Agmt 2001 Alameda County Congestion Management Agency ACCMA (2)

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Affiliates (the "Indemnitors ") in connection with (i) the ownership, operation and management of their respective Components, or (ii) the performance of their respective obligations under this Agreement. None of the Parties, nor their Affiliates, shall be liable to any third party by reason of the sole negligence or willful misconduct of others. Nothing in this Agreement shall be interpreted as a waiver of immunity by any Party. 5.2 Procedures for Third - Party Claims. Promptly after the receipt by any Indemnitee of a notice of any Claim, action, suit or proceeding by any third party that may be subject to indemnification hereunder, such Party Indemnitee shall give written notice of such Claim to the Indemnitor, stating the nature and basis of the Claim and the amount thereof, to the extent known, along with copies of the relevant documents evidencing the Claim and the basis for indemnification sought. Failure of the Indemnitee to give such notice shall not relieve the Indemnitor from liability on account of this indemnification, except if, and to the extent, that the lndemnitor is actually prejudiced thereby. The Indemnitor shall have the duty and obligation to assume the defense of the Indemnitee against the Claim. So long as the Indemnitor has assumed the defense of the Claim in accordance herewith and notified the Indemnitee in writing thereof, (i) the Indemnitee may retain separate co- counsel at its sole cost and expense and participate in the defense of the Claim, it being understood the Indemnitor shall pay all costs and expenses of counsel for the Indemnitee for all periods prior to such time as the Indemnitor has notified the Indemnitee that it has assumed the defense of the Claim, (ii) the Indemnitee shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Claim without prior written consent of the Indemnitor (not to be unreasonably withheld or delayed) and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of the Indemnitee (not to be unreasonably withheld or delayed). The Parties shall use commercially reasonable efforts to minimize losses from Claims by third parties and shall act in good faith in responding to, defending against, settling or otherwise dealing with such Claims. The Parties shall also cooperate in any such defense and give each other assistance and reasonable access to all information relevant thereto. Such assistance and cooperation will include providing access to and copies of information, records Smart OM - Version 2 -12-