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Section 26
<br />Lack of Waiver
<br />In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute
<br />or be construed as a waiver by WSDOT of any CONTRACTOR breach, or default. Such
<br />payment shall in no way impair or prejudice any right or remedy available to WSDOT with
<br />respect to any breach or default.
<br />
<br />Section 27
<br />Limitation of Liability
<br />A. The CONTRACTOR shall indemnify, defend, and hold harmless WSDOT, its
<br />agents, employees, and officers and process and defend at its own expense any
<br />and all claims, demands, suits at law or equity, actions, penalties, losses,
<br />damages, or costs (hereinafter referred to collectively as “claims”), of whatsoever
<br />kind or nature brought against WSDOT, arising out of, in connection with or
<br />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
<br />and defense provision applies to all claims against WSDOT, its agents, employees,
<br />and officers arising out of, in connection with, or incident to the negligent acts or
<br />omissions of the CONTRACTOR, its agents, employees, officers, and
<br />subcontractors of any tier. Provided, however, that nothing herein shall require the
<br />CONTRACTOR to indemnify, defend, and hold harmless or defend WSDOT, its
<br />agents, employees, or officers to the extent that claims are caused by the sole
<br />negligent acts or omissions of WSDOT, its agents, employees or officers; and
<br />provided further that if such claims result from the concurrent negligence of (a) the
<br />CONTRACTOR its employees, agents, officers or contractors and (b) the STATE,
<br />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
<br />enforceable only to the extent of the negligence of the PARTY, its employees,
<br />officers, authorized agents, and/or contractors. The indemnification and hold
<br />harmless provision shall survive termination of this AGREEMENT.
<br />
<br />B. The CONTRACTOR shall be deemed an independent contractor for all purposes,
<br />and the employees of the CONTRACTOR or its subcontractors and the employees
<br />thereof, shall not in any manner be deemed to be the employees of WSDOT.
<br />
<br />C. The CONTRACTOR agrees that its obligations under this AGREEMENT extend to
<br />any claim, demand, and/or cause of action by, or on behalf of its employees or
<br />agents while performing under this AGREEMENT. For this purpose, the
<br />CONTRACTOR, by MUTUAL NEGOTIATION, hereby waives any immunity that
<br />would otherwise be available to it against such claims under the Industrial
<br />Insurance provisions in Title 51 RCW.
<br />
<br />D. In the event either the CONTRACTOR or WSDOT incurs attorney’s fees, costs or
<br />other legal expenses to enforce the provisions of this section of this AGREEMENT
<br />against the other PARTY, all such fees, costs and expenses shall be recoverable
<br />by the prevailing PARTY.
<br />Everett Transit
<br />PTD0946
<br />Page 11 of 14
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