ORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) (2)

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FILE: OC-285 all claims (including attorneys' fees and reasonable expenses for litigation or settlement) for any loss or damages, including any bodily injuries and/or death, or damage to or loss of use of property caused by the negligent acts, omissions, or willful misconduct by Licensee or Licensee's Parties, including members of the pubic, in connection with or arising out of the performance of this Agreement use or the use of the License Property or Facility. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Upon request of OCTA, Licensee shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions of this Agreement. Claims against the Indemnitees by Licensee or Licensee's Parties shall not limit the Licensee's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation on the amount or type of damages, compensation, or benefits payable by or for Licensee or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. 15. Assumption of Risk and Waiver. To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property, including, without limitation, the Facility, the License Property and any other property of, or under the control or custody of, Licensee, which is on or near the License Property. Except for the gross negligence or intentional misconduct of OCTA, Licensee's assumption of risk shall include, without limitation, loss or damage caused by any structure or improvement on the OCTA Property, accident, fire or other casualty on the OCTA Property, or electrical discharge, noise or vibration resulting from OCTA's transit operations on or near the OCTA Property. The term "OCTA" as used in this section shall include: (a) any transit or rail -related company validly operating upon or over OCTA's tracks or other property, and (b) any other persons or companies employed, retained or engaged by OCTA. Licensee, on behalf of itself. and its Personnel (as defined in Section 14) as a material part of the consideration for this Agreement, hereby waives all claims and demands against OCTA for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Licensee accepts the risk that the facts or the law may later turn out to be different than Licensee understands them to be at this time and acknowledges that this assumption of risk and waiver will not be affected by such different state of facts or law. The provisions of this Section shall survive the termination of this Agreement, 16. Insurance. A. Licensee shall procure and maintain insurance coverage or evidence of self-insurance during the entire Term of this Agreement. OCTA recognizes that Licensee is a financially responsible corporate entity and as long as Licensee's risk financing program stays substantially the same, Licensee does not need to provide proof on an annual basis. OCTA reserves the right to request certified copies of all related insurance policies. Licensee shall provide the following coverage: Page 6 of 15 1487338.1