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which shall in no way impair or prejudice any right or remedy available to CONTRACTOR with
<br />respect to any breach or default.
<br />Section 36
<br />Limitation of Liability and Indemnification
<br />A. The CONTRACTOR shall indemnify, defend, and hold harmless WSDOT, its agents, employees,
<br />and officers and process and defend at its own expense any and all claims, demands, suits at law
<br />or equity, actions, penalties, losses, damages, or costs (hereinafter referred to collectively as
<br />claims), of whatsoever kind or nature brought against WSDOT, arising out of, in connection with
<br />or incident to the execution of this AGREEMENT and/or the CONTRACTORs performance or
<br />failure to perform any aspect of this AGREEMENT. This indemnity and defense provision applies
<br />to all claims against WSDOT, its agents, employees, and officers arising out of, in connection with,
<br />or incident to the negligent acts or omissions of the CONTRACTOR, its agents, employees,
<br />officers, and subcontractors of any tier. Provided, however, that nothing herein shall require the
<br />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
<br />contractors and (b) the STATE, its employees or authorized agents, or involves those actions
<br />covered by RCW 4.24.115, the indemnity and defense provisions provided herein shall be valid
<br />and enforceable only to the extent of the negligence of the PARTY, its employees, officers,
<br />authorized agents, and/or contractors. The indemnification and hold harmless provision shall
<br />survive termination of this 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
<br />any manner be deemed to be the employees of WSDOT.
<br />C. The CONTRACTOR specifically assumes potential liability for actions brought by the
<br />CONTRACTORs employees and/or subcontractors and solely for the purposes of this
<br />indemnification and defense, the CONTRACTOR, by mutual negotiation, specifically waives any
<br />immunity under the state Industrial Insurance Law, Title 51 Revised Code of Washington.
<br />D. In the event either the CONTRACTOR or WSDOT incurs attorneys 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 37
<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 />changes to the federal award identification number, DUNS, project title, federal ID number, CFDA
<br />number, milestones, PIN the contact person of either PARTY, or dollar amount changes that do
<br />not affect the Project total cost, will not require a written amendment, but will be approved and
<br />documented by WSDOT through an administrative revision. WSDOT shall notify the
<br />CONTRACTOR of the revision in writing.
<br />City of Everett
<br />PTD0834
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