Common use of RIGHT TO WITHHOLD PAYMENT Clause in Contracts

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents to the contrary, Owner shall have the right to withhold payment to Contractor as necessary to protect itself if, after written notice and reasonable opportunity to cure: (i) Contractor is in default of any of its Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents to the contrary, Owner shall have the right to withhold payment to Contractor as necessary to protect itself if[, after written notice and reasonable opportunity to cure]: (i) Contractor is in default of any of its Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents to the contrary, Owner shall have the right to withhold payment to Contractor as necessary to protect itself if, after written notice and reasonable opportunity to cure: (i) Contractor is in default of any of its Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to to‌ cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌;

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents to the contrary, Owner shall have the right to withhold payment to Contractor as necessary to protect itself if, after written notice and reasonable opportunity to cure: (i) Contractor is in default of any of its Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌;

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents to the contrary, Owner shall have the right to withhold payment to Contractor as necessary to protect itself if[, after written notice and reasonable opportunity to cure]: (i) Contractor is in default of any of its its‌ Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌;

RIGHT TO WITHHOLD PAYMENT. Notwithstanding any provision of the Contract Documents Payment hereunder is subject to the contraryA/Z withholding, Owner shall have the right to withhold payment to Contractor as in its reasonable discretion, an amount necessary to protect and insure itself ifagainst any actual or potential liability, after written notice claim or demand directly or indirectly relating to this Agreement or the Work. A/Z may, without limitation and reasonable opportunity in its sole discretion (a) withhold payment due hereunder to cure: (i) Contractor is in default assure payment of any of its Contract Documents Trade Contractor’s unpaid obligations; (iib) Owner reasonably believes any part demand as a condition precedent to payment that each unpaid obligation of a payment due is attributable Trade Contractor be satisfied and that an affidavit be furnished from each party to Project services or Work whom Trade Contractor owes money indicating that fails to conform to the Contract Documents’ requirements, except that Owner shall make payment attributable to services or Work that does conform to the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments no other monies are due and owing to Subcontractors them except for the designated amount covered by the particular payment in question; (c) pay any and all persons or Suppliers who contributed entities, including but not limited to, any labor organization or pension, welfare or similar fund, that has not received payment due from Trade Contractor in connection with this Agreement, whether or not a lien or bond claim has been filed; or (d) make payment in the form of joint checks payable to Work for which Owner has paid Trade Contractor and any unpaid subcontractor, independent contractor or supplier or at the option of A/Z, single party checks made payable to Trade Contractor’s subcontractors, independent contractors or suppliers. Notwithstanding the foregoing, Trade Contractor’s subcontractors, independent contractors and suppliers are not third party beneficiaries of this Agreement and A/Z has no obligation to retain monies on their behalf. If A/Z or its Surety are required to pay or indemnify any person or entity by reason of any of the foregoing, Trade Contractor and its Surety, if any, shall immediately reimburse A/Z and its Surety for which Contractor has given to Owner no notice the full amount of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documentssuch costs and expenses, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed for the Contract Sum unless reasonable attorneys’ fees and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Timeconsultants’ fees, and interest thereon at the unpaid Contract Sum balance will not be adequate Prime Rate then published in the Wall Street Journal. Trade Contractor and its Surety, if any, shall also immediately reimburse A/Z for any amounts paid under the payment bond of A/Z in connection with this Agreement and any other payments made by A/Z and its Surety relating to cover Owner’s damages for a failure of Trade Contractor to make payment, and Trade Contractor shall, to the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) fullest extent permitted by law, defend, indemnify and hold harmless A/Z and its Surety from any other claims and costs associated therewith, including reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌attorneys’ fees and consultants’ fees and interest as previously specified herein.

RIGHT TO WITHHOLD PAYMENT. (a) Notwithstanding any provision of the Contract Documents anything in this Agreement to the contrary, Owner shall not be obligated to make, and may withhold interest free, any payment to Architect/Engineer under this Agreement if any one or more of the following three (3) conditions exist: (1) Architect/Engineer is in default of any of its obligations under this Contract, and fails to correct such default within seventy-two (72) hours after receiving Owner’s written notice of such default; (2) Architect/Engineer seeks payment for Services that were not performed under and in accordance with this Contract, in which case the amount of such payment may be withheld without notice; or (3) Architect/Engineer has failed to make promptly when due any payment to any Consultant or other third party used by Architect/Engineer to perform this Agreement, and for which the Owner has paid Architect/Engineer, in which case payment equal to such amount may be withheld without notice. (b) Owner’s right to withhold payment hereunder is in addition to any and all legal and/or equitable remedies available to Owner under the law. Architect/Engineer shall not claim or file, and hereby waives to the maximum extent permitted by law, any lien rights or other rights of encumbrance against the Owner’s property and the Projects. Architect/Engineer shall expressly refer to this waiver provision in all agreements with all Consultants engaged to perform the Services and require them to similarly agree to waive all such rights. (c) Prior to final payment to the Architect/Engineer, the Architect/Engineer shall furnish evidence satisfactory to the Owner that there are no claims, obligations or liens outstanding in connection with its Services. Acceptance of final payment shall constitute a waiver of all claims by the Architect/Engineer for compensation for its Services. (d) Should there be any claim, obligation or lien asserted before or after final payment is made that arises from the Architect/Engineer’s Services, the Architect/Engineer shall reimburse the Owner for any costs and expenses, including attorneys’ fees, costs and expenses, incurred by the Owner in satisfying, discharging or defending against any such claim, obligation or lien, including any action brought or judgment recovered, provided the Owner is making payments or has made payments to the Architect/Engineer in accordance with the terms of this Agreement. (e) Should the Architect/Engineer or its Consultants cause damage to the Project, or fail to perform or otherwise be in default under the terms of this Agreement, the Owner shall have the right to withhold from any payment due or to Contractor as necessary become due, or otherwise be reimbursed for, an amount sufficient to protect itself if, after written notice and reasonable opportunity to cure: (i) Contractor is in default the Owner from any loss that may result. Payment of any of its Contract Documents obligations; (ii) Owner reasonably believes any part of a payment due is attributable to Project services or Work that fails to conform to the Contract Documents’ requirements, except that Owner amount withheld shall make payment attributable to services or Work that does conform to be made when the Contract Documents’ requirements; (iii) Contractor causes damage to the Work, Owner, or Owner’s Separate Contractors; (iv) Contractor fails to timely make payments due and owing to Subcontractors or Suppliers who contributed to Work for which Owner has paid Contractor and for which Contractor has given to Owner no notice of its good faith dispute concerning the unpaid Subcontractor or Supplier; (v) reasonable doubt that Contractor can complete the Work in accordance with the Contract Documents, including the Construction Schedule; (vi) Owner determines, based on a Statement of Outstanding Work or otherwise, that the Work of a Deliverable Portion of Work cannot be completed grounds for the Contract Sum unless and until Contractor furnishes a reasonable and satisfactory statement and plan showing and certifying that the Work can be completed for the Contract Sum, or Contractor, at no cost to Owner, causes a sufficient portion of the applicable Work to be performed such that the unpaid portion of the Contract Sum is reasonably sufficient to complete the Work; (vii) reasonable evidence that the Work of a Deliverable Portion of Work will not be completed within the Contract Time, and the unpaid Contract Sum balance will not be adequate to cover Owner’s damages for the Delay; (viii) entitlement to offset for assessment of Liquidated Damages; (ix) reasonable evidence of probable third party claims, unless Contractor furnishes to Owner acceptable security.‌withholding have been removed.