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<br /> 1. Takes any action pertaining to this AGREEMENT without the approval of WSDOT,which under the procedures of this
<br /> AGREEMENT would have required the approval of WSDOT;
<br /> 2. Jeopardizes its ability to perform pursuant to this AGREEMENT,United States of America laws,Washington state laws,
<br /> or local governmental laws under which the CONTRACTOR operates;
<br /> 3. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial
<br /> 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,any
<br /> provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting forth the manner in
<br /> which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the CONTRACTOR had an
<br /> excusable reason for not performing,such as events which are not the fault of or are beyond the control of the CONTRACTOR,
<br /> such as a strike,fire or flood,WSDOT may: (a)allow the CONTRACTOR to continue work after setting up a new delivery of
<br /> performance schedule,or(b)treat the termination as a termination for convenience.
<br /> C. WSDOT,in its sole discretion may,in the case of a termination for breach or default,allow the CONTRACTOR ten(10)
<br /> business days,or such longer period as determined by WSDOT,in which to cure the defect. In such case,the notice of termination
<br /> will state the time period in which cure is permitted and other appropriate conditions. If the CONTRACTOR fails to remedy to
<br /> WSDOT's satisfaction the breach or default within the timeframe and under the conditions set forth in the notice of termination,
<br /> WSDOT shall have the right to terminate this AGREEMENT without any further obligation to CONTRACTOR. Any such
<br /> termination for default shall not in any way operate to preclude WSDOT from also pursuing all available remedies against
<br /> 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 condition
<br /> of this AGREEMENT,such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding breach of that or of any
<br /> 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, shall
<br /> 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 by
<br /> WSDOT of any CONTRACTOR breach,or default. Such payment shall in no way impair or prejudice any right or remedy
<br /> 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 and defend
<br /> at its own expense any and all claims,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 arising out of,in connection with or
<br /> incident to the execution of this AGREEMENT and/or the CONTRACTOR's performance or failure to perform any aspect of this
<br /> AGREEMENT.This indemnity provision applies to all claims against WSDOT,its agents,employees and officers arising out of,
<br /> in connection with or incident to the negligent acts or omissions of the CONTRACTOR,its agents,employees and officers.
<br /> Provided,however,that nothing herein shall require the CONTRACTOR to indemnify and hold harmless or defend the WSDOT,
<br /> its agents,employees or officers to the extent that claims are caused by the negligent acts or omissions of the WSDOT,its agents,
<br /> employees or 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 CONTRACTOR or
<br /> its subcontractors and the employees thereof,shall not in any manner be deemed to be the employees of WSDOT.
<br /> C.The CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR's employees and/or
<br /> subcontractors and solely for the purposes of this indemnification and defense,the CONTRACTOR specifically waives any
<br /> 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 the
<br /> provisions of this section of this AGREEMENT against the other PARTY,all such fees,costs and expenses shall be recoverable
<br /> by the prevailing PARTY.
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