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<br /> 5. Compensation. The basis for payment to Contractor will be the actual Work performed in
<br />accordance with the Contract Documents, and payments, whether partial or final, shall be made as
<br />specified therein. In no event shall the total amount paid Contractor exceed the amounts calculated as
<br />set forth in the Contract Documents for completed Work. The City may, in its sole discretion, withhold
<br />amounts from payments otherwise due as offsets or back charges for expenses, damages, or costs for
<br />which the Contractor is liable for, not to exceed 10% of the total amount of the Contract. If the City
<br />chooses not to offset or deduct any such expenses, damages, or costs from one or more payments or
<br />return of retainage, the City does not waive its claim for such damages and hereby expressly reserves its
<br />right to assert a claim against the Contractor for such damages.
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<br />5. Withholding. Five percent (5%) of amounts due Contractor shall be retained and withheld
<br />to ensure compliance with RCW Chap. 60.28.11. Retained amounts shall only be released as required by
<br />law if there are no claims against the retained funds. The City may, in its sole discretion, withhold any
<br />amounts sufficient to pay any claim against the Contractor of which the City may have knowledge and
<br />regardless of the informalities of notice of such claim arising out of the performance of this contract. The
<br />City may withhold the amount until either the Contractor secures a written release from the claimant,
<br />obtains a court decision that such claim is without merit, or satisfies any judgment in favor of the
<br />claimant on such claim. The City shall not be liable for interest during the period the funds are so held.
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<br />6. Compliance with Employment and Wage Laws. Contractor agrees to comply with all state
<br />and federal laws relating to the employment of labor and wage rates to be paid.
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<br />7. Indemnification. Except as otherwise provided in this section, the Contractor hereby
<br />agrees to save, hold harmless, defend, and indemnify the City, its officers, emplo yees, and agents from
<br />any and all loss, claims, demands, suits, damage, or liability of any kind whatsoever, whether or not
<br />reduced to judgment or arbitration award, in connection with, or arising out of, this Contract, or
<br />resulting from Contractor’s (or its subcontractor’s or supplier’s) performance of, or failure to perform, its
<br />express and implied obligations under the Contract. Contractor shall pay any judgment that may be
<br />obtained against the City, its officers, employees, agents, or third persons in such suit. The Contractor’s
<br />obligations under this Section 7 shall not apply to loss, claims, demands, suits, damage, or liability
<br />caused by the sole negligence of the City. If (1) RCW 4.24.115 applies to a particular loss, claim, demand,
<br />suit, damage, or liability, and (2) such loss, claim, demand, suit, damage, or liability is caused by or
<br />results from the concurrent negligence of (a) the Contractor, its employees,
<br />subcontractors/subconsultants or agents and (b) the City or its agents or employees, then the
<br />Contractor’s obligations under this Section 7 shall apply only to the extent of Contractor’s negligence.
<br />The City shall give Contractor reasonable notice of such claim. The City retains the right to approve
<br />claims investigation and counsel assigned to said claim, and all investigation and legal work regarding
<br />said claim shall be performed under a fiduciary relationship to the City.
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<br /> 8. Insurance. The Contractor shall purchase and maintain such insurance as set forth in the
<br />Contract Documents. Failure to maintain such insurance shall be a material breach of the Contract. City
<br />shall be entitled to damages for such a breach that include, but are not limited to, any loss (including,
<br />but not limited to, third-party litigation expenses and professional fees) suffered by the City if the City is
<br />determined to be solely or concurrently negligent, and if the City suffers any loss or must pay or defend
<br />against any such claim, suit, demand or damage as a result of such breach.
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