Purpose: The main aim of this clause is to ensure that the Contractor removes all equipment, surplus materials, and other items from the site after the Performance Certificate is issued.
Implications: Failure to do so within the stipulated time frame can result in the Employer taking corrective action, including selling or disposing of the items, and recouping the costs from the Contractor.
Primary Aspects: Key elements include the 28-day deadline, the responsibilities for clearing the site, and the financial implications of not adhering to the clause.
Expert Opinion: Legal experts often highlight the importance of documenting the items present on the site for both the Contractor and the Employer to avoid disputes.
Relevant Illustrations: In a project in Florida, the Employer had to sell off equipment left by the Contractor, emphasizing the practical utility of Clause 11.11 in handling such issues.
Main Points to Keep in Mind
Timeliness: It’s crucial to adhere to the 28-day deadline to avoid financial losses.
Documentation: Both parties should keep accurate records of items on the site to prevent disputes.
Financial Implications: Be aware that the Employer is entitled to recover costs from the sale or disposal of items left on the site.
Interactions with Other Clauses
Clause 11.10 Unfulfilled Obligations: This clause can be seen as an extension of Clause 11.11, as it deals with responsibilities after the issuance of the Performance Certificate, much like the focus on clearing the site.
Clause 3.5 Determinations: This clause may come into play when determining the costs incurred by the Employer in the event of selling or disposing of items left on the site by the Contractor.
Clause 11.9 Performance Certificate: This clause is directly linked since the responsibilities for clearing the site are triggered upon the issuance of the Performance Certificate.
Clause 20.1 Claims: This clause may be invoked if either party fails to fulfill their obligations related to clearing the site, potentially leading to claims and disputes. However, it’s worth noting that Clause 11.11 itself provides mechanisms for resolving the financial implications of not clearing the site, which may be the first course of action before resorting to a formal claim under Clause 20.1.
Flowchart
Detailed Explanation of the Flowchart
Start: Project Completion: The process begins when the project reaches its completion stage.
Issue Performance Certificate?: A decision is made on whether to issue the Performance Certificate.
- Yes: The Contractor is obligated to clear the site.
- No: The process ends.
Contractor Clears Site: The Contractor has the responsibility to clear the site.
- Yes: Site inspection is conducted.
- No: Clause 11.10 (Unfulfilled Obligations) is invoked.
Site Inspection: The site is inspected to ensure it has been cleared.
- Yes: The process ends.
- No: Clause 11.10 is invoked.
Invoke Clause 11.10: Unfulfilled obligations are addressed.
Invoke Clause 3.5: Determinations are made regarding the costs incurred.
Cost Determination: The costs are determined.
Invoke Clause 20.1?: A decision is made on whether to invoke Clause 20.1 for claims and disputes.
- Yes: Claims and disputes are initiated.
- No: The process ends.
Real-World Case Studies on Clause 11.11 Clearance of Site
Case Study 1: Construction Site in Texas with Leftover Equipment
Scenario: After the completion of a commercial building in Texas, the Contractor received the Performance Certificate but left some heavy machinery on the site.
Application of Clause 11.11: The Contractor had 28 days to remove the equipment, failing which the Employer had the right to sell or dispose of it to recover costs.
Outcome: The Contractor removed the equipment within the stipulated time, adhering to Clause 11.11 and avoiding additional costs.
Case Study 2: Surplus Materials in an Arizona Housing Project
Scenario: In a residential housing project in Arizona, the Contractor left behind surplus construction materials even after the Performance Certificate was issued.
Application of Clause 11.11: The Employer sold the surplus materials after the 28-day period and deducted the costs from the Contractor’s final payment.
Outcome: The Contractor learned the importance of adhering to Clause 11.11 the hard way by incurring a financial loss.
Case Study 3: Refurbishment Project in New York with Debris Left Behind
Scenario: In a refurbishment project in New York, the Contractor left behind debris and wreckage on the site after receiving the Performance Certificate.
Application of Clause 11.11: The Employer had to dispose of the debris and wreckage, incurring additional costs, which were then charged to the Contractor.
Outcome: This case highlighted how Clause 11.11 can impose additional financial burdens on the Contractor for non-compliance.
Sample Letters
Sample Letter 1: From Employer to Contractor
[Date]
[Contractor’s Address]
Dear [Contractor’s Name],
Subject: Notice to Clear Site – Clause 11.11 Clearance of Site
We have issued the Performance Certificate, and as per **Clause 11.11**, you are required to clear the site of any remaining Contractor’s Equipment, surplus material, wreckage, and Temporary Works within 28 days.
Failure to comply may result in us taking action as outlined in the contract.
Best regards,
[Employer’s Name]
[Employer’s Position]
Sample Letter 2: From Contractor to Employer
[Date]
[Employer’s Address]
Dear [Employer’s Name],
Subject: Site Cleared as per Clause 11.11 Clearance of Site
We are pleased to inform you that the site has been cleared of all items as stipulated in **Clause 11.11** within the 28-day period.
Please acknowledge the completion of this requirement.
Best regards,
[Contractor’s Name]
[Contractor’s Position]
Sample Letter 3: From Employer to Contractor
[Date]
[Contractor’s Address]
Dear [Contractor’s Name],
Subject: Failure to Clear Site – Clause 11.11 Clearance of Site
It has come to our attention that you have not cleared the site within the 28-day period as per **Clause 11.11**. Therefore, we will dispose of the remaining items and recover the costs incurred.
Kindly acknowledge this action and the associated financial implications.
Sincerely,
[Employer’s Name]
[Employer’s Position]
Checklists
1. Checklist for Proficient Execution and Deployment of Clause 11.11
| Task | Responsible Party | Criteria | Status |
|---|---|---|---|
| Issue Performance Certificate | Engineer | Confirm all works completed | ❌ |
| Notify Contractor for Clearance | Employer | Send official letter citing Clause 11.11 | ❌ |
| Inventory of Items on Site | Contractor | Document all items that need removal | ❌ |
| Remove Items | Contractor | Clear all equipment, material, wreckage, etc. | ❌ |
| Confirm Clearance | Employer | Verify site is clear and notify Contractor | ❌ |
2. Checklist for Applying and Overseeing Clause 11.11
| Task | Checklist Item | Notes |
|---|---|---|
| Pre-Performance Certificate | Identify items for potential removal | Make a list and verify with Contractor |
| Post-Performance Certificate | Send formal notice to Contractor | Cite Clause 11.11 explicitly |
| 28-Day Period | Monitor removal of items | Keep track of progress |
| Post-28-Day Period | Evaluate next steps | Dispose/sell items if not cleared |
3. Checklist to Guide and Monitor the Execution of Clause 11.11
| Phase | Action Item | Done (✅/❌) |
|---|---|---|
| Pre-Performance Certificate | Prepare for site clearance | ❌ |
| Post-Performance Certificate | Begin removal of items | ❌ |
| During 28-Day Period | Monitor clearance | ❌ |
| Post-28-Day Period | Confirm clearance or take action | ❌ |
Frequently Asked Questions (FAQs) about Clause 11.11
What is the main purpose of Clause 11.11?
- The clause mandates the Contractor to clear the construction site of all equipment, materials, and debris upon receiving the Performance Certificate.
What happens if the Contractor fails to clear the site within 28 days?
- The Employer has the right to dispose of or sell the remaining items and recover the costs from the Contractor.
Who is responsible for monitoring the site clearance?
- Typically, it’s the Employer’s responsibility to ensure the Contractor has cleared the site.
Can the Contractor contest the disposal of their items?
- Generally, the Contractor has no grounds to contest if they have failed to comply with Clause 11.11.
Are there any financial implications for not clearing the site?
- Yes, the Employer can recover costs of disposing of or selling items left on the site by the Contractor.
Common Misunderstandings about Clause 11.11
Contractor’s Responsibilities End with Performance Certificate: Some may think that once the Performance Certificate is issued, the Contractor’s responsibilities are over. Clause 11.11 clarifies that this is not the case.
Employer Cannot Sell Contractor’s Items: A common misconception is that the Employer has no right to dispose of or sell the Contractor’s items left on the site. This clause explicitly allows for that.
No Financial Repercussions: Another misunderstanding is that there are no financial implications for the Contractor for not clearing the site. Clause 11.11 outlines that costs can be recovered by the Employer.
28-Day Period Is Flexible: Some might think that the 28-day period is a flexible guideline, while it is actually a strict deadline as per the clause.
No Need for Documentation: Both parties might underestimate the importance of documenting the items and the clearance process, which can lead to disputes later.
Related posts:
Comprehensive Guide to Understanding Clause 5.1 General Design Obligations
Understanding Clause 6.6: A Comprehensive Guide to Facilities for Staff and Labour
Understanding Clause 12.3 Retesting in FIDIC Yellow Book 1999: What You Need to Know
Critical Insights into FIDIC’s Clause 16.2: Navigating Contract Termination in Construction Projects
Powered by YARPP.
