Our Ref: xxx
Date: xxx
To : xxx Middle East,
P.O.Box xxx,
Dubai – UAE.
Attention : Mr. xxx
: Project Manager
Project : xxx Towers Project, Dubai
Subject: Response to allegations of delay in completion of works.
References:
a) xxx dated 17 October xxxx
Dear Sir,
We are in receipt of your letter ref: xxx dated 04 December xxxx and we record our reply as follows.
Firstly,
We are astonished to receive such a letter from the Main Contractor which makes multiple false allegations, and which completely fails to constructively address any of the blatant defaults of the Main Contractor.
Xxxx has issued numerous notices of default to the Main Contractor, as listed in the references above, and in which have recorded the blatant disregard of the Main Contractor to adhere to his obligations under the Subcontract agreement throughout the course of the project.
We must remind the Main Contractor that until the date of his letter, he remains in default of his obligations under the Subcontract for the payment of completed, certified and invoiced works for August xxxx, October xxxx, and November xxxx, as certified in PC# 12 and PC#13 (Appendix A)
Secondly,
Your allegation of delay on our part, or your allegation of questionable performance, is revolting. Especially at a time when the Main Contractor is fully aware that he has defaulted on every single due payment on the project (starting from the advance payment) and still currently has overdue payments which are delayed by more than a year.
We remind you again of the following
- Xxxx completed production of pods January xxxx as recorded in our letter Ref. xxx dated 21 January xxxx).
- Delivery to site was completed on 24 February xxxx, after receipt by the Main Contractor of the flush tanks (free issue material), and upon communication from the Main Contractor that the site was ready for delivery.
- Upon delivery, all pods have been installed at their final location immediately upon receipt of relevant clearances from the Main Contractor.
- Still until this date, after 11 months of final delivery, Xxxx is still unable to install the last pod on site due to the failure of the Main Contractor to provide the clearance for installation. (Refer Appendix B)
- Subsequent Civil, MEP and ID works (which are undertaken by the Main Contractor after the pod is installed) at the location of the last pod are a result of the Main Contractor’s own actions of delaying the clearance as stated above.
- Despite the recorded flagrant defaults of the Main Contractor and the astronomical damage this had on Xxxx, its employees and its shareholders, at no single time during the project was Xxxx in delay either in production, delivery, or installation of pods.
- The Main Contractor is making unsubstantiated and false allegations in bad faith, and we categorically reject such allegations.
Thirdly,
The table attached to the Main Contractor’s letter which is falsely described as a tabulation of pending works by Xxxx is misleading, incorrect, and rejected.
With regards to the list of materials which the Main Contractor is alleging is missing and attributing as uncompleted works by Xxxx we clarify as follows:
- Access panels & exhaust grills:
All pods are delivered to site, and handed over the Main Contractor, are complete with access panels and exhaust grills as recorded in the delivery notes and pod MIRs signed by the Main Contractor. It is the responsibility of the Main Contractor to subsequently ensure that his site is secure against theft / damage or removal of materials from any of the installed and approved pods as a result of his own teams or MEP subcontractors operating above the pod or through the pod’s access panels.
Xxxx can support the Main Contractor in the procurement of replacement material for access panels and exhaust grills if needed, and we advise you to approach our commercial department to this effect. However, Xxxx will under no circumstances be held liable for the impact the above has on your project.
- Ceiling lights, shaver socket, WC seat cover, floor drain cover, flush tank button, towel holder rod, towel holder circular shape, bathtub pop up drain stopper and wash basin pop up drain stopper
These items are all Free Issue Materials which, in accordance with the Subcontract, are to be procured by the Main Contractor, to then be installed by Xxxx in factory during pod production.
Where the Main Contractor failed to supply this material in accordance with the Subcontract, pods have been delivered to site with the partial exclusion of these items in agreement with the Main Contractor as recorded in the IRs signed and acknowledged by the Main Contractor.
Any and all of the Main Contractor’s Free Issue Materials, which have subsequently been delivered by the Main Contractor to his own site remain under the responsibility of the Main Contractor. (This includes ceiling lights, shaver socket, WC seat cover, floor drain cover, flush tank button, towel holder rod, towel holder circular shape, bathtub pop up drain stopper and wash basin pop up drain stopper).
While Xxxx team on site has subsequently aided the Main Contractor to install this Free Issue Material, Xxxx has categorically no responsibility in relation to how the Main Contractor’s material was delivered to site or stored and protected by the Main Contractor. Any Free Issue Material which Xxxx was handed over on site and requested to install in pods was fully installed under the supervision of the Main Contractor.
It is the responsibility of the Main Contractor to ensure that his site is secure against theft / damage or removal of his own material whether installed in the pods or not.
Please note that once the Main Contractor completes his procurement of Free Issue Material or completes his procurement of replacements for stolen or damaged material, Xxxx will assist the Main Contractor in the installation However, Xxxx will under no circumstances be held liable for any delay of such procurement or the impact the above has on the project.
Fourthly,
With regards to the supply of marble. For over a year now Xxxx has been continuously requesting the Main Contractor to release long overdue payments to allow Xxxx to meet its commitments to its supply chain and secure marble from its suppliers.
In May xxxx we have conveyed to you in writing the concrete actions that Xxxx has taken to maintain the supply of this extremely difficult material and at the same time we have conveyed how critical it is for the Main Contractor to release our overdue payments to allow us to sustain such actions. Please refer to our letter Ref.: xxx dated 30 May xxxx.
Despite the fact that the Main Contractor, in complete disregard to the impact this has on his own project, has failed, and still fails to take any constructive action in this regards and release long overdue payments, Xxxx has maintained its commitment to the project and has also still maintained a steady rate of delivery of marble.
Currently, out of 655 required marble sets to be replaced, 590 sets have already been delivered and 65 sets are being produced by the marble supplier, and we again urge you to expedite the approval process of this delivered material.
We further request that if XXXX has any intent to expedite the delivery of marble, Xxxx is open to any support from the Main Contractor to supply any number of these last 65 sets.
In Closing,
Xxxx will not be liable for any delay caused by your default on your contractual liabilities as such delays are on account on XXXX acts. In addition we reserve our rights under the Terms of our Sub-Contract Agreement for an Extension of Time (EOT) equivalent to the same number of days by which your progress payments are delayed in addition to 84 days for the default in the advance payment as recorded in previous correspondence.
We reserve our rights to claim for all other EOT claims related to design changes, delivery of FIM material, etc. as recorded in our letters referenced above and other relevant correspondence.
We equally reserve our right to suspend the execution of the Sub‐Contract Agreement until full payment of our outstanding dues in reference to Article 247 of the UAE Civil Code and/or to terminate the Sub‐Contract Agreement in view of your uncontested and unjustified default pursuant to Article 272 of the same Code.
In the same line, Xxxx will not be held liable for any direct or indirect impact on the site progress and work completion. These liabilities reside with XXXX.
We urge you to settle all our overdue progress payments immediately. Should you maintain in default and/not or get back to us with any reasonably clear settlement, we will have no other choice but to proceed with taking actions against you.
All Xxxx rights are reserved.
Yours faithfully,
On behalf of xxx LLC
xxx
Project Manager
