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Page 38 of 53
<br />5-2-25
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<br />will be the judge as to the responsibility for correction of defects subject to the dispute resolution
<br />procedures incorporated herein.
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<br />37. UNCORRECTED FAULTY WORK
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<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.
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<br />38. OWNER’S RIGHT TO DO WORK
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<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.
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<br />39. TERMINATION FOR CONVENIENCE
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<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
<br />Fee, and general conditions costs incurred through demobilization from the Project, through the
<br />date of termination plus a reasonable period for demobilization.
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<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.
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<br />40. TERMINATION FOR DEFAULT
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<br />40.1. If the CMAR fails to begin the Work under the Contract within the time specified, or the progress
<br />of the Work 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 />Docusign Envelope ID: 5A9E3BC2-EAE1-4C35-82D9-B4D6A375FA78
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