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City of Everett 00 52 13 - 4
<br />Port Gardner Storage Facility – Facility Construction Package WO# UP-3525
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<br />00 52 13 - 4 AGREEMENT FORM
<br />B. The Contractor’s obligations under this Section 8 shall not apply to Claims caused
<br />by the sole negligence of the City. If (1) RCW 4.24.115 applies to a particular Claim,
<br />and (2) such Claim is caused by or results from the concurrent negligence of (a) the
<br />Contractor and (b) the City, then the Contractor’s liability under this Section 8 shall be
<br />only to the extent of the Contractor’s negligence.
<br />C. As used in this section: (1) “City” includes the City’s officers, employees, agents, and
<br />representatives; (2) “Claims” include all losses, claims, demands, expenses (including,
<br />but not limited to, attorney’s fees and litigation expenses), suits, judgments, or damage,
<br />whether threatened, asserted or filed against the City, whether such Claims sound in
<br />tort, contract, or any other legal theory, whether such Claims have been reduced to
<br />judgment or arbitration award, irrespective of the type of relief sought or demanded
<br />(such as money or injunctive relief), and irrespective of the type of damage alleged
<br />(such as bodily injury, damage to property, economic loss, general damages, special
<br />damages, or punitive damages); and (3) “Contractor” includes Contractor, its
<br />employees, agents, representatives and subcontractors. If, and to the extent,
<br />Contractor employs or engages subcontractors, then Contractor shall ensure that each
<br />such subcontractor (and subsequent tiers of subcontractors) shall expressly agree to
<br />defend and indemnify and hold harmless the City to the extent and on the same terms
<br />and conditions as the Contractor pursuant to this section.
<br />9. Insurance. The Contractor shall purchase and maintain such insurance as set
<br />forth in the Contract Documents Failure to maintain such insurance shall be a material
<br />breach of the Contract. The City shall be entitled to damages for such a breach that
<br />include, but are not limited to, any loss (including, but not limited to, third party litigation
<br />expenses and professional fees) suffered by the City if the City is determined to be
<br />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.
<br />10. Waiver of Industrial Insurance Immunity. Contractor waives any right of
<br />contribution against the City. It is agreed and mutually negotiated that in any and all
<br />claims against the City, its agents or employees, the Contractor, a subcontractor,
<br />anyone directly or indirectly employed by the Contractor or subcontractor, or anyone for
<br />whose acts any of them may be liable, the defense and indemnification obligations
<br />hereunder shall not be limited in any way by any limitation on the amount of damages,
<br />compensation, or benefits payable by or for the Contractor or any subcontractor under
<br />industrial worker’s compensation acts, disability benefit acts, or other employees’
<br />benefit acts. Contractor’s and City’s signatures hereto indicate specific waiver of
<br />Contractor’s industrial insurance immunity in order to fulfill the indemnities hereunder.
<br />Solely for the purpose of indemnification and defense as provided in this Contract, the
<br />Contractor specifically waives any immunity under the State Industrial Insurance Law,
<br />Title 51 RCW. The Contractor expressly acknowledges that this waiver of immunity
<br />under Title 51 RCW was the subject of mutual negotiation and was specifically entered
<br />into pursuant to the provisions of RCW 4.24.115.
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