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incident to this CONTRACT except claims arising from the concurrent or sole negligence of the <br />DEPARTMENT, its officers, agents and employees. <br />B. The GRANTEE shall indemnify, hold harmless, and defend the DEPARTMENT, its officers, <br />agents and employees against any and all claims, demands, damages, costs, expenses or liability <br />arising out of the acquisition, design, construction, operation, maintenance, existence or failure <br />of the PROJECT. <br />C. If the DEPARTMENT is named as a co-defendant pursuant to GRANTEE Code Sections 895, et <br />seq, the GRANTEE shall notify the DEPARTMENT and represent it unless the DEPARTMENT <br />elects to represent itself. If the DEPARTMENT undertakes its own defense, it shall bear its own <br />litigation costs, expenses and attorney's fees. <br />ARTICLE V - WAIVER OF RIGHTS <br />It is the intention of the parties hereto that from time to time either party may waive certain of its rights <br />under this CONTRACT. Any waiver at this time by either party hereto of its rights with respect to a <br />default or any other matter arising in connection with CONTRACT, shall not be deemed to be a waiver <br />with respect to any other default or matter. <br />ARTICLE VI - REMEDIES NOT EXCLUSIVE <br />The use by either the DEPARTMENT or the GRANTEE of any remedy specified in the CONTRACT for <br />the enforcement of the CONTRACT is not exclusive and shall not deprive the party using such remedy of, <br />or limit the application of, any other remedy provided by law. <br />ARTICLE VII - OPINIONS AND DETERMINATIONS <br />Where the terms of this CONTRACT provide for action to be based upon the opinion, judgment, approval, <br />review, or determination of either the DEPARTMENT or GRANTEE, such terms are not intended to be <br />and shall never be construed as permitting such opinion, judgment, approval, review, or determination to <br />be arbitrary, capricious, or unreasonable. <br />