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Section 22
<br /> Forbearance by WSDOT Not a Waiver
<br /> Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by
<br /> applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy.
<br /> Section 23
<br /> Lack of Waiver
<br /> In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be
<br /> construed as a waiver by WSDOT of any CONTRACTOR breach, or default. Such payment shall
<br /> in no way impair or prejudice any right or remedy available to WSDOT with respect to any breach
<br /> or default.
<br /> Section 24
<br /> Limitation of Liability
<br /> A. The CONTRACTOR shall indemnify, defend, and hold harmless WSDOT, its agents,
<br /> employees, and officers and process and defend at its own expense any and all claims, demands,
<br /> suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter referred to
<br /> collectively as "claims"), of whatsoever kind or nature brought against WSDOT arising out of, in
<br /> connection with or incident to the execution of this AGREEMENT and/or the CONTRACTOR's
<br /> performance or failure to perform any aspect of this AGREEMENT. This indemnity and defense
<br /> provision applies to all claims against WSDOT, its agents, employees and officers arising out of, in
<br /> connection with or incident to the negligent acts or omissions of the CONTRACTOR, its agents,
<br /> employees, officers and subcontractors of any tier. Provided, however, that nothing herein shall
<br /> require the CONTRACTOR to indemnify, defend, and hold harmless or defend WSDOT, its agents,
<br /> employees or officers to the extent that claims are caused by the sole negligent acts or omissions
<br /> of WSDOT, its agents, employees or officers; and provided further that if such claims result from
<br /> the concurrent negligence of(a)the CONTRACTOR its employees, agents, officers or contractors
<br /> and (b)the STATE, its employees or authorized agents, or involves those actions covered by RCW
<br /> 4.24.115, the indemnity and defense provisions provided herein shall be valid and enforceable only
<br /> to the extent of the negligence of the PARTY, its employees, officers, authorized agents, and/or
<br /> contractors. The indemnification and hold harmless provision shall survive termination of this
<br /> AGREEMENT.
<br /> B. The CONTRACTOR shall be deemed an independent contractor for all purposes, and the
<br /> employees of the CONTRACTOR or its subcontractors and the employees thereof, shall not in any
<br /> manner be deemed to be the employees of WSDOT.
<br /> C. The CONTRACTOR agrees that its obligations under this AGREEMENT extend to any
<br /> claim, demand, and/or cause of action by, or on behalf of its employees or agents while performing
<br /> under this AGREEMENT. For this purpose, the CONTRACTOR, by MUTUAL NEGOTIATION,
<br /> hereby waives any immunity that would otherwise be available to it against such claims under the
<br /> Industrial Insurance provisions in Title 51 RCW.
<br /> D. In the event either the CONTRACTOR or WSDOT incurs attorney's fees, costs or other legal
<br /> expenses to enforce the provisions of this section of this AGREEMENT against the other PARTY,
<br /> all such fees, costs and expenses shall be recoverable by the prevailing PARTY.
<br /> Section 25
<br /> Agreement Modifications
<br /> Either PARTY may request changes to this AGREEMENT. Any changes to the terms of this
<br /> AGREEMENT must be mutually agreed upon and incorporated by written amendment to this
<br /> AGREEMENT. Such written amendment to this AGREEMENT shall not be binding or valid unless
<br /> signed by the persons authorized to bind from each of the PARTIES. Provided, however, that
<br /> Everett Transit Page 9 of 12
<br /> PTD0588
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