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• <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 takes <br /> any action which could shorten its useful life for Project use or otherwise;or <br /> d) Failure to make reasonable and appropriate 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 <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, <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 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 /> Section 33 <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 <br /> obligation under this.AGREEMENT, the PARTIES hereto agree that any such action shall be initiated in the Superior <br /> Court of the State of Washington situated in Thurston County. The PARTIES agree that the laws of the State of <br /> Washington shall apply. <br /> Section 34 <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 <br /> person or organization for loss, to the extent of WSDOT's loss. Upon assignment, the CONTRACTOR shall execute, <br /> deliver,and do whatever else necessary to secure WSDOT's rights. The CONTRACTOR shall do nothing after any loss <br /> to prejudice 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 <br /> attendance of witnesses as requested by WSDOT. <br /> Section 35 <br /> Severability <br /> If any covenant or provision of this AGREEMENT shall be adjudged void,such adjudication shall not affect the validity <br /> or obligation of performance of any other covenant or provision, or any part thereof, which in itself is valid if such <br /> remainder conforms to the terms and requirements of applicable law and the intent of this AGREEMENT. No <br /> controversy concerning any covenant or provision shall delay the performance of any other covenant or provision except <br /> as herein alloyed. <br /> • <br /> GCB2316 Page 9 of 11 <br /> 18 <br />