1−80 granted under the provisions of Subsection 108.07 hereto will be considered in the assessment of liquidated damages. Permitting the Contractor to continue and finish the work, or any part of it, after the contract time or any extensions thereof, has passed will not waive the Department’s rights under the Contract. Unless otherwise specified, liquidated damages will not accrue during the winter shutdown period, i.e., December 15 th through the following April 15th. Rates for liquidated damages will be established in accordance with the Schedule. When the contract time is either the calendar day or fixed calendar day basis, the schedule for calendar days shall be used. When the contract time is on a work day basis, the schedule for work days will be used. Schedule of Liquidated Damages Original Contract Amount Daily Charge From To and Calendar Day More Than Including or Fixed Date Work Day $ 0 25,000 $200.00 $300.00 25,000 50,000 350.00 500.00 50,000 100,000 450.00 600.00 100,000 500,000 900.00 1,200.00 500,000 1,000,000 1,200.00 1,700.00 1,000,000 2,000,000 1,500.00 2,050.00 2,000,000 6,000,000 1,950.00 2,700.00 6,000,000 10,000,000* 2,350.00 3,250.00 *Projects over $10,000,000 will have Liquidated Damages assigned in t he Job Specific Specifications.
108.09 Default of Contract
a.Conditions . If the Contractor;
1.Fails to begin the work under the Contract within the time specified in the Notice to Proceed, or
2.Fails to perform the work with sufficient workers and equipment or with sufficient materials to assure the prompt completion of said work, or 1−81
3.Fails to perform the work in accordance with the contract requirements and/or refuses to remove and replace rejected materials or unacceptable work, or
4.Discontinues the prosecution of the work, or
5.Fails to resume work that has been discontinued within a reasonable time after notice to do so, or
6.Becomes insolvent or is declared bankrupt, files a voluntary petition for bankruptcy under the Federal Bankruptcy Act, or commits any act of bankruptcy or insolvency, or
7.Allows any final judgment to remain unsatisfied for a period of 10 days, or
8.Is a party to fraud, or
9.Makes an assignment of the Contract for the benefit of creditors, or
10.Fails to comply with contract requirements regarding minimum wage payments or EEO requirements, or
11.Fails to carry on the work in an acceptable manner in accordance with the Contract requirements; the Engineer may declare the Contractor to be in default of the Contract and shall give notice in writing to the Contractor and the Surety of such default, advising the Contractor of actions required to remedy said default. If the Contractor or Surety, within a period of 10 days of receipt of such notice, does not proceed in accordance therewith, then the Department will have full power and authority, without violating the Contract, to assume prosecution of the work from the Contractor. The Department may appropriate or use the Contractor's materials and equipment at the site as may be suitable for use in the project and may enter into an agreement with another contractor for the completion of said Contract according to the terms and provisions thereof, or use such other methods as in the opinion of the Engineer will be required for the completion of Contract. All costs and charges incurred by the Department as a result of the default, including the cost of completing the work under Contract and any applicable liquidated damages, will be deducted from any monies due or to become due the Contractor. If such costs exceed the sum which would have been payable under the Contract, then the Contractor and the Surety shall be liable and shall pay to the Department the balance of such costs in excess of the contract amount. If it is determined, after termination of the Contractor's right to proceed, that the Contractor was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Department in accordance with Subsection 108.10 . Thus, damages to which a Contractor may be entitled as a result of the improper default termination will be limited to appropriate amounts for the items listed in Subsection 108.10; Termination of Contract . 1−82
108.10 Termination of Contract .
a.Reasons for Termination . The Department may terminate the entire Contract, or any portion thereof, when the Contractor is prev ented from proceeding with the prescribed work for any of the following reasons:
1.An Executive Order of the President of the United States with respect to the prosecution of war; in the interest of national defense; or any civil emergency or natural disaster.
2.An Executive Order of the Governor of the State with respect to a natural disaster or civil emergency.
3.Court orders relating to energy consumption, and orders or injunctions obtained by third party action resulting from national or local environmental protection laws.
4.Discovery of unanticipated archaeological artifacts of a significant nature that would require extensive and time-consuming delays in the work for the purposes of identification, evaluation, and possibly recovery.
5.Occurrence of an unanticipated environmental situation of a significant nature that would require extensive and time-consuming delays in the work for the purposes of identification, evaluation, and possibly mitigation.
6.Any other circumstances beyond the control of either the Department or the Contractor that precludes the orderly prosecution or completion of the work and that is in the public interest. The Engineer shall terminate the Contract by delivering to the Contractor a Notice of Termination which shall specify the extent of the termination, the reasons therefore, and the effective date thereof.
b.Termination Procedures . After receipt of a Notice of Termination, and except as directed by the Engineer, the Contractor shall immediately proceed with the following obligations:
1.Stop work as specified in the notice.
2.Place no further subcontracts or orders (referred to as subcontracts in this clause for materials, services, or facilities, except as necessary to complete the continued portion of the Contract.
3.Terminate all subcontracts to the extent they relate to the work terminated.
4.With approval or ratification to the extent required by the Engineer, settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts; the approval or ratification will be final for purposes of this clause. 1−83
5.As directed by the Engineer, transfer title and deliver to the Department the fabricated, partially fabricated, or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and the completed or partially competed plans, drawings, information, and other property that, if the Contract had been completed, would be required to be furnished to the Department.
6.Complete performance of the work not terminated.
7.Take any action that may be necessary, or that the Engineer may direct, for the protection and preservation of the property related to this Contract that is in the possession of the Contractor and in which the Department has or may acquire an interest.
8.At the direction of the Engineer, acceptable materials obtained by the Contractor for the Project but which have not been incorporated therein, may be purchased from the Contractor at actual cost delivered to a prescribed location, or disposed of as mutually agreed. When the Department orders termination of a Contract, or portion thereof, effective on a certain date, all completed items of work as of that date will be paid for at the contract bid prices. Payment for partially completed work will be made either at agreed prices or in accordance with the subparagraph below entitled, "Contractor and Department Fail to Agree.” Items that are eliminated in their entirety by such termination shall be paid for as provided in Subsection 109.05; Eliminated Items . The Contractor shall submit, within 60 days of the effective termination date, a claim for additional damages or costs not covered above or elsewhere in the Contract. Such claim may include such cost items as reasonable idle equipment time, mobilization efforts, bidding and project investigative costs, overhead expenses attributable to the project terminated, legal and accounting charges involved in claim preparation, subcontractor costs not otherwise paid for, actual idle labor cost if work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original Contract, and any other cost or damage for which the Contractor feels reimbursement should be made. The intent of negotiating this claim would be that an equitable settlement be reached with the Contractor. In no event will loss of anticipated profits be considered as part of any settlement. The Contractor and the Department may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work performed. The Contract shall be amended, and the Contractor paid the agreed amount.
c.Contractor and Department Fail to Agree . If the Contractor and the Department fail to agree on the whole amount to be paid the Contractor because of the termination of work, the Department shall pay the Contractor the amounts determined as follows, but without duplication of any amounts agreed upon above;
1.For contract work performed before the effective date of termination, the total of the following:
a.The cost of this work; 1−84
b.The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the termination portion of the Contract; and
c.A sum, as profit on (a), above, determined by the Department to be fair and reasonable; however, if the Contractor would hav e sustained a loss on the entire Contract had it been completed, the Department shall allow no profit and shall reduce the settlement to reflect the indicated rate loss.
2.The reasonable costs of settlement of the work terminated, including:
a.Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and support data;
b.The termination and settlement of subcontracts (excluding the amounts of such settlements); and
c.Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.
3.Except for normal spoilage, and except to the extent that the Department expressly assumed the risk of loss, the Department s hall exclude from the amounts payable to the Contractor, the fair value, as determined by the Department of property that is destroyed, lost, stolen, or damaged so as to become undeliver able to the Department or to the buyer.
4.In arriving at the amount due the Contractor under this clause, there shall be deducted:
a.All unliquidated advance or other payments to the Contractor under the terminated portion of this Contract;
b.Any claim which the Department has against the Contractor under this Contract; and
c.The agreed price for, or the proceeds of sale of materials, supplies, or other things acquired by the Contractor or sold under the prov isions of this clause and not recovered by or credited to the Department.
d.Partial Termination . If the termination is partial, the Contractor may file a proposal with the Department for an equitable adjustment of the price(s) of the continued portion of the Contract. The Department shall make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitable adjustment under this clause shall be requested within 90 days from the effective date of termination unless extended in writing by the Engineer.
e.Records . The Department may, under the terms and conditions it prescribes, make partial payments and payments against costs incu rred by the Contractor for the terminated portion of the Contract, if the Department believes the total of these payments will not exceed the amount to which the Contractor will be entitled. 1−85 The Contractor shall maintain and make available all project cost records to the Department for audit to the extent necessary to determine the validity and amount of each item claimed. This includes all books and other evidence bearing on the Contractor's costs and expenses under this Contract. The Contractor shall make these records and documents available to the Department, at the Contractor's office, at all reasonable times, without any direct charge. If approved by the Department, phot ographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.
f.Contractual Responsibilities . Termination of a Contract or portion thereof shall not relieve the Contractor of contractual responsibilities for the work completed, nor shall it relieve the Surety of its obligation for and concerning any just claim arising out of the work performed. SECTION 109 MEASUREMENT AND PAYMENT
109.01 MEASUREMENT OF QUANTITIES . Work completed under the Contract will be
measured by the Engineer according to United States standard measure, or by the metric system when the Contract so provides. A station when used as a definition or term of measurement will denote 100 linear feet. The method of measurement and computations to be used to determine quantities of materials furnished and work performed under the Contract will be those methods generally recognized as conforming to good engineering practice. Unless otherwise specified, longitudinal measurements for area computations will be made horizontally, and no deductions will be made fo r individual fixtures in the roadway having an area of 9 square feet or less. Unless otherwise specified, transverse measurements for area computations will be the neat dimensions shown on the Plans. Structures will be measured according to neat lines shown on the Plans or as altered to fit field conditions. Items which are measured by the linear foot, such as pipe culverts, curb, guardrail, underdrains, etc., will be measured parallel to the base or foundation upon which such structures are placed, unless otherwise shown on the Plans. In computing volumes of excavation the average end area method, or other acceptable methods, will be used. The thickness of plates and galvanized sheet used in the manufacture of corrugated metal pile, metal plate pipe culverts and arches, and metal cribbing will be specified and measured in decimal fractions of inches.
Source: Rhode Island Standard Specifications (Bluebook), 2024 Edition. Pages 94–99 of 826.