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<br />Agreement between Client, KCDA and Contractor - Washington Page 7
<br />156691459.1
<br />Contractor shall defend, indemnify, and hold harmless KCDA,
<br />the Client, and the A/E and their respective agents, employees,
<br />directors, officers, consultants, successors and assigns
<br />(“Indemnified Parties”) from and against all claims, damages,
<br />losses and expenses, direct and indirect, or consequential,
<br />including but not limited to costs and attorneys’ fees incurred
<br />on such claims and in proving the right to indemnification,
<br />arising out of or resulting from performance of the Work, any
<br />act or omission of the Contractor, its agents, any of its
<br />Subcontractors of any tier, and anyone directly or indirectly
<br />employed by the Contractor or Subcontractors of any tier
<br />(“Indemnitor”). The Contractor will fully defend, indemnify,
<br />and hold harmless the Indemnified Parties for the sole
<br />negligence of the Indemnitor. The Contractor will defend,
<br />indemnify, and hold harmless the Indemnified Parties for the
<br />concurrent negligence of the Indemnitor to the extent of the
<br />Indemnitor’s negligence. The Contractor agrees to being added
<br />by KCDA or the Client as a party to any mediation, arbitration,
<br />or litigation with third parties in which KCDA or the Client
<br />alleges indemnification or contribution from an Indemnitor.
<br />The Contractor agrees that all of its Subcontractors of any tier
<br />will, in the subcontracts, similarly stipulate; in the event any
<br />does not, the Contractor shall be liable in place of such
<br />Subcontractor(s). To the extent a court or arbitrator strikes any
<br />portion of this indemnification provision for any reason, all
<br />remaining provisions shall retain their vitality and effect. In
<br />claims against any person or entity indemnified under this
<br />Section 10.12 by an employee of the Contractor, a
<br />Subcontractor, anyone directly or indirectly employed by them
<br />or anyone for whose acts they may be liable, the
<br />indemnification obligation under this Section 10.12 shall not be
<br />limited by a limitation on amount or type of damages,
<br />compensation or benefits payable by or for the Contractor or a
<br />Subcontractor under workers’ compensation acts, disability
<br />benefit acts or other employee benefit acts. After mutual
<br />negotiation of the parties, the Contractor waives immunity as to
<br />the Client, KCDA, the A/E and their consultants only under
<br />Title 51 RCW, “Industrial Insurance.” IF THE
<br />CONTRACTOR DOES NOT AGREE WITH THIS WAIVER,
<br />IT MUST PROVIDE A WRITTEN NOTICE TO KCDA OR
<br />AEPA ALONG WITH THE SUBMISSION OF ITS BID TO
<br />KCDA OR AEPA, OR THE CONTRACTOR WILL BE
<br />DEEMED TO HAVE NEGOTIATED AND WAIVED THIS
<br />IMMUNITY. The provisions of this Section shall survive the
<br />expiration or termination of this Agreement.
<br />
<br /> 10.13 Prevailing Wages.
<br />
<br /> 10.13.1 Pursuant to RCW 39.12, no worker, laborer,
<br />or mechanic employed in the performance of any part of this
<br />Agreement shall be paid less than the “prevailing rate of wage”
<br />(in effect as of the date that bids are due) as determined by the
<br />Industrial Statistician of the Department of Labor and
<br />Industries, ESAC Division, PO Box 44540, Olympia WA
<br />98504-4540, Telephone (360) 902-5335. The schedule of the
<br />prevailing wage rates for the locality or localities where this
<br />Work will be performed is attached and made a part of this
<br />Agreement by reference as though fully set forth herein; if not
<br />attached, then the applicable prevailing wages are determined
<br />as of the Bid Date for the county in which the Project is located
<br />and are available at http://www.lni.wa.gov/
<br />TradesLicensing/PrevWage/WageRates/default.asp. A copy is
<br />available for viewing at the Client’s office, and a hard copy will
<br />be mailed upon request. To the extent that there is any
<br />discrepancy between the attached or provided schedule of
<br />prevailing wage rates and the published rates as are applicable
<br />under WAC 296-127-011, or if no schedule is attached, then the
<br />applicable published rates shall apply at no increase to the
<br />Contract Sum. The Contractor shall provide the respective
<br />Subcontractors with a schedule of the applicable prevailing
<br />wage rates. The Industrial Statistician will answer questions
<br />relating to prevailing wage data upon request.
<br />
<br /> 10.13.2 Pursuant to RCW 39.12.060, in case any
<br />dispute arises as to what are the prevailing rates of wages for
<br />work of a similar nature, and such dispute cannot be adjusted
<br />by the parties in interest, including labor and management
<br />representatives, the matter shall be referred for arbitration to the
<br />director of the Department of Labor and Industries, whose
<br />decision therein shall be final and conclusive and binding on all
<br />parties involved in the dispute.
<br />
<br /> 10.13.3 The Contractor shall defend, indemnify and
<br />hold the Client harmless, including attorneys’ fees, from any
<br />violation or alleged violation of RCW 39.12 (“Prevailing
<br />Wages on Public Works”) and RCW 51 (“Industrial
<br />Insurance”), including without limitation RCW 51.12.050, by
<br />the Contractor, any Subcontractor of any tier, or any person
<br />performing Work on behalf of the Contractor or any
<br />Subcontractor of any tier.
<br />
<br /> 10.14 The Contractor shall comply with all
<br />applicable provisions of RCW 49.28.
<br />
<br /> 10.15 Pursuant to RCW 49.70 and WAC 296-307-
<br />560 et seq., the Contractor shall provide KCDA and the Client
<br />copies of and have available at the Project Site a workplace
<br />survey or material safety data sheets for all “hazardous”
<br />chemicals under the control or use of Contractor or any
<br />Subcontractor at the Project Site.
<br />
<br /> 10.16 The Contractor shall maintain and preserve
<br />for at least three years from the date of final payment books,
<br />ledgers, records, documents, estimates, bidding documents,
<br />correspondence, logs, schedules, electronic data and other
<br />evidence relating or pertaining to the costs incurred by the
<br />Contractor in connection with or related to the Agreement
<br />and/or performance of the Contract (“records”) to such extent
<br />and in such detail as will properly reflect and fully support
<br />compliance with the Contract Documents and with all costs,
<br />charges and other amounts of whatever nature for which
<br />reimbursement or payment is or may be claimed under the
<br />Contract. The Contractor agrees to make available at all
<br />reasonable times at the office of the Contractor all such records
<br />for inspection, audit and reproduction (including electronic
<br />reproduction) by KCDA and the Client and their
<br />representatives. These requirements shall be applicable to each
<br />Subcontractor of any tier and included in each Subcontract and
<br />purchase order issued with respect to the Work. The Contractor
<br />agrees, on behalf of itself, its representatives, and
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