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<br /> 4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers
<br /> substantial performance of the Project;or •
<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
<br /> CONTRACTOR had an excusable reason for not performing,such as events which are not the fault of or are beyond the
<br /> control of the CONTRACTOR,such as a strike,fire or flood,WSDOT may: (a)allow the CONTRACTOR to continue
<br /> 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 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
<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 breach
<br /> of that or of any other term,covenant,or condition of this AGREEMENT.
<br /> E. If this AGREEMENT is terminated,whether for convenience or for default,before the specified end date set forth
<br /> in the caption header, "Term of Project", WSDOT and the CONTRACTOR shall execute an amendment to this
<br /> AGREEMENT identifying the termination date and the reason for termination.
<br /> Section 27
<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 /> •
<br /> Section 28
<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
<br /> remedy available to WSDOT with respect to any breach or default.
<br /> Section 29
<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,or
<br /> costs(hereinafter referred to collectively as"claims"),of whatsoever kind or nature brought against WSDOT arising out
<br /> of,in connection with orincident to the execution of this AGREEMENT and/or the CONTRACTOR's performance or
<br /> failure to perform any aspect of this AGREEMENT.This indemnity provision applies to all claims against WSDOT,its
<br /> agents, employees and officers arising out of,in connection with or incident to the negligent acts or omissions of the
<br /> CONTRACTOR,its agents,employees,officers and subcontractors.Provided,however,that nothing herein shall require
<br /> the CONTRACTOR to indemnify and hold harmless or defend the WSDOT, its agents, employees or officers to the
<br /> extent that claims are caused by the negligent acts or omissions of the WSDOT,its agents,employees or officers;and
<br /> provided further that if such claims result from the concurrent negligence of(a)the CONTRACTOR its employees,
<br /> agents,officers or contractors and(b)the STATE,its employees or authorized agents,or involves those actions covered
<br /> . by RCW 4.24.115,the indemnity provisions provided herein shall be valid and enforceable only to the extent of the
<br /> negligence of the PARTY,its employees,officers, authorized agents,and/or contractors.The indemnification and hold
<br /> 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 employees
<br /> 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 be
<br /> recoverable by the prevailing PARTY.
<br /> •
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