Obligation to Defend. Promptly after a SMUD Indemnitee receives notice of any Losses for which it will seek indemnification pursuant to this Article 10, the SMUD Indemnitee will notify Contractor of the Losses in writing. No failure to so notify Contractor will abrogate or diminish Contractor’s obligations if Contractor has or receives knowledge of the Losses by other means or if the failure to notify does not materially prejudice its ability to defend the Losses. Within fifteen (15) days after receiving a SMUD Indemnitee’s notice of Losses, and if possible no later than ten (10) days before the date on which any formal response to the Losses is due, Contractor will notify SMUD and the SMUD Indemnitee in writing as to whether Contractor acknowledges its indemnification obligation and elects to assume control of the defense of the Losses (“Notice of Election”). If Contractor timely delivers a Notice of Election, Contractor will be entitled to have sole control over the defense of the Losses, under and subject to the terms of this Section 10.5. The Notice of Election shall identify counsel selected by Contractor to provide a defense, and such counsel shall be acceptable to SMUD in SMUD’s sole discretion; provided, however, if such counsel is a member of a firm which regularly practices in such matters and such counsel has significant experience in defending such matters, SMUD will not unreasonably withhold its approval of such counsel. Nothing in this section will preclude SMUD or the SMUD Indemnitee from participating in its defense and retaining its own counsel at its own expense. If Contractor does not deliver a timely Notice of Election, or if Contractor otherwise fails to fulfill its indemnification obligations under this Article 10, SMUD or the SMUD Indemnitee may defend the Losses in such manner as it may deem appropriate, or may take any other actions it deems necessary and appropriate to defend, resolve or settle such Losses, and shall be fully indemnified by Contractor therefor. Contractor will promptly reimburse SMUD and the SMUD Indemnitee upon demand for all amounts suffered or incurred by SMUD and the SMUD Indemnitee as a result of or in connection with the Losses. SMUD and the SMUD Indemnitee will provide reasonable assistance to Contractor, at Contractor’s cost and expense, including reasonable assistance from SMUD and the SMUD Indemnitee’s employees, agents, and affiliates, as applicable. Notwithstanding anything in the Contract to the contrary, Contractor may not consent to the entry of any judgment or enter into any settlement without the prior written consent of SMUD and the SMUD Indemnitee unless in the determination of SMUD in its sole and absolute discretion: (i) there is no finding or admission of wrongdoing, misconduct, negligence or violation of law on the part of any SMUD Indemnitee, nor any violation of the rights of any Person as a result of any act or omission of any SMUD Indemnitee; (ii) there is no adverse precedential effect on any other Losses that may be asserted against or suffered by any SMUD Indemnitee and the terms of such judgment or settlement if made public will not place any SMUD Indemnitee at risk for, or cause or result in, additional or subsequent Losses; (iii) there is no injunctive or other non-monetary relief against any SMUD Indemnitee; and (iv) the compromise or settlement includes the general release of all SMUD Indemnitees, in form and substance satisfactory to SMUD, from all liability in respect of the Losses.
Appears in 3 contracts
Samples: Base Agreement, Base Agreement, Base Agreement
Obligation to Defend. Promptly after a SMUD Indemnitee receives notice of any Losses for which it will seek indemnification pursuant to this Article 10, the SMUD Indemnitee will notify Contractor of the Losses in writing. No failure to so notify Contractor will abrogate or diminish Contractor’s obligations if Contractor has or receives knowledge of the Losses by other means or if the failure to notify does not materially prejudice its ability Each Developer Party agrees to defend the LossesIndemnified City Parties against any claims that are actually or likely to be within the scope of such Developer Party’s indemnity in this Developer’s Consent, even if the claims may be groundless, fraudulent, or false. Within The Indemnified City Parties agree to give prompt notice to the applicable Developer Party with respect to any lawsuit or claim initiated or threatened against the Indemnified City Parties, at the address for notices to the applicable Developer Party set forth in the DDA, Vertical DDA or Assignment and Assumption Agreement, and no later than the earlier of: (i) ten (10) days after valid service of process as to any suit; or (ii) fifteen (15) days after receiving written notification of a SMUD Indemniteeclaim or lawsuit that the Indemnified City Party has reason to believe is likely to give rise to a claim for indemnity under this Developer’s Consent. An Indemnified City Party’s failure to give the foregoing notice will not affect the Indemnified City Party’s rights or the obligations of Lossesthe applicable Developer Party under this Developer’s Consent unless such Developer Party is prejudiced by the lack of notice, and if possible no later than ten (10) days before the date on which any formal response then only to the Losses is dueextent of prejudice. The applicable Developer Party, Contractor will notify SMUD at its option but subject to the Indemnified City Party’s reasonable consent and the SMUD Indemnitee in writing as to whether Contractor acknowledges its indemnification obligation and elects to assume control of the defense of the Losses (“Notice of Election”). If Contractor timely delivers a Notice of Electionapproval, Contractor will be entitled to have sole control over the defense of the Losses, under and subject to the terms of this Section 10.5. The Notice of Election shall identify counsel selected by Contractor to provide a defense, compromise, or settlement of any such matter through counsel of its own choice, but in all cases the Indemnified City Party will be entitled to participate in the defense, compromise, or settlement. To the extent such costs are reasonable and such counsel are incurred only to participate as requested or reasonably required in the matter, they shall be acceptable deemed to SMUD in SMUD’s sole discretion; provided, however, if such counsel is a member of a firm which regularly practices in such matters and such counsel has significant experience in defending such matters, SMUD will not unreasonably withhold its approval of such counsel. Nothing in this section will preclude SMUD or the SMUD Indemnitee from participating in its defense and retaining its own counsel at its own expensebe City Costs. If Contractor does not deliver a timely Notice of Election, or if Contractor otherwise the applicable Developer Party fails to fulfill its indemnification obligations under this Article 10, SMUD or the SMUD Indemnitee may defend the Losses in such manner as it may deem appropriate, or may take any other actions it deems necessary reasonable and appropriate action to defend, resolve compromise, or settle the lawsuit or claim within a reasonable time following notice from the Indemnified City Party alleging such Losses, and shall be fully indemnified by Contractor therefor. Contractor will promptly reimburse SMUD and the SMUD Indemnitee upon demand for all amounts suffered or incurred by SMUD and the SMUD Indemnitee as a result of or in connection with the Losses. SMUD and the SMUD Indemnitee will provide reasonable assistance to Contractor, at Contractor’s cost and expense, including reasonable assistance from SMUD and the SMUD Indemnitee’s employees, agents, and affiliates, as applicable. Notwithstanding anything failure in the Contract Indemnified City Party’s reasonable judgment, the Indemnified City Party will have the right to hire counsel at the sole cost of the applicable Developer Party to carry out the defense, compromise, or settlement, which cost will be immediately due and payable to the contrary, Contractor may not consent to Indemnified City Party upon receipt by the entry applicable Developer Party of any judgment or enter into any settlement without the prior written consent of SMUD and the SMUD Indemnitee unless in the determination of SMUD in its sole and absolute discretion: (i) there is no finding or admission of wrongdoing, misconduct, negligence or violation of law on the part of any SMUD Indemnitee, nor any violation of the rights of any Person as a result of any act or omission of any SMUD Indemnitee; (ii) there is no adverse precedential effect on any other Losses that may be asserted against or suffered by any SMUD Indemnitee and the terms of such judgment or settlement if made public will not place any SMUD Indemnitee at risk for, or cause or result in, additional or subsequent Losses; (iii) there is no injunctive or other non-monetary relief against any SMUD Indemnitee; and (iv) the compromise or settlement includes the general release of all SMUD Indemnitees, in form and substance satisfactory to SMUD, from all liability in respect of the Lossesproperly detailed invoice.
Appears in 1 contract
Samples: Interagency Cooperation Agreement
