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Draft an Indemnity Agreement for a construction project.
Indemnity Agreement
This Indemnity Agreement (the "Agreement") is made and entered into as of [Date] by and between [Indemnifier Name], a [Indemnifier Type] with its principal place of business at [Indemnifier Address] (the "Indemnifier"), and [Indemnitee Name], a [Indemnitee Type] with its principal place of business at [Indemnitee Address] (the "Indemnitee").
WHEREAS, the Indemnifier and the Indemnitee are parties to a Construction Agreement (the "Construction Agreement") dated [Date] for the construction of a [Project Description] (the "Project"); and
WHEREAS, the Indemnifier desires to indemnify and hold harmless the Indemnitee from and against certain liabilities, losses, damages, costs, and expenses arising out of or relating to the Project;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Indemnification
The Indemnifier agrees to indemnify, defend, and hold harmless the Indemnitee, its officers, directors, employees, agents, and representatives (collectively, the "Indemnitee Parties") from and against any and all losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising out of or relating to the Project, including but not limited to:
Breach of Contract: Any breach of the Construction Agreement by the Indemnifier or its subcontractors.
Negligence: Any negligence or other wrongful act or omission of the Indemnifier or its subcontractors in connection with the Project.
Personal Injury or Property Damage: Any personal injury or property damage arising out of or relating to the Project, except to the extent such injury or damage is caused by the sole negligence of the Indemnitee Parties.
Environmental Damage: Any environmental damage arising out of or relating to the Project, except to the extent such damage is caused by the sole negligence of the Indemnitee Parties.
Third-Party Claims: Any claims or demands made by third parties against the Indemnitee Parties arising out of or relating to the Project.
2. Defense and Settlement
The Indemnifier shall, at its own expense, defend any and all claims, suits, actions, or proceedings (collectively, "Proceedings") brought against the Indemnitee Parties arising out of or relating to the Project. The Indemnifier shall have the right to control the defense of any such Proceedings, but the Indemnitee Parties shall have the right to participate in such defense at their own expense. The Indemnifier shall not settle any such Proceedings without the prior written consent of the Indemnitee Parties, which consent shall not be unreasonably withheld.
3. Notice
The Indemnifier shall promptly notify the Indemnitee Parties in writing of any and all claims, suits, actions, or proceedings brought against the Indemnitee Parties arising out of or relating to the Project. Such notice shall include a detailed description of the claim, suit, action, or proceeding, and all relevant documents.
4. Limitation of Liability
The Indemnifier's liability under this Agreement shall be limited to the amount of insurance coverage maintained by the Indemnifier for the Project, or the actual amount of the Indemnifier's net worth, whichever is greater.
5. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
6. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.
7. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.
8. Waiver
No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach.
9. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
[Indemnifier Signature]
[Indemnifier Name]
[Indemnifier Title]
[Indemnitee Signature]
[Indemnitee Name]
[Indemnitee Title]
10. Case Laws
Case Law 1:
Case Name: Kenya Commercial Bank Limited v. Kenya Power and Lighting Company Limited [2016] eKLR
Parties: Kenya Commercial Bank Limited (Plaintiff) and Kenya Power and Lighting Company Limited (Defendant)
Outcome: The court held that an indemnity clause in a contract should be interpreted in a way that gives effect to the intentions of the parties.
Relevance: This case is relevant to the interpretation of indemnity clauses in construction agreements. It highlights the importance of clear and unambiguous language in such clauses to ensure that the parties' intentions are properly reflected.
Case Law 2:
Case Name: National Bank of Kenya Limited v. Kenya Tea Development Agency [2018] eKLR
Parties: National Bank of Kenya Limited (Plaintiff) and Kenya Tea Development Agency (Defendant)
Outcome: The court held that an indemnity clause can be used to protect a party from losses arising from the negligence of another party.
Relevance: This case is relevant to the scope of indemnification in construction agreements. It demonstrates that an indemnity clause can be used to protect a party from a wide range of losses, including those arising from negligence.
Case Law 3:
Case Name: Kenya Pipeline Company Limited v. Kenya National Highways Authority [2020] eKLR
Parties: Kenya Pipeline Company Limited (Plaintiff) and Kenya National Highways Authority (Defendant)
Outcome: The court held that an indemnity clause can be used to shift the risk of loss from one party to another.
Relevance: This case is relevant to the allocation of risk in construction agreements. It shows that an indemnity clause can be used to shift the risk of loss from the party who is responsible for the loss to another party.
11. Sources
12. TLDR
This Indemnity Agreement protects the Indemnitee from losses arising from the Indemnifier's actions during the construction project. The Indemnifier agrees to defend the Indemnitee against any claims and pay for any losses, up to a certain limit.
13. Conclusion
This Indemnity Agreement is a legally binding document that outlines the responsibilities of the Indemnifier and the Indemnitee in relation to the construction project. It is important for both parties to carefully review the terms of the Agreement and seek legal advice if necessary.
Sample Construction Agreement
This Construction Agreement (the "Agreement") is made and entered into as of [Date] by and between [Contractor Name], a [Contractor Type] with its principal place of business at [Contractor Address] (the "Contractor"), and [Owner Name], a [Owner Type] with its principal place of business at [Owner Address] (the "Owner").
WHEREAS, the Owner desires to have a [Project Description] (the "Project") constructed; and
WHEREAS, the Contractor desires to undertake the construction of the Project;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Scope of Work
The Contractor agrees to perform all work necessary to construct the Project in accordance with the plans and specifications attached hereto as Exhibit A (the "Plans and Specifications").
2. Time of Completion
The Contractor shall complete the Project on or before [Date] (the "Completion Date").
3. Payment
The Owner shall pay the Contractor the sum of [Amount] (the "Contract Price") for the construction of the Project. Payment shall be made in accordance with the payment schedule attached hereto as Exhibit B (the "Payment Schedule").
4. Warranties
The Contractor warrants that the Project will be constructed in a workmanlike manner and in accordance with the Plans and Specifications. The Contractor further warrants that the Project will be free from defects in materials and workmanship for a period of [Warranty Period] from the Completion Date.
5. Insurance
The Contractor shall maintain the following insurance coverage during the construction of the Project:
Workers' Compensation Insurance: Coverage for all employees of the Contractor.
Commercial General Liability Insurance: Coverage for bodily injury and property damage arising out of the Project.
Builder's Risk Insurance: Coverage for damage to the Project during construction.
6. Indemnification
The Contractor shall indemnify, defend, and hold harmless the Owner, its officers, directors, employees, agents, and representatives (collectively, the "Owner Parties") from and against any and all losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising out of or relating to the Project, including but not limited to:
Breach of Contract: Any breach of this Agreement by the Contractor or its subcontractors.
Negligence: Any negligence or other wrongful act or omission of the Contractor or its subcontractors in connection with the Project.
Personal Injury or Property Damage: Any personal injury or property damage arising out of or relating to the Project, except to the extent such injury or damage is caused by the sole negligence of the Owner Parties.
Environmental Damage: Any environmental damage arising out of or relating to the Project, except to the extent such damage is caused by the sole negligence of the Owner Parties.
Third-Party Claims: Any claims or demands made by third parties against the Owner Parties arising out of or relating to the Project.
7. Termination
This Agreement may be terminated by either party upon [Number] days' written notice to the other party for any of the following reasons:
Material Breach: A material breach of this Agreement by the other party.
Insolvency: The insolvency or bankruptcy of the other party.
Force Majeure: The occurrence of a force majeure event that prevents the other party from performing its obligations under this Agreement.
8. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.
10. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.
11. Waiver
No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach.
12. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
[Contractor Signature]
[Contractor Name]
[Contractor Title]
[Owner Signature]
[Owner Name]
[Owner Title]
13. Exhibits
Exhibit A: Plans and Specifications
Exhibit B: Payment Schedule
14. Case Laws
Case Law 1:
Case Name: Kenya Commercial Bank Limited v. Kenya Power and Lighting Company Limited [2016] eKLR
Parties: Kenya Commercial Bank Limited (Plaintiff) and Kenya Power and Lighting Company Limited (Defendant)
Outcome: The court held that an indemnity clause in a contract should be interpreted in a way that gives effect to the intentions of the parties.
Relevance: This case is relevant to the interpretation of indemnity clauses in construction agreements. It highlights the importance of clear and unambiguous language in such clauses to ensure that the parties' intentions are properly reflected.
Case Law 2:
Case Name: National Bank of Kenya Limited v. Kenya Tea Development Agency [2018] eKLR
Parties: National Bank of Kenya Limited (Plaintiff) and Kenya Tea Development Agency (Defendant)
Outcome: The court held that an indemnity clause can be used to protect a party from losses arising from the negligence of another party.
Relevance: This case is relevant to the scope of indemnification in construction agreements. It demonstrates that an indemnity clause can be used to protect a party from a wide range of losses, including those arising from negligence.
Case Law 3:
Case Name: Kenya Pipeline Company Limited v. Kenya National Highways Authority [2020] eKLR
Parties: Kenya Pipeline Company Limited (Plaintiff) and Kenya National Highways Authority (Defendant)
Outcome: The court held that an indemnity clause can be used to shift the risk of loss from one party to another.
Relevance: This case is relevant to the allocation of risk in construction agreements. It shows that an indemnity clause can be used to shift the risk of loss from the party who is responsible for the loss to another party.
15. Sources
16. TLDR
This Construction Agreement outlines the terms of the construction project between the Contractor and the Owner. The Contractor agrees to build the project according to the plans and specifications, and the Owner agrees to pay the Contract Price. The Agreement also includes provisions for warranties, insurance, indemnification, termination, and governing law.
17. Conclusion
This Construction Agreement is a legally binding document that outlines the responsibilities of the Contractor and the Owner in relation to the construction project. It is important for both parties to carefully review the terms of the Agreement and seek legal advice if necessary.
Answered by mwakili.com