Common use of Delay and Extension of Time Clause in Contracts

Delay and Extension of Time. ‌ (a) The Subcontractor is only entitled to an EOT to the Date for Practical Completion where: (I) the progress of the Subcontract Works is actually delayed by a Qualifying Delay; (II) the Subcontractor gives the Contactor a written notice, within 2 days after the commencement of the Qualifying Delay, setting out the cause of the Qualifying Delay and an estimate of the extent of the Qualifying Delay ; (III) if the Qualifying Delay continues for more than 7 days, the Subcontractor provides a further written notice on the 7th day after the commencement of the Qualifying Delay to the Contractor stating that the Qualifying Delay continues and providing an estimate of when the Qualifying Delay; (IV) the Subcontractor gives the Contractor a written notice, within 2 days after the Qualifying Delay ceases, claiming an EOT and providing details of the extent of the Qualifying Delay and the grounds on which the claim is based; (V) the Subcontractor has taken reasonable steps to avoid and mitigate the effect of the Qualifying Delay. (b) The Contractor will inform the Subcontractor within 28 days of receiving a claim for an EOT (“Advice on EOT”): (I) whether or not the Contractor has granted any EOT; and (II) if no Advice on EOT is given, then the claim is deemed to be rejected. (c) The Subcontractor’s strict compliance with the provisions of this clause is a precondition to any right of the Subcontractor to receive an EOT. (d) Notwithstanding that the Subcontractor is not entitled to or has not claimed an EOT, the Contractor may, at any time and from time to time before the issue of the certificate of final completion under the Head Contract, by notice in writing to the Subcontractor, extend the Date for Practical Completion for any reason in the Contractor’s absolute discretion and without being under any obligation to do so. An EOT granted by the Contractor does not entitle the Subcontractor to: (I) an increase in the Subcontract Sum; (II) give rise to any liability for damages arising out of or in connection with the Qualifying Delay; (III) set time at large in respect of the Subcontractor; or (IV) vitiate the Subcontract. 31 Acceleration‌ (a) The Contractor may direct the Subcontractor to accelerate the execution of the Subcontract Works or to recover any delay in the execution of the Subcontract Works (the “Acceleration Direction”) provided that the Contractor’s Direction must: (I) be in writing; (II) contain details of the Subcontract Works to be accelerated and the time by which the accelerated work is to be completed; and (III) be signed by an authorised representative of the Contractor. (b) The Subcontractor must not comply with the Acceleration Direction until the Contractor and the Subcontractor have agreed in writing as to: (I) the amount to be paid to the Subcontractor; and (II) the manner in which the Subcontract Sum is to be adjusted and how the adjustment will be paid to the Subcontractor. (c) Subject to clause 31(b), the Subcontractor must take steps, measures and calculations that are necessary to comply with the Acceleration Direction, including the rescheduling, redeployment and employment of workers, plant, equipment and other resources. (d) In the event that the Subcontractor is directed to accelerate the Subcontract Works under clause 31(a), the Contractor shall not be liable for any additional costs incurred by or on behalf of the Subcontractor. 32 Payment‌ (a) On or before the date stated in Item 14 of Schedule 1 (the “Reference Date”), the Subcontractor must give a progress claim to the Contractor in writing (in a format approved by the Contractor): (I) stating the value of the Subcontract Works carried out by the Subcontractor to the Reference Date ; and (II) including a schedule of Variations stating the Variations directed by the Contractor under clause 25 to the Reference Date (providing the Subcontractor has complied with clause 25 in relation to each Variations claimed) together with: A. the description of the work directed to be carried out under each Variation; B. any prices that have been agreed or valued in accordance with clause 25(i); and C. the prices that have not been agreed or valued (the “Variations not agreed”), (III) including signed statutory declarations, in the format required by the Contractor and attached to the Subcontractor Documents, to evidence that the Subcontractor has : A. paid all of the Subcontractor’s Secondary Subcontractors, and employees all amounts due at law in respect of the Subcontract Works; B. paid all superannuation, redundancy payments or other statutory fund contributions, to which any relevant receipts should be attached ; C. claimed for all work carried out by the Subcontractor up to the date of the progress claim in accordance with the Subcontract; and D. effected and continues to have any required insurance cover under the Subcontract, to which should be attached any relevant insurance Documents unless previously provided. For the avoidance of doubt, a progress claim can only be submitted once per month and a Reference Date shall not arise during the period following 7 Business Days after the Date of Practice Completion until the time for make the final progress claim under clause 32(g). (b) The amount payable to the Subcontractor in respect of each progress claim is the Contractors assessment of: (I) the value of the Subcontract Works (excluding Variations) carried out by the Subcontractor and claimed to the Reference Date for this progress claim; and (II) the value of any Variations to the Subcontract Works carried out by the Subcontractor and claimed to the Reference Date for the progress claim which increases the Subcontract Sum and has been previously approved or valued in writing by the Contractor in accordance with clause 25(i), less (III) the total amount already paid under the Subcontract to the Subcontractor by the Contractor; (IV) the value of any Variations which decrease the Subcontract Sum and have been previously approved or valued in writing by the Contractor under clause 25(i); (V) any amount which the Contractor may withhold, retain or deduct in accordance with the Subcontract or otherwise, including retentions under clause 34; (VI) any other amount asserted or claimed by the Contractor under clause 54; and (VII) where any part of the Subcontract Works are defective, the estimated cost of remedying the defective work. (c) In determining the amount payable to the Subcontractor in respect of each progress claim, the assessment is to exclude any amount: (I) for work performed by the Subcontractor after the Reference Date for this progress claim; (II) which comprises a claim for damages by the Subcontractor; (III) claimed by the Subcontractor that has not been earlier notified under clause 25; and (IV) for Variations not agreed. (d) No amount is payable to the Subcontractor in respect of any progress claim unless: (I) the Subcontractor has returned an unamended executed FIA to the Contractor; and (II) the Subcontractor has strictly complied with clause 32(a). (e) If the Contractor disputes all or any part of the progress claim or the final progress claim, the Contractor shall give the Subcontractor a written notice, in the form of a payment schedule under the Act, setting out the amount in dispute and the details of the dispute within 10 Business Days of the progress claim being received. (f) The Contractor is to pay the amount payable to the Subcontractor in accordance with clause 32 within the time for payment set out in Item 15 of Schedule 1. Payment other than payment of the Subcontractor’s final progress claim is payment on account only. (g) The Subcontractor is to submit its final progress claim within 21 days after the Defects Liability Period expires or within such other time as is requested by the Contractor in writing. The final progress claim is to be endorsed “Final Progress Claim” and is to include: (I) a final statement setting out the details of all monies claims or owed under this Subcontractor or in connection with the subject matter of this Subcontract; and (II) a release by the Subcontractor, in the written form provided by the Contractor, and attached to the Subcontract Documents (the “Final Release”) in respect of all claims on any account whatsoever that the Subcontractor may have against the Contractor under this Subcontract or in connection with the subject matter of the Subcontract, which are not contained in the final statement. (h) After the expiration of the time for submitting the Subcontractor’s final progress claim, any potential claim that Subcontractor could have made against the Contractor shall be barred. (i) As a condition precedent to receiving payment in respect of the final progress claim, the Subcontractor must: (I) execute the Final Release in Schedule [X]; and (II) provide all warranties, as-built manuals, drawings, training and spare materials as required by the Subcontractor or referred to in the specification. (j) Payment by the Contractor, at any time, where the Subcontractor has not complied with clause 32(a) to 32(d), does not preclude or operate as a waiver of: (I) the Contractor’s rights to rely on clause 32 in respect of any other future payment claim; or (II) the exercise and enforcement of any other right, power or remedy provided by law or under this Subcontract.

Delay and Extension of Time. ‌43.1 Upon it becoming reasonably apparent that the progress of the Works is delayed, the Contractor shall forthwith give written notice to the S.O. as to the causes of delay and relevant information with supporting documents enabling the said officer to form an opinion as to the cause and calculation of the length of delay. If in the opinion of the S.O the completion of the Works is likely to be delayed or has been delayed beyond the Date for Completion stated in Appendix 1 or beyond any extended Date for Completion previously fixed under this Clause due to any or more of the following events: (a) The Subcontractor force majeure as provided under clause 58; (b) exceptionally inclement weather; (c) suspension of Works under clause 50; (d) directions given by the S.O., consequential upon disputes with neighbouring owners provided the same is only entitled not due to an EOT any act, negligence or default of the Contractor or any sub-contractor, nominated or otherwise; (e) S.O.’s instructions issued under clause 5 hereof, PROVIDED THAT such instructions are not issued due to any act, negligence, default or breach of this Contract by this Contractor or any sub-contractor, nominated or otherwise; (f) the Contractor not having received in due time instructions in regard to the nomination of sub-contractors and/or suppliers provided in this Contract, necessary instructions, drawings or levels for the execution of the Works from the S.O. due to any negligence or default of the S.O. PROVIDED THAT the Contractor shall have specifically applied in writing on a date which having regard to the Date for Practical Completion where: (I) stated in Appendix or to any extension of time then fixed under this clause, was neither unreasonably distant from nor unreasonably close to the progress of date on which it was necessary for him to receive the Subcontract Works is actually delayed by a Qualifying Delaysame; (IIg) the Subcontractor gives the Contactor a written notice, within 2 days after the commencement delay in giving possession of the Qualifying Delay, setting out the cause of the Qualifying Delay Site as provided under clause 38.4 hereof other than claim in effecting insurance and an estimate of the extent of the Qualifying Delay Performance Bond; (IIIh) if the Qualifying Delay continues for more than 7 days, the Subcontractor provides a further written notice delay on the 7th day after part of artists, tradesman or others engaged by the commencement Government in executing work not forming part of the Qualifying Delay to the Contractor stating that the Qualifying Delay continues and providing an estimate of when the Qualifying Delaythis Contract; (IVi) the Subcontractor gives Contractor’s inability for reason beyond his control and which he could not reasonably have foreseen at the date of closing of tender of this Contract to secure such goods, materials and/or services as are essential to the proper carrying out of the Works; or (j) delay on the part of the Nominated Sub-contractors and/or Nominated Suppliers to perform their works, due to reasons as stated above in sub-clauses (a) to (i), PROVIDED THAT all such delays are not due to any act, negligence, default or breach of contract by the Nominated Sub-contractor and/or Nominated Supplier and/or the Contractor, or any of the servants or agents of such Nominated Sub-contractor or Nominated Supplier or the Contractor. PROVIDED ALWAYS that the Contractor a written notice, within 2 days after the Qualifying Delay ceases, claiming an EOT and providing details of the extent of the Qualifying Delay and the grounds on which the claim is based; (V) the Subcontractor has taken all reasonable steps to avoid or reduce such delay and mitigate shall do all that may reasonably be required to the effect satisfaction of the Qualifying Delay. (b) The Contractor will inform the Subcontractor within 28 days of receiving a claim for an EOT (“Advice on EOT”): (I) whether or not the Contractor has granted any EOT; and (II) if no Advice on EOT is given, then the claim is deemed S.O. to be rejected. (c) The Subcontractor’s strict compliance proceed with the provisions of this clause is a precondition to any right of the Subcontractor to receive an EOT. (d) Notwithstanding Works. PROVIDED FURTHER that the Subcontractor is not entitled to or has not claimed an EOT, the Contractor may, at any time and from time to time before the issue of the certificate of final completion under the Head Contract, by notice in writing to the Subcontractor, extend the Date for Practical Completion for any reason in the Contractor’s absolute discretion and without being under any obligation to do so. An EOT granted by the Contractor does not entitle the Subcontractor to: (I) an increase in the Subcontract Sum; (II) give rise to any liability for damages arising out of or in connection with the Qualifying Delay; (III) set time at large in respect of the Subcontractor; or (IV) vitiate the Subcontract. 31 Acceleration‌ (a) The Contractor may direct the Subcontractor to accelerate the execution of the Subcontract Works or to recover any delay in the execution of the Subcontract Works (the “Acceleration Direction”) provided that the Contractor’s Direction must: (I) be in writing; (II) contain details of the Subcontract Works to be accelerated and the time by which the accelerated work is to be completed; and (III) be signed by an authorised representative of the Contractor. (b) The Subcontractor must not comply with the Acceleration Direction until the Contractor and the Subcontractor have agreed in writing as to: (I) the amount to be paid to the Subcontractor; and (II) the manner in which the Subcontract Sum is to be adjusted and how the adjustment will be paid to the Subcontractor. (c) Subject to clause 31(b), the Subcontractor must take steps, measures and calculations that are necessary to comply with the Acceleration Direction, including the rescheduling, redeployment and employment of workers, plant, equipment and other resources. (d) In the event that the Subcontractor is directed to accelerate the Subcontract Works under clause 31(a), the Contractor shall not be liable for entitled to any additional costs incurred extension of time where the instructions or acts of the S.O. are necessitated by or on behalf intended to remedy any default of the Subcontractor. 32 Payment‌ (a) On or before the date stated in Item 14 breach of Schedule 1 (the “Reference Date”), the Subcontractor must give a progress claim to the Contractor in writing (in a format approved contract by the Contractor): (I) stating the value of the Subcontract Works carried out by the Subcontractor to the Reference Date ; and (II) including a schedule of Variations stating the Variations directed by the Contractor under clause 25 to the Reference Date (providing the Subcontractor has complied with clause 25 in relation to each Variations claimed) together with: A. the description of the work directed to be carried out under each Variation; B. any prices that have been agreed or valued in accordance with clause 25(i); and C. the prices that have not been agreed or valued (the “Variations not agreed”), (III) including signed statutory declarations, in the format required by the Contractor and attached to the Subcontractor Documents, to evidence that the Subcontractor has : A. paid all of the Subcontractor’s Secondary Subcontractors, and employees all amounts due at law in respect of the Subcontract Works; B. paid all superannuation, redundancy payments or other statutory fund contributions, to which any relevant receipts should be attached ; C. claimed for all work carried out by the Subcontractor up to the date of the progress claim in accordance with the Subcontract; and D. effected and continues to have any required insurance cover under the Subcontract, to which should be attached any relevant insurance Documents unless previously provided. For the avoidance of doubt, a progress claim can only be submitted once per month and a Reference Date shall not arise during the period following 7 Business Days after the Date of Practice Completion until the time for make the final progress claim under clause 32(g). (b) The amount payable to the Subcontractor in respect of each progress claim is the Contractors assessment of: (I) the value of the Subcontract Works (excluding Variations) carried out by the Subcontractor and claimed to the Reference Date for this progress claim; and (II) the value of any Variations to the Subcontract Works carried out by the Subcontractor and claimed to the Reference Date for the progress claim which increases the Subcontract Sum and has been previously approved or valued in writing by the Contractor in accordance with clause 25(i), less (III) the total amount already paid under the Subcontract to the Subcontractor by the Contractor; (IV) the value of any Variations which decrease the Subcontract Sum and have been previously approved or valued in writing by the Contractor under clause 25(i); (V) any amount which the Contractor may withhold, retain or deduct in accordance with the Subcontract or otherwise, including retentions under clause 34; (VI) any other amount asserted or claimed by the Contractor under clause 54; and (VII) where any part of the Subcontract Works are defective, the estimated cost of remedying the defective work. (c) In determining the amount payable to the Subcontractor in respect of each progress claim, the assessment is to exclude any amount: (I) for work performed by the Subcontractor after the Reference Date for this progress claim; (II) which comprises a claim for damages by the Subcontractor; (III) claimed by the Subcontractor that has not been earlier notified under clause 25; and (IV) for Variations not agreed. (d) No amount is payable to the Subcontractor in respect of any progress claim unless: (I) the Subcontractor has returned an unamended executed FIA to the Contractor; and (II) the Subcontractor has strictly complied with clause 32(a). (e) If the Contractor disputes all or any part of the progress claim or the final progress claim, the Contractor shall give the Subcontractor a written notice, in the form of a payment schedule under the Act, setting out the amount in dispute and the details of the dispute within 10 Business Days of the progress claim being received. (f) The Contractor is to pay the amount payable to the Subcontractor in accordance with clause 32 within the time for payment set out in Item 15 of Schedule 1. Payment other than payment of the Subcontractor’s final progress claim is payment on account only. (g) The Subcontractor is to submit its final progress claim within 21 days after the Defects Liability Period expires or within such other time as is requested by the Contractor in writing. The final progress claim is to be endorsed “Final Progress Claim” and is to include: (I) a final statement setting out the details of all monies claims or owed under this Subcontractor or in connection with the subject matter of this Subcontract; and (II) a release by the Subcontractor, in the written form provided by the Contractor, and attached to the Subcontract Documents (the “Final Release”) in respect of all claims on any account whatsoever that the Subcontractor may have against the Contractor under this Subcontract or in connection with the subject matter of the Subcontract, which are not contained in the final statement. (h) After the expiration of the time for submitting the Subcontractor’s final progress claim, any potential claim that Subcontractor could have made against the Contractor shall be barred. (i) As a condition precedent to receiving payment in respect of the final progress claim, the Subcontractor must: (I) execute the Final Release in Schedule [X]; and (II) provide all warranties, as-built manuals, drawings, training and spare materials as required by the Subcontractor or referred to in the specification. (j) Payment by the Contractor, at any time, where the Subcontractor has not complied with clause 32(a) to 32(d), does not preclude or operate as a waiver of: (I) the Contractor’s rights to rely on clause 32 in respect of any other future payment claim; or (II) the exercise and enforcement of any other right, power or remedy provided by law or under this Subcontract.