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14 <br /> • b) Failure to remedy all defects in the performance of the Project and correct all faulty workmanship by the <br /> CONTRACTOR or its subcontractors in a timely manner; <br /> c) Failure to take any action which could affect the ability of the Project to perform its designated function or <br /> takes any action which could shorten its useful life for Project use or otherwise;or <br /> d) Failure to make reasonable andappropriate use of the Project real property, facilities, equipment and/or <br /> infrastructure. <br /> 4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial <br /> performance of the Project;or <br /> • <br /> 5. 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 <br /> manner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the CONTRACTOR <br /> had an excusable reason for not performing, such as events which are not the fault of or are beyond the control of the <br /> CONTRACTOR,such as a strike,fire or flood,WSDOT may: a)allow the CONTRACTOR to continue work after setting <br /> up a new delivery of performance schedule,orb)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 <br /> (10)business days,or such longer period as determined by WSDOT,in which to cure the defect. In such case,the notice <br /> of termination will state the time period in which cure is permitted and other appropriate conditions. If the CONTRACTOR <br /> fails to remedy to WSDOT's satisfaction the breach or default within the timeframe and under the conditions set forth in <br /> the notice of termination,WSDOT shall have the right to terminate this AGREEMENT without any further obligation to <br /> CONTRACTOR. Any such termination for default shall not in any way operate to preclude WSDOT from also pursuing <br /> 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 breach <br /> of that or of any other term,covenant,or condition of this AGREEMENT. <br /> Section 34 <br /> Venue and Process <br /> In the event that either PARTY deems it necessary to institute legal action or proceedings to enforce any right or obligation <br /> under this AGREEMENT,the PARTIES hereto agree that any such action shall be initiated in the Superior Court of the <br /> State.of Washington situated in Thurston County.The PARTIES agree that the laws of the State of Washington shall apply. <br /> Section 35 <br /> Changed Conditions Affecting Performance <br /> The CONTRACTOR hereby agrees to immediately notify WSDOT in writing of any change in conditions or law, or of <br /> any other event,including any current or prospective dispute,which may adversely affect WSDOT's interest in the Project <br /> or affect CONTRACTOR's ability to perform the Project in accordance with the provisions of this AGREEMENT. <br /> Section 36 <br /> Subrogation <br /> A. Prior to Subrogation. WSDOT may require the CONTRACTOR to take such action as may be necessary or <br /> appropriate to preserve the CONTRACTOR's right to recover damages from any person or organization alleged to be <br /> legally responsible for injury to the Project or other property in which WSDOT has a financial interest. <br /> B. Subrogation. WSDOT may require the CONTRACTOR to assign to WSDOT all right of recovery against any person <br /> or organization for loss,to the extent of WSDOT's loss.Upon assignment,the CONTRACTOR shall execute,deliver,and <br /> do whatever else necessary to secure WSDOT's rights.The CONTRACTOR shall do nothing after any loss to prejudice <br /> the rights of WSDOT. <br /> C. Duties of the Contractor. If WSDOT has exercised its right of subrogation,the CONTRACTOR shall cooperate <br /> with WSDOT and,upon WSDOT's request,assist in the prosecution of suits and enforce any right against any person or <br /> organization who may be liable to WSDOT due to damage to the Project.The CONTRACTOR shall attend hearings and <br /> trials as requested by WSDOT,assist in securing and giving evidence as requested by WSDOT,and obtain the attendance <br /> of witnesses as requested by WSDOT. <br /> GCB2818 Page 10 of 13 <br /> 73 <br />