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6.1.D. - Page 9 <br />Any failure by DU to perform any term or provision of this Agreement shall <br />constitute an "Event of Default" (1) if DU does not cure such failure within thirty (30) days <br />following written notice of default from City, or (2) if such failure is not of a nature which <br />can be cured within such thirty (30) day period, DU does not within such thirty (30) day <br />period commence substantial efforts to cure such failure, or thereafter does not within a <br />reasonable time prosecute to completion with diligence and continuity the curing of such <br />failure. <br />Any notice of default given hereunder shall specify the nature of the failure in <br />performance which City claims constitutes a default and the manner in which such <br />default may be satisfactorily cured. During the time periods herein specified for cure of a <br />failure to perform, DU shall not be considered to be in default of this Agreement. <br />Any failure or delay by City in asserting any of its rights or remedies as to any <br />Event of Default shall not operate as a waiver of any Event of Default or of any such <br />rights or remedies or deprive City of its right to institute and maintain any actions or <br />proceedings which it may deem necessary to protect, assert or enforce any such rights <br />or remedies. City may pursue any and all remedies available at law or in equity. <br />16. EARLY TERMINATION, SUSPENSION, AND FAILURE TO PERFORM <br />Before the Project is complete, either party may terminate this Agreement for any <br />reason by providing the other party with seven days notice in writing and the City may <br />suspend the Agreement upon written notice. In either case, DU shall immediately stop <br />work under the Agreement and shall take all reasonable measures to prevent further <br />expenditure of the City Funds. Any notice suspending work under this Agreement shall <br />remain in effect until further written notice from the City authorizes work to resume. <br />If DU fails to complete the Project as required, or fails to fulfill any other <br />obligations of this Agreement prior to the termination date, DU shall be liable for <br />immediate repayment to the City of all amounts disbursed by the City under this <br />Agreement. The City may, at its sole discretion, consider extenuating circumstances <br />and not require repayment for work partially completed. This paragraph shall not limit <br />any other remedies that the City may have for breach of this Agreement. <br />The parties expressly agree to waive, release and relinquish the recovery of any <br />consequential damages that may arise out of the termination or suspension of this <br />Agreement under this section. <br />DU shall include in any agreement with any contractor retained for work under <br />this Agreement a provision that entitles DU to suspend or terminate the agreement with <br />the contractor for any reason on written notice and on the same terms and conditions <br />specified in this section. <br />17. OPERATION AND MAINTENANCE <br />DU shall use, manage, maintain and operate the Project throughout the term of <br />this Agreement and until the transfer of ownership of the Project is transferred to the Don <br />Edward National Wildlife Refuge. The City shall not be liable for any cost of <br />ATTY /AGR /2011.009 /DUCKS UNLIMITED <br />032511 revised final version <br />