2009/11/09 Council Agenda Packet

• 5 Section 26 Forbearance by WSDOT Not a Waiver Any forbearance by WSDOT in exercising any right or remedy hereunder,or otherwise afforded by applicable law,shall not be a waiver of or preclude the exercise of any such right or remedy. Section 27 Lack of Waiver In no event shall any WSDOT payment of funds to the CONTRACTOR constitute or be construed as a waiver by WSDOT of any CONTRACTOR breach,or default. Such payment shall in no way impair or prejudice any right or remedy available to WSDOT with respect to any breach or default Section 28 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this AGREEMENT. Section 29 Agreement Modifications Either PARTY may request changes to this AGREEMENT.Any changes to the terms of this AGREEMENT must be mutually agreed upon and incorporated by written amendment to this AGREEMENT. Such amendments shall not be binding or valid unless signed by the persons authorized to bind each of the PARTIES. Section 30 Disputes A. Disputes. Disputes, arising in the performance of this AGREEMENT, which are not resolved by agreement of the PARTIES, shall be decided in writing by WSDOT Public Transportation Division's Assistant Director or designee.This decision shall be final and conclusive unless within ten (10) days from the date of CONTRACTOR'S receipt of WSDOT's written decision, the CONTRACTOR mails or otherwise furnishes a written appeal to the Director of the Public Transportation Division. In connection with any such appeal, the CONTRACTOR shall be afforded an opportunity to offer material in support of its position. The CONTRACTOR's appeal shall be decided in writing within thirty (30) days of receipt of the appeal by the Director of the Public Transportation Division.The decision shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the decision. B. Performance during Dispute. Unless otherwise directed by WSDOT, CONTRACTOR shall continue performance under this AGREEMENT while matters in dispute are being resolved. C. Claims for Damages. Should either PARTY to this AGREEMENT suffer injury or damage to person,property,or right because of any act or omission of the other PARTY or any of that PARTY's employees,agents or others for whose acts it is legally liable,a claim for damages therefore shall be made in writing to such other PARTY within thirty(30)days after the first observance of such injury or damage. D. Rights and Remedies. All remedies provided in this AGREEMENT are distinct and cumulative to any other right or remedy under this document or afforded by law or equity,and may be exercised independently,concurrently,or successively and shall not be construed to be a limitation of any duties,obligations,rights and remedies of the PARTIES hereto.No action or failure to act by the WSDOT or CONTRACTOR shall constitute a waiver of any right or duty afforded any of them under this AGREEMENT,nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Section 31 Termination A. Termination for Convenience. WSDOT may suspend or terminate this AGREEMENT,in whole or in part,and all or any part of the financial assistance provided herein,at any time by written notice to the CONTRACTOR when it is in WSDOT's best interest or convenience for reasons including,but not limited to,the following: 1. The requisite funding becomes unavailable through failure of appropriation or otherwise; 2. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce beneficial results commensurate with the further expenditure of funds; Everett Transit/GCA 6116 Paga 8 17