15.1 The condition of the Site shall be the sole responsibility of Project Co. Accordingly (without prejudice to any other obligation of Project Co under this Agreement), Project Co shall be deemed to have:
(a) carried out a Ground Physical and Geophysical Investigation and to have inspected and examined the Site and its surroundings and (where applicable) any existing structures or works on, over or under the Site;
(b) satisfied itself as to the nature of the Site Conditions, the ground and the subsoil, the form and nature of the Site, the load bearing and other relevant properties of the Site, the risk of injury or damage to property affecting the Site, the nature of the materials (whether natural or otherwise) to be excavated and the nature of the design, work and materials necessary for the execution of the Works;
(c) satisfied itself as to the adequacy of the rights of access to and through the Site and any accommodation it may require for the purposes of fulfilling its obligations under this Agreement (such as additional land or buildings outside the Site);
(d) satisfied itself as to the possibility of interference by persons of any description whatsoever (other than the Board), with access to or use of, or rights in respect of, the Site, with particular regard to the owners of any land adjacent to the Site; and
(e) satisfied itself as to the precautions, times and methods of working necessary to prevent any nuisance or interference, whether public or private, being caused to any third parties.
15.2 To avoid doubt, Project Co accepts full responsibility for all matters referred to in Clause 15.1 and[, subject to Clause 7 (Warranties),] Project Co shall:
(a) not be entitled to make any claim against the Board of any nature whatsoever save, if applicable, as expressly provided in Clause 41 (Delay Events)), on any grounds including (without limitation) the fact that incorrect or insufficient information on any matter relating to the Site was given to it by any person, whether or not a Board Party; and
(b) be responsible for, and hold the Board harmless from, cleaning up and otherwise dealing with any Contamination at the Site so that it shall at all times comply with its obligations under this Agreement including (without limitation) complying with, at its own cost, any applicable Laws and any Consents, orders, notices or directions of any regulatory body (whether made against the Board or Project Co).33
[Special provisions relating to responsibility for Ground Conditions and Contamination34
15.3 To the extent that unforeseen ground conditions and/or Contamination exist in any parts of the Site which are under existing buildings as at Financial Close and which it is not practical for Project Co to investigate or survey, Project Co shall not be responsible for them, unless they were discovered by the Ground Physical and Geophysical Investigation and accordingly identified in Section 3 of Part 8 of the Schedule (Construction Matters) or unless they should reasonably have been discoverable if the Ground Physical and Geophysical Investigation had been properly carried out. If Project Co is not responsible for such ground conditions and/or Contamination under this Clause 15.3 then the Board shall be so responsible. The areas to which this Clause 15.3 applies are as follows: [ ]
15.4 Where pursuant to Clause 15.3 the Board is responsible for any of the matters referred to then the following provisions shall apply:
(a) where any such matter arises during the Construction Phase it shall be deemed to be a Compensation Event for the purposes of this Agreement and any work which is required or instructed to be done in consequence of it shall be deemed to be a Qualifying Variation;
(b) where any such matter arises during the Operational Term it shall, for the avoidance of doubt, be deemed to be an Excusing Cause for the purposes of Clause 8.7;
(c) further where any such matter arises during the Operational Term and any work or change to the Services is required or instructed to be done in consequence of it, it shall be deemed to be a Qualifying Variation; and
(d) where any such matter is Contamination (whether during the Construction Phase or the Operational Term) the Board shall further hold Project Co harmless from cleaning up and otherwise dealing with the Contamination and shall indemnify Project Co in respect of all Direct Losses incurred by Project Co resulting from such Contamination.]
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31 This standard form assumes that Project Co is able to make any necessary investigation. To the extent that it is not practical for Project Co to investigate areas of the Site (for example, due to Board occupation of facilities on Site), then Clause 15.3 will provide relief. The Board should bear any additional costs arising out of unforeseen conditions in areas which Project Co cannot investigate and which cannot be reasonably identified by Project Co. Areas of the Site to which this carve out applies should be clearly identified in the Agreement
32 Boards should consider whether or not there is a significant risk of asbestos on their site prior to issue of the FITN and an up to date asbestos register should be supplied to bidders with the FITN. Boards should ensure that where there is a significant risk of asbestos on site that drafting is issued with the FITN reflecting the principles of clauses 15.3 and 15.4 in relation to other Contamination. Boards may wish to consider if it requires any drafting to address how any discovered asbestos is dealt with upon discovery (for example, how it is removed, when it may remain, and who removes).
The risk of asbestos on a site should be considered on a case by case basis and only where there is a significant known risk of asbestos remaining on a site should the Board take any risk in this area. The risk that Boards should take, if any, in relation to asbestos should mirror the risk allocation for site contamination, namely the same principles as set out in footnote 31 will be applied to a site which is known to contain significant amounts of asbestos. It should be clear that Project Co are responsible for any known contamination and contamination disclosed on the asbestos register and areas capable of survey, whether this be for removal or treatment in accordance with legislation. Such treatment should be in accordance with current legislation. This should be programmed into the construction programme. There should be a process for undertaking additional surveys required on a project specific basis. The Board will take responsibility for dealing with asbestos which is discovered under an existing facility during construction which was incapable of survey.
33 See previous footnote.
34 Board to consider the inclusion of this wording in the event that Project Co is unable to survey under e.g. existing buildings on the site.