Agenda - 09-19-2007-6b1 - Laserfiche WebLink

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expenses are defined as those expenses arising prior, during and subsequent to termination that are directly attributable to the termination. In addition, the CMAR shall be entitled to its full Fixed Fee for any phase of services completed prior to termination, plus a reasonable pro-rata portion of its Fixed Fee for any phase of services not completed at the time of termination, based on the percentage of such incomplete services actually completed prior to the date of termination; provided, however, that if it reasonably appears that the General Conditions costs being incurred by the CMAR would have exceed the not-to-exceed limit on General Conditions costs, then the Owner shall be entitled to reduce the amount of the Fixed Fee payable to the CMAR upon termination by the amount by which the General Conditions would have exceeded the limit on General Conditions costs. After receipt of a notice of termination under Paragraph 9.1, the CMAR shall submit a claim for termination fees and expenses in a form and with cert~cations as are reasonably required by the Owner. The termination claim shall be submitted promptly, but in any event within sixty days of receipt of a notice of termination unless extended by the Owner. The claim shall be subject to reasonable audit to the same extent as any other request for payment of General Conditions. 9.2 Termination for Default This Agreement may be terminated by either party hereto upon seven (7) days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party or if the Project in whole or substantial part is stopped for a period of one hundred twenty (120) consecutive days under an order of any court or other public authority having jurisdiction or as a result of an act of government. Without in any way limiting the scope of this Paragraph 9.2, the Owner may terminate this Agreement if the CMAR fails to begin or complete the Work within the time specified for completion in this Agreement, or shall perform the Work unsuitably or shall discontinue the prosecution of the Work for five (5) consecutive days, or if the CMAR shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the CMAR or its affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner, Termination under this Paragraph 9.2 for failure substantially to perform in accordance with the terms of this Agreement shall be without prejudice to any other right or remedy that the terminating party has under the Agreement or at law. 9.2.1 Notice and Time for Cure Neither party to this Agreement may terminate this Agreement without first giving the other party five business days notice of the intent to terminate the Agreement, measured from actual receipt of the notice. If the grounds for termination stated in the written notice are removed or cured within five business days after receipt of notice, the Agreement may not be terminated for default. 9.2.2 Payment to the CMAR In the event of termination pursuant to Paragraph 9.2, the CMAR shall be paid a reasonable pro-rata portion of the Guaranteed Maximum Price, based on the percentage of such incomplete services actually completed prior to the date of termination, less any amount by which the total cost paid by the Owner to complete the Work for which the CMAR is responsible, including Fees and General Conditions, exceeds the Guaranteed Maximum Price. In addition, the Owner may deduct from the final payment to the CMAR any liquidated damages or other damages for which the CMAR is liable under this Agreement. No payment shall be due under this Paragraph until the Project is finally complete and all rights and claims by Contractors for work on the Project have been settled and paid. 9.2.3 Assignment of Contracts to the event of termination pursuant to Paragraph 9.2, all construction and supply contracts between the CMAR and all Contractors and other suppliers for the Project shall be immediately assignable to the Owner, at the option of the Owner, on the same terms and conditions applicable to the CMAR under those contracts. The CMAR shall obtain the consent of each Contractor and supplier, in their respective contracts with the CMAR, to this assignment. 9.3 Additional Termination Provisions In the event of termination under either Paragraph 9.1 or 9.2, the CMAR agrees to: deliver to the Owner all Project as-built records, operating manuals, warranties and other Project inforrnation generated to date; 28