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from the Right of Way.
<br />5. Indemnification
<br />Contractor, on behalf of itself and its employees, subcontractors, agents, successors and assigns, agrees to
<br />indemnify, defend, by counsel satisfactory to SCRRA and Member Agency, and hold harmless
<br />"Indemnitees", and each of them to the maximum extent allowed by law, from and against all loss,
<br />liability, claims, demands, suits, liens, claims of lien, damages (including incidental consequential
<br />damages), costs and expenses (including, without limitation, any fines, penalties, judgments, actual
<br />litigation expenses and experts' and actual attorneys' fees), that are incurred by or asserted against
<br />Indemnitees arising out of or connected in any manner with (i) the acts or omissions of the Contractor or
<br />its officers, directors, affiliates, subcontractors or agents or anyone directly or indirectly employed by
<br />them or for whose acts the foregoing persons are liable (collectively, "Personnel") in connection with or
<br />arising from the presence upon or performance of activities by the Contractor or its Personnel with respect
<br />to the Right of Way, (ii) bodily and/or personal injury or death of any person (including without limitation
<br />employees of Indemnitees) or damage to or loss of use of Property resulting from such acts or omissions
<br />of the Contractor or its Personnel ar (iii) non performance or breach by Contractor or its Personnel of any
<br />terns or condition of this Agreement, in each case whether occurring during the term of this Agreement or
<br />thereafter.
<br />The foregoing indemnity shall be effective regardless of any negligence (whether active, passive,
<br />derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused by the sole
<br />negligence or willful misconduct of Indemnitees, and is in addition to any other rights or remedies, which
<br />Indemnitees may have under the law or under this Agreement.
<br />Claims against the Indemnitees by the Contractor or its Personnel shall not limit the Contractor's
<br />indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may
<br />result in any limitation of the amount or type of damages, compensation or benefits payable by or for the
<br />Contractor or its Personnel under workers' compensation acts, disability benefit acts or other employee
<br />benefit acts or insurance.
<br />The provisions of this section shall survive the termination or expiration of this Agreement.
<br />6. Assumption of Liability
<br />To the maximum extent allowed by law, the Contractor releases Indemnitees from and assumes any and
<br />all risk of loss, damage or injury of any kind to any person or property, including without limitation, the
<br />Property and/or Right of Way and any other property of or under the control or custody of, the Contractor
<br />or its personnel in connection with any acts undertaken under or in connection with this Agreement. The
<br />Contractor's assumption of nsk sha_ 11 include, without limitation, loss or damage caused by defects in any
<br />s c e '~ or improvement (`including -easement, -lease or -license agreements for ot~ier existing
<br />improvements and utilities) on the Right of Way, accident or fire or other casualty on the Right of Way or
<br />electrical discharge, noise or vibration resulting from SCRRA, Member Agency and Operating Railroad
<br />transit operations on or near the Right of Way and any other persons or companies employed, retained or
<br />engaged by SCRRA or Member Agency. The Contractor, on behalf of itself and its Personnel (as defined
<br />in Section 5, "Indemnification") as a material part of the consideration for this Agreement, hereby waives
<br />all claims and demands against the Indemnitees for any such loss, damage or injury of the Contractor
<br />and/or its Personnel. The Contractor waives the benefit of California Civil Code Section 1542, which
<br />provides as follows: "A general release does not extend to claims which the creditor does not know or
<br />suspect to exist in his favor at the time of executing the release, which if known by him must have
<br />materially affected his settlement with the debtor."
<br />The provisions of this Section shall survive the termination or expiration of this Agreement.
<br />SCRRA FORM NO. 6 Page 3 of 13 Rev. 9/18/06
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