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Tools & Programs: SEP-15

Texas Toll Roads Statewide Open-Road Toll Collection System Project (TX Toll Collection System)

Comprehensive Development Agreement TxDot Statewide Open-Road Toll Collection System

SECTION 18. INDEMNIFICATION

18.1 Indemnifications by Developer

18.1.1 SUBJECT TO SECTION 18.1.3, DEVELOPER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS TXDOT, THE MEMBERS OF THE COMMISSION, FHWA, THE PROJECT MANAGEMENT CONSULTANT AND THEIR SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO AS THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, SUITS, JUDGMENTS, INVESTIGATIONS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, COSTS, PENALTIES, FINES, DAMAGES, LOSSES, LIABILITIES AND RESPONSE COSTS, INCLUDING ANY INJURY TO OR DEATH OF PERSONS OR DAMAGE TO OR LOSS OF PROPERTY, AND INCLUDING PENALTIES, FINES, ATTORNEYS', ACCOUNTANTS' AND EXPERT WITNESS FEES AND COSTS INCURRED IN CONNECTION WITH THE ENFORCEMENT OF THIS INDEMNITY, ARISING OUT OF, RELATING TO OR RESULTING FROM:

(a) THE BREACH OR ALLEGED BREACH OF THIS AGREEMENT BY ANY DEVELOPER-RELATED ENTITY; AND/OR

(b) THE FAILURE OR ALLEGED FAILURE BY ANY DEVELOPERRELATED ENTITY TO COMPLY WITH THE GOVERNMENTAL APPROVALS, ANY APPLICABLE ENVIRONMENTAL LAWS OR OTHER GOVERNMENTAL RULES (INCLUDING GOVERNMENTAL RULES REGARDING HAZARDOUS MATERIALS MANAGEMENT); AND/OR

(c) ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR OTHER ALLEGEDLY IMPROPER APPROPRIATION OR USE OF TRADE SECRETS, PATENTS, PROPRIETARY INFORMATION, KNOW-HOW, COPYRIGHT RIGHTS OR INVENTIONS IN PERFORMANCE OF THE WORK AND/OR THE SYSTEM, OR ARISING OUT OF ANY USE IN CONNECTION WITH THE PROJECT AND/OR THE SYSTEM OF METHODS, PROCESSES, SOFTWARE, DESIGNS, INFORMATION, OR OTHER ITEMS FURNISHED OR COMMUNICATED TO TXDOT OR ANOTHER INDEMNIFIED PARTY PURSUANT TO THIS AGREEMENT; PROVIDED THAT THIS INDEMNITY SHALL NOT APPLY TO ANY INFRINGEMENT RESULTING FROM TXDOT'S FAILURE TO COMPLY WITH SPECIFIC WRITTEN INSTRUCTIONS REGARDING USE PROVIDED TO TXDOT BY DEVELOPER; AND/OR

(d) THE ACTUAL OR ALLEGED ACT, ERROR, OMISSION OR MISCONDUCT OF ANY DEVELOPER-RELATED ENTITY IN OR ASSOCIATED WITH PERFORMANCE OF THE WORK; AND/OR

(e) ANY AND ALL CLAIMS BY ANY GOVERNMENTAL OR TAXING AUTHORITY CLAIMING TAXES BASED ON GROSS RECEIPTS, PURCHASES OR SALES, THE USE OF ANY PROPERTY OR INCOME OF ANY DEVELOPER-RELATED

ENTITY WITH RESPECT TO ANY PAYMENT FOR THE WORK MADE TO OR EARNED BY ANY DEVELOPER-RELATED ENTITY; AND/OR

(f) ANY AND ALL STOP NOTICES AND/OR LIENS FILED IN CONNECTION WITH THE WORK, INCLUDING ALL EXPENSES AND ATTORNEYS', ACCOUNTANTS' AND EXPERT WITNESS FEES AND COSTS INCURRED IN DISCHARGING ANY STOP NOTICE OR LIEN, PROVIDED THAT TXDOT IS NOT IN DEFAULT IN PAYMENTS OWING TO DEVELOPER WITH RESPECT TO SUCH WORK; AND/OR

(g) ANY SPILL OR RELEASE OR THREATENED SPILL OR RELEASE OF A HAZARDOUS MATERIAL (I) WHICH WAS BROUGHT ONTO ANY PROJECT SITE BY ANY DEVELOPER-RELATED ENTITY, OR (II) ATTRIBUTABLE TO THE ACTS, OMISSIONS, NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONTRACT OR GOVERNMENTAL RULES BY ANY DEVELOPER-RELATED ENTITY; AND/OR

(h) THE CLAIM OR ASSERTION BY ANY CONTRACTOR OF INCONVENIENCE, DISRUPTION, DELAY OR LOSS CAUSED BY INTERFERENCE BY ANY DEVELOPER-RELATED ENTITY WITH OR HINDERING THE PROGRESS OR COMPLETION OF WORK BEING PERFORMED BY OTHER CONTRACTORS OR DEVELOPERS AS DESCRIBED IN SECTION 23.1, OR FAILURE OF ANY DEVELOPERRELATED ENTITY TO COOPERATE REASONABLY WITH OTHER CONTRACTORS AND DEVELOPERS IN ACCORDANCE THEREWITH;

(i) INVERSE CONDEMNATION, TRESPASS, NUISANCE OR SIMILAR TAKING OF OR HARM TO REAL PROPERTY BY REASON OF (i) THE FAILURE OF ANY DEVELOPER-RELATED ENTITY TO COMPLY WITH REQUIREMENTS OF THE CONTRACT DOCUMENTS OR GOVERNMENTAL APPROVALS RESPECTING CONTROL AND MITIGATION OF CONSTRUCTION ACTIVITIES AND CONSTRUCTION IMPACTS, (ii) THE INTENTIONAL MISCONDUCT OR NEGLIGENCE OF ANY DEVELOPER-RELATED ENTITY, OR (iii) THE ACTUAL PHYSICAL ENTRY ONTO OR ENCROACHMENT UPON ANOTHER'S PROPERTY BY ANY DEVELOPER-RELATED ENTITY.

18.1.2 SUBJECT TO SECTIONS 13.8 AND 18.1.3, DEVELOPER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, SUITS, JUDGMENTS, INVESTIGATIONS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, COSTS, PENALTIES, FINES, DAMAGES, LOSSES, LIABILITIES AND RESPONSE COSTS, INCLUDING ANY INJURY TO OR DEATH OF PERSONS OR DAMAGE TO OR LOSS OF PROPERTY, AND INCLUDING PENALTIES, FINES, ATTORNEYS', ACCOUNTANTS' AND EXPERT WITNESS FEES AND COSTS, ARISING OUT OF, RELATING TO OR RESULTING FROM ERRORS, OMISSIONS, INCONSISTENCIES OR OTHER DEFECTS IN THE PROJECT AND/OR SYSTEM DESIGN, INSTALLATION, INTEGRATION OR CONSTRUCTION, REGARDLESS OF WHETHER SUCH ERRORS, OMISSIONS, INCONSISTENCIES OR DEFECTS WERE ALSO INCLUDED IN ANY SCHEMATIC DESIGN OR REFERENCE DOCUMENTS.

18.1.3 Subject to the releases and disclaimers herein, Developer's indemnity obligation shall not extend to any Loss, damage or cost to the extent that such loss, damage or cost was caused by:

(a) the negligence, reckless or willful misconduct, bad faith or fraud of such Indemnified Party, or

(b) TxDOT's material breach of any of its obligations under the Contract Documents.

18.1.4 In claims by an employee of Developer, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section 18.1 shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for Developer or a Subcontractor under workers' compensation, disability benefit or other employee benefits laws.

18.1.5 Developer hereby acknowledges and agrees that it is Developer's obligation to cause the Project to be designed and to construct the Project in accordance with the Contract Documents and that the Indemnified Parties are fully entitled to rely on Developer's performance of such obligation. Developer further agrees that any certificate, review and/or approval by TxDOT and/or others hereunder shall not relieve Developer of any of its obligations under the Contract Documents or in any way diminish its liability for performance of such obligations or its obligations under this Section 18.

18.2 Indemnification by TxDOT

It is recognized that TxDOT may assert that certain third persons or parties may rightfully bear the ultimate legal responsibility for any and all Hazardous Materials which may currently be present on the Project Site. It is further recognized that certain state and federal statutes provide that individuals and firms may be held liable for damages and claims related to Hazardous Materials under such doctrines as joint and several liability and/or strict liability. It is not the intention of the parties that Developer be exposed to any such liability arising out of (a) proper Hazardous Materials Management activities in connection with pre-existing Project Site contamination, whether known or unknown (except as otherwise provided in Section 18.1.1(g)), and/or (b) the activities of any Persons other than any Developer-Related Entity. Accordingly, TxDOT shall, to the extent permitted by applicable law, indemnify, defend and hold Developer harmless from, any and all Third Party Claims, damages, losses, liabilities and costs, including penalties, fines, attorneys', accountants' and expert witness fees and costs, arising out of, or in connection with, bodily injury (including death) to persons, damage to property, or environmental removal or response costs arising out of the items expressly described in clauses (a) and (b) above, but specifically excluding those conditions for which Developer has agreed to be responsible as described in Section 18.1.1(g).

18.3 No Effect on Other Rights

The foregoing obligations shall not be construed to negate, abridge, or reduce other rights or obligations which would otherwise exist in favor of a party indemnified hereunder.

18.4 CERCLA Agreement

The indemnities set forth in Sections 18.1.1(g) and 18.2 are intended to operate as agreements pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9607(e), and Health and Safety Code section 25364, to insure, protect, hold harmless and indemnify the Indemnified Parties.

18.5 Intent of Indemnity for Breach of Agreement

The requirement to provide an indemnity for breach of contract set forth in Section 18.1.1(a) and (g) is intended to provide protection to TxDOT with respect to Third Party Claims associated with such breach. It is not intended to provide TxDOT with an alternative cause of action for damages incurred directly by TxDOT with respect to such breach.

18.6 No Relief from Responsibility

No rights of TxDOT described in Section 18.1.1 above, no exercise or failure to exercise such rights, and no certificates or statements by TxDOT regarding completion or acceptance, shall:

(a) relieve Developer of its responsibility for the selection and the competent performance of all Developer-Related Entities;

(b) relieve Developer of any of its obligations or liabilities under the Contract Documents;

(c) be deemed or construed to waive any of TxDOT's rights and remedies under the Contract Documents, applicable law or in equity; or

(d) be deemed or construed as any kind of representation or warranty, express or implied, by TxDOT.

18.7 Right to Rely

Notwithstanding the provisions of Section 18.6, (a) Developer shall be entitled to rely on specific written Deviations TxDOT gives under this Agreement, (b) TxDOT is not relieved from any liability arising out of a material misrepresentation under any written statement TxDOT knowingly and intentionally delivers, and (c) TxDOT is not relieved from its obligations under the Contract Documents.

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