Content Headings

Key Issues

Example clauses

Notes and References

The Authority's indemnities to the Concessionaire

The Authority will, indemnify, defend and hold harmless the Concessionaire against any and all proceedings, actions, third party claims for loss, damage and expense of whatever kind and nature arising out of breach by the Authority, its officers, servants and agents of any obligations of the Authority under this Agreement except to the extent that any such claim has arisen due to breach by the Concessionaire of any of its obligations under this Agreement. 

Example clause adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.

The Authority liability for the Authority or the Authority Party acts or omissions (or limits on Concessionaire liability to the extent that the relevant category of acts or omissions were caused by the Authority or an Authority Party) does not extend to acts and omissions of patients and visitors. Concessionaire should price, and run its business, on the basis that patients and visitors will use the Facilities. These provisions should be reviewed on a project specific basis if the risk profile is unusual due to the nature of particular categories of users (such as mental health patients) although this should not be used as a reason to reduce the level of risk transfer in the design of the facilities. Concessionaire's design and choice of materials, etc. should reflect the intended use and occupation of the building.

The Authority's indemnities relating to physical damage in paragraphs (c) and (d) do not cover physical damage caused by negligent acts or omissions. Concessionaire should insure against that risk. The Authority should not act as an insurer of last resort in those circumstances.