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will be the judge as to the responsibility for correction of defects subject to the dispute resolution
<br /> procedures incorporated herein .
<br /> 37 . UNCORRECTED FAULTY WORK
<br /> 37 . 1 . Should the correction of faulty or damaged Work be considered inadvisable or inexpedient by the
<br /> Owner and the Project Designer, the Owner shall be equitably reimbursed by the CMAR. The
<br /> reimbursement may be deducted from any amounts due or to become due to the CMAR. Should the
<br /> cost of such reimbursement exceed the amount due or to become due the CMAR, then the CMAR
<br /> or its surety , or both, shall be liable for and shall pay to the Owner the amount of said deficiency .
<br /> The CMAR may in turn deduct such reimbursements from amounts due to responsible
<br /> Subcontractors including funds retained by the Owner for warranty period .
<br /> 38. OWNER ' S RIGHT TO DO WORK
<br /> 38 . 1 . If, during the progress of the Work or during the period of guarantee , the CMAR fails to prosecute
<br /> the Work properly or to perform any provision of the Contract, the Owner, after fifteen ( 15 ) days '
<br /> written notice sent by certified mail , return receipt requested, to the CMAR and the Project
<br /> Designer, may perform or have performed that portion of the Work . The cost of the Work may be
<br /> deducted from any amounts due or to become due to the CMAR, such action and cost of same
<br /> having been first approved by the Project Designer. Should the cost of such action of the Owner
<br /> exceed the amount due or to become due the CMAR, then the CMAR or its surety , or both, shall be
<br /> liable for and shall pay to the Owner the amount of said excess .
<br /> 39. TERMINATION FOR CONVENIENCE
<br /> 39 . 1 . The Owner may terminate this Contract at any time and for any reason including, without
<br /> limitation, failure of the parties to reach agreement on any GMP . In the event this Contract is
<br /> terminated pursuant to this provision , the CMAR shall, as requested by the Owner, cancel all
<br /> contracts for Work or cooperate with the Owner to assign contracts for Work to the Owner or the
<br /> Owner ' s designee . The Owner shall pay the CMAR all costs of the Work incurred by the CMAR,
<br /> including cancellation costs, settlement costs, demobilization costs and restocking Fees , until all
<br /> contracts with the CMAR can be canceled or assigned . Otherwise , the CMAR shall only receive its 3
<br /> Fee , and general conditions costs incurred through demobilization from the Project, through the
<br /> date of termination plus a reasonable period for demobilization .
<br /> 39 . 2 . Termination under this paragraph shall not release either the CMAR or its surety from liability or
<br /> responsibility for any default or other transaction or occurrence prior to the date of termination and
<br /> demobilization from the Project .
<br /> 40. TERMINATION FOR DEFAULT
<br /> 40 . 1 . If the CMAR fails to begin the Work under the Contract within the time specified, or the progress
<br /> of the Worlc is not maintained on schedule, or fails to complete the Work within the time above
<br /> specified, or shall allow the Work to be performed unsuitably or shall discontinue the prosecution
<br /> of the Work, or if the CMAR shall become insolvent or be declared bankrupt or commit any act of
<br /> bankruptcy or insolvency , or allow any final judgment to stand against it unsatisfied for a period of
<br /> seventy-two (72) hours , or shall make an assignment for the benefit of creditors, or for any other
<br /> material cause whatsoever shall not carry on the Work in an acceptable manner, the Owner may
<br /> give notice in writing, sent by certified mail , return receipt requested, to the CMAR and its surety
<br /> of such delay , neglect or default, specifying the same , and if the CMAR within a period of ten ( 10)
<br /> days after such notice shall not proceed in accordance therewith, then upon the Owner ' s issuance of
<br /> notice of default, the Owner shall have full power and authority , without violating the Contract, to
<br /> take the prosecution of the Work out of the hands of said CMAR, to appropriate or use any or all
<br /> Contract materials and equipment on the grounds as may be suitable and acceptable and may enter
<br /> into an agreement, either by public letting or negotiation, for the completion of said Contract
<br /> Page 38 of 52
<br /> Revised 12/24, 4/25
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