Climate Contract Playbook Edition 3
190
2.2 Employer’s Green Modification response Within [20] business days of receipt of a Green Modification Notice, the Employer must issue a notice to the Contractor which: (a) approves the proposed Green Modification (either in whole or part), in which case clause [2.3] will apply to those approved parts; (b) subject to clause [2.4(a)], rejects the proposed Green Modification (either in whole or part), acting reasonably and setting out reasons, in which case clause [2.4(b)] will apply to those rejected parts; or (c) requests further information from the Contractor to enable the Employer to properly assess the Proposed Green Modification on any part of the Green Modification which has not been approved or rejected, in which case clause [3.5] will apply. 2.3 Approved Green Modification If the Employer has approved the proposed Green Modification pursuant to clause [2.2(a)]: (a) the Superintendent must within [10] business days of the approval, issue a notice to the Contractor which sets out: (i) where the Green Modification results in an increase to the Contractor’s design or construction costs, the revised Contract Sum valued as a variation in accordance with clause [#] (but not exceeding the amount nominated pursuant to clause [2.1(g)(i)]); and (ii) any extension of time required to the Date for Practical Completion (but not exceeding the duration of the extension of time nominated pursuant to clause [2.1(d)]); and (b) the Contractor may proceed with implementing the approved Green Modification. 2.4 Rejected Green Modification (a) The Employer must not reject a Green Modification (in whole or part) under clause [2.3(b)], where the Project is not meeting the Green Objectives and the Green Modification will assist in meeting those objectives; and (i) the delay to the completion of the Project arising from the proposed Green Modification would be not be material having regard to the Project’s overall objectives; or (ii) the cost of the implementing the Green Modification is [not significantly detrimental to the financial viability of the Project]. [ Drafting note: consider amending the standard for what is unreasonable. For example, perhaps a % threshold increase to project costs .] (b) If the Employer rejects a proposed Green Modification (in part or whole) under clause 2.2(b) the Contractor may: (i) amend the Green Modification Notice to address the Employer’s reasons for the rejection, and re-submit the modified Green Modification Notice pursuant to clause [2.2], in which case the process for approving or rejecting the Green Modification Notice in clauses [2.2] to [2.4] will reapply; or (ii) issue a notice of dispute in accordance with clause [#].
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