Free Motion in Limine - District Court of Delaware - Delaware

X Case 1 :04-cv—OO163-GIVIS Document 154-3 Filed 08/22/2006 Page 1 of 2 `
,1 ES.2.l. if CONTRACTOR persistentiy fails to perform I5.4.2. for expenses sustained prior to the effective date
F _ the Work in accordance with the Contract Documents (in- of termination in performing services and furnishing labor,
4 Q cluding, but not limited to, failure to supply sufficient skilled materials or equipment as required by the Contract Docu-
workcrs or suitabie materials or equipment or failure to ments in connection with uncomplcted Work, plus fair and
adhere to the progress schedule established under paragraph reasonable sums for overhead and profit on such expenses;
i 2.9 as adjusted from time to time pursuant to peragraph 6.6}; _
* ` ` A 15.4.3. for all claims, costs, losses and damages incurred
, I5.2.2. if CONTRACPOR disregards Laws or ReguIa— in settlement of terminated contracts with Subcontractors,
E tions of any public body having jurisdiction; Suppliers and others; and _
tS.2.2. if CONTRACTOR disregznrds the authority of !$.4.4. for reasonable expenses directly attributabke to t
ENGINEER; gr termination.
lS.2.4. ifCONTRAC'DOR otherwise violates in any sub- CON’I°RACTOR shan not be pai.; un aw-mm gf mss of
stantial way any provisions ofthe Contract Documents; anticipated profits or revenue or other economic loss arising
I · · _ , out of_or resulting from such termination.
OWNER may, after giving CONTRACTOR {and the surety,
i, u if any.) seven days’ written notice and to the extent permit·
] ted by Laws and Regulations, terminate the services of CONTRACTOR May Stop Work nr Temrimuc;
l ‘ CONTRACTOR, exclude CONTRACTOR from the site and
take possession of the Work and of all CONTRAC'f0R’s 15.5. If, through no act or fault of CONTRACTOR, the
i tools, appliances, construction equipment and machinery at Work is suspended for a period of more than ninety days by
I i the site and use the same to the fuil extent they could be used OWNER or under an order of court or other pubiic author-
` by CONTRACTOR (without liability to CONTRACIOR for ity, or ENGENEER fails to act on any Application for
trespass or conversion), incorporate in the Work ali mated- Payment within thirty days after it is submitted or OWNER
l ;aIs and equipment stored at the site or for which OWNER fails for thirty days to pay CONTRACTOR any sum finally
I . has paid CONTRACTOR but which are stored etsewhere, determined to be due, then CONTRACTOR may, upon
and finish the Work as OWNER may deem expedient. lr: seven days` written notice to OWNER and ENGINEER,
! _ __ such case CONTRACTOR shalt not be entitied to receive and provided OWNER or ENGINEER do not remedy such
any further payment until the Work is finished. If the unpaid suspension or failure within that time, terminate the Agree-
Q -° —’ batance of the Contract Price exceeds all ciaims, costs, mont and recover from OWNER paymenton the same terms
l losses and damages sustained by OWNER arising out of or as provided in paragraph l5.4. ln iieu of terminating the
resulting from completing the Work such excess wili be paid Agreement and without prejudice to any other right or
[ I ‘ to CONTRACTOR. lf such claims, costs, tosses and dam· remedy, if ENGINEER has failed to act on an Application
ages exceed such unpaid balance, CONTRACTOR shall pay for Payment within thirty days after it is submitted. or
' the difference to OWNER. Such claims, costs, tosses and OWNER has failed for thirty days to pay CONTRACTOR
. I damages incurred by OWNER wiii bc reviewed by ENG}- any sum finally dctemnincd to be due, CONTRACTOR may
I NEER as to their reasonableness and when so approved by ¤P¤¤ $¤\’¤¤ d¤Y`$ written ¤0U¤¤ to OWNER and ENG?
eriorwtaeiz incorporated in a Change oreer, provided that NBER swp the Work until payment cf ai! such amounts due
_ when exercising any rights or remedies under this paragraph CONTRACTOR inciuding i¤¥¢={¢Si ¥h¤¤”¤°¤· The PF¤‘·'i$i°¤$ Z
E owmut mtu me be required to Obtain me newest peace for ¤f this paragraph 15-5 are not mtcndcci §¤ preclude 60N-
la t the Work performed. TRACTOR from making claim under Articles Il and 12 for
an increase in Contract Price or Contract Times or otherwise
; ~ I5_3_ Wham CONTRACTORE services have hem so mp for eicpensesor damage éirectiy attributaimlc to CONTRAC-
_ mamma by owwmt, the termination wan: me etree; any eerie TOR S “°F'*’“*g w°'k as P°"‘““°‘* by ““$ *"‘““g'°*’*‘·
. _ or remedies of OWNEE against CONTRACTOR then existing ” _
or which may thereafter accrue. Any retention or payment of
. moneys due CONTRACTOR by OWNER wit! not release _ _
‘ ° CONTRACTOR from liability. - ARTICLE 16-—DISPUTE RESOLUTION
-
` 15.4. Upon seven days' written notice to CONTRACIUR
§ r and ENGINEER, OWNER may, without cause and without if and to the extent that OWNER and CONTRACTOR have
i I prejudice to any other right or remedy of OWNER, elect to agreed on the method and procedure for resolving disputes
A _ _. terminate the Agreement. In such case, CONTRACTOR shall between them that may arise under this Agreement, such
ig be paid (without duplication of any items): dispute resolution method and procedure, ifany, shall be as set
1 I * forth in Exhibit GC-A, *‘Dispute Resolution Ag·reement," to be ‘
ISA. 1. for completed and acceptable Work executed in attached hereto and made a part hereof. tf no such agreement ‘
E accordance with the Contract Documents prior to the effec- on the method and procedure for resolvingeucim disputcshas
` tive date of termination, including fair ami reasonable sums . been reached, and subject to the provisions of pamgmphs 9.l0,
{ l for overhead and profit on such Wont; 9.I l, and 9.I2, OWNER and CON'I‘RAC"IOR may exercise e
I 4}
‘ in .

Case.1 :04-cv-00163-GIVIS Document 154-3 Filed 08/22/2006 Page 2 of 2
such rights or remedies as either may otherwise have under the act of the other party or of any of the other party’s employees
Contract Documents or by Laws or Regulations in respect of or agents or others for whose acts the other party is legally 5
any dispute. liable, ciaim will be made in writing to the other party within a ,»· .,_
reasonable time of the lirst observance of such injury or 15
` damage. The provisions of this paragraph l7.3 shalt not be
ARTICLE IYMMISCELLANEOUS , construed as a substitute for or a waiver of the provisionsof I
any applicable statute of limitations or repose. `
GM"? Ngifcei Cumulative Remedies: I
W; t- Whenever any provisivp ¤f_=h¢_C¤¤¢r·¤¤t Dvwmsnts 17.4. rss duties and ssngsraoas imposed by these casein
"°‘¥““`°S fhg giving _°f W[`m°“ “fm°°= 'l wl" be qccflifid to h‘“'° Conditions and the tights and remedies available hereunder to
bm Valldw g“"°’“ *f d**i""-imd '“ P“'$°“ m the '“‘·`i“'*d“*}i Or t° the parties hereto, and, in particular but without limitation, the I
a member of the firm or to an officer of the corporation for warranties, guarantees and Obligations imposed upon CON 1
whom it is intended, or if dehvered at or sent by registered or TRACTOR by pamgmphs 6_;2, 6_|6’ 6_30_ 6-31, 6_32’ BJ,
ssrtifird mail, 5>¤S¢¤s<= ¤r<·=r¤i<*» to the Fest l¤¤==i¤·=¤S addrro mz, l3.l4, 14.3 an {5.2 are at ofthe rights and remedies
known ic the glvcr vt thc “°“"°· ‘ available to OWNER and ENGINEER thereunder, are in ‘
” addition to, and are not to be construed in any way as a
Computation of Times: limitation of, any rights and remedies available to any or all of
_ _ _ _ them which are otl1erwise· imposed or availabie by Laws or I
I7·2·I· Whm my p°“°d $’f tfnw ’S r°f°"`°d to "' thc Regulations, by special warranty or guarantee or by other
C°“"a°t D°Y“"‘°“tS bY daYS· 'i will be °°']"*l’“t€d [0 cxcludc provisions of the Contract Documents, and the provisions of
the First and include the fast day of such pcnori. lf the last day {his paragraph wm bg as effective 35 if repeated specifically in
¤f or rush ¤·=¤$=¤i hh <>¤ ¤ Samir sr Sway ;>rr¤¤_¤ so as came nsatmata in causation was each particular I
-. made a legal holiday by the law of the appiscable jurisdiction, dum cbngatimh right and remedy to which they apply 1
such day will be omitted from the computation.
I7.2.2. A calendar day of twenty·four hours measured pmfessgmai Fm, and Cow-; com Included; Q
from midnight to the next midnight will constitute a day. i
l7.5. Whenever reference is made to "ciaims, costs, losses
Norm of CMM, - and damages? it shall inciude in each case, but not be limited
to, all fees and charges of engineers, architects, attorneys and I
l7.3. Should OWNER or CONTRACTOR sutifer inj¤*’Y 0* other professionals and all court or arbitration or other dispute
damage to person or property because of any error, omission or resolution costs, » 1
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Case 1:04-cv-00163-GMS

Document 154-3

Filed 08/22/2006

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Case 1:04-cv-00163-GMS

Document 154-3

Filed 08/22/2006

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