Employer's Taking Over PDF

L A R E N E G substantially the whole benefit of the Works in which event the Employer shall have the same remedies as are provided in sub-paragraph (d) of Sub-Clause 11.4 [Failure to Remedy Defects ]; S N O I T I D N O C (c) E C N A D I U G (d) reject the Section if the effect of the failure i...

L A R E N E G substantially the whole benefit of the Works in which event the Employer shall have the same remedies as are provided in sub-paragraph (d) of Sub-Clause 11.4 [Failure to Remedy Defects ]; S N O I T I D N O C (c) E C N A D I U G (d) reject the Section if the effect of the failure is that the Section cannot be used for its intended purpose(s) under the Contract, in which event the Employer shall have the same remedy as is provided in sub-paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects ]; or issue a Taking-Over Certificate, if the Employer so requests. In the event of sub-paragraph (d) above, the Contractor shall then proceed in accordance with all other obligations under the Contract, and the Employer shall entitled subject to Sub-Clause [Claims ForContract PaymentPrice and/or EOT] be to payment by the Contractor or a 20.2 reduction in the as described under sub-paragraphs (b)(i) or (b)(ii) of Sub-Clause 11.4 [Failure to Remedy Defects], respectively. This entitlement shall be without prejudice to any other rights the Employer may have, under the Contract or otherwise. S M R O F 10 Employer’s Taking Over 10.1 rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d Taking Over the Works and Sections Except as stated in Sub-Clause 9.4 [ Failure to Pass Tests on Completion ] and Sub-Clause 10.2 [Taking Over of Parts of the Works], the Works shall be taken over by the Employer when: (a) the Works have been completed in accordance with the Contract, including the passing of the Tests on Completion and except as (b) (c) allowed in sub-paragraph (i) below; if applicable, the Employer has given (or is deemed to have given) a Notice of No-objection to the as-built records submitted under sub-paragraph (a) of Sub-Clause 5.6 [As-Built Records]; if applicable, the Employer has given (or is deemed to have given) a Notice of No-objection to the provisional O&M Manuals for the Works submitted under Sub-Clause 5.7Operation [ and Maintenance Manuals ]; (d) if applicable, the Contractor has carried out the training as described under Sub-Clause 5.5 [Training]; and (e) a Taking-Over Certificate for the Works has been issued, or is deemed to have been issued in accordance with this Sub-Clause. The Contractor may apply for a Taking-Over Certificate by giving a Notice to the Employer not more than 14 days before the Works will, in the Contractor’s opinion, be complete and ready for taking over. If the Works are divided into Sections, the Contractor may similarly apply for a Taking-Over Certificate for each Section. If any part of the Works is taken over under Sub-Clause 10.2 [T aking Over of Parts of the Works], the remaining Works or Section shall not be taken overuntil the conditions described in sub-paragraph s (a) to (e) above have been fulfilled. The Employer shall, within 28 days after receiving the Contractor’s Notice, either: (i) is h T 52 © FIDIC 2017 issue the Taking-Over Certificate to the Contractor, stating the date on which the Works or Section were completed in accordance with the Contract, except for any minor outstanding work and defects (as listed in the Taking-Over Certificate) which will not substantially affect the safe use of the Works or Section for their intended purpose (either until or Conditions of Contract for EPC/Turnkey Projects whilst this work is completed and these defects are remedied); or (ii) reject the application by giving a Notice to the Contractor, with reasons. This Notice shall specify the work required to be done, the defects required to be remedied and/or the documents required to be submitted by the Contractor to enable the Taking-Over Certificate to be issued. The Contractor shall then complete this work, remedy such defects and/or submit such documents before giving a further Notice under this Sub-Clause. If the Employer does not issue the Taking-Over Certificate or reject the Contractor’s application within this period of 28 days, and if the conditions described in sub-paragraphs (a) to (d) above have been fulfilled, the Works or Section shall be deemed to have been completed in accordance with the Contract on the fourteenth day after the Employer receives the Contractor’s Notice of application and the Taking-Over Certificate shall be deemed to have been issued. 10.2 Taking Over of Parts of the Works (other than Sections) shall not be taken over or used by the Employer, except as may be stated in the Employer’s Requirements or as may be agreed by both Parties. Parts of the Works rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d 10.3 Interference with If the Contractor is prevented, for more than 14 days (either a continuous period, or multiple periods which total more than 14 days), from carrying out the Tests on Completion by the Employer’s Personnel or by a cause for which the Employer is responsible (including any performance test that is not possible due to available operating conditions during trial operation): Tests on Completion (a) (b) the Contractor shall carry out the Tests on Completion as soon as practicable and, in any case, before the expiry date of the relevant DNP; and if the Contractor suffers delay and/or incurs Cost as a result of being so prevented, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. 11 Defects after Taking Over 11.1 Completion of Outstanding Work In order that the Works and Contractor’s Documents, and each Section, shall and Remedying Defects be the in the condition by the Contract (fair wear and tear by expiry date ofrequired the relevant Defects Notification Period or asexcepted) soon as practicable thereafter, the Contractor shall: (a) complete any work which is outstanding on the relevant Date of Completion, within the time(s) stated in the Taking-Over Certificate or such other reasonable time as is instructed by the Employer; and (b) execute all work required to remedy defects or damage, of which a Notice is given to the Contractor by (or on behalf of) the Employer on or before the expiry date of the DNP for the Works or Section (as the case may be). is h T General Conditions © FIDIC 2017 53 L A R E N E G E C N A D I U G S M R O F S N IO T I D N O C L A R E N E G give a Notice, with reasons, to the Employer requesting consent to remove the defective or damaged Plant off the Site for the purposes of repair. This Notice shall clearly identify each item of defective or damaged Plant, and shall give details of: S N O I T I D N O C (a) the defect or damage to be repaired; (b) E C N A D I U G (f) S M R O F the place to which defective or damaged Plant is to be taken for repair; (c) the transportation to be used (and insurance cover for such transportation); (d) the proposed inspections and testing off the Site; (e) the planned duration required before the repaired Plant shall be returned to the Site; and the planned duration for reinstallation and retesting of the repaired Plant (under Sub-Clause 7.4 [Testing by the Contractor] and/or Clause 9 [Tests on Completion] if applicable). The Contractor shall also provide any further details that the Employer may reasonably require. rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d When the Employer gives consent (which consent shall not relieve the Contractor from any obligation or responsibility under this Clause), the Contractor may remove from the Site such items of Plant as are defective or damaged. As a condition of this consent, the Employer may require the Contractor to increase the amount of the Performance Security by the full replacement cost of the defective or damaged Plant. 11.6 Further Tests after Remedying Defects Within 7 days of completion of the work of remedying of any defect or damage, the Contractor shall give a Notice to the Employer describing the remedied Works, Section and/or Plant and the proposed repeated tests (under Clause 9 [Tests on Completion] or Clause 12 [Tests after Completion], as applicable). If the Employer does not respond within 14 days after receiving this Notice, by giving a Notice to the Contractor objecting to such proposed repeated testing and/or instructing the repeated tests that are necessary to demonstrate that the remedied Works, Section and/or Plant comply with the Contract, the Employer shall be deemed to have agreed with the Contractor’s proposed repeated testing. If the Contractor fails to give such a Notice within the 7 days, the Employer may give a Notice to the Contractor, within 14 days after the defect or damage is remedied, instructing the repeated tests that are necessary to demonstrate that the remedied Works, Section and/or Plant comply with the Contract. All repeated tests under this Sub-Clause shall be carried out in accordance with the terms applicable to the previous tests, except that they shall be carried out at the risk and cost of the Party liable, under Sub-Clause 11.2 [Cost of Remedying Defects ], for the cost of the remedial work. 11.7 Right of Access after Taking Over is h T 56 © FIDIC 2017 Until the date 28 days after issue of the Performance Certificate, the Contractor shall have the right of access to all parts of the Works and to records of the operation, maintenance and performance of the Works, except as may be inconsistent with the Employer’s reasonable security restrictions. Conditions of Contract for EPC/Turnkey Projects L A R E N E G If the Employer fails to issue the Performance Certificate within this period of 28 days, the Performance Certificate shall be deemed to have been issued on the date 28 days after the date on which it should have been issued, as required by this Sub-Clause. S N O I T I D N O C Only the Performance Certificate shall be deemed to constitute acceptance of the Works. E C N A D I U G 11.10 After the issue of the Performance Certificate, each Party shall remain liable for the fulfilment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force. Unfullled Obligations However in relation to Plant, the Contractor shall not be liable for any defects or damage occurring more than two years after expiry of the DNP for the Plant except if prohibited by law or in any case of fraud, gross negligence, deliberate default or reckless misconduct. S M R O F 11.11 Promptly after the issue of the Performance Certificate, the Contractor shall: Clearance of Site rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d (a) remove any remaining Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works from the Site; (b) (c) reinstate all parts of the Site which were affected by the Contractor’s activities during the execution of the Works and are not occupied by the Permanent Works; and leave the Site and the Works in the condition stated in the Employer’s Requirements (if not stated, in a clean and safe condition). If the Contractor fails to comply with sub-paragraphs (a), (b) and/or (c) above within 28 days after the issue of the Performance Certificate, the Employer may sell (to the extent permitted by applicable Laws) or otherwise dispose of any remaining items and/or may reinstate and clean the Site (as may be necessary) at the Contractor’s cost. The Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment by the Contractor of the costs reasonably incurred in connection with, or attributable to, such sale or disposal and reinstating and/or cleaning the Site, less an amount equal to the moneys from the sale (if any). 12 Tests after Completion 12.1 Procedure for Tests after Completion If Tests after Completion are specified in the Employer’s Requirements, this Clause shall apply. The timing of the Tests after Completion shall be as soon as is reasonably practicable after the Works or Section (as the case may be) have been taken over by the Employer. The Employer shall provide all electricity, water, sewage (if applicable), fuel, consumables, materials, and make the Employer’s Personnel and Plant available for the Tests after Completion. The Contractor shall: is h T 58 © FIDIC 2017 Conditions of Contract for EPC/Turnkey Projects (a) provide all other apparatus, assistance, documents and other information, equipment, instruments, labour, and suitably qualified, experienced and competent staff, as are necessary to carry out the Tests after Completion efficiently and properly; (b) rg .o ic d fi. w w w T A E L A S R O F L A N I G IR O E L B A T IN R P T O N D N A E S U T C A R T N O C R O F T O N m r fo t la p is x e N is x e L e th in h it w n o ti u b rit s i d r o f d e t c rit s e r s i t n e m u c o d submit to the Employer, not later than 42 days before the date the Contractor intends to commence the Tests after Completion, a detailed test programme showing the intended timing and resources required for these tests. The Employer may Review the proposed test programme and may give a Notice to the Contractor stating the extent to which it does not comply with the Contract. Within 14 days after receiving this Notice, the Contractor shall revise the test programme to rectify such non-compliance. If the Employer gives no such Notice within 14 days after receiving the test programme (or revised test programme), the Employer shall be deemed to have given a Notice of No-objection; (c) in addition to any date(s) shown in the test programme, give a Notice to the Employer of not less than 21 days, of the date after which the Contractor will be ready to carry out each of the Tests after Completion; (d) not commence the Tests after Completion until a Notice of No-objection is given (or is deemed to have been given) by the Employer to the Contractor’s test programme; (e) commence the Tests after Completion within 14 days after the date stated in the Notice under sub-paragraph (c) above, or on such day or days as the Employer shall instruct; (f) proceed to carry out the Tests after Completion in accordance with: (i) (ii) the Contractor’s test programme to which the Employer has given (or is deemed to have given) a Notice of No-objection; the Employer’s Requirements; and (iii) if applicable, the O&M Manuals to which the Employer has given (or is deemed to have given) a Notice of No-objection, under Sub-Clause 5.7 [Operation and Maintenance Manuals]; and in the presence of such Employer’s Personnel and/or Contractor’s Personnel as either Party may reasonably request. The results of the Tests after Completion shall be compiled and evaluated by both Parties. Appropriate account shall be taken of the effect of the Employer’s prior use of the Works. 12.2 If the Contractor has given a Notice under sub-paragraph (c) of Sub-Clause 12.1 [Procedure for Tests after Completion] that the Works or Section (as the case may be) are ready for Tests after Completion, and the Contractor is prevented from carrying out the Tests after Completion, or these tests are unduly delayed, by the Employer’s Personnel or by a cause for which the Delayed Tests Employer is responsible: (a) the Contractor shall carry out the Tests after Completion as soon as practicable and, in any case, before the expiry date of the relevant DNP; and (b) if the Contractor incurs Cost as a result of any such prevention and/ or delay, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT ] to payment of such Cost Plus Profit. is h T General Conditions © FIDIC 2017 59 L A R E N E G E C N A D I U G S M R O F S N IO T I D N O C