Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any part of the work if: a. The Contractor becomes insolvent; or if b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if c. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if d. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if e. The Contractor fails to commence work when notified to do so by the Consultant; or if f. The Contractor shall abandon the work; or if g. The Contractor shall refuse to proceed with the Work or extra Work when and as directed by the Consultant or Fund; or if h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if l. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract; n. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund. (2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three (3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.
Appears in 3 contracts
Samples: Construction Contract, Construction Contract, Construction Contract
Default of Contractor. (1a) In addition to those instances specifically referred to University may terminate this Contract in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any in part of the work if:
a. The Contractor becomes insolvent; or if
b. The : Contractor makes an assignment for the benefit of creditors creditors, pursuant to the statutes of the State of New Yorklaw; or if
c. A voluntary or involuntary a petition in bankruptcy is filed by or against the Contractor; or if
d. A a receiver or receivers are is appointed to take charge of the Contractor's property or affairs; , or Contractor assigns, transfers, conveys or otherwise disposes of the Contract Documents or any part thereof, other than as herein specified.
b) In addition, University may declare Contractor in default if, in the sole opinion of University:
e. The i) Contractor becomes insolvent or fails to commence work when notified make timely payment to do so by the Consultant; subcontractors for materials or iflabor as required herein;
f. The ii) Contractor shall abandon abandons the work; or if;
g. The iii) Contractor shall refuse refuses to proceed with the Work or extra Work work when and as directed by the Consultant or Fund; or ifUniversity;
h. The Contractor shall iv) Contractor, without just cause reduce cause, reduces its working force to a number which, if maintained, would be insufficient, insufficient in the opinion of the FundUniversity’s opinion, to complete the work in accordance with on the approved time progress schedule, schedule and shall fail fails or refuse refuses to sufficiently increase such working force when ordered to do so by the Consultant; or ifUniversity;
i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the v) Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if;
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. vi) The work is not completed within the time herein provided therefor or within the time to within which the Contractor may be entitled to have such completion performance extended; or if;
m. The Fund shall be vii) Contractor disregards provisions of the opinion that the Contractor is Contract Documents, applicable laws, ordinances, codes, rules, regulations or has been willfully or in bad faith violating any lawful orders of the provisions of this Contract;a public authority, or
n. The Fund shall be of the opinion that the viii) Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2c) Before the Fund shall exercise its The right to declare the Contractor in default by reason for any of the conditions set forth grounds specified in the this Contract or referred to above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give be exercised by University by sending the Contractor threea written notice setting forth the ground(s) upon which such default is declared. On receipt of said notice, Contractor shall immediately discontinue all further operations under the Contract Documents and shall immediately quit the site, leaving untouched all plant, materials, equipment, tools and supplies then on site.
(3d) working days' notice Without prejudice to any other remedy it may have, University may then have the work completed by such means and in such manner as it may deem advisable. University may utilize for this purpose such of its intention Contractor's materials, equipment, tools and supplies remaining on the site and those subcontractors as it may deem advisable, or it may call upon Contractor's surety at Contractor’s own expense to declare do so.
e) In addition to any other liability to University hereunder or otherwise allowed by law, Contractor shall be liable to University for any costs incurred to complete the project, including costs for additional architectural and engineering services necessitated because of the default. These items shall be considered expenses incurred by University in completing the work, the amount of which may be charged against and deducted out of such monies as would have been payable to the Contractor in default and unlessor its surety if the work had been completed without a default. Should the expense of such completion exceed the total sum which would have been payable under the Contract if the same had been completed by Contractor, within any such three (3excess shall be paid by Contractor to University on demand.
f) day periodIf University completes the work without calling on Contractor's surety to do so, the Contractor shall make arrangementsnot be entitled to receive any further payment under the Contract from and after the effective date of the declaration of the default, satisfactory until the work shall be wholly completed and accepted by University.
g) The provisions of this Section shall be in addition to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period any and all other legal or at the expiration of such longer period of time as the Fund may determineequitable remedies provided by this Contract and otherwise available by law.
Appears in 2 contracts
Samples: Construction Services Contract, Construction Services Contract
Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if
c. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if
d. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if
e. The Contractor fails to commence work when notified to do so by the Consultant; or if
f. The Contractor shall abandon the work; or if
g. The Contractor shall refuse to proceed with the Work or extra Work work when and as directed by the Consultant or FundConsultant; or if
h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. 1. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if
m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract;
n. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three
(3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.
Appears in 1 contract
Samples: Construction Contract
Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund University shall have the right to declare the Contractor in default of the whole or any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if
c. b. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if
d. c. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if
e. d. The Contractor shall sublet, assign, transfer, convey, or otherwise dispose of the Contract other than as herein specified; or if
(2) Before the University shall exercise its right to declare the Contractor in default by reason of the conditions set forth in this subsection, it shall give the Contractor three (3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the University, to correct and/or eliminate the conditions set forth in the University's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the University may determine. In addition to those instances specifically referred to above, the University shall have the right to declare the Contractor in default of the whole or any part of the work if, in the sole opinion of the University:
a. The Contractor becomes insolvent; or if
b. The Contractor fails to commence work when notified to do so by the Consultant; or if
f. c. The Contractor shall abandon the work; or if
g. d. The Contractor shall refuse to proceed with the Work or extra Work work when and as directed by the Consultant or FundConsultant; or if
h. e. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the FundUniversity, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. f. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. g. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor therefore or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the FundUniversity's opinion, attributable to conditions within the Contractor's control; or if
l. h. The work is not completed within the time herein provided therefor therefore or within the time to which the Contractor may be entitled to have such completion completed extended; or if
m. i. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract;; or if
n. j. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(23) Before the Fund shall exercise its The right to declare in default for any of the grounds specified or referred to shall be exercised by the University sending the Contractor a written notice setting forth the ground or grounds upon which such default is declared. Upon receipt of notice that it has been declared in default, the Contractor shall immediately discontinue all further operations under the Contract and shall immediately quit the site, leaving untouched all plant, materials, equipment, tools and supplies then on site.
(4) The University, after declaring the Contractor in default, may then have the work completed by such means and in such manner, by contract, with or without public letting, or otherwise, as it may deem advisable, utilizing for such purpose such of the Contractor's plant, materials, equipment, tools and supplies remaining on the site, and also such subcontractors as it may deem advisable, or it may call upon the Contractor's surety at its own expense to do so.
(5) In the event that the University declared the Contractor in default of the work or any part of the work, the Contractor, in addition to any other liability to the University hereunder or otherwise provided for or allowed by law, shall be liable to the University for any costs it incurs for additional architectural and engineering services necessary, in its opinion, because of the default and the total amount of liquidated damages from the date when the work should have been completed by the Contractor in accordance with the terms hereof to the date of actual completion of the work, both of which items shall be considered as expenses incurred by the University in completing the work and the amount of which may be charged against and deducted out of such monies as would have been payable to the Contractor or it surety if the work had been completed without a default.
(6) If the University completes the work, the Consultant shall issue a certificate stating the expenses incurred in such completion, including the cost of re-letting. Such certificates shall be final, binding and conclusive upon the Contractor, its surety, and any person claiming under or through the Contractor, as to the amount thereof.
(7) The expense of such completion, as so certified by the Consultant, shall be charged against and deducted out of such monies as would have been payable to the Contractor if it had completed the work; the balance of such monies, if any, subject to the other provisions of the Contract, to be paid to the Contractor without interest after such completion. Should the expense of such completion, so certified by the Consultant, exceed the total sum which would have been payable under the Contract if the same had been completed by the Contractor, any such excess shall be paid by the Contractor to the University upon demand.
(8) In the event the University shall determine to complete the work without calling upon the Contractor's surety to do so, the Contractor shall not be entitled, from and after the effective date of the declaration of the default, to receive any further payment under the Contract until the said work shall be wholly completed and accepted by the University.
(9) In case the University shall declare the Contractor in default by reason as to a part of the conditions set forth in the above items awork only, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor threeshall discontinue such part, shall continue performing the remainder of the work in strict conformity with the terms of the Contract, and shall in no way hinder or interfere with any other contractors or persons whom the University may engage to complete the work as to which the Contractor was declared in default.
(310) working days' notice of its intention The provisions relating to declare declaring the Contractor in default and unlessas to the entire work shall be equally applicable to a declaration of partial default, within such three (3) day period, except that the University shall be entitled to utilize for completion of the part of the work as to which the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be was declared in default at only such plant, materials, equipment, tools and supplies as had been previously used by the expiration Contractor on such part.
(11) In completing the whole or any part of the work, the Consultant and the University shall have the power to depart from, change or vary the terms and provisions of the Contract; provided, however, that such departure, change or variation is made for the purpose of reducing the time or expense of such three completion. Such departure, change or variations, even to the extent of accepting a lesser or different performance, shall not affect the conclusiveness of the Consultant's certificate of the cost of completion, nor shall it constitute a defense to any action to recover the amount by which such certificate exceeds the amount which would have been payable to the Contractor hereunder but for its default.
(312) day period The provisions of this Section shall be in addition to any and all other legal or at the expiration of such longer period of time as the Fund may determineequitable remedies provided by this Agreement and otherwise available by law.
Appears in 1 contract
Samples: Construction Contract
Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if
c. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if
d. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if
e. The Contractor fails to commence work when notified to do so by the Consultant; or if
f. The Contractor shall abandon the work; or if
g. The Contractor shall refuse to proceed with the Work or extra Work work when and as directed by the Consultant or FundConsultant; or if
h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if
m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract;
n. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three
three (3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.
(3) The right to declare in default for any of the grounds specified or referred to shall be exercised by the Fund sending the Contractor a written notice setting forth the ground or grounds upon which such default is declared. Upon receipt of notice that it has been declared in default, the Contractor shall immediately discontinue all further operations under the Contract and shall immediately quit the site, leaving untouched all plant, materials, equipment, tools and supplies then on site.
(4) The Fund, after declaring the Contractor in default, may then have the work completed by such means and in such manner, by contract, with or without public letting, or otherwise, as it may deem advisable, utilizing for such purpose such of the Contractor's plant, materials, equipment, tools and supplies remaining on the site, and also such subcontractors as it may deem advisable, or it may call upon the Contractor's surety at its own expense to do so.
(5) In the event that the Fund declared the Contractor in default of the work or any part of the work, the Contractor, in addition to any other liability to the Fund hereunder or otherwise provided for or allowed by law, shall be liable to the Fund for any costs it incurs for additional architectural and engineering services necessary, in its opinion, because of the default and the total amount of liquidated damages from the date when the work should have been completed by the Contractor in accordance with the terms hereof to the date of actual completion of the work, both of which items shall be considered as expenses incurred by the Fund in completing the work and the amount of which may be charged against and deducted out of such monies as would have been payable to the Contractor or its surety if the work had been completed without a default.
(6) If the Fund completes the work, the Consultant shall issue a certificate stating the expenses incurred in such completion, including the cost of re-letting. Such certificate shall be final, binding and conclusive upon the Contractor, its surety, and any person claiming under or through the Contractor, as to the amount thereof.
(7) The expense of such completion, as so certified by the Consultant, shall be charged against and deducted out of such monies as would have been payable to the Contractor if it had completed the work; the balance of such monies, if any, subject to the other provisions of the Contract, to be paid to the Contractor without interest after such completion. Should the expense of such completion, so certified by the Consultant, exceed the total sum which would have been payable under the Contract if the same had been completed by the Contractor, any such excess shall be paid by the Contractor to the Fund upon demand.
(8) In the event the Fund shall determine to complete the work without calling upon the Contractor's surety to do so, the Contractor shall not be entitled, from and after the effective date of the declaration of the default, to receive any further payment under the Contract until the said work shall be wholly completed and accepted by the Fund.
(9) In case the Fund shall declare the Contractor in default as to a part of the work only, the Contractor shall discontinue such part, shall continue performing the remainder of the work in strict conformity with the terms of the Contract, and shall in no way hinder or interfere with any other contractors or persons whom the Fund may engage to complete the work as to which the Contractor was declared in default.
(10) The provisions relating to declaring the Contractor in default as to the entire work shall be equally applicable to a declaration of partial default, except that the Fund shall be entitled to utilize for completion of the part of the work as to which the Contractor was declared in default only such plant, materials, equipment, tools and supplies as had been previously used by the Contractor on such part.
(11) In completing the whole or any part of the work, the Consultant and the Fund shall have the power to depart from, change or vary the terms and provisions of the Contract; provided, however, that such departure, change or variation is made for the purpose of reducing the time or expense of such completion. Such departure, change or variations, even to the extent of accepting a lesser or different performance, shall not affect the conclusiveness of the Consultant's certificate of the cost of completion, nor shall it constitute a defense to any action to recover the amount by which such certificate exceeds the amount which would have been payable to the Contractor hereunder but for its default.
(12) The provisions of this Section shall be in addition to any and all other legal or equitable remedies provided by this Agreement and otherwise applicable by law.
Appears in 1 contract
Samples: Construction Contract
Default of Contractor. If the Contractor shall become bankrupt, or have a receiving order made against him, or shall present a petition in bankruptcy, or shall make an arrangement with or assignment in favor of its creditors, or shall agree to carry out the Contract under a committee of inspection of its creditors or, being a corporation, shall go into liquidation (1) In addition to those instances specifically referred to other than a voluntary liquidation for the purposes of amalgamation or reconstruction), or if the Contractor shall assign the Contract, without the consent in other Sections hereofwriting of the Owner first obtained, the Fund or shall have an execution levied on its goods, or if the right Contractor:
(a) has abandoned the Contract, in whole or part, or
(b) without reasonable excuse has failed to declare commence the Contractor in default Works or has suspended the progress of the whole Works for twenty-eight days after receiving from the Owner written notice to proceed, or
(c) has failed to remove materials from the Site or to pull down and replace work for twenty-eight days after receiving from the Owner written notice that the said materials or work had been condemned and rejected by the Owner under these conditions, or
(d) despite previous warnings by the Owner, in writing, is not executing the Works in accordance with the Contract, or is persistently or flagrantly neglecting to carry out its obligations under the Contract, or
(e) has, to the detriment of good workmanship, or in defiance of the Owner’s instructions to the contrary, sub-let any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for Contract, then the benefit of creditors pursuant Owner may, after giving fourteen (14) days’ notice in writing to the statutes Contractor, enter upon the Site and the Works and expel the Contractor the Site without thereby voiding the Contract, or releasing the Contractor from any of its obligations or liabilities under the State of New York; Contract, or if
c. A voluntary or involuntary petition in bankruptcy is filed by or against affecting the Contractor; or if
d. A receiver or receivers are appointed to take charge of rights and powers conferred on the Contractor's property or affairs; or if
e. The Contractor fails to commence work when notified to do so Owner by the Consultant; Contract, and may itself complete the Works or if
f. The Contractor shall abandon the work; or if
g. The Contractor shall refuse to proceed with the Work or extra Work when and as directed by the Consultant or Fund; or if
h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, may employ any other contractor to complete the work in accordance with Works. The Owner or such other contractor may use for such completion so much of the approved time progress scheduleConstructional Plant, Temporary Works and materials that have been deemed to be reserved exclusively for the execution of the Works, under the provisions of the Contract, as it or they may think proper, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. The Contractor shall subletOwner may, assignat any time, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if
m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating sell any of the provisions said Constructional Plant, Temporary Works and unused materials and apply the proceeds of this Contract;
n. The Fund shall be sale in or towards the satisfaction of the opinion that any sums due or which may become due to it from the Contractor is not or has not been executing under the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three
(3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.Contract. 05-FABRINET BLDG 8 CONSTRUCTION CONTRACT-CONTENTS-CONDITIONS
Appears in 1 contract
Samples: Construction Contract (Fabrinet)
Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if
c. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if
d. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if
e. The Contractor fails to commence work when notified to do so by the Consultant; or if
f. The Contractor shall abandon the work; or if
g. The Contractor shall refuse to proceed with the Work or extra Work when and as directed by the Consultant or Fund; or if
h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if
m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract;
n. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three
three (3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.
(3) The right to declare in default for any of the grounds specified or referred to shall be exercised by the Fund sending the Contractor a written notice setting forth the ground or grounds upon which such default is declared. Upon receipt of notice that it has been declared in default, the Contractor shall immediately discontinue all further operations under the Contract and shall immediately quit the site, leaving untouched all plant, materials, equipment, tools and supplies then on site.
(4) The Fund, after declaring the Contractor in default, may then have the work completed by such means and in such manner, by contract, with or without public letting, or otherwise, as it may deem advisable, utilizing for such purpose such of the Contractor's plant, materials, equipment, tools and supplies remaining on the site, and also such subcontractors as it may deem advisable, or it may call upon the Contractor's surety at its own expense to do so.
(5) In the event that the Fund declared the Contractor in default of the work or any part of the work, the Contractor, in addition to any other liability to the Fund hereunder or otherwise provided for or allowed by law, shall be liable to the Fund for any costs it incurs for additional architectural and engineering services necessary, in its opinion, because of the default and the total amount of liquidated damages from the date when the work should have been completed by the Contractor in accordance with the terms hereof to the date of actual completion of the work, both of which items shall be considered as expenses incurred by the Fund in completing the work and the amount of which may be charged against and deducted out of such monies as would have been payable to the Contractor or its surety if the work had been completed without a default.
(6) If the Fund completes the work, the Consultant shall issue a certificate stating the expenses incurred in such completion, including the cost of re-letting. Such certificate shall be final, binding and conclusive upon the Contractor, its surety, and any person claiming under or through the Contractor, as to the amount thereof.
(7) The expense of such completion, as so certified by the Consultant, shall be charged against and deducted out of such monies as would have been payable to the Contractor if it had completed the work; the balance of such monies, if any, subject to the other provisions of the Contract, to be paid to the Contractor without interest after such completion. Should the expense of such completion, so certified by the Consultant, exceed the total sum which would have been payable under the Contract if the same had been completed by the Contractor, any such excess shall be paid by the Contractor to the Fund upon demand.
(8) In the event the Fund shall determine to complete the work without calling upon the Contractor's surety to do so, the Contractor shall not be entitled, from and after the effective date of the declaration of the default, to receive any further payment under the Contract until the said work shall be wholly completed and accepted by the Fund.
(9) In case the Fund shall declare the Contractor in default as to a part of the work only, the Contractor shall discontinue such part, shall continue performing the remainder of the work in strict conformity with the terms of the Contract, and shall in no way hinder or interfere with any other contractors or persons whom the Fund may engage to complete the work as to which the Contractor was declared in default.
(10) The provisions relating to declaring the Contractor in default as to the entire work shall be equally applicable to a declaration of partial default, except that the Fund shall be entitled to utilize for completion of the part of the work as to which the Contractor was declared in default only such plant, materials, equipment, tools and supplies as had been previously used by the Contractor on such part.
(11) In completing the whole or any part of the work, the Consultant and the Fund shall have the power to depart from, change or vary the terms and provisions of the Contract; provided, however, that such departure, change or variation is made for the purpose of reducing the time or expense of such completion. Such departure, change or variations, even to the extent of accepting a lesser or different performance, shall not affect the conclusiveness of the Consultant's certificate of the cost of completion, nor shall it constitute a defense to any action to recover the amount by which such certificate exceeds the amount which would have been payable to the Contractor hereunder but for its default.
(12) The provisions of this Section shall be in addition to any and all other legal or equitable remedies provided by this Agreement and otherwise applicable by law.
Appears in 1 contract
Samples: Construction Contract
Default of Contractor. (1) In addition to those instances specifically referred to in other Sections hereof, the Fund shall have the right to declare the Contractor in default of the whole or any part of the work if:
a. The Contractor becomes insolvent; or if
b. The Contractor makes an assignment for the benefit of creditors pursuant to the statutes of the State of New York; or if
c. A voluntary or involuntary petition in bankruptcy is filed by or against the Contractor; or if
d. A receiver or receivers are appointed to take charge of the Contractor's property or affairs; or if
e. The Contractor fails to commence work when notified to do so by the Consultant; or if
f. The Contractor shall abandon the work; or if
g. The Contractor shall refuse to proceed with the Work or extra Work work when and as directed by the Consultant or FundConsultant; or if
h. The Contractor shall without just cause reduce its working force to a number which, if maintained, would be insufficient, in the opinion of the Fund, to complete the work in accordance with the approved time progress schedule, and shall fail or refuse to sufficiently increase such working force when ordered to do so by the Consultant; or if
i. The Contractor shall sublet, assign, transfer convey, or otherwise dispose of the Contract other than as herein specified; or if
j. The Fund shall be of the opinion that the Contractor is or has been unnecessarily or unreasonably or willfully delaying the performance and completion of the work, or the award of necessary subcontracts, or the placing of necessary material and equipment orders; or if
k. The Fund shall be of the opinion that the work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended; provided, however, that the impossibility of timely completion is, in the Fund's opinion, attributable to conditions within the Contractor's control; or if
l. The work is not completed within the time herein provided therefor or within the time to which the Contractor may be entitled to have such completion extended; or if
m. The Fund shall be of the opinion that the Contractor is or has been willfully or in bad faith violating any of the provisions of this Contract;
n. The Fund shall be of the opinion that the Contractor is not or has not been executing the Contract in good faith and in accordance with its terms; or if
o. At any time during the period of the Agreement, insurance as required is not in effect or proof thereof is not provided to the Fund.
(2) Before the Fund shall exercise its right to declare the Contractor in default by reason of the conditions set forth in the above items a, b, c, d, e, f, g, h, j, k, l, m, n and o, it shall give the Contractor three
three (3) working days' notice of its intention to declare the Contractor in default and unless, within such three (3) day period, the Contractor shall make arrangements, satisfactory to the Fund, to correct and/or eliminate the conditions set forth in the Fund's aforesaid notice, the Contractor may be declared in default at the expiration of such three (3) day period or at the expiration of such longer period of time as the Fund may determine.
(3) The right to declare in default for any of the grounds specified or referred to shall be exercised by the Fund sending the Contractor a written notice setting forth the ground or grounds upon which such default is declared. Upon receipt of notice that it has been declared in default, the Contractor shall immediately discontinue all further operations under the Contract and shall immediately quit the site, leaving untouched all plant, materials, equipment, tools and supplies then on site.
(4) The Fund, after declaring the Contractor in default, may then have the work completed by such means and in such manner, by contract, with or without public letting, or otherwise, as it may deem advisable, utilizing for such purpose such of the Contractor's plant, materials, equipment, tools and supplies remaining on the site, and also such subcontractors as it may deem advisable, or it may call upon the Contractor's surety at its own expense to do so.
(5) In the event that the Fund declared the Contractor in default of the work or any part of the work, the Contractor, in addition to any other liability to the Fund hereunder or otherwise provided for or allowed by law, shall be liable to the Fund for any costs it incurs for additional architectural and engineering services necessary, in its opinion, because of the default and the total amount of liquidated damages from the date when the work should have been completed by the Contractor in accordance with the terms hereof to the date of actual completion of the work, both of which items shall be considered as expenses incurred by the Fund in completing the work and the amount of which may be charged against and deducted out of such monies as would have been payable to the Contractor or its surety if the work had been completed without a default.
(6) If the Fund completes the work, the Consultant shall issue a certificate stating the expenses incurred in such completion, including the cost of re-letting. Such certificate shall be final, binding and conclusive upon the Contractor, its surety, and any person claiming under or through the Contractor, as to the amount thereof.
(7) The expense of such completion, as so certified by the Consultant, shall be charged against and deducted out of such monies as would have been payable to the Contractor if it had completed the work; the balance of such monies, if any, subject to the other provisions of the Contract, to be paid to the Contractor without interest after such completion. Should the expense of such completion, so certified by the Consultant, exceed the total sum which would have been payable under the Contract if the same had been completed by the Contractor, any such excess shall be paid by the Contractor to the Fund upon demand.
(8) In the event the Fund shall determine to complete the work without calling upon the Contractor's surety to do so, the Contractor shall not be entitled, from and after the effective date of the declaration of the default, to receive any further payment under the Contract until the said work shall be wholly completed and accepted by the Fund.
(9) In case the Fund shall declare the Contractor in default as to a part of the work only, the Contractor shall discontinue such part, shall continue performing the remainder of the work in strict conformity with the terms of the Contract, and shall in no way hinder or interfere with any other contractors or persons whom the Fund may engage to complete the work as to which the Contractor was declared in default.
(10) The provisions relating to declaring the Contractor in default as to the entire work shall be equally applicable to a declaration of partial default, except that the Fund shall be entitled to utilize for completion of the part of the work as to which the Contractor was declared in default only such plant, materials, equipment, tools and supplies as had been previously used by the Contractor on such part.
(11) In completing the whole or any part of the work, the Consultant and the Fund shall have the power to depart from, change or vary the terms and provisions of the Contract; provided, however, that such departure, change or variation is made for the purpose of reducing the time or expense of such completion. Such departure, change or variations, even to the extent of accepting a lesser or different performance, shall not affect the conclusiveness of the Consultant's certificate of the cost of completion, nor shall it constitute a defense to any action to recover the amount by which such certificate exceeds the amount which would have been payable to the Contractor hereunder but for its default.
(12) The provisions of this Section shall be in addition to any and all other legal or equitable remedies provided by this Agreement and otherwise applicable by law.
Appears in 1 contract
Samples: Construction Contract
