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Suspension of Work and Termination
ARTICLE 14 - SUSPENSION OF WORK AND TERMINATION
14.1 OWNER May Suspend Work. OWNER may, at any time and without cause, suspend the Work or any portion thereof by notice in writing to CONTRACTOR and ENGINEER which will fix either the date or requisite events for resumption of the Work. CONTRACTOR shall resume the Work on the date so fixed. CONTRACTOR may make a claim for an extension of the Contract Time on account of such suspension, as provided by and subject to the limitations of Article 11.
14.2 CONTRACTOR Default. The OWNER may declare CONTRACTOR to be in default under the Agreement and may terminate CONTRACTOR's right to proceed thereunder if CONTRACTOR (i) is adjudged a bankrupt or insolvent, or makes a general assignment for the benefit of creditors, or CONTRACTOR or a third party files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws, or a trustee or receiver is appointed for CONTRACTOR or for any of CONTRACTOR's property on account of the CONTRACTOR's insolvency, and CONTRACTOR or its successor in interest does not provide adequate assurance of future performance in accordance with the Contract Documents within ten (10) days of receipt of a written request by OWNER for such assurance; or (ii) admits in writing an inability to pay his debts generally as they become due; or (iii) fails or refuses to perform or prosecute the Work or any separate part or element thereof in accordance with the Contract Documents and with such diligence as will insure its completion within the Contract time, or CONTRACTOR fails to complete the Work within such Contract Time ; or (iv) performs any Work which is rejected as Defective and fails or neglects to correct any such Work; or (v) fails to supply sufficient skilled workers or suitable materials or equipment; or (vi) fails to adhere to the original and any revised progress schedules established under the Contract Documents; or (vii) fails to make prompt payment to laborers, subcontractors and material suppliers ; or (viii) abandons or suspends performance of any of the Work, or removes from the site materials or equipment reasonably required to perform and complete the Work, without OWNER's written consent, directive or approval; or (ix) disregards Laws or Regulations or similar requirements and orders of any public body having jurisdiction; or (x) disregards the authority of OWNER or ENGINEER; or (xi) otherwise violates in any material way any provisions or requirements of the Contract Documents.
14.3 Default Termination By OWNER. Upon occurrence of any of the events of default provided by Section 14.2, OWNER may, after giving CONTRACTOR and the Surety seven (7) days written notice terminate the Agreement and CONTRACTOR's right to proceed thereunder, which termination shall become effective without further notice upon the expiration of such seven (7) day period, unless otherwise rescinded or modified by OWNER in writing. The following shall govern in the event of a default termination by OWNER as provided by this Section:
14.3.1 OWNER may exclude CONTRACTOR from the site and take possession of the Work and of all CONTRACTOR's tools, appliances, construction equipment and machinery at the site and use or authorize third party contractors to use the same for completing or correcting the Work, and incorporate in the Work all materials and equipment stored at the site or for which OWNER has paid CONTRACTOR but which are stored elsewhere. OWNER and completion contractors shall not be liable to CONTRACTOR for the cost or value of any such property used or incorporated in the course of such completion or correction;
14.3.2 OWNER may, by any means it may deem expedient and appropriate under the circumstances, complete and correct or contract with one or more separate contractors for completion and correction of the Work. OWNER shall not be required to accept the lowest price or the shortest duration proposed for such completion or corrective Work. In the event that OWNER takes bids for completion or corrective Work, CONTRACTOR shall not be eligible for the award of any contracts resulting therefrom.
14.3.3 CONTRACTOR shall not be entitled to receive any further payment until all Work is completed and corrected and the total costs incurred by OWNER in respect of such completion and correction have been ascertained.
14.3.4 CONTRACTOR and its surety shall be liable for liquidated damages for delayed completion of the Work as provided in the Contract Documents, based upon (i) the agreed dates for substantial and final completion as established by the contract(s) between OWNER and the completion contractor(s) or (ii) the actual dates of substantial and final completion, whichever occurs first;
14.3.5 If the unpaid balance of the Contract Price exceeds the sum of (i) liquidated damages (ii) the Completion Costs as hereinafter defined, (iii) such other damages to which OWNER is entitled by reason of CONTRACTOR's breach or default under the Agreement or the termination thereof and (iv) attorney fees incurred by OWNER incidental to the enforcement of any rights and remedies against CONTRACTOR and its Surety afforded by the Contract Documents, such excess will be paid to CONTRACTOR or Surety as appropriate. If such sum exceeds such unpaid balance, CONTRACTOR and its surety shall pay the difference to OWNER.
14.3.6 As used in this Section, the term "Completion Costs" shall mean any and all direct, indirect and consequential costs and expenses paid or incurred by OWNER for or incidental to completion of the Work or correction of previous Work performed by CONTRACTOR, whether by OWNER's own forces or by one or more separate contractors engaged by OWNER for such purposes, and shall include but not be limited to all fees and charges of engineers, architects, consultants, attorneys and other professionals, plus court costs, arbitration and arbitrator fees and charges.
14.3.7 Termination will not affect any rights or remedies of OWNER against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of moneys due CONTRACTOR by OWNER will not release CONTRACTOR from liability.
14.3.8 If it is determined for any reason that CONTRACTOR was not in default, the termination shall be deemed a termination for convenience of the OWNER, whereupon the rights and obligations of the parties shall be determined and governed in accordance with Section 14.4.
14.4 Termination For Convenience. Upon seven (7) days' written notice to CONTRACTOR and ENGINEER, OWNER may, without cause and without prejudice to any other right or remedy of OWNER, elect to terminate the Agreement in whole or in part for its convenience. CONTRACTOR shall immediately discontinue Work and follow all other instructions of OWNER as stated in such notice, and shall take all other action as may be required or appropriate to minimize costs, damages and expenses in consequence of the termination. Furthermore, CONTRACTOR shall deliver to OWNER all survey notes, drawings, specifications and estimates completed or partially completed and these shall become the property of OWNER. CONTRACTOR shall not be entitled to payment on account of loss of anticipated profits or revenue or other economic loss associated with any terminated Work. Amounts payable to CONTRACTOR shall be limited to the following:
14.4.1 A portion of the Contract Price as fairly allocated to Work executed by CONTRACTOR in accordance with the Contract Documents prior to the effective date of termination;
14.4.2 Reasonable expenses sustained by CONTRACTOR prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses, which shall not exceed the percentages established in Article 10;
14.4.3 Reasonable costs, losses and damages paid by CONTRACTOR in settlement of just claims under terminated contracts with Subcontractors, Suppliers and others.
14.5 CONTRACTOR Suspension of Work and Right To Terminate. If, through no act or fault of CONTRACTOR, the Work is suspended for a period of more than ninety (90) days by OWNER or under an order of court or other public authority, or OWNER substantially fails to perform or make payment to CONTRACTOR as prescribed by the Contract Documents, CONTRACTOR may, upon thirty (30) days written notice to OWNER and ENGINEER, terminate the Agreement and recover from OWNER payment for all Work executed and any expense sustained plus reasonable termination expenses.
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