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without limitation (and without limiting the generality of the foregoing) all Claims resulting from Contractor's
<br /> performance of, or failure to perform, its express and implied obligations under the Contract. The Contractor will
<br /> defend and indemnify and hold harmless the City whether a Claim is asserted directly against the City, or whether
<br /> a Claim is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks
<br /> contribution or indemnity from the City. The amount of insurance obtained by, obtainable by, or required of the
<br /> Contractor does not in any way limit the Contractor's duty to defend and indemnify the City. The City retains the
<br /> right to approve Claims investigation and counsel assigned to said Claim and all investigation and legal work
<br /> regarding said Claim shall be performed under a fiduciary relationship to the City. This Section 8 is in addition to
<br /> any other defense or indemnity or hold harmless obligation in the Contract Documents.
<br /> B. The Contractor's obligations under this Section 8 shall not apply to Claims caused by the sole negligence of the
<br /> City. If(1) RCW 4.24.115 applies to a particular Claim,and (2)such Claim is caused by or results from the concurrent
<br /> negligence of(a)the Contractor and (b) the City, then the Contractor's obligations under this Section 8 shall apply
<br /> only to the extent allowed by RCW 4.24.115.
<br /> C. As used in this section: (1) "City"includes the City's officers,employees,agents,and representatives; (2) "Claims"
<br /> include all losses, claims, demands, expenses (including, but not limited to, attorney's fees and litigation expenses),
<br /> suits,judgments, or damage, whether threatened, asserted or filed against the City, whether such Claims sound in
<br /> tort, contract, or any other legal theory,whether such Claims have been reduced to judgment or arbitration award,
<br /> irrespective of the type of relief sought or demanded (such as money or injunctive relief), and irrespective of the
<br /> type of damage alleged (such as bodily injury, damage to property, economic loss, general damages, special
<br /> damages, or punitive damages); and (3) "Contractor" includes Contractor, its employees, agents, representatives
<br /> and subcontractors. If, and to the extent, Contractor employs or engages subcontractors;then Contractor shall
<br /> ensure that each such subcontractor (and subsequent tiers of subcontractors) shall expressly agree to defend and
<br /> indemnify and hold harmless the City to the extent and on the same terms and conditions as the Contractor pursuant
<br /> to this section.
<br /> 9. Insurance. The Contractor shall purchase and maintain such insurance as set forth in the Contract Documents.
<br /> Failure to maintain such insurance shall be a material breach of the Contract. The City shall be entitled to damages
<br /> for such a breach that include, but are not limited to, any loss (including, but not limited to, third party litigation
<br /> expenses and professional fees)suffered by the City if the City is determined to be solely or concurrently negligent,
<br /> and if the City suffers any loss or must pay or defend against any such claim, suit, demand or damage as a result of
<br /> such breach.
<br /> 10. Waiver of Industrial Insurance Immunity. Contractor waives any right of contribution against the City. It is
<br /> agreed and mutually negotiated that in any and all claims against the City, its agents or employees, the Contractor,
<br /> a subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor, or anyone for whose
<br /> acts any of them may be liable, the defense and indemnification obligations hereunder shall not be limited in any
<br /> way by any limitation on the amount of damages,compensation, or benefits payable by or for the Contractor or any
<br /> subcontractor under industrial worker's compensation acts, disability benefit acts,or other employees'benefit acts.
<br /> Contractor's and City's signatures hereto indicate specific waiver of Contractor's industrial insurance immunity in
<br /> order to fulfill the indemnities hereunder. Solely for the purpose of indemnification and defense as provided in this
<br /> Contract, the Contractor specifically waives any immunity under the State Industrial Insurance Law, Title 51 RCW.
<br /> The Contractor expressly acknowledges that this waiver of immunity under Title 51 RCW was the subject of mutual
<br /> negotiation and was specifically entered into pursuant to the provisions of RCW 4.24.115.
<br /> 11. Repair of Damage. The Contractor agrees to repair and replace all property of the City and all property of others
<br /> damaged by it, its employees, subcontractors, suppliers and agents.
<br /> 12. Pre-Bid Inspection and Risk of Loss. It is understood that the whole of the work under this contract is to be
<br /> done at the Contractor's risk and that: (1) prior to submitting its proposal or bid, it became familiar with the
<br /> conditions of excavation, subsurface, backfill, materials, climatic conditions, location, traffic, and other
<br /> contingencies that may affect the work and has made its bid or proposal accordingly and (2) that it assumes the
<br /> responsibility and risk of all loss or damage to materials or work which may arise from any cause whatsoever prior
<br /> to completion.
<br /> INTERURBAN TRAIL TO YMCA PEDESTRIAN IMPROVEMENTS CONTRACT
<br /> WORK ORDER 3749 Page C2 of C8 APRIL 6,2022
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