No Agreement as to Amount of Termination Settlement. If Maintenance Contractor and TxDOT fail to agree upon either all or some portion of the amount to be paid Maintenance Contractor by reason of a Termination for Convenience pursuant to this Section 14, the amount payable shall be determined by TxDOT in accordance with the following, but without duplication of any items or of any amounts agreed upon in accordance with Section 14.6:
14.7.1 To the extent not previously paid, TxDOT will pay Maintenance Contractor the sum of the following amounts for Maintenance Services performed prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Convenience:
(a) Maintenance Contractor’s actual reasonable out-of-pocket cost, without profit, and including equipment costs only to the extent permitted under the CMA Documents for all Maintenance Services performed but not yet paid by TxDOT as of the effective date of the termination for convenience, including mobilization, demobilization, work in progress and work done to secure the applicable portion of the Project for termination, including reasonable overhead and accounting for any refunds payable with respect to insurance premiums, deposits or similar items, as established to TxDOT’s satisfaction. In determining the reasonable cost, deductions will be made for the cost of materials, supplies and equipment to be retained, at TxDOT’s sole option, by Maintenance Contractor, amounts realized by the sale of such items, and for other appropriate credits against the cost of the Maintenance Services, including those deductions that would be permitted in connection with Final Payment under this Capital Maintenance Agreement. When, in the opinion of TxDOT’s Authorized Representative, the cost of a contract item of Maintenance Services is excessively high due to costs incurred to remedy or replace Nonconforming Work, the reasonable cost to be allowed will be the estimated reasonable cost of performing that Maintenance Service in compliance with the requirements of the CMA Documents and the excessive actual cost shall be disallowed.
(b) The cost of settling and paying reasonable claims arising out of the termination of Maintenance Services under Subcontracts as provided in Section 14.3(f), exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the Subcontractor prior to the effective date of the Notice of Termination for Convenience or Notice of Partial Termination for Conve...
