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091-20 - Windward McCormick - ContractContract No. 091-20 INDEMNIFICATION AND HOLD HARMLESS AGREEMENT This Indemnification and Hold Harmless Agreement (``Agreement") is entered into this 2) e ` O between the City of Port Orchard, a Washington municipal corporation (the "Indemnitor") and Windward McCormick, a Washington limited liability company (the "Indemnitee"). Whereas, the Indemnitor is the owner of the McCormick Lift Station #1 (the "Lift Station") which is located on property described on Exhibit A ("Lift Station #1 Property"); and Whereas, the Indemnitee constructed the new Lift Station in accordance with an agreement between the City of Port Orchard and McCormick Communities, LLC known as the McCormick Woods Lift Stations #1 & #2 Agreement ("Lift Stations Agreement") signed by the parties in April 2018; and Whereas, the new Lift Station was designed by Indemnitee's consultants and was approved and permitted by the Indemnitor; and Whereas, following the construction of the Lift Station and commencement of operations, the parties discovered that the downstream force main at the point of connection to the new system, owned by the Indemnitor, was experiencing certain conditions arising out of the new Lift Station operations, commonly known as water hammer due to surges emanating from the new Lift Station (the "Condition"); and Whereas, neither party anticipated this condition; and Whereas, in order to provide long term stability for the sewer system in this area, repair of the Condition is necessary; and Whereas, Indemnitee agreed to remedy the Condition provided that such remedy does not expand the Indemnitee's liability beyond its work on the new Lift Station; and Whereas, Indemnitor agrees that the Condition was unforeseen and that it would be inequitable to have the remedy of such Condition create additional liability for the Indemnitee; and Whereas, the parties have agreed to enter into this Agreement to provide for a solution for the Condition in accordance with the terms and conditions contained herein; NOW, THEREFORE, for good and sufficient consideration, the parties agree as follows: 1. The Desian. Indemnitee shall contract with BHC Consultants, LLC (the "Engineer") who shall the design the solution for the Condition which includes work 1 outside the work originally performed by Indemnitee and shall be submitted to the Indemnitor for its review and approval (the "Design"). 2. Installation.. After the Indemnitor has approved the Design, the Indemnitee will proceed to install the Design at its own costs and expense, which upon completion and acceptance of the same, Indemnitee shall be deemed to have satisfied all of its facilities development obligations arising out of or related to the Lift Stations Agreement. 3. Indemnity After the Indemnitor has inspected and approved the installation of the Design, the Indemnitor agrees to defend, indemnify and hold Indemnitee harmless from and against all injuries, losses, suits, claims, actions, costs, expenses (including attorneys' fees, penalties, fines, liabilities or other damages to persons or property of any kind or nature whatsoever) (collectively, "Claims and Losses") which occur outside the confines of the new Lift Station #1 Property and downstream to the east from the new Lift Station 41 Property (including but not limited to the existing force main downstream of the Lift Station); including, without limitation, Claims and Losses arising out of Indemnitee's implementation of the Design. 4. Release. After the Indemnitor has inspected and approved the installation of the Design, Indemnitor releases Indemnitee from and against all injuries, losses, suits, claims, actions, costs, expenses (including attorneys' fees, penalties, fines, liabilities or other damages to persons or property of any kind or nature whatsoever) (collectively, "Claims and Losses") which occur outside the confines of the new Lift Station #1 Property and downstream to the east from the new Lift Station #1 Property; including, without limitation, Claims and Losses arising out of Indemnitee's implementation of the Design. 5. Lift Stations A ement. Nothing in this Agreement shall act as an amendment to the Lift Stations Agreement nor undermine the indemnifications or warranties provided therein. Furthermore, this agreement in no way will act as a waiver of any insurance or bonding requirements that may otherwise exist. The purpose of this Agreement is solely to provide indemnification and release from the Indemnitor to the Indemnitee as specifically set forth above in exchange for having the Indemnitee provide the Design and installation to remedy the Condition. 6. Successors and Assigns. The rights and obligations of the parties under this Agreement shall inure to the benefit of and be binding upon their respective successors and assigns. 7. Amendment. This Agreement may only be amended by a document signed by the Indemnitor and Indemnitee or their respective successors and assigns. 8. Entire A reement. This Agreement represents the entire agreement between the parties covering everything agreed upon or understood in this transaction. There are no oral promises, conditions, representations, understandings, interpretations or OA terms of any kind as conditions or inducements to the execution hereof or in effect between the parties, except as may otherwise be provided herein. 9. Construction. The section headings throughout this Agreement are for convenience and reference only and the words contained in them shall not be held to expand, modify, amplify or aid in the interpretation, construction or meaning of this Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identification of the person or persons, firm or firms, corporation or corporations may require. All parties hereto have been represented by legal counsel in this transaction and accordingly hereby waive the general rule of construction that an agreement shall be construed against its drafter. INDEMNITOR: CITY OF PORT ORCHARD By: %:h� Rob Putaansu , Mayor INDEMNITEE: WINDWARD McCormick, LLC �ti►ntrual„��� ..•►�F pair a"►►., C r a�Gh'�•G0�poR'• ��'•. 0 0� SEAS, - y�, r�M �. • per. By: JZes :. Tosti, its ember and Manager _0 @In �!1 Legal Description McCormick Lift Station No. 1 Site, 1190 SW Old Clifton Road, Port Orchard, Washington, is located along the southerly margin of the SW Old Clifton Road Right -of -Way, being east of the Lloyd Parkway and west of SR-16.