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<br /> 3. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers
<br /> substantial performance of the Project;or
<br /> 4. Fails to perform in the manner called for in this AGREEMENT or fails,to comply with, or is in violation of,
<br /> any provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting forth
<br /> the manner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the
<br /> CONTRACTOR had an excusable reason for not performing, such as events which are not the fault of or are beyond
<br /> the control of the CONTRACTOR, such as a strike, fire or flood, WSDOT may: (a) allow the CONTRACTOR to
<br /> continue work after setting up a new delivery of performance schedule,or(b)treat the termination as a termination for
<br /> convenience.
<br /> C. WSDOT, in its sole discretion may, in the case of a termination for breach or default, allow the CONTRACTOR
<br /> ten(10)business days,or such longer period as determined by WSDOT,in which to cure the defect. In such case,the
<br /> notice of termination will state the time period in which cure is permitted and other appropriate conditions. If the
<br /> CONTRACTOR fails to remedy to WSDOT's satisfaction the breach or default within the timeframe and under the
<br /> conditions set forth in the notice of termination,WSDOT shall have the right to terminate this AGREEMENT without
<br /> any further obligation to CONTRACTOR. Any such termination for default shall not in any way operate to preclude
<br /> WSDOT from also pursuing all available remedies against CONTRACTOR and its sureties for said breach or default.
<br /> D. In the event that WSDOT elects to waive its remedies for any breach by CONTRACTOR of any covenant,term or
<br /> condition of this AGREEMENT, such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding
<br /> breach of that or of any other term,covenant,or condition of this AGREEMENT.
<br /> Section 22
<br /> Forbearance by WSDOT Not a Waiver
<br /> Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by applicable law,
<br /> shall not be a waiver of or preclude the exercise of any such right or remedy.
<br /> Section 23
<br /> Lack of Waiver
<br /> In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be construed as a waiver
<br /> by WSDOT of any CONTRACTOR breach,or default. Such payment shall in no way impair or prejudice any right or
<br /> remedy available to WSDOT with respect to any breach or default.
<br /> Section 24
<br /> Limitation of Liability
<br /> A. The CONTRACTOR shall indemnify and hold harmless WSDOT,its agents,employees,and officers and process
<br /> and defend at its own expense any and all claims,demands, suits at law or equity, actions,penalties,losses, damages,
<br /> or costs (hereinafter 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 the CONTRACTOR's
<br /> performance or failure to perform any aspect of this AGREEMENT. This indemnity provision applies to all claims
<br /> against WSDOT,its agents, employees and officers arising out of, in connection with or incident to the negligent acts
<br /> or omissions of the CONTRACTOR, its agents,employees and officers. Provided,however,that nothing herein shall
<br /> require the CONTRACTOR to indemnify and hold harmless or defend the WSDOT,its agents, employees or officers
<br /> to the extent that claims are caused by the negligent acts or omissions of the WSDOT, its agents, employees or
<br /> officers.The indemnification and hold harmless provision shall survive termination of this AGREEMENT.
<br /> B. The CONTRACTOR shall be deemed an independent contractor for all purposes, and the employees of the
<br /> CONTRACTOR or its subcontractors and the employees thereof, shall not in any manner be deemed to be the
<br /> employees of WSDOT.
<br /> C. The CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR's employees
<br /> and/or subcontractors and solely for the purposes of this indemnification and defense,the CONTRACTOR specifically
<br /> waives any immunity under the State Industrial Insurance Law,Title 51 Revised Code of Washington.
<br /> D. In the event either the CONTRACTOR or WSDOT incurs attorney's fees, costs or other legal expenses to enforce
<br /> the provisions of this section of this AGREEMENT against the other PARTY, all such fees,costs and expenses shall
<br /> be recoverable by the prevailing PARTY.
<br /> GCB 1603 1 9 Page 6 of 9
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