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<br /> <br />Due account shall be taken of any adjustment of <br />the contract time for completion of the work granted <br />under the provisions of subsection 108.06. <br />Permitting the Contractor to continue and finish <br />the work or any part thereof after elapse of contract <br />time will not operate as a waiver on the part of the <br />Division of any of its rights under the Contract. <br />Any deduction assessed as liquidated damages <br />under this subsection shall not relieve the Contractor <br />from liability for any damages or costs resulting <br />from delays to other contractors on the project or <br />other projects caused by a failure of the assessed <br />Contractor to complete the work according to con- <br />tract times. <br /> <br />108.08 Default of Contract. If the Con- <br />tractor: <br />(a) Fails to begin the work under the Contract <br />within the time specified in the Notice to <br />Proceed, or <br />(b) Fails to perform the work with sufficient <br />workers and equipment or with sufficient <br />materials to assure the prompt completion of <br />said work, or <br />(c) Performs the work not in accordance with <br />the Contract requirements or refuses to <br />remove and replace rejected materials or <br />unacceptable work, or <br />(d) Discontinues the prosecution of the work, or <br />(e) Fails to resume work which has been discon- <br />tinued within a reasonable time after notice <br />to do so, or <br />(f) Becomes insolvent or is declared bankrupt, <br />or commits any act of bankruptcy or insol- <br />vency, or <br />(g) Allows any final judgment to remain against <br />unsatisfied for a period of 10 days, or <br />(h) Makes an assignment for the benefit of credi- <br />tors, or <br />(i) Fails to comply with contract requirements <br />regarding minimum wage payments or EEO <br />requirements, or <br />(j) Is a party to fraud, or <br />(k) For any other cause whatsoever, fails to <br />carry on the work in an acceptable manner; <br />the Engineer will give notice in writing to the <br />Contractor and the Surety of such delay, neglect, or <br />default. <br />If the Contractor or Surety, within a period of 10 <br />days after such notice, does not proceed, then the <br />Division will, upon written notification from the <br />Engineer of such delay, neglect, or default, and the <br />Contractor's failure to comply with such notice, have <br />full power and authority without violating the <br />Contract, to take the prosecution ofthe work from the <br />Contractor. The Division may appropriate or use the <br />Contractor's materials and equipment on the ground <br />as may be suitable and acceptable and may enter <br />into an agreement for the completion of the Contract <br />according to the terms and provisions thereof, or use <br />31 <br /> <br />other methods as, in the opinion of the Engineer, will <br />be required for the completion of the Contract. <br />All costs and charges incurred by the Division, <br />together with the cost of completing the work under <br />contract, will be deducted from any monies due or <br />which may become due said Contractor. H such <br />expense exceeds the sum which would have been <br />payable under the Contract, then the Contractor and <br />the Surety shall be liable and shall pay to the Divi- <br />sion the amount of such excess. <br />If the Contractor notifies the Division that the <br />Division has committed a material breach of the <br />Contract which would, under the law, justify the <br />Contractor in terminating or suspending perfor- <br />mance, the claim shall be considered and the <br />decision rendered within 30 days following such <br />suspension or termination. <br /> <br />108.09 Termination of Contract. <br />(a) Termination Notice. The Division may <br />terminate work under this Contract in whole <br />or in part if the Engineer determines that <br />termination is in the Division's best interest. <br />Contract termination will be initiated by the <br />Engineer's written Contract Termination <br />Notice to the Contractor. The notice will <br />specify the effective date. <br />(b) Cancelled Commitments. The Contractor, <br />after receiving the Contract Termination <br />Notice, shall cancel any outstanding commit- <br />ments for procurement of materials, <br />supplies, equipment and miscellaneous <br />items. In addition, the Contractor shall use <br />reasonable effort to cancel or divert any <br />outstanding subcontract commitments to <br />the extent they relate to any work termi- <br />nated. With respect to such cancelled com. <br />mitments the Contractor shall: <br />(1) Settle all outstanding liabilities and all <br />claims arising out of these cancelled com- <br />mitments. Such settlements shall be <br />approved by the Engineer and shall be <br />final; and <br />(2) Assign to the Division all of the rights, <br />title and interest of the Contractor under <br />the terminated orders and subcontracts, <br />as directed by the Engineer. The Division <br />will then have the right to settle or pay <br />any or all claims arising out of the termi- <br />nation of these commitments. <br />(c) Termination Claim. The Contractor shall <br />submit the termination claim to the Engineer <br />within 90 days after the termination notice <br />effective date. Durig the 90 day period, the <br />Contractor may make a written request for a <br />time extension in preparing the claim. Any <br />time extension must be approved by the <br />Engineer. If the Contractor fails to submit <br />the termination claim within the time <br />allowed, the Engineer may determine the <br /> <br />