Common use of Failure of Performance Clause in Contracts

Failure of Performance. If the Subcontractor, at any time, fails in the performance of the terms, stipulations and agreements of the General Contract, Accepted Proposal or this Subcontractor's Agreement or fails to use due diligence in the work awarded them, so as to interfere with or in any way impede Allied Operations of Border Construction Services, and other Subcontractors, this will be a failure of performance. Failure of performance will rest solely in the judgment of Border Construction Services, which will provide notice to anyone representing the Subcontractor at the job site or Subcontractor's place of business. Such notice will state the nature of the violation of the Agreement or contracts. If the failure is continuing for two (2) days after notice to the Subcontractor, Border Construction Services, may precede thereupon to complete the work under the terms of the General Contract, Accepted Proposal or Subcontractor Agreement at the cost and expense of Subcontractor. Border Construction Services, may re-sublet the work, and any monies due the Subcontractor on that project will be held until the Subcontractor's portion of the project has been completed by Ask for Xxxx, Inc., or a new Subcontractor. These monies will be paid to Border Construction Services, or the new Subcontractor for the work done. Subcontractor further agrees that if Subcontractor should delay the material progress of the work so as to create any damage or cost overage for which Border Construction Services, shall become liable, then the Subcontractor shall indemnify Border Construction Services, for the amount of any damages so caused. VI - NEGATION OF JOINT VENTURE OR PARTNERSHIP In entering into and complying with Agreement, Subcontractor is at all times performing as an independent contractor. Nothing in this Agreement shall constitute or be construed as a creation of a partnership or joint venture between Subcontractor and Border Construction Services, or their successors or assigns. VII - CONSIDERATION Border Construction Services, shall pay the Subcontractor for performance of the work described within the General Contract, Accepted Proposal or Subcontractor's Agreement, subject to additions and deductions agreed upon in writing by the Subcontractor and Border Construction Services. VIII - TERMS OF PAYMENT Subcontractor will be paid weekly. Payments will consist of ninety (90%) percent of all labor and materials which have been performed by the Subcontractor on the job site and for which payment has been made by Owner to Border Construction, shall retain the remaining ten (10%) percent until thirty (30) days after work has been fully completed and delivered and accepted by the Owner. This provision is limited to the work done by the Subcontractor. All weekly draws or invoices are to be turned in to Border Construction Services, by 5:00 p.m. each Wednesday and payment will be made on Friday of the following week. All monthly draws will be turned in no later than the 25th day of each month and payable by the 10th day of the following month. Payment will only be approved for the percentage of work completed on the turn in date. All Subcontractors’ draws are subject to the fund availability. IX - INDEMNIFICATION Subcontractor shall indemnify, hold harmless and defend Border Construction Services, from and against any and all costs, expenses (including reasonable counsel fees), liabilities, losses, damages, suits, actions, fines, penalties, claims or demands of any kind and asserted by or on behalf of any person or governmental authority, arising out of or in any way connected with, Border Construction Services, shall not be liable to Subcontractor on account of (1) any failure by Subcontractor to perform any of the agreements, terms, covenants or conditions of the General Contract, Accepted Proposal or this Subcontractor Agreement required to be performed by Subcontractor, (2) any failure by Subcontractor to comply with any statutes, ordinances, regulations or orders of any governmental authority, or (3) any accident, death or personal injury, or damage to or loss or theft of property, with shall occur performing under the General Contract, Accepted Proposal or the Subcontractor's Agreement regardless of whether such liability, claims, demands, damages and costs were caused in while or part by Border Construction Services, or the concurrent negligence of Border Construction Services, or any other person or entity. Subcontractor shall warrant all work performed by Subcontractor for one (1) year from date of completion of the job. Subcontractor shall satisfactorily remedy any and all deficiencies or problems within three (3) days of written notice from Border Construction Services XI - INSURANCE Subcontractor shall provide and furnish all insurance coverage relating to Subcontractor's portion of the General Contract/Accepted Proposal. This coverage shall include, but is not limited, to workmen's compensation, general liability and automobile insurance. Evidence of such insurance coverage is to be furnished to Border Construction Services, when an application is submitted by a Subcontractor and thereafter, once a year. If Subcontractor does not carry general liability insurance, a five (10%) percent fee will be deducted from each invoice and each draw. An approved waiver for the absence of workmen's compensation insurance must be on file with Border Construction Services. Subcontractor agrees to waive all right of subrogation against Border Construction Services. XII - BOUND TO OWNER Subcontractor shall be bound to Border Construction Services, in the same manner as Border Construction Services, is bound to the Owner to the extent of the portion of the work covered under the General Contract/Accepted Proposal. Subcontractor shall abide by the Safety Policy and Subcontractor Policy that has been read and signed simultaneously with this Agreement. Subcontractor must sign a lien waiver in order to receive payment for work that has been completed.

Appears in 3 contracts

Samples: Subcontractor Agreement, Subcontractor Agreement, Subcontractor Agreement

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Failure of Performance. If the Subcontractor, Should Subcontractor at any timetime fail to prosecute and complete the Work in accordance with the Progress Schedule or as herein provided or fail to diligently and continuously perform his Work, fails or if in the performance opinion of Contractor the terms, stipulations and agreements Work of the General Contract, Accepted Proposal or this Subcontractor's Agreement or fails to use due diligence Subcontractor cannot be completed in the work awarded themtime period set forth, so as to interfere with or in any way impede Allied Operations of Border Construction Services, and other Subcontractors, this will be a failure of performance. Failure of performance will rest solely in the judgment of Border Construction Services, which will provide notice to anyone representing the Subcontractor at the job site if Contractor is notified or Subcontractor's place failure to pay for any material or labor used on the Project, or in the event of business. Such notice will state a strike or stoppage or Work resulting from a dispute involving or affecting the nature labor employed by Subcontractor or his Subcontractors, or if Subcontractor fails to perform any of the violation requirements herein, then such event shall be deemed a default and Contractor shall notify Subcontractor to correct such default and shall specify in such notice the action to be taken and a reasonable date by which the default shall be corrected. If a default occurs and is not corrected on or before the date specified in the notice to Subcontractor, Contractor shall be entitled to exercise either or both of the Agreement or contracts. If the failure is continuing for two (2) days after notice following remedies as well as any other remedies available, including but not limited to the Subcontractor, Border Construction Services, may precede thereupon to complete the work under binding and consolidated arbitration in accordance wit the terms of the General ContractContract or through litigation in a court of law. Contractor may immediately take any action necessary to correct such default, Accepted Proposal or Subcontractor Agreement at including specifically the right to provide labor, overtime labor and materials and may deduct the cost of correcting such default from payment due, or that may become due to Subcontractor. Contractor may terminate this Subcontract and expense the employment of Subcontractor. Border Construction Services, may re-sublet the worktake possession of Subcontractor's materials, tools and equipment used in performing such Work, and employ another Subcontractor or use the employees of Contractor to finish the remaining Work to be performed hereunder. Contractor may deduct the costs of completing the remaining work from the unpaid contract price, and if the cost of completing the remaining Work exceeds the unpaid Contract amount, Subcontractor shall pay to Contractor such excess costs, including but not limited to overhead and attorney's fees. Contractor, in any monies due such event may also refrain from making any further payments under this Subcontract to Subcontractor until the entire project shall be fully finished and accepted by Owner, at which time, if the unpaid balance of the amount to be paid under this Subcontract shall exceed the expense incurred by Contractor to Subcontractor, but if such expenses and damages shall exceed such unpaid balance Subcontractor shall promptly pay the difference to Contractor if Contractor does not terminate the right of Subcontractor to proceed, Subcontractor shall continue with the balance of the Work. If Owner is damaged by reason of any breach by Subcontractor of this Subcontract the Subcontractor on that project will be held until the Subcontractor's portion of the project has been completed by Ask for Xxxx, Inc., or a new Subcontractor. These monies will be paid to Border Construction Services, or the new Subcontractor for the work done. Subcontractor further agrees that if Subcontractor should delay the material progress of the work so as to create any damage or cost overage for which Border Construction Services, shall become liable, then the Subcontractor shall indemnify Border Construction Services, for the amount of any damages so caused. VI - NEGATION OF JOINT VENTURE OR PARTNERSHIP In entering into and complying with Agreement, Subcontractor is at all times performing as an independent contractor. Nothing in this Agreement shall constitute or be construed as a creation of a partnership or joint venture between Subcontractor and Border Construction Services, or their successors or assigns. VII - CONSIDERATION Border Construction Services, shall pay the Subcontractor for performance of the work described within the General Contract, Accepted Proposal or Subcontractor's Agreementshall, subject to additions any defenses and deductions agreed upon in writing by the offsets to which Subcontractor and Border Construction Services. VIII - TERMS OF PAYMENT Subcontractor will may be paid weekly. Payments will consist of ninety (90%) percent of all labor and materials which have been performed by the Subcontractor on the job site and for which payment has been made by entitled under this Subcontract, pay Owner to Border Construction, shall retain the remaining ten (10%) percent until thirty (30) days after work has been fully completed and delivered and accepted by the Owner. This provision is limited to the work done by the Subcontractor. All weekly draws or invoices are to be turned in to Border Construction Services, by 5:00 p.m. each Wednesday and payment will be made on Friday of the following week. All monthly draws will be turned in no later than the 25th day of each month and payable by the 10th day of the following month. Payment will only be approved for the percentage of work completed on the turn in date. All Subcontractors’ draws are subject to the fund availability. IX - INDEMNIFICATION Subcontractor shall indemnify, hold harmless and defend Border Construction Services, from and against any and all costs, expenses (including reasonable counsel fees), liabilities, losses, such damages, suits, actions, fines, penalties, claims or demands of any kind and asserted by or on behalf of any person or governmental authority, arising out of or in any way connected with, Border Construction Services, shall not be liable to Subcontractor on account of (1) any failure by Subcontractor to perform any of the agreements, terms, covenants or conditions of the General Contract, Accepted Proposal or this Subcontractor Agreement required to be performed by Subcontractor, (2) any failure by Subcontractor to comply with any statutes, ordinances, regulations or orders of any governmental authority, or (3) any accident, death or personal injury, or damage to or loss or theft of property, with shall occur performing under the General Contract, Accepted Proposal or the Subcontractor's Agreement regardless of whether such liability, claims, demands, damages and costs were caused in while or part by Border Construction Services, or the concurrent negligence of Border Construction Services, or any other person or entity. Subcontractor shall warrant all work performed by Subcontractor for one (1) year from date of completion of the job. Subcontractor shall satisfactorily remedy any and all deficiencies or problems within three (3) days of written notice from Border Construction Services XI - INSURANCE Subcontractor shall provide and furnish all insurance coverage relating to Subcontractor's portion of the General Contract/Accepted Proposal. This coverage shall include, but is not limited, to workmen's compensation, general liability and automobile insurance. Evidence of such insurance coverage is to be furnished to Border Construction Services, when an application is submitted by a Subcontractor and thereafter, once a year. If Subcontractor does not carry general liability insurance, a five (10%) percent fee will be deducted from each invoice and each draw. An approved waiver for the absence of workmen's compensation insurance must be on file with Border Construction Services. Subcontractor agrees to waive all right of subrogation against Border Construction Services. XII - BOUND TO OWNER Subcontractor shall be bound to Border Construction Services, in the same manner as Border Construction Services, is bound to the Owner to the extent of the portion of the work covered under the General Contract/Accepted Proposal. Subcontractor shall abide by the Safety Policy and Subcontractor Policy that has been read and signed simultaneously with this Agreement. Subcontractor must sign a lien waiver in order to receive payment for work that has been completed.

Appears in 1 contract

Samples: Subcontract Agreement

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