Hazardous Material and Waste Contract Terms for Your Facility Maintenance Contract

By AIA Contract Documents

February 28, 2023

Even if you do not think you will encounter hazardous material conditions on your facility maintenance project, your contract should contain provisions that address them. This article provides various tips to manage your risk associated with hazardous material conditions on your next project.

1.You Are Responsible for Your Hazardous Materials, and the Client is Responsible for Theirs.

Minimally, you will want to ensure that you are only responsible for the materials, substances, and equipment that you bring to the facility site. Additionally, provided that remediation or handling of hazardous materials and wastes are not included in your scope of work, you will want to ensure that your client remains responsible for any hazardous material conditions you encounter during the performance of your work.  If you do encounter any unknown hazardous material conditions, your contract should include provisions that address the steps that you and your client will follow, upon discovery of the hazardous condition. The following is an example of a provision that allows this separation of responsibility, and provides steps for the parties to take in the event a hazardous condition is encountered:

The Contractor shall be responsible for the proper delivery, handling, application, storage, removal, and disposal of all materials, substances, and equipment brought to the Facilities for performance of the Maintenance Work. If the Contractor encounters hazardous materials not identified in this Agreement, or materials that it reasonably believes may be hazardous, the Contractor shall promptly provide written notice to the Client before conditions are disturbed and in no event later than 14 days after first observance of the conditions. The Client will promptly investigate such conditions. Unless otherwise agreed in this Agreement, the Contractor shall not be responsible for hazardous materials present at the Facilities that the Contractor did not bring to the Facilities.

2.The Client Should Cover Costs Associated with Encountering Unknown Hazardous Material Conditions.

In most cases, remediating a hazardous material condition requires special training and licensing. Because of that, it is reasonable to assume that a normal facility maintenance contractor will not be able to remedy the condition safely and effectively. So, it is important that your contract includes consideration that the client will be responsible not only for the costs associated with the remediation of the hazardous material condition, but also for any costs associated with any pause in the performance of your work, including costs related to shut downs, delays, and start-up after the area is safe to resume work, and an extension of the work schedule. The following is an example of such a provision:

If remediation of a hazardous materials condition is required, the Client shall be responsible for the cost of remediation unless otherwise agreed to in this Agreement. If the Contractor must stop performance of the Maintenance Work for remediation of a hazardous materials condition not identified in this Agreement, then the Contractor’s compensation and the time for performance shall be equitably adjusted.

The above-mentioned contract provisions are meant for work associated with building repair, or simple building improvements. More robust contract provisions related to hazardous materials and substances can also be found in the A201- 2017 General Conditions of the Contract for Construction and other AIA Contract Documents.

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.