COVID 19 Notification and Contracting Guidance
Suggested Force Majeure Contract Provisions
The following suggested generic delay provisions are intended to cover Force Majeure events in addition to other delays beyond the control of the parties. As new contracts are negotiated, consideration should be given to utilizing an appropriately-modified version of these proposed clauses to ensure that events such as COVID-19 will be appropriately addressed. McAlpine, P.C. is available to assist with customizing and negotiating these and other contract provisions.
Standard Preferred Upstream Force Majeure Clause for New Contracts
(to be used for subcontracting to a General Contractor/Construction Manager)
Delays and Extensions of Time
- If Subcontractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Subcontractor, Subcontractor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of the Subcontractor include, but are not limited to, the following:
- acts of God;
- errors or omissions of Owner, Design Professional, General Contractor, or others for whom the Subcontractor is not responsible;
- changes in the Work or sequencing of the Work ordered by the General Contractor, Owner, or arising from decisions of Owner that impact the time of performance of the Work;
- encountering Hazardous Materials, or concealed or unknown conditions;
- delay authorized by the General Contractor or Owner pending dispute resolution or suspension of the work by Owner for any reason;
- transportation delays not reasonably foreseeable;
- unforeseen unavailability of labor and/or labor disputes not involving the Subcontractor;
- general labor disputes impacting the Project but not specifically related to the Worksite;
- collapse, fire or other destruction of the Project;
- epidemics, pandemics or other public health emergencies;
- adverse governmental actions;
- unavoidable accidents or circumstances; and/or
- adverse weather conditions not reasonably anticipated.
- Subcontractor shall submit any requests for equitable extensions of Contract Time in accordance the applicable provisions of this Agreement.
- In addition, if Subcontractor incurs additional costs as a result of a delay that is caused by items (a) through (n) immediately above, Subcontractor shall also be entitled to an equitable adjustment of the Contract Price.
- Notice of Delays. If delays to the Work are encountered for any reason, Subcontractor shall provide prompt written notice to Owner of the cause of such delays after Subcontractor first recognizes the delay. The Parties each agree to take reasonable steps to mitigate the effect of such delays.
Standard Preferred Downstream Force Majeure Clause
(to be used when subcontracting to lower tier subcontractors)
Delays and Extensions of Time
- Unless otherwise provided in the Contract Documents, if Subcontractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Subcontractor, Subcontractor shall be entitled to an equitable extension of the Contract Time, provided the Contractor is entitled to a like extension of time for the same delay and only to the extent the Contractor receives an extension of its schedule on account of the claimed delay. Causes beyond the control of the Subcontractor shall be those events specified in the Prime Contract as applicable to the Contractor in the event of such delays. Unless otherwise provided in the Contract Documents, Subcontractor’s sole and exclusive remedy for such delays shall be such extensions as are granted for its work to the Contractor under the Prime Contract.
- Subcontractor shall submit any notices of delay and/or requests for equitable extensions of Contract Time sufficiently in advance of the requirements of the Prime Contract as will allow the Contractor to timely present the claim to the Prime Contractor/Owner. Any failure to give sufficient notice pursuant to the Contract Documents shall result in a waiver of any such claims.
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