in whole or in part; or (c) Rejects the tender of defense based on a determination that it is not required to indemnify a State Indemnitee hereunder is asserted in writing against the Departmentclaim under the terms of this Capital Maintenance Agreement. 15.9.4 If Maintenance Contractor accepts the tender of defense under Section 15.9.3(a), it will as soon as is practicable Maintenance Contractor shall have the right to select legal counsel for the Indemnified Party, subject to reasonable approval by 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 fully and regularly inform the Developer in writing of such Claim, and such notice will include a copy Indemnified Party of the Claim progress of the defense and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer are actually and materially prejudiced thereby.settlement discussions; and (b) The Developer will 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 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. 15.9.5 If Maintenance Contractor responds to the tender of defense as specified in Section 15.9.3(b) or 15.9.3(c), the Indemnified Party shall be entitled to select its own legal counsel and obligated otherwise control the defense of such claim, including settlement. 15.9.6 The Indemnified Party may assume its own defense by delivering to appoint counsel Maintenance Contractor written notice of its choice such election and the reasons therefor, if the Indemnified Party, at the expense time it gives notice of the Developer to represent a State Indemnitee in claim or at any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); providedtime thereafter, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, ifreasonably determines that: (ia) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a conflict of interestfull and effective defense; (iib) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer Maintenance Contractor is otherwise not providing an effective defense in connection with the action.claim; or (c) The Developer will not be liable Maintenance Contractor lacks the financial capacity to satisfy potential liability or to provide an effective defense. 15.9.7 If the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto of a claim for any settlement which it is entitled to indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then: (a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise by an affected State Indemnitee of a Third Party Claim except the claim with the DeveloperMaintenance Contractor’s prior written consent, which consent will 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 except where the settlement or compromise is approved by with approval of the court after the Developer receives or other dispute resolver following reasonable notice to Maintenance Contractor and the 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 court approval has become final 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 other Party on management of the claim or liability in question. If the Parties cannot agree on an approach to representation in the matter in question, each shall arrange to represent itself and to bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealableappealable 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 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 determining responsibilities and obligations for defending suits pursuant to this Section 15.9, specific consideration shall be given to the following factors: (a) the party performing the activity in question; (b) the location of the activity and incident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.

Defense and Indemnification Procedures. ‌ (a) 13.3.1 In the event that either Party becomes aware of any Third-Party Claim for which a Party (the Developer “Indemnifying Party”) may be required to indemnify a State an Indemnitee hereunder is asserted in writing against the Departmenthereunder, it will as soon promptly as is practicable inform notify the Developer other Party in writing of such Claim, and such notice will include a copy of the Claim (if available) and any related correspondence or documentation from the third party asserting the Claimdocumentation; provided, that if the Party required to give notice is the Indemnitee, any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Indemnitee, except to the extent that the rights of the Developer Indemnifying Party are actually and materially prejudiced thereby. If any Third-Third Party Claim for which the Developer Contractor 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 Developer Concessionaire prompt notice in writing of such Claim Claim, together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will 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 Developer Contractor are actually and materially prejudiced thereby. (b) 13.3.2 The Developer Indemnifying Party will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Indemnifying Party to represent a State an Indemnitee in any action for which indemnification is sought (in which case the Developer Indemnifying Party will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch Indemnitee. Notwithstanding the DeveloperIndemnifying Party’s appointment of counsel to represent a State an Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Indemnifying Party will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Indemnifying Party to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Indemnifying Party and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or or other State Indemnitees which are different from or additional to those available to the DeveloperIndemnifying Party, and the Indemnifying Party has not provided the Indemnitee with its own separate counsel satisfactory to such Indemnitee; (iii) the Developer Indemnifying Party will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Indemnifying Party authorizes the State Indemnitee to employ separate counsel at the DeveloperIndemnifying Party’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) 13.3.3 The Developer Indemnifying Party will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperIndemnifying Party’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Indemnifying Party receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌15.9.1 If any of the Indemnified Parties receives notice of a claim or otherwise has actual knowledge of a claim that it believes is within the scope of the indemnities under Section 15.1, 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 practicable after receipt of the claim: (a) inform Maintenance Contractor of the claim, (b) send to Maintenance Contractor a copy of all written materials TXDOT has received asserting such claim and (c) notify Maintenance Contractor that should no insurer accept defense of the claim, the Indemnified Party will conduct its own defense 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 claim or otherwise has actual knowledge of a claim, it shall tender the claim in writing 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. 15.9.2 If the insurer under any applicable insurance policy accepts the tender of defense, TXDOT and Maintenance Contractor shall cooperate in the defense as required by the insurance policy. If no insurer under potentially applicable insurance policies provides defense, then Section 15.9.3 shall apply. 15.9.3 If the defense is tendered to Maintenance Contractor, then within 30 days after receipt of the tender it 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 a written notice stating that Maintenance Contractor: (a) In Accepts the event tender of defense and confirms that the claim is subject to full indemnification hereunder without any Third-Party Claim for which "reservation of rights" to deny or disclaim full indemnification thereafter; (b) Accepts the Developer may be tender of defense but with a "reservation of rights" in whole or in part; or (c) Rejects the tender of defense based on a determination that it is not required to indemnify a State Indemnitee hereunder is asserted in writing against the Departmentclaim under the terms of this Comprehensive Maintenance Agreement. 15.9.4 If Maintenance Contractor accepts the tender of defense under Section 15.9.3(a), it will as soon as is practicable Maintenance Contractor shall have the right to select legal counsel for the Indemnified Party, subject to reasonable approval by 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 fully and regularly inform the Developer in writing of such Claim, and such notice will include a copy Indemnified Party of the Claim progress of the defense and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer are actually and materially prejudiced thereby.settlement discussions; and (b) The Developer will 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 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. 15.9.5 If Maintenance Contractor responds to the tender of defense as specified in Section 15.9.3(b) or 15.9.3(c), the Indemnified Party shall be entitled to select its own legal counsel and obligated otherwise control the defense of such claim, including settlement. 15.9.6 The Indemnified Party may assume its own defense by delivering to appoint counsel Maintenance Contractor written notice of its choice such election and the reasons therefor, if the Indemnified Party, at the expense time it gives notice of the Developer to represent a State Indemnitee in claim or at any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); providedtime thereafter, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, ifreasonably determines that: (ia) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with A conflict exists between it and Maintenance Contractor which prevents or potentially prevents Maintenance Contractor from presenting a conflict of interestfull and effective defense; (iib) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer Maintenance Contractor is otherwise not providing an effective defense in connection with the action.claim; or (c) The Developer will not be liable Maintenance Contractor lacks the financial capacity to satisfy potential liability or to provide an effective defense. 15.9.7 If the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto of a claim for any settlement which it is entitled to indemnification, Maintenance Contractor shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending. In the event the Indemnified Party is entitled to and elects to conduct its own defense, then: (a) In the case of a defense conducted under Section 15.9.3(a), it shall have the right to settle or compromise by an affected State Indemnitee of a Third Party Claim except the claim with the DeveloperMaintenance Contractor’s prior written consent, which consent will 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 except where the settlement or compromise is approved by with approval of the court after the Developer receives or other dispute resolver following reasonable notice to Maintenance Contractor and the 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 court approval has become final 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 other Party on management of the claim or liability in question. If the Parties cannot agree on an approach to representation in the matter in question, each shall arrange to represent itself and to bear its own costs in connection therewith pending the outcome of such matter. Within 30 days subsequent to the final, non-appealableappealable 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 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 determining responsibilities and obligations for defending suits pursuant to this Section 15.9, specific consideration shall be given to the following factors: (a) the party performing the activity in question; (b) the location of the activity and incident; (c) contractual arrangements then governing the performance of the activity; and (d) allegations of respective fault contained in the claim.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon as is practicable inform the Developer in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced therebyDepartment. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer are actually and materially prejudiced thereby. (b) The Developer will be entitled and obligated to appoint counsel of its choice at the expense of the Developer to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the Developer’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will 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 Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the EXECUTION VERSION – DECEMBER 5, 2011 settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that either Party becomes aware of any Third-Party Claim for which a Party (the Developer “Indemnifying Party”) may be required to indemnify a State an Indemnitee hereunder is asserted in writing against the Departmenthereunder, it will as soon promptly as is practicable inform notify the Developer other Party in writing of such Claim, and such notice will include a copy of the Claim (if available) and any related correspondence or documentation from the third party asserting the Claimdocumentation; provided, that if the Party required to give notice is the Indemnitee, any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Indemnitee, except to the extent that the rights of the Developer Indemnifying Party are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer DB Contractor 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 Developer Concessionaire prompt notice in writing of such Claim Claim, together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will 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 Developer DB Contractor are actually and materially prejudiced thereby. (b) The Developer Indemnifying Party will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Indemnifying Party to represent a State an Indemnitee in any action for which indemnification is sought (in which case the Developer Indemnifying Party will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State an Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Indemnifying Party will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Indemnifying Party to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Indemnifying Party and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperIndemnifying Party; (iii) the Developer Indemnifying Party will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Indemnifying Party authorizes the State Indemnitee to employ separate counsel at the DeveloperIndemnifying Party’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Indemnifying Party will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperIndemnifying Party’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Indemnifying Party receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer 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 Developer 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, will constitute a waiver of any rights of such State Indemnitee to 126 DMEAST #27287336 v26 indemnification to the extent, and only to the extent, that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.