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575-060-32
<br />RIGHT OF WAY
<br />OGC - 02/20
<br />Page 3 of 8
<br />h. The design, occupancy, and use of the real property interest shall not adversely affect the use, safety, appearance, or
<br />enjoyment of the highway by lights, sounds, wireless frequencies, smoke, fumes, vapors, odors, droppings, or any other objectionable
<br />discharges, or emissions, or nuisances of any kind therefrom.
<br />i. When, for the proposed use of the real property interest, the highway requires additional highway facilities for the proper
<br />operation and maintenance of the highway, such facilities shall be provided by the Lessee without cost to either the Department or the
<br />FHWA and subject to both Department and FHWA approval.
<br />j. The proposed use shall not cause or allow any changes in the existing drainage on the property under the real property
<br />interest.
<br />k. Lessee shall not occupy, use, permit, or suffer the real property interest, the property, the facility, or any part thereof to be
<br />occupied or used for any illegal business use or purpose, for the manufacture or storage of flammable, explosive, or hazardous
<br />material, or any other hazardous activity, or in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in
<br />violation of any present or future federal, state, or local laws, orders, directions, ordinances, or regulations.
<br />I. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terms may be
<br />defined under any state or federal laws or regulations, or as those terms are understood in common usage, are specifically prohibited.
<br />The use of petroleum products, pollutants, and other hazardous materials affecting the property is prohibited. Lessee shall be held
<br />responsible for the performance of and payment for any environmental remediation that may be necessary, as determined by the
<br />Department. Similarly, if any contamination either spread to or was released onto adjoining property as a result of Lessee's use of the
<br />real property interest under lease, the Lessee shall be held similarly responsible. The Lessee shall indemnify, defend, and hold
<br />harmless the Department from any claim, loss, damage, cost, charge, or expense arising out of any such contamination.
<br />m. Existing utilities and all corresponding easements shall remain in place and Lessee shall not disturb or interfere with the
<br />same
<br />5. Indemnification. (select applicable paragraph)
<br />® Lessee is a Governmental Agency
<br />To the extent provided by law, Lessee shall indemnify, defend, and hold harmless the Department and all of its officers,
<br />agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act
<br />by Lessee, its officers, agents, or employees, during the performance of the Agreement, except that neither Lessee, its agents, or its
<br />employees will be liable under this paragraph for any claim, loss, damage, cost, charge, or expense arising out of any act, error,
<br />omission, or negligent act by the Department or any of its officers, agents, or employees during the performance of the Agreement.
<br />When the Department receives a notice of claim for damages that may have been caused by Lessee in the performance of
<br />services required under this Agreement, the Department will immediately forward the claim to Lessee. Lessee and the Department will
<br />evaluate the claim and report their findings to each other within fourteen (14) working days and will jointly discuss options in defending
<br />the claim. After reviewing the claim, the Department will determine whether to require the participation of Lessee in the defense of the
<br />claim or to require that Lessee defend the Department in such claim as described in this section. The Department's failure to promptly
<br />notify Lessee of a claim shall not act as a waiver of any right herein to require the participation in or defense of the claim by Lessee.
<br />The Department and Lessee will each pay its own expenses for the evaluation, settlement negotiations, and trial, if any.
<br />❑ Lessee is not a Governmental Agency
<br />Lessee shall indemnify, defend, save, and hold harmless the Department, its agents, officers, and employees, from any
<br />losses, fines, penalties, costs, damages, claims, demands, suits, and liabilities of any nature, including attorney's fees (including
<br />regulatory and appellate fees), arising out of or because of any acts, action, neglect, or omission by Lessee, or due to any accident,
<br />happening, or occurrence on the leased property or arising in any manner from the exercise or attempted exercise of Lessee's rights
<br />hereunder whether the same regards person or property of any nature whatsoever, regardless of the apportionment of negligence,
<br />unless due to the sole negligence of the Department.
<br />Lessee's obligation to indemnify, defend, and pay for the defense or at the Department's option, to participate, and to
<br />associate with the Department in the defense and trial of any claim and any related settlement negotiations, shall be triggered by the
<br />Lessor's notice of claim for indemnification to Lessee. Lessee's inability to evaluate liability or its evaluation of liability shall not excuse
<br />Lessee's duty to defend and indemnify within seven days after such notice by the Department is given by registered mail. Only an
<br />adjudication or judgment after the highest appeal is exhausted specifically finding the Department solely negligent shall excuse
<br />performance of this provision by Lessee. Lessee shall pay all costs and fees related to this obligation and its enforcement by the
<br />Department. The Department's failure to notify Lessee of a claim shall not release Lessee of the above duty to defend.
<br />6. Insurance. Lessee at its expense, shall maintain at all times during the term of this Agreement, public liability insurance
<br />protecting the Department, FHWA, and Lessee against any and all claims for injury and damage to persons and property, and for the
<br />loss of life or property occurring in, on, or about the land arising out of the act, negligence, omission, nonfeasance, or malfeasance of
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