Our Contractor has provided various items of Equipment (Defined term) in the course of a Demolition Contract. That Contract is nearing completion and many items of Equipment remain on the Site. Under normal circumstances Equipment should be hired unless listed as to be purchased, however in this example the Employer has paid for the Equipment purchase. (without a list)
I can see that the Contract says the Contractor should remove the Equipment from the site unless the PM agrees to it remaining. Is it still the Contractors responsibility to remove it if the Employer has paid for it in full rather than a hire charge or does the payment give Title to the Employer even though it is not part of the works.
The contract should have made it clear what happens to Equipment that the Employer has paid for, as normally they would want to keep it if they have paid for it and it is still functional and worth money. However, in the absence of any such clarification within the contract, clause 72.1 states that the Contractor removes Equipment from the Site when it is no longer needed unless the Project Manager allows it to be left in the works. It would only give title to the Employer if the contract expressly states that - the fact they have “paid” for it makes no difference. The Employer might have “paid” for sheet piling to go into the ground - but it still remains the Contractor responsibility to remove it unless there is a written agreement that it can stay.
So without an express instruction from the PM to allow the Contractor to leave the equipment, it would be the Contractor responsibility to remove it. I suggest you inform the Contractor to remove the equipment, and if they fail to do so after a reasonable timescale state that you will remove it and be charging them the removal cost (out of retention money that hopefully you have on them).
Can you say under which payment option this contract has been let.
Main Option is C reimbursable/target incentivised.