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Section 26
<br />Forbearance by WSDOT Not a Waiver
<br />Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded
<br />by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy.
<br />Section 27
<br />Lack of Waiver
<br />In no event shall any WSDOT payment of grant funds to the GRANTEE constitute or be construed
<br />as a waiver by WSDOT of any GRANTEE breach, or default. Such payment shall in no way
<br />impair or prejudice any right or remedy available to WSDOT with respect to any breach or default.
<br />Section 28
<br />Limitation of Liability
<br />A.The GRANTEE shall indemnify, defend, and hold harmless WSDOT, its agents,
<br />employees, and officers and process and defend at its own expense any and all claims,
<br />demands, suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter
<br />referred to collectively as “claims”), of whatsoever kind or nature brought against WSDOT,
<br />arising out of, in connection with or incident to the execution of this AGREEMENT and/or
<br />the GRANTEE’s performance or failure to perform any aspect of this AGREEMENT. This
<br />indemnity and defense provision applies to all claims against WSDOT, its agents,
<br />employees, and officers arising out of, in connection with, or incident to the negligent acts
<br />or omissions of the GRANTEE, its agents, employees, officers, and subcontrators of any
<br />tier. Provided, however, that nothing herein shall require the GRANTEE to indemnify,
<br />defend, and hold harmless or defend WSDOT, its agents, employees, or officers to the
<br />extent that claims are caused by the sole negligent acts or omissions of WSDOT, its
<br />agents, employees or officers; and provided further that if such claims result from the
<br />concurrent negligence of (a) the GRANTEE its employees, agents, officers or GRANTEEs
<br />and (b) the STATE, its employees or authorized agents, or involves those actions covered
<br />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 GRANTEE, its employees,
<br />officers, authorized agents, and/or GRANTEEs. The indemnification and hold harmless
<br />provision shall survive termination of this AGREEMENT.
<br />B.The GRANTEE shall be deemed an independent GRANTEE for all purposes, and the
<br />employees of the GRANTEE or its subcontractors and the employees thereof, shall not in
<br />any manner be deemed to be the employees of WSDOT.
<br />C.The GRANTEE agrees that its obligations under this AGREEMENT extend to any claim,
<br />demand, and/or cause of action by, or on behalf of its employees or agents while
<br />performing under this AGREEMENT. For this purpose, the GRANTEE, by MUTUAL
<br />NEGOTIATION, hereby waives any immunity that would otherwise be available to it
<br />against such claims under the Industrial Insurance provisions in Title 51 RCW.
<br />D.In the event either the GRANTEE or WSDOT incurs attorney’s fees, costs or other legal
<br />expenses to enforce the provisions of this section of this AGREEMENT against the other
<br />PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY.
<br />City of Everett
<br />PTD1019
<br />Page 10 of 13
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