Observation Services - Sample Clauses

Field observation services during remediation/construction are common services for many environmental professionals. The wording utilized in the contract documents identifies the professional’s responsibilities for this service and is tremendously important. Careful use, knowledge of the meaning, and case law involving the definitions of these terms play an important role in identifying the firm’s responsibilities, risks and liabilities.

The following are sample clauses that can be utilized in proposals or agreements when providing field observation services. Prior to utilizing any of the sample clauses, contract documents should be reviewed in whole by legal counsel that is familiar with your firm’s operations, as well as your industry and geographic location.

Sample Clauses For Contract Documents
XYZ Firm will provide a full-time resident inspector during the construction/remediation phase to help with the risk of defects and deficiencies in the work. Inspection shall consist of observation of construction/remediation and the equipment and material used to permit XYZ Firm to render a professional opinion as to the appropriateness of preliminary recommendations and the contractor’s general conformance with XYZ Company’s recommendations, plans, or specifications. Given the inherent limitations of such inspections, findings based upon them should not be relied upon by any party to constitute acceptance of the totality of the work, nor shall they relieve any party from fulfillment of that party’s customary and contractual responsibilities and obligations. Under no circumstances shall XYZ Firm’s resident inspector have stop-work authority.

It is mutually recognized by XYZ, Inc. (XYZ) and the Owner that the most effective means of controlling remediation/construction deficiencies and other non-compliant work is through on-site observations. Accordingly, XYZ will provide a full-time site representative during the course of the project in accord with the attached fee schedule. XYZ’s representative shall observe the Work being performed by the Contractor to guard against the Contractor performing Work that is defective, deficient or otherwise non-conforming in relation to the project contract documents. XYZ will periodically provide the Owner with its observations and immediately notify the Owner of any defects, deficiencies and/or non-confirming Work performed by the Contractor. XYZ’s performance of observation services shall not relieve the Contractor from having to perform the Work in accord with the contract documents, and shall not constitute a guarantee or warranty that the Contractor’s work will be performed free from defect, deficiency and/or deviation from the contract documents.

It is recognized and acknowledged by Owner that reasonably conducted site observations, testing and sampling may not reveal all conditions that may be on the Project site. As a consequence, unanticipated changes may be discovered during the course of the performance of work that may require additional work or services to be performed. XYZ, Inc. (XYZ) will observe the on-site performance of Work, in accord with the attached fee schedule, in an endeavor to address any changed conditions that may arise in effort to lessen any affects the changed conditions may have on the Project design, schedule or cost. XYZ will not be held liable for any conditions that lead to a change that arise on the Project after the commencement of Work, so long as the conditions creating the change could not have been reasonably discovered from XYZ’s observations.

Because unanticipated and changed conditions may be encountered during remediation/construction, XYZ Firm recommends that client retain XYZ Firm to observe the remediation/construction. XYZ will observe and report on the quality of the contractor’s work in an attempt to reduce the risk of problems arising during remediation/construction. XYZ’s observation does not constitute insurance, nor does it constitute a warrantee or guarantee of any type. In all cases, contractors shall retain responsibility for the quality of their work and for adhering to plans and specifications. If XYZ Firm is not retained to perform observation during the full period of remediation/construction, XYZ Firm does not accept any responsibility for problems during remediation/construction that allegedly result from findings, conclusions, recommendations, plans, or specifications developed by XYZ Firm.

XYZ, Inc. (XYZ) will provide a full-time, on-site representative to aid the Contractor in complying with the requirements of the Project plans and specifications. XYZ’s representative will aid the Contractor by observing work being performed, and providing such information as may be required by the contractor. XYZ will promptly advise owner of any work that does not comply with the project plans and specifications or is defective or deficient. XYZ’s performance of observation services shall not constitute a warranty or guarantee that the contractor’s work is free from defect or deficiency in every instance. Furthermore, XYZ’s performance of observation services shall not relieve the contractor of its obligation to control means and methods and perform in accord with the project schedule. XYZ shall not have the authority to stop work, issue change orders or alter the design of the project without the written consent of the project owner.

Sample Clause For Report Recommendations
The recommendations provided in this remediation plan are based upon data derived from limited sampling and testing. Accordingly, the recommendations appropriateness cannot be evaluated until XYZ Firm learns more about the actual subsurface conditions by observing earth work in the field, at which time XYZ Firm will finalize its recommendations. It is in the best interest of the client to retain XYZ to observe earth work operations with respect to the contractor’s compliance with the remediation plan, specification, and recommendations, and to help develop alternative recommendations if the conditions observed differ from those believed to exist. No entity can be as familiar with the remediation/construction plan inherent in these recommendations as XYZ Firm. Accordingly, only observations by XYZ Firm can permit XYZ Firm to finalize its recommendations and enhance the likelihood of the design concept being adequately considered during implementation of its recommendations.

XL Environmental • Risk Control Division • 520 Eagleview Boulevard, PO Box 636, Exton, PA 19341 • Phone: 800-327-1414 • Fax: 610-458-7285 • xlenvironmental.com

XL Environmental is a division of XL Specialty Insurance Company.