petition for review pursuant to Maine Rule of Civil Procedure 8 0C and 5 MRSA § 11001, et seq., of the Maine Administrative Procedure Act, to be filed in Maine Superior Court, Kennebec County.
Scope of Section This Section contains general provisions related to Default and termination of the Contract.
112.1Default
112.1.1 Grounds for Default The C ontractor and the Surety are in Default of the Contract if the Contractor or the Surety violate any provision of Section 103.3.2 or the following:
proceed,
the timely Completion of the Work,
Unacceptable Work, or neglects or refuses to uncover Unauthorized or Uninspected Work when directed by the Department,
insolvency that could affect the Work in any way,
ten Days,
Department, or
material provision of the Contract. 112.1.2 Notice of Default / Cure Except as otherwise provided in this Contract, if Default occurs, the Department may give written Notice of Defau lt to the Contractor and its Surety. Failure to give Notice of Default is in no way a waive r by the Department of any provision of the Contract. If the Contractor or Surety fa ils to completely cure such Defa ult within a period of 14 Days after Notice of Default, t hen the Department may (A) te rminate the Contract for cause in accordance with Section 112.2.1 - For Cause, or (B) ta ke prosecution of the Work away from the Contractor w ithout violating the Contract.
112.2Termination The Department may, by written order to the Contractor,
terminate the Contract as provided in this Section 112. Termin ation of the Contract or
portion thereof shall not relieve the Contractor of its Contrac tual responsibilities for the Work completed (including warranty obligations), nor shall it r elieve the Surety of its obligation for claims arising from the Work or the Contract. 112.2.1 For Cause If the Contractor fails to completely cure all Defects identified in the Notice(s) of Default pr ovided for in Section 112.1.2 within the 14-Day cure period provided, the Department may immediately terminate the Contract for cause by written Notice of Termination For Cause. In this event, the Department may use any or all Materials and Equipment for the Work and may enter into an Agre ement with another entity for the Completion of the Work, or use such other methods as in the opinion of the Department are required for the Completion of the intent of the Contract in an acceptable and timely manner. The Department will pay for a ll Accepted items of Work as of t he date of Termination at agreed upon prices. Items eliminated in their e ntirety by Termination will be paid for as provided in Section 109.2 - Elimination of Items, e xcept that there will be no reductions in the amount of the credit to the Department. The Contractor shall make all Work records available to the Department upon request regarding payment under this Section. All costs and charges incurred by the Department, tog ether with the cost of completing the Work specified i n the Contract, will be deducted from amounts otherwise due the Contractor. If such expenses exceed the sum that would have been payable under the Contract, then the Contractor and the Surety are liable and shall pay to the Department the amount of such excess within 30 Days of the Delivery of a S tatement setting forth such expenses to the Contractor and the Surety, as applicable. If the Contractor files for bankruptcy at any time before expi ration of the warranty periods provided by this Contract , then the Contractor and its Surety agree, if requested by the Department and within 30 Days of such request, to take all actions necessary or convenient to reject or accept this Contract under the executor y Contract provisions of the federal bankruptcy code. 112.2.2 For Convenience The Department may terminate this Con tract for convenience or for any reason that is in the best interest of t he Department. Terminations caused without fault of or for r easons beyond the control of th e Contractor are Terminations for Convenience. The Departmen t will notify the Contractor of such terminations by sending a Notice of Termination for Convenience. In case of a Termination for Convenience, the Department will pay for all Accepted items of Work as of the date of termination at agreed upon prices. Items eliminated in their entirety by Termination will be paid for as provided in Section 109.2 - Elimination of Items. The Contractor shall make all Work records available to the Dep artment upon request regarding payment under this Section. Acceptable Materials, ob tained by the Contractor for the Work but which have not been incorporated therein, may at t he option of the Department be purchased from the Contractor at Actual Costs delivered to a prescribed location or otherwise disposed of as mutually agreed.
After Receipt of Notice of Ter mination for Convenience from th e Department, the Contractor may also submit a claim for additional damages or co sts not covered above or elsewhere in this Contract to t he Project Manager within 60 Days of the effective Termination date. Such claim may include such cost items as id le Equipment time, Bidding and Project investigative costs, overhead expenses attributable to the Project terminated, legal and accounting charges involved in claim preparation, Sub contractor costs not otherwise paid for, idle labor cost if Work is stopped in advance of termination date, guaranteed payments for private land usage as part of the origi nal Contract, and any other cost or damage item for which the Contractor reasonably believes reimbursement should be made. In no event, however, will loss of anticipated profits b e considered as part of any settlement. The Contractor agrees to make the Bid Escrow, Documentation, i f any, and its cost records available to the extent necessary to determine the vali dity and amount of each item claimed. The Department will respond in writing to such claim within 60 Days of Receipt. If the Contractor wants additional consideration, the Contractor m ust Deliver a written “Notice of Unresolved Dispute” to the D irector as provided in Section 1 11.3.1 - Notice of Unresolved Dispute and comply with all other applicable Dispute resolution provisions of
A-1
APPENDIX A TO DIVISION 100
as provided in all certifications set forth in this Appendix A - Federal Contract Provisions Supplement, including: Certification Regarding No Kickbacks to Procure Contract as pro vided on this page 1 below. Certification Regarding Non-collusion as provided on page 1 bel ow. Certification Regarding Non-segregated Facilities as provided b y FHWA Form 1273, section III set forth on page 21 below. "Certification Regarding Debarment, Suspension, Ineligibility a nd Voluntary Exclusion" as provided by FHWA Form 1273, section XI set forth on page 32 below. "Certification Regarding Use of Contract Funds for Lobbying" as provided by FHWA Form 1273, section XII set forth on page 35 below.
Unless otherwise provided below, the term “Bidder,”, for the p urposes of these certifications, includes the Bidder, its principals, and the pe rson(s) signing the Bid. Upon execution of the Contract, the Bidder (then called the Contract or) will again make all the certifications indicated in this paragraph above. CERTIFICATION REGARDING NO KICKBACKS TO PROCURE CONTRACT Excep t expressly stated by the Bidder on sheets submitted with the Bid (if any), the Bidder hereby certifies, to the best of its knowledge and belief, that it has not:
other consideration, any firm or person (other than a bona fide employee working solely for me) to solicit or secure this contract;
retain the services of any firm or person in connection with ca rrying out the contract, or; C) paid, or agreed to pay, to any firm, organization, or per son (other than a bona fide employee working solely for me) any fee, contribution, donation , or consideration of any kind for, or in connection with, pr ocuring or carrying out the contract;
By signing and submitting a Bid, the Bidder acknowledges that this certification is to be furnished to the Maine Department of Transportation and the Fed eral Highway Administration (FHWA), U.S. Department of Transportation in connection with th is contract in anticipation of federal aid highway funds and is subject to applicable state an d federal laws, both criminal and civil.