Common use of Indemnification; No Consequential Damages Clause in Contracts

Indemnification; No Consequential Damages. (a) Con Xxxxxx will indemnify and hold harmless Generator and its Affiliates and their respective directors, officers, employees, agents and representatives (collectively with Generator and its Affiliates, the “Generator Indemnitees”) from and against any claims, causes of action, demands, or suits by any person, and all losses, liabilities, damages, obligations, payments (including amounts paid in settlement in accordance with this Section 5.15), judgments, orders, decrees, rulings, liens, charges, costs and expenses (including reasonable legal fees and expenses and including costs and expenses incurred in connection with investigations and settlement proceedings) (each, an “Indemnifiable Loss”), as incurred, asserted against or suffered by any Generator Indemnitee relating to, resulting from or arising out of any breach by Con Xxxxxx of any covenant or agreement of Con Edison contained in this Agreement. (b) Generator will indemnify and hold harmless Con Edison and its Affiliates and their respective directors, officers, trustees, employees, agents and representatives (collectively with Con Edison and its Affiliates, the “Con Edison Indemnitees”) from and against any Indemnifiable Losses, as incurred, asserted against or suffered by any Con Edison Indemnitee relating to, resulting from or arising out of any breach by Generator of any covenant or agreement of Generator contained in this Agreement. Generator waives all claims against Con Xxxxxx relating to any Indemnifiable Losses caused by any delay in the completion of the Substation Modifications or installation of the Generator Assets within the Substation, except where such delay results from Con Xxxxxx’s failure to use reasonable efforts to complete the modifications or installation promptly. (c) The amount of any Indemnifiable Loss shall be reduced to the extent that the relevant Generator Indemnitee or Con Edison Indemnitee (each, an “Indemnitee”) receives any insurance proceeds with respect to an Indemnifiable Loss and shall be (i) increased to take account of any Tax Cost incurred by the Indemnitee arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any Tax Benefit realized by the Indemnitee arising from the incurrence or payment of any such Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim or cause of action, recovery, settlement or payment by or against any other person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, will promptly be repaid by the Indemnitee to the Party required to provide indemnification hereunder (the “Indemnifying Party”) with respect to such Indemnifiable Loss. (d) To the fullest extent permitted by Law, neither Party nor any Generator Indemnitee or any Con Edison Indemnitee shall be liable to the other Party or any other Generator Indemnitee or Con Edison Indemnitee for any claims or causes of action, demands or suits for consequential, incidental, special, exemplary, punitive, indirect or multiple damages connected with or resulting from any breach of this Agreement or any actions undertaken in connection with or related hereto, including any such damages which are based upon breach of contract, tort (including negligence and misrepresentation), breach of warranty, strict liability, statute, operation of law or any other theory of recovery. (e) The rights and remedies of Con Edison and Generator under this Section 5.15 are, solely as between Con Edison and Generator, exclusive and in lieu of any other rights and remedies which Con Edison and Generator may have under this Agreement or otherwise for monetary relief with respect to (i) any breach of, or failure to perform, any covenant or agreement set forth in this Agreement by Con Edison or Generator, (ii) any breach of any representation or warranty by Con Edison or Generator. Each Party agrees that the previous sentence shall not limit or otherwise affect any non-monetary right or remedy which either Party may have under this Agreement or otherwise limit or affect either Party's right to seek equitable relief, including the remedy of specific performance. (f) Generator and Con Edison agree that each Party shall retain, subject to the other provisions of this Agreement, including Section 5.15(d), all remedies at law or in equity with respect to (i) fraud or willful or intentional breaches of this Agreement and (ii) gross negligence or willful or wanton acts or omissions to act of any Indemnitee (or any contractor or subcontractor thereof) on or after the effective date of this Agreement. (g) If any Indemnitee receives notice of the assertion of any claim or cause of action or of the commencement of any claim, cause of action, or proceeding made or brought by any person who is not a Party or an Affiliate of a Party (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 Business Days after the Indemnitee's receipt of notice of such Third Party Claim; provided, however, that a failure to give timely notice will not affect the rights or obligations of any Indemnitee except if, and only to the extent that, as a result of such failure, the Indemnifying Party was actually prejudiced. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. (h) If a Third Party Claim is made against an Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee; and provided further that the Indemnifying Party first admits in writing its liability to the Indemnitee with respect to all material elements of such claim. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnitee will (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent and (iii) agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. In the event the Indemnifying Party shall so assume the defense of any Third Party Claim, the Indemnitee shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of the terms of the proposed settlement and the Indemnifying Party will promptly reimburse the Indemnitee upon written request. Anything contained in this Agreement to the contrary notwithstanding, no Indemnifying Party shall be entitled to assume the defense of any Third Party Claim if such Third Party Claim seeks an order, injunction or other equitable relief or relief for other than monetary damages against the Indemnitee which, if successful, would materially adversely affect the business of the Indemnitee; provided, however, that such Indemnifying Party shall continue to be obligated to such Indemnitee pursuant to Section 5.15(a) or (b), as the case may be, for all Indemnifiable Losses relating to, resulting from or arising out of such Third Party Claim.

Indemnification; No Consequential Damages. (a) Con Xxxxxx Edison will indemnify and hold harmless Generator and its Affiliates and their respective directors, officers, employees, agents and representatives (collectively with Generator and its Affiliates, the “Generator Indemnitees”) from and against any claims, causes of action, demands, or suits by any person, and all losses, liabilities, damages, obligations, payments (including amounts paid in settlement in accordance with this Section 5.15), judgments, orders, decrees, rulings, liens, charges, costs and expenses (including reasonable legal fees and expenses and including costs and expenses incurred in connection with investigations and settlement proceedings) (each, an “Indemnifiable Loss”), as incurred, asserted against or suffered by any Generator Indemnitee relating to, resulting from or arising out of any breach by Con Xxxxxx Edison of any covenant or agreement of Con Edison contained in this Agreement. (b) Generator will indemnify and hold harmless Con Edison and its Affiliates and their respective directors, officers, trustees, employees, agents and representatives (collectively with Con Edison and its Affiliates, the “Con Edison Indemnitees”) from and against any Indemnifiable Losses, as incurred, asserted against or suffered by any Con Edison Indemnitee relating to, resulting from or arising out of any breach by Generator of any covenant or agreement of Generator contained in this Agreement. Generator waives all claims against Con Xxxxxx Edison relating to any Indemnifiable Losses caused by any delay in the completion of the Substation Modifications or installation of the Generator Assets within the Substation, except where such delay results from Con XxxxxxEdison’s failure to use reasonable efforts to complete the modifications or installation promptly. (c) The amount of any Indemnifiable Loss shall be reduced to the extent that the relevant Generator Indemnitee or Con Edison Indemnitee (each, an “Indemnitee”) receives any insurance proceeds with respect to an Indemnifiable Loss and shall be (i) increased to take account of any Tax Cost incurred by the Indemnitee arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any Tax Benefit realized by the Indemnitee arising from the incurrence or payment of any such Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim or cause of action, recovery, settlement or payment by or against any other person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, will promptly be repaid by the Indemnitee to the Party required to provide indemnification hereunder (the “Indemnifying Party”) with respect to such Indemnifiable Loss. (d) To the fullest extent permitted by Law, neither Party nor any Generator Indemnitee or any Con Edison Indemnitee shall be liable to the other Party or any other Generator Indemnitee or Con Edison Indemnitee for any claims or causes of action, demands or suits for consequential, incidental, special, exemplary, punitive, indirect or multiple damages connected with or resulting from any breach of this Agreement or any actions undertaken in connection with or related hereto, including any such damages which are based upon breach of contract, tort (including negligence and misrepresentation), breach of warranty, strict liability, statute, operation of law or any other theory of recovery. (e) The rights and remedies of Con Edison and Generator under this Section 5.15 are, solely as between Con Edison and Generator, exclusive and in lieu of any other rights and remedies which Con Edison and Generator may have under this Agreement or otherwise for monetary relief with respect to (i) any breach of, or failure to perform, any covenant or agreement set forth in this Agreement by Con Edison or Generator, (ii) any breach of any representation or warranty by Con Edison or Generator. Each Party agrees that the previous sentence shall not limit or otherwise affect any non-monetary right or remedy which either Party may have under this Agreement or otherwise limit or affect either Party's right to seek equitable relief, including the remedy of specific performance. (f) Generator and Con Edison agree that each Party shall retain, subject to the other provisions of this Agreement, including Section 5.15(d), all remedies at law or in equity with respect to (i) fraud or willful or intentional breaches of this Agreement and (ii) gross negligence or willful or wanton acts or omissions to act of any Indemnitee (or any contractor or subcontractor thereof) on or after the effective date of this Agreement. (g) If any Indemnitee receives notice of the assertion of any claim or cause of action or of the commencement of any claim, cause of action, or proceeding made or brought by any person who is not a Party or an Affiliate of a Party (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 Business Days after the Indemnitee's receipt of notice of such Third Party Claim; provided, however, that a failure to give timely notice will not affect the rights or obligations of any Indemnitee except if, and only to the extent that, as a result of such failure, the Indemnifying Party was actually prejudiced. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. (h) If a Third Party Claim is made against an Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee; and provided further that the Indemnifying Party first admits in writing its liability to the Indemnitee with respect to all material elements of such claim. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnitee will (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent and (iii) agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. In the event the Indemnifying Party shall so assume the defense of any Third Party Claim, the Indemnitee shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of the terms of the proposed settlement and the Indemnifying Party will promptly reimburse the Indemnitee upon written request. Anything contained in this Agreement to the contrary notwithstanding, no Indemnifying Party shall be entitled to assume the defense of any Third Party Claim if such Third Party Claim seeks an order, injunction or other equitable relief or relief for other than monetary damages against the Indemnitee which, if successful, would materially adversely affect the business of the Indemnitee; provided, however, that such Indemnifying Party shall continue to be obligated to such Indemnitee pursuant to Section 5.15(a) or (b), as the case may be, for all Indemnifiable Losses relating to, resulting from or arising out of such Third Party Claim.

Indemnification; No Consequential Damages. (a) Con Xxxxxx Edison will indemnify and hold harmless Generator and its Affiliates and their respective directors, officers, employees, agents and representatives (collectively with Generator and its Affiliates, the “Generator Indemnitees”) from and against any claims, causes of action, demands, or suits by any person, and all losses, liabilities, damages, obligations, payments (including amounts paid in settlement in accordance with this Section 5.15), judgments, orders, decrees, rulings, liens, charges, costs and expenses (including reasonable legal fees and expenses and including costs and expenses incurred in connection with investigations and settlement proceedings) (each, an “Indemnifiable Loss”), as incurred, asserted against or suffered by any Generator Indemnitee relating to, resulting from or arising out of any breach by Con Xxxxxx Edison of any covenant or agreement of Con Edison contained in this Agreement. (b) Generator will indemnify and hold harmless Con Edison and its Affiliates and their respective directors, officers, trustees, employees, agents and representatives (collectively with Con Edison and its Affiliates, the “Con Edison Indemnitees”) from and against any Indemnifiable Losses, as incurred, asserted against or suffered by any Con Edison Indemnitee relating to, resulting from or arising out of any breach by Generator of any covenant or agreement of Generator contained in this Agreement. Generator waives all claims against Con Xxxxxx Edison relating to any Indemnifiable Losses caused by any delay in the completion of the Substation Modifications or installation of the Generator Assets within the Substation, except where such delay results from Con XxxxxxEdison’s failure to use reasonable efforts to complete the modifications or installation promptly. (c) The amount of any Indemnifiable Loss shall be reduced to the extent that the relevant Generator Indemnitee or Con Edison Indemnitee (each, an “Indemnitee”) receives any insurance proceeds with respect to an Indemnifiable Loss and shall be (i) increased to take account of any Tax Cost incurred by the Indemnitee arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any Tax Benefit realized by the Indemnitee arising from the incurrence or payment of any such Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim or cause of action, recovery, settlement or payment by or against any other person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, will promptly be repaid by the Indemnitee to the Party required to provide indemnification hereunder (the “Indemnifying Party”) with respect to such Indemnifiable Loss. (d) To the fullest extent permitted by Law, neither Party nor any Generator Indemnitee or any Con Edison Indemnitee shall be liable to the other Party or any other Generator Indemnitee or Con Edison Indemnitee for any claims or causes of action, demands or suits for consequential, incidental, special, exemplary, punitive, indirect or multiple damages connected with or resulting from any breach of this Agreement or any actions undertaken in connection with or related hereto, including any such damages which are based upon breach of contract, tort (including negligence and misrepresentation), breach of warranty, strict liability, statute, operation of law or any other theory of recovery. (e) The rights and remedies of Con Edison and Generator under this Section 5.15 are, solely as between Con Edison and Generator, exclusive and in lieu of any other rights and remedies which Con Edison and Generator may have under this Agreement or otherwise for monetary relief with respect to (i) any breach of, or failure to perform, any covenant or agreement set forth in this Agreement by Con Edison or Generator, (ii) any breach of any representation or warranty by Con Edison or Generator. Each Party agrees that the previous sentence shall not limit or otherwise affect any non-monetary non‑monetary right or remedy which either Party may have under this Agreement or otherwise limit or affect either Party's right to seek equitable relief, including the remedy of specific performance. (f) Generator and Con Edison agree that each Party shall retain, subject to the other provisions of this Agreement, including Section 5.15(d), all remedies at law or in equity with respect to (i) fraud or willful or intentional breaches of this Agreement and (ii) gross negligence or willful or wanton acts or omissions to act of any Indemnitee (or any contractor or subcontractor thereof) on or after the effective date of this Agreement. (g) If any Indemnitee receives notice of the assertion of any claim or cause of action or of the commencement of any claim, cause of action, or proceeding made or brought by any person who is not a Party or an Affiliate of a Party (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 Business Days after the Indemnitee's receipt of notice of such Third Party Claim; provided, however, that a failure to give timely notice will not affect the rights or obligations of any Indemnitee except if, and only to the extent that, as a result of such failure, the Indemnifying Party was actually prejudiced. Such notice shall describe the nature of the Third Party Claim in reasonable detail and will indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. (h) If a Third Party Claim is made against an Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee; and provided further that the Indemnifying Party first admits in writing its liability to the Indemnitee with respect to all material elements of such claim. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnitee will (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent and (iii) agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. In the event the Indemnifying Party shall so assume the defense of any Third Party Claim, the Indemnitee shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of the terms of the proposed settlement and the Indemnifying Party will promptly reimburse the Indemnitee upon written request. Anything contained in this Agreement to the contrary notwithstanding, no Indemnifying Party shall be entitled to assume the defense of any Third Party Claim if such Third Party Claim seeks an order, injunction or other equitable relief or relief for other than monetary damages against the Indemnitee which, if successful, would materially adversely affect the business of the Indemnitee; provided, however, that such Indemnifying Party shall continue to be obligated to such Indemnitee pursuant to Section 5.15(a) or (b), as the case may be, for all Indemnifiable Losses relating to, resulting from or arising out of such Third Party Claim. GENERATING UNITS “Generating Units” includes the following electric generators, having the below-designated nominal ratings, installed at 00-00 Xxxxxxxx Xxxxxx in the Borough of Queens, and connected to Con Edison’s Astoria East Substation; provided that the aggregate net nominal rating of the Generating Units (at 57 degrees F. and a relative humidity of 54%) with duct firing on natural gas shall not exceed 547 MW or 635 MW during the summer and winter seasons, respectively: A steam turbine unit, having a nominal rating of 285 MVA at a .9 power factor; and Two General Electric Frame 7F series combustion turbines, with heat recovery steam generators supplied with additional duct burners, each having a nominal rating of 234 MVA at a .85 power factor. Based on preliminary engineering and planning, the Substation Modifications include the following items. This listing is subject to modification to reflect the results of detailed engineering and design. Disconnection, removal, and replacement of six (6) existing 2000 AMP, 138kV, 00 XX xxxxxxx xxxxxxxx (Xxx.0X, 0X, 0X, 0X, 0X, 0X) with 3000 AMP, 138 kV, 63 KA circuit breakers. The existing breakers shall be offered to Generator; Disconnection, removal, and replacement of ten (10) existing 2000 AMP, 138 kV disconnect switches (Nos. 1W1, 1W2, 3E3, 3E4, 5E5, 5E6, 6E6, 6E7, 8E8, 8E1) with 3000AMP, 138 kV disconnect switches. The existing switches shall be discarded; Disconnection, removal, and replacement of fourteen (14) existing 1200 AMP, 138 kV disconnect switches (Nos. 1E1, 1E2, 2E2, 2E3, 2W2, 2W3, 3W3, 3W4, 6W6, 6W7, 7W7, 7W8, 7E7, 7E8) with 3000 AMP, 138 kV disconnect switches; the existing switches shall be discarded; Modification/replacement of existing support structures for the disconnect switches to accommodate the new disconnect switches; Disconnection, removal, and replacement of 3000 LF length of existing 2000 AMP bus by 3000 AMP bus; Replacement and addition of bus support insulators and structures to support the new 3000 AMP bus; Installation of two (2) new disconnects switches with structures and foundations, for connecting the two SCS feeders; Installation of lightning arresters and potential transformers for the two SCS feeders; Installation of two (2) new pre-fabricated air-conditioned relay houses for the two SCS feeders; Installation of revenue metering equipment for SCS feeders at Astoria Substation; and Expansion of the SOCCS RTU to accommodate the new points associated with SCS feeders for control and data transmission to Energy Control Center (ECC). SYSTEM UPGRADE FACILITIES The System Upgrade Facilities include the following equipment and facility modifications: 3% series reactors, one each on Feeders M51, M52, 71, 72; 5% series reactor on Feeder 15055; 138 kV high side reconnection of the Hell Gate transformers 1 and 4 from the Astoria East–East 000xx Xxxxxx tie lines to the Astoria West–Hell Gate/Xxxxxxxx Ties 24051 and 24052; and Any other equipment and facility modifications that become necessary because of modifications to the Fault Current Mitigation Plan required by the ISO or the FERC.