18.2 Site Matters98

18.2.1 Subject to the other terms of this Agreement, the Site Conditions shall be the sole responsibility of the Contractor and accordingly (but without prejudice to any other obligation of the Contractor under this Agreement) the Contractor shall be deemed to have:

(a) carried out a ground physical and geophysical investigation and to have inspected and examined the Sites and their surroundings and (where applicable) any existing structures or works on, over or under the Sites;

(b) satisfied itself as to the nature of the Site Conditions, the ground and the subsoil, the form and nature of the Sites, the loadbearing and other relevant properties of the Sites, the risk of injury or damage to property affecting the Sites, the nature of the materials (whether natural or otherwise) to be excavated and the nature of the design, works and materials necessary for the execution of the Works;

(c) satisfied itself as to the adequacy of the means and rights of access to and through the Sites and any accommodation it may require for the purposes of fulfilling its obligations under this Agreement (such as additional land or buildings outside the Sites);

(d) satisfied itself as to the possibility of interference by persons of any description whatsoever (other than the Authority) with access to or use of, or rights in respect of, the Sites with particular regard to the owners of any land adjacent to the Sites; 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 third parties.

18.2.2 Subject to the other terms of this Agreement, the Contractor accepts full responsibility for all matters referred to in clause 18.2.1 (Site Matters) and the Contractor shall:

(a) not be entitled to make any claim against the Authority of any nature whatsoever, without prejudice to clause 58 (Relief Events), on any grounds including the fact that incorrect or insufficient information on any matter relating to the Sites was given to it by any person, whether or not an Authority Related Party; and

(b) be responsible for, and hold the Authority harmless from, cleaning up and otherwise dealing with any Contamination at the Sites 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 Legislation and any Necessary Consents, orders, notices or directions of any regulatory body (whether made against the Authority or the Contractor).

18.2.3 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 Close99 and which it is not practical for the Contractor to investigate or survey, the Contractor shall not be responsible for them, unless they were discovered by the [identify any survey undertaken] or would have been identified in the [identity any survey undertaken] had that survey been carried out with the level of skill and care reasonably to have been expected from competent professionals carrying out such survey or would have been identified had the Contractor carried out such additional surveys as it would have been reasonable to expect an experienced contractor to have carried out in the circumstances. If the Contractor is not responsible for such ground conditions and/or Contamination under this clause 18.2.3 then the Authority shall be so responsible.

18.2.4 Where pursuant to clause 18.2.3 the Authority is responsible for any of the matters referred to then the following provisions shall apply:

(a) where any such matter arises on or before the Services Availability Date for such Site 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 an Authority Change;

(b) where any such matter arises after the Services Availability Date for such Site it shall be deemed to be a Relief Event and no Deductions may be made in respect of the relevant Area pursuant to Schedule 6 (Payment Mechanism) and any work or change to the Services required or instructed to be done in consequence of it, shall be deemed to be an Authority Change;

(c) where any such matter is Contamination (before or after the Services Availability Date) the Authority shall further hold the Contractor harmless from cleaning up and/or otherwise dealing with such Contamination and shall indemnify the Contractor in respect of all Direct Losses incurred by the Contractor resulting from such Contamination,

and the Contractor shall in carrying out any works referred to in clauses 18.2.4(a) and 18.2.4(b) do so in accordance with and so that it shall at all times comply with its obligations under this Agreement including (without limitation) complying with Good Industry Practice, any applicable Legislation and any Necessary Consents, orders, notices or directions of any regulatory body (whether made against the Authority or the Contractor).

18.2.5 To the extent that any part(s) of the Site(s) suffer from or are affected by Contamination arising from a source off Site (whether or not on adjacent land) the Contractor shall be responsible for such Contamination and then the following provisions shall apply:

(a) where any such matter arises on or before the Services Availability Date for the relevant Site it shall be deemed to be a Relief Event for a reasonable100 period (to be agreed between the parties acting reasonably) for the purposes of this Agreement;

(b) where any such matter arises after the Services Availability Date for the relevant Site it shall be deemed to be a Relief Event and no Deductions may be made in respect of the relevant Area pursuant to Schedule 6 (Payment Mechanism) for a reasonable period (to be agreed between the parties acting reasonably) but any work or change to the Services required or instructed to be done in consequence of it, shall be the Contractor's responsibility and shall not constitute an Authority Change;

(i) clean up, or otherwise deal with, such Contamination, and take steps reasonably necessary to prevent the recurrence of the same, all in accordance with Good Industry Practice, all relevant Necessary Consents and Legislation; and

(ii) other than where clause 18.2.5(d) applies, hold the Authority harmless from and indemnify the Authority in respect of all Direct Losses incurred by the Authority resulting from such Contamination; and

(d) the Authority shall, but only to the extent that the Contractor is able to demonstrate to the Authority that it does not have the right to take action against third parties in its own name to recover the losses suffered or incurred by the Contractor in cleaning up or otherwise dealing with such Contamination, at the Authority's option either:

(i) take such action against third parties in its own name as the Contractor may (acting reasonably) direct; or

(ii) permit the Contractor to take such action in the name of the Authority at the Contractor's own expense in which case the provisions of clauses 63.5 (Conduct of Claims) and 63.6 (Costs of Claims) shall apply as if the Contractor were the Indemnifying Party and the Authority were the Indemnified Party, except that the Contractor shall not pay or settle such claims without the prior consent of the Authority,

subject to the Contractor indemnifying the Authority in respect of all costs properly and reasonably incurred by the Authority in respect of such action. Where the Authority takes action under clause 18.2.5(d)(i) or 18.2.5(d)(ii) (or where it is otherwise obliged to take action against third parties in respect of such losses), the Authority shall be liable to the Contractor for all losses suffered or incurred by the Contractor as a result of its obligations under this clause 18.2.5, provided that the Contractor's entitlement in respect of any matter to which this clause 18.2.5(d) applies shall be limited to the amount recovered by or in the name of the Authority from the relevant third party in respect of the losses referred to in this clause 18.2.5(d).

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98 To the extent it is not practical for the Contractor to investigate areas of the Site (for example, due to occupation or use of the Station) then clause 18.2.3 will provide relief. The Authority should bear any additional costs arising out of unforeseen conditions in areas which the Contractor cannot investigate and which cannot be reasonably identified by the Contractor. Areas of the Site(s) to which this carve-out applies should be clearly identified in the Agreement.

99 It may be appropriate to identify these by way of a plan.

100 The Contractor will be granted relief for a reasonable but limited period but will be required to make good and deal with any such off Site Contamination.