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arising out of its performance of, this Agreement. Service Provider will defend and indemnify the City
<br />whether a Claim is asserted directly against the City, or whether a Claim is asserted indirectly against the
<br />C'ty, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the
<br />C ty. The amount of insurance obtained by, obtainable by, or required of Service Provider does not in any
<br />way limit Service Provider's duty to defend and indemnify the City. The City retains the right to approve
<br />Claims investigation and counsel assigned to said Claim and all investigation and legal work regal ding
<br />said Claim shall be performed under a fiduciary relationship to the City.
<br />B. Service Provider and the City agree that the term "damages" as used in RCW 4.24.115 (and referred to
<br />in this Contract as "Damages") means a final judgment in a judicial proceeding for damages arising out of
<br />bodily injury to persons or damage to property. The City and Service Provider expressly agree Damages
<br />do not include or apply to any third -party claims, demands or suits that have not been reduced to final
<br />judgment. Sery ce Provider is not required to indemnify the City, its officers, agents, and employees for
<br />Damages caused solely by the negligence of the City. If Damages are caused by, or result from, the
<br />concurrent neghgence of Service Provider and the City, then Service Provider shall indemnify the City
<br />only to the extent of Service Provider's negligence.
<br />C. As used in this section: (1) "City" includes the City of Everett, the City's officers, employees, agents,
<br />and representatives; (2) "Claims" include all losses, claims, demands, expenses (including, but not limited
<br />to, attorney's fees and litigation expenses), suits, judgments, or damage, whether threatened, asserted or
<br />filed against the City whether such Claims sound in tort, contract, or any other legal theory, whether such
<br />Claims have been reduced to judgment or arbitration award, irrespective of the type of relief sought or
<br />demanded (such as money or injunctive relief), and irrespective of the type of damage alleged (such as
<br />bodily injury, damage to property, economic loss, general damages, special damages, or punitive
<br />damages); and (3) "Service Provider" includes Service Provider, its employees, agents, representatives
<br />and subcontractors If, and to the extent, Service Provider employs or engages subcontractors, then
<br />Service Provider shall ensure that each such subcontractor (and subsequent tiers of subcontractors) shall
<br />expressly agree to defend and indemnify the C'ty to the extent and on the same terms and conditions as
<br />Service Provider pursuant to this section.
<br />15. Insurance. Service Provider shall procure and keep in force during the term of this Agreement,
<br />at Service Provider's own cost and expense, automobile liability insurance on all vehicles used by Service
<br />Provider in the performance of its duties under this Agreement. Proof of such insurance shall be provided
<br />to the City prior to performing any services hereunder. A statement certifying that no vehicle will be used
<br />in fulfilling this Agreement may be substituted for this insurance requirement.
<br />16. Independent Contractor.
<br />A. This Agreement neither constitutes nor creates an employer -employee relationship. As an
<br />independent contractor, Service Provider shall be responsible for all obligations relating to federal income
<br />tax, self-employment FICA taxes and contributions, and all other so called employer taxes and
<br />contributions, including, but not limited to, industrial insurance (Workmen's Co npensation). Service
<br />Provider agrees to indem iffy, defend and hold the City harmless from any claims, valid or otherwise,
<br />made against the City because of these obligations.
<br />B. Any and all employees of Service Provider, while engaged in the performance of any Work, shall
<br />be considered employees of Service Provider only and not of the Cty, and any and all claims that may or
<br />might arise under the Worker's Compensation Act on behalf of said employees or Service Provider, while
<br />so e gaged in any and all claims made by a third party as a consequence of any negligent act or omission
<br />on the part of Service Provider's employees, while so engaged on any of the Work, shall be the sole
<br />obligation and responsibility of Service Provider.
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