DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder: (a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency; (b) abandons the Work; (c) breaches a material term of this Agreement; (d) makes a material misrepresentation of a representation or warranty set out in this Agreement; (e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or (f) has made an assignment of this Agreement without the required consent of the Owner. 53.2 If a default occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the default. If the nature of such default is that it cannot be corrected within such 7 day period, the Design-Builder will within such period provide the Owner with a schedule acceptable to the Owner for rectification of the default and correct the default in accordance with that schedule. 53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following: (a) suspend all or part of the Work; (b) terminate the Design-Builder’s right to continue with the Work in whole or in part; (c) correct the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and (d) terminate this Agreement. 53.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to: (a) take possession of the Work or any part of the Work; (b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement; (c) use construction machinery and equipment, subject to the rights of third parties; (d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient; (e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and (f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections. 53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder. 53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 2 contracts
Samples: Design Build Agreement, Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT.
53.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency;insolvency;
(b) abandons the Work;
(c) breaches a material term of this Agreement;Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 If a default occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the default. If the nature of such default is that it cannot be corrected within such 7 day period, the Design-Builder will within such period provide the Owner with a schedule acceptable to the Owner for rectification of the default and correct the default in accordance with that schedule.schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;part;
(c) correct the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.Builder.
53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 51.1 The Owner Authority may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in of this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the OwnerAuthority.
53.2 51.2 If a default occurs, other than a default referred to in Section 53.1(a51.1(a) or 53.1(b51.1(b), the Owner Authority may specify in writing a 7 day rectification period within which the Design-Builder will remedy the default. If the nature of such default is that it cannot be corrected within such 7 day period, the Design-Builder will within such period provide the Owner Authority with a schedule acceptable to the Owner Authority for rectification of the default and correct the default in accordance with that schedule.
53.3 51.3 If a default referred to in Section 53.1(a51.1(a) or 53.1(b51.1(b) occurs or if the Design-Builder does not rectify any other default within the rectification period described in Section 53.2 51.2 or in accordance with the schedule acceptable to the OwnerAuthority, the Owner Authority may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 51.4 If the Owner Authority terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3Agreement, the Owner Authority will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner Authority may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 36 (Warranty) exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 36 (Warranty) exceeds the allowance provided for such corrections.
53.5 51.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 51.6 The rights, powers and remedies conferred on the Owner Authority under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner Authority of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner Authority of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1
54.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency;, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.Owner.
53.2 54.2 If a default referred to in Section 54.1 occurs, other than a default referred to in Section 53.1(a54.1(a) or 53.1(b54.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 54.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner with a schedule acceptable to the Owner for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.schedule.
53.3 54.3 If a default referred to in Section 53.1(a54.1(a) or 53.1(b54.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 54.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 54.4 If the Owner terminates the Design-Builder’s right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.354.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Design-Builder that may be required under Section 38 39 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 39 exceeds the allowance provided for such corrections, or reimburse the Design-Builder with the portion of the allowance unspent on the cost of corrections to the Work under Section 38 as applicable.
53.5 54.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.Builder.
53.6 54.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 51.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 51.2 If a default occurs, other than a default referred to in Section 53.1(a51.1(a) or 53.1(b51.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the default. If the nature of such default is that it cannot be corrected within such 7 day period, the Design-Builder will within such period provide the Owner with a schedule acceptable to the Owner for rectification of the default and correct the default in accordance with that schedule.
53.3 51.3 If a default referred to in Section 53.1(a51.1(a) or 53.1(b51.1(b) occurs or if the Design-Builder does not rectify any other default within the rectification period described in Section 53.2 51.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 51.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3Agreement, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 36 (Warranty) exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 36 (Warranty) exceeds the allowance provided for such corrections.
53.5 51.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 51.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 If a default referred to in Section 53.1 occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 53.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner with a schedule acceptable to the Owner for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 If the Owner terminates the Design-Builder’s right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections, or reimburse the Design-Builder with the portion of the allowance unspent on the cost of corrections to the Work under Section 38 as applicable.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 If a default referred to in Section 53.1 occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 53.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner with a schedule acceptable to the Owner for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 If a default referred to in Section 53.1 occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 53.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner with a schedule acceptable to the Owner for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Design-Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections, or reimburse the Design-Builder with the portion of the allowance unspent on the cost of corrections to the Work under Section 38 as applicable.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 54.1 The Owner may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the Owner.
53.2 54.2 If a default referred to in Section 54.1 occurs, other than a default referred to in Section 53.1(a54.1(a) or 53.1(b54.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a seven day rectification period after the notice given under Section 54.1. If the nature of such default is that it cannot be corrected remedied within such 7 seven day period, the Design-Builder will within such seven day period provide the Owner with a schedule acceptable to the Owner for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 54.3 If a default referred to in Section 53.1(a54.1(a) or 53.1(b54.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 54.2 or in accordance with the schedule acceptable to the Owner, the Owner may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 54.4 If the Owner terminates the Design-Builder’s right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.354.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 40 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 40 exceeds the allowance provided for such corrections, or reimburse the Design-Builder with the portion of the allowance unspent on the cost of corrections to the Work under Section 40 as applicable.
53.5 54.5 The termination of the Design-Builder’s right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 54.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner Authority may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) : is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency;
(b) , or fails to make payment to creditors when payment is due; abandons the Work;
(c) ; breaches a material term of this Agreement;
(d) ; makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) ; has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) or has made an assignment of this Agreement without the required consent of the OwnerAuthority.
53.2 If a default referred to in Section 53.1 occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 53.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner Authority with a schedule acceptable to the Owner Authority for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the OwnerAuthority, the Owner Authority may without prejudice to any other right or remedy exercise any or all of the following:
(a) : suspend all or part of the Work;
(b) ; terminate the Design-Builder’s 's right to continue with the Work in whole or in part;
(c) correct ; remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) and terminate this Agreement.
53.4 If the Owner Authority terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner Authority will be entitled to:
(a) : take possession of the Work or any part of the Work;
(b) ; take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) ; use construction machinery and equipment, subject to the rights of third parties;
(d) ; finish the Work or any part of the Work by whatever reasonable method the Owner Authority may consider expedient;
(e) ; charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) and on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections, or reimburse the Design-Builder with the portion of the allowance unspent on the cost of corrections to the Work under Section 38 as applicable.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner Authority under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner Authority of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner Authority of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner Authority may give written notice to the Design-Builder of default under this Agreement if the Design-Builder:
(a) is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a receiver is appointed on account of its insolvency, or fails to make payment to creditors when payment is due;
(b) abandons the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccurate; or
(f) has made an assignment of this Agreement without the required consent of the OwnerAuthority.
53.2 If a default referred to in Section 53.1 occurs, other than a default referred to in Section 53.1(a) or 53.1(b), the Owner may specify in writing a 7 day rectification period within which the Design-Builder will remedy the defaultdefault within a 7 day rectification period after the notice given under Section 53.1. If the nature of such default is that it cannot be corrected remedied within such 7 day period, the Design-Builder will within such 7 day period provide the Owner Authority with a schedule acceptable to the Owner Authority for rectification of remedying the default and correct the Design-Builder will remedy the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify fails to remedy any other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable to the OwnerAuthority, the Owner Authority may without prejudice to any other right or remedy exercise any or all of the following:
(a) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct remedy the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate this Agreement.
53.4 If the Owner Authority terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner Authority will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to the rights of third parties;
(d) finish the Work or any part of the Work by whatever reasonable method the Owner Authority may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance to cover the cost of corrections to Work performed by the Design- Design-Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except the obligation to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner Authority under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner Authority of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner Authority of any other right, power or remedy.
Appears in 1 contract
Samples: Design Build Agreement
DEFAULT AND TERMINATION OF AGREEMENT. 53.1 The Owner may give 9.1 If, before or on the Completion Date:
9.1.1 it shall be found that any of the Vendor’s Warranties was, when given, or will be or would be, on the Completion Date (as if they had been given again at Completion) not complied with or otherwise untrue or misleading in any material respect;
9.1.2 there is a breach of any material terms or conditions of this Agreement or a failure to perform or observe any material undertaking, obligation or agreement in this Agreement by the Vendor;
9.1.3 a petition for winding up is presented against the Company and/or the Vendor;
9.1.4 an order is made or a member’s resolution is passed for the winding up of the Company and/or the Vendor;
9.1.5 an administrator, a receiver and/or manager is appointed by the court or pursuant to any statute or regulation or by any creditor pursuant to a debenture or any other security document in favour of such creditor over the undertaking, assets and properties of the Company or any part of its assets and properties; or
9.1.6 an event analogous to any of the Clauses 9.1.3, 9.1.4 or 9.1.5 above has occurred in any jurisdiction, then provided where the default is capable of being remedied, is not remedied within fourteen (14) days commencing on the day immediately after the date the Purchaser gives written notice to the Design-Builder of default Vendor or any period provided for under this Agreement if Agreement, the Design-BuilderPurchaser shall be entitled at the Purchaser’s absolute discretion to either:
(a) is adjudged bankrupt, makes a general assignment for 9.1.7 seek specific performance of this Agreement in which case the benefit Purchaser shall be entitled to take such action as may be available to the Purchaser at law to enforce specific performance of creditors, or a receiver is appointed on account of its insolvencythis Agreement against the Vendor and all other legal remedies available to the Purchaser as may be determined by the court;
(b) abandons 9.1.8 proceed to Completion so far as practicable having regard to the Work;
(c) breaches a material term of this Agreement;
(d) makes a material misrepresentation of a representation or warranty set out in this Agreement;
(e) has delivered a statutory declaration in support of application for a payment under this Agreement that was false or materially inaccuratedefaults which have occurred without prejudice to all other rights and remedies available to it, including the right to claim damages; or
9.1.9 terminate this Agreement and in such event, the Vendor shall refund all monies paid by the Purchaser towards the account of the Consideration including the Xxxxxxx Deposit, free of interest, to the Purchaser within seven (f7) has made an assignment Business Days from the date of receipt of the written notification from the Purchasers of such termination and indemnify the Purchaser and keep the Purchaser indemnified against all fees and costs (including, without limitation, professional, accounting and legal costs) incurred by the Purchaser in the negotiation, preparation, execution and termination of this Agreement without and the required consent fulfilment of any of the OwnerConditions Precedent.
53.2 If 9.2 If, before or on the Completion Date:
9.2.1 it shall be found that the Purchaser’s Warranties were, when given, or will be or would be, on the Completion Date (as if they had been given again at the Completion Date) not complied with or otherwise untrue or misleading in any material respect; or
9.2.2 there is a breach of any material terms or conditions of this Agreement or a failure to perform or observe any material undertaking, obligation or agreement in this Agreement by the Purchaser, then provided where the default occursis capable of being remedied, other than a default referred is not remedied within fourteen (14) days commencing on the day immediately after the date the Vendor gives written notice to in Section 53.1(a) or 53.1(b)the Purchaser, the Owner Vendor shall be entitled at the Vendor’s absolute discretion to either:
9.2.3 seek specific performance of this Agreement in which case the Vendor shall be entitled to take such action as may specify in writing a 7 day rectification period within which the Design-Builder will remedy the default. If the nature of such default is that it cannot be corrected within such 7 day period, the Design-Builder will within such period provide the Owner with a schedule acceptable available to the Owner for rectification Vendor at law to enforce specific performance of this Agreement against the default Purchaser and correct the default in accordance with that schedule.
53.3 If a default referred to in Section 53.1(a) or 53.1(b) occurs or if the Design-Builder does not rectify any all other default within the rectification period described in Section 53.2 or in accordance with the schedule acceptable legal remedies available to the Owner, Vendor as may be determined by the Owner may court;
9.2.4 proceed to Completion so far as practicable having regard to the defaults which have occurred without prejudice to all other rights and remedies available to it, including the right to claim damages; or
9.2.5 terminate this Agreement and in such event the Purchaser shall indemnify the Vendor and keep the Vendor indemnified against all fees and costs (including, without limitation, professional, accounting and legal costs) incurred by the Vendor in the negotiation, preparation, execution and termination of this Agreement and the fulfilment of any of the Conditions Precedent.
9.3 Any failure by either Party entitled to exercise the right to terminate this Agreement under any provisions of this Agreement shall not, following the Completion, constitutes a waiver of any other right or remedy exercise any or all rights of the following:
Party arising out of any breach of any Vendor’s Warranties or the Purchaser’s Warranties (aas the case may be), or any undertakings of any Vendor or the Purchaser (as the case may be) suspend all or part of the Work;
(b) terminate the Design-Builder’s right to continue with the Work in whole or in part;
(c) correct the default and deduct the cost thereof from any payment then or thereafter due to the Design-Builder; and
(d) terminate under this Agreement.
53.4 If the Owner terminates the right to continue with all or part of the Work or terminates this Agreement pursuant to Section 53.3, the Owner will be entitled to:
(a) take possession of the Work or any part of the Work;
(b) take possession of the Drawings and Specifications and make use of them in accordance with the rights granted under this Agreement;
(c) use construction machinery and equipment, subject to 9.4 Notwithstanding the rights of third parties;
(d) finish termination set out in Clauses 9.1 and 9.2 above, the Work or any part of the Work by whatever reasonable method the Owner may consider expedient;
(e) charge the Design-Builder the amount by which the full cost of finishing the Work and a reasonable allowance Parties shall, prior to cover the cost of corrections to Work performed by the Design- Builder that may be required under Section 38 exceeds the unpaid balance of the Contract Price; and
(f) on expiry of the Warranty Period, charge the Design-Builder the amount by which the cost of corrections to Work under Section 38 exceeds the allowance provided for such corrections.
53.5 The termination of the right to continue with part of the Work does not relieve or discharge the Design-Builder from any obligations under this Agreement, except use their best endeavours and take such actions as may be necessary and equitable to negotiate on such terms with the obligation principle of good faith with fairness and without detriment to perform the part of the Work removed from the Design-Builder.
53.6 The rights, powers and remedies conferred on the Owner under this Agreement are not intended to be exclusive but are cumulative, are in addition to, do not limit and are not in substitution for any other right, power and remedy existing under this Agreement, under any other agreement, at law or in equity. The exercise by the Owner interests of any right, power or remedy does not preclude the simultaneous or later exercise by the Owner of any other right, power or remedythem.
Appears in 1 contract
