ASBESTOS/LEAD SURVEY AND CONSULTING AGREEMENT BY AND BETWEEN NEW YORK UNIVERSITY / NYU HOSPITALS CENTER - OWNER - AND - CONSULTANT PROJECT

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1 APPENDIX A ASBESTOS/LEAD SURVEY AND CONSULTING AGREEMENT BY AND BETWEEN NEW YORK UNIVERSITY / NYU HOSPITALS CENTER - OWNER - AND - CONSULTANT PROJECT DATED AS OF

2 ASBESTOS/LEAD SURVEY AND CONSULTING AGREEMENT AGREEMENT dated as of 200_, by and between New York University, a New York education corporation with offices located at 70 Washington Square South, New York, New York 10012/NYU Hospitals Center, a New York not-forprofit corporation with offices located at 550 First Avenue, New York, New York (the Owner ), and, a corporation, with offices located at (the Consultant ). The Project: insert the Project Name The Owner and the Consultant agree as follows: ARTICLE 1 The Consultant s Services and Responsibilities 1.1 Description of Services: The principal purpose of the Consultant s services is to survey all suspect surfaces within the Project site for asbestos containing material ( ACM ) and/or lead in accordance with all applicable federal, state and local laws, rules, regulations, orders, notices and other requirements. The Consultant shall inspect the Project site, make a determination as to suspect surfaces in the Project site, and sample and record data with respect to same. The Consultant acknowledges that it is familiar with the conditions and scope of the Project and the Project site and that any failure to have familiarized itself therewith shall not relieve the Consultant of its 1

3 obligations hereunder. All questions of the Consultant have been, or shall be, directed to the Owner's Department of Environmental Services for clarifications. Without limiting the generality of the foregoing, the services of the Consultant shall include: Inspecting, taking bulk samples to determine the presence of asbestos and/or XRF testing for lead and recording all data of the sample location including the quantity of affected materials and condition of the surfaces sampled, in compliance with all applicable federal, state and local laws, rules, regulations, orders, notices and other requirements, including, without being limited to, environmental regulations, asbestos/lead-related regulations, health regulations and safety regulations Delivering samples under strict chain-of-custody and analyzing bulk samples for asbestos by licensed laboratories approved by the Owner Submitting a written report to the Owner including the results of the survey(s) If the results of the survey(s) indicate that asbestos and or lead abatement is necessary, developing a scope of work and submitting to the Owner for approval Attending an abatement contractor bid walkthrough to answer any questions on the results of the survey Attending meetings regarding the Project with the Owner and others as requested by the Owner. 1.2 Coordination: The Consultant shall coordinate all scheduling, preparations, procedures and work with the Owner s Environmental Services Department. 2

4 1.3 Schedule: The Consultant shall commence its duties at the Project site including inspection, sampling and recording on (the Commencement Date ) and shall complete all phases of the work including delivery of the report with the Consultant s conclusions on or before /not later than days after the Commencement Date. The phases of the work shall be determined and approved by the Owner prior to the Commencement Date and time is of the essence in the performance by the Consultant of the work. At all times, the Consultant shall observe and perform all laws, rules, regulations, orders, notices and other requirements including, without limitation, all required safety precautions and testing. None of the Consultant s duties shall be performed by any person other than the Consultant, including any subcontractor or assignee, without the prior written consent of the Owner in each instance. 1.4 Personnel: All personnel assigned by the Consultant to the Project site shall at all times have experience and competence acceptable to the Owner (which shall include for asbestos, without being limited to, AHERA certification and qualification under the NYSDOL and NYCDEP Asbestos Control Programs; for lead, without being limited to, EPA Lead Paint Inspector and Lead Paint Assessor certifications). Upon the written request of the Owner, the Consultant shall promptly replace any individual who at any time shall not be satisfactory to the Owner. 1.5 Equipment and Procedures: The Consultant shall use the best available technology, including, without being limited to, sampling equipment and respiratory protection, and employ all necessary procedures and methods to insure proper preparation, execution, clean up, disposal and safety at the Project site. 3

5 1.6 Records: The Consultant shall maintain detailed written records on sampling locations and sampling surface conditions. At the completion of the Project, a final survey report shall be submitted by the Consultant to the Owner including a complete set of all bulk sample analysis reports, drawings and other information referred to herein. 1.7 Stopping the Work: If the Consultant shall at any time determine that the work must be stopped by reason of any unsafe condition, the Consultant shall immediately so advise the Owner. The Consultant shall have the authority to stop Work under such circumstances if no representative of the Owner shall then be available to determine whether or not the work should be stopped. 1.8 Compliance with Law: The Consultant shall comply with all federal, state and local laws and regulations governing ACM and lead. The Consultant also shall comply with all other codes, ordinances, rules, regulations, orders and other legal requirements of public authorities having jurisdiction over the work and relating to the performance of the work, and with all requirements of this Agreement. Whenever any conflict shall occur between the provisions of this Agreement and the above-mentioned legal requirements, the more stringent shall govern. If the Consultant shall at any time believe that any provision of this Agreement is at variance with any applicable law, ordinance, rule or regulation, the Consultant shall promptly notify the Owner of such conflict in writing so that any required change may be accomplished by appropriate modification. If the Consultant shall perform any services contrary to any legal requirement, the Consultant shall bear full responsibility therefor and shall promptly perform appropriate remedial services at its sole cost and expense and, in addition, the 4

6 Consultant shall indemnify and hold harmless the Owner from any and all damage, loss, cost or expense arising therefrom including, without limitation, reasonable attorneys fees. 1.9 Compliance with Owner s Rules and Regulations: The Consultant shall comply with all rules and regulations of the Owner that are brought to its attention and with the directions and instructions given by the Owner s authorized personnel. ARTICLE 2 Compensation 2.1 Basis of Compensation: As full compensation to the Consultant for the Consultant s services, the Owner shall pay the Consultant on the basis of the Consultant s proposal insert proposal number dated insert date of proposal, which incorporates Consultant s current rate schedule approved by the Owner, the not-to-exceed amount of $. This amount is subject to additions and deductions by approved Change Order, based upon Consultant s current rate schedule approved by the Owner. 2.2 Payments: All payments under this Agreement shall be made thirty/ninety days after receipt of invoice, subject to ten percent retention payable thirty/ninety days after receipt of the Consultant s final invoice. The Owner shall notify the Consultant of any disputed amounts within ten days of receipt of invoice. The Consultant shall, within ten days thereafter, justify any such disputed amounts to the Owner s satisfaction or reinvoice without such disputed amounts. 2.3 Invoices and Correspondence: All invoices and related correspondence shall be addressed to: 5

7 New York University Environmental Services Department Attention: Alan J. Yood 14 Waverly Place, 2 nd Floor New York, New York ARTICLE 3 Termination, Suspension or Alteration 3.1 Termination for Cause: This Agreement may be terminated by either party upon seven days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the party initiating the termination. 3.2 Termination Without Cause: This Agreement may be terminated by the Owner at any time and without cause upon fourteen days written notice to the Consultant. 3.3 Payment Following Termination: In the event of termination of this Agreement, the Owner shall pay the Consultant for services performed through the effective date of the termination, reduced by any amount owing to the Owner for defective services or otherwise. Any payments previously made by the Owner shall be deducted from such payment. 3.4 Delivery of Reports and Documents: Upon termination of this Agreement, the Consultant shall deliver to the Owner all reports and other documents as required of the Consultant under this Agreement and not previously delivered to the Owner. 3.5 Suspension or Alteration: The Owner shall have the right to suspend or alter the Project or any part thereof, at any time, and the Consultant may be required to 6

8 suspend or alter all or part of its services as a result. In no event shall such suspension or alteration be deemed a breach of contract on the part of the Owner. In the event that the Consultant s services are suspended, the Consultant shall be paid for all services through the date of such suspension in accordance with the terms of this Agreement. ARTICLE 4 Miscellaneous Provisions 4.1 Applicable Law: This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of New York applicable to contracts made and to be performed therein. By its execution of this Agreement, the Consultant hereby consents that it shall be subject to the exclusive jurisdiction of the federal and State courts located in New York County, New York State, for the resolution of any disputes arising from this Agreement, regardless of the place of execution or performance of this Agreement. The Consultant agrees that the filing in any such court by the Owner of a true copy of this Agreement shall be conclusive evidence of such consent and that any summons, complaint or other documents required by the Owner to commence any lawsuit in any such court may be served upon the Consultant in the same manner as notices given under Section Independent Contractor: The Consultant shall be an independent contractor with respect to the Project and neither the Consultant nor any employee of the Consultant shall be deemed to be an agent, representative, employee or servant of the Owner in the performance of the Consultant s services under this Agreement. The Consultant shall not perform any act or make any representation to any person to the effect 7

9 that the Consultant or any of its employees is the agent, representative, employee or servant of the Owner. The Consultant shall have no right or authority to create any obligation or bind the Owner. Neither the Consultant nor any employee, agent or representative of the Consultant shall be entitled to any payment from the Owner in the nature of disability benefits, worker s compensation or otherwise under the laws and regulations of the United States, any state or any governmental unit, for any accident, illness, occurrence or event arising out of or relating to the work of the Consultant or the Project. 4.3 Notices: All notices required or desired to be given hereunder shall be in writing and shall be sent by hand, or by reputable overnight carrier or by certified mail, return receipt requested, addressed as follows: to the Owner at the address set forth in Section 2.3 of this Agreement with a copy of such notice sent to the Office of Legal Counsel, New York University, 70 Washington Square South, New York, New York 10012; to the Consultant at ; or to such other address for either the Owner or the Consultant as may be designated in a notice given in accordance with the provisions of this section. Notice shall be effective on the date delivered by hand or by overnight carrier or, if sent by certified mail, two business days after deposit with the U.S. Mail. 4.4 Liability and Responsibility for Employees and Others: The Consultant shall be liable and responsible to the Owner and shall indemnify and hold harmless the Owner for the acts or omissions of any person employed or engaged by the Consultant in connection with the Project. 8

10 4.5 Survival: Sections 3.3, 3.4, 3.5, as well as Sections 4 and 5 in their entirety as well as any other Section of this Agreement which by its nature and effect is required to be observed, kept or performed after termination of this Agreement or completion of the Consultant s services hereunder shall be and remain binding on and for the benefit of the parties hereto until fully performed, kept and observed. 4.6 No Waiver: The failure of the Owner or the Consultant to insist, in any one instance or more, upon the performance of any of the provisions or conditions of this Agreement, or to exercise any right or privilege conferred in this Agreement, shall not be construed as thereafter waiving any such provisions, conditions, rights or privileges and the same shall continue and remain in full force and effect. No provision of this Agreement shall be deemed to have been waived unless such waiver shall be in writing signed by the party to be charged. 4.7 Representations and Warranties: The Consultant represents and warrants that (a) it is experienced in the survey of ACM and lead, (b) it is knowledgeable of all federal, state and local laws, codes, rules and regulations applicable to ACM and lead and applicable to the Consultant s services hereunder, (c) upon delivery of the work and any reports to the Owner including the final report and survey, the Owner shall have good title thereto, free from any lien, claim, charge or encumbrance, and (d) it has full power and authority to enter into this Agreement and to perform and complete the work described herein. 4.8 Cooperation: The Consultant shall perform its services in conjunction and harmony with the representatives, employees and agents of the Owner and all others involved with the Project. The Consultant shall at all times cooperate with the Owner and 9

11 any contractor working on the Project to promote the prompt and efficient prosecution of the work and to minimize conflicts and facilitate the Owner s usage of the Project site and the building in which the work is being performed. All work must be performed so as to not interfere with the Owner s ongoing schedules and activities therein. 4.9 Equal Employment Opportunity: The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, age, ancestry, national origin, disability or any other category protected by applicable law Successors and Assigns: This Agreement is binding upon each of the parties hereto and its partners, successors, permitted assigns and legal representatives Assignment: The Consultant shall not assign this Agreement without the prior written consent of the Owner, and any attempted assignment without consent shall be void Entire Agreement: This Agreement represents the entire and integrated agreement between the Owner and the Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and the Consultant Confidentiality: The Consultant and its employees, agents and representatives shall hold in confidence and shall not disclose, distribute, sell, copy or otherwise disseminate or use (other than in performance of its obligations hereunder): (i) any information about or relating to the work or the Project or any results of the work or the Project ( Confidential Information ); or (ii) any information obtained, learned, received or developed by the Consultant while performing its work hereunder that relates 10

12 to the employees, students, research, development, plans, business affairs, property, records, processes, techniques or equipment of the Owner or of any third party this is performing work on or is otherwise involved in the Project ( Proprietary Information ), except that the Consultant may disclose Confidential Information to any third party that is performing work on or is otherwise involved in the Project is and to the degree it is necessary for the Consultant to do so in order to perform its work. Upon termination of this Agreement, the Consultant shall return to the Owner any and all Confidential Information and Proprietary Information in its possession or control including, without being limited to, all records or documents that the Consultant received from the Owner or from any third party and any and all copies thereof made by or for the Consultant. ARTICLE 5 Insurance and Indemnification 5.1 Consultant s Insurance: Work shall not commence under this Agreement until the Consultant has obtained, at its own cost and expense, with a company or companies satisfactory to the Owner s Director of Insurance, all insurance hereinafter set forth The Consultant shall procure and maintain such insurance for the duration of this Agreement and for a reasonable time thereafter If during the life of the Agreement (or any extension thereof) any of the insurance required of the Consultant shall expire or be terminated, such policy shall be immediately renewed with the same limits and conditions and shall be maintained for the life of the Agreement and for a reasonable time thereafter. 11

13 5.1.4 The Owner shall not be responsible for payment of any of the premiums of the required insurance. By carrying the required insurance, the Consultant shall not be relieved of responsibility whatever, and may, at its own expense, carry such additional insurance as it deems necessary. 5.2 Commercial General Liability Insurance/Professional Liability Insurance: The Consultant shall procure and maintain during the life of this Agreement and for a reasonable time thereafter, commercial general liability insurance, on an occurrence basis, with a combined personal injury, bodily injury (including death) and property damage limit of at least $3,000,000 for each occurrence, and in the annual aggregate, such damage limit to be provided either under a general liability policy alone or in combination with an umbrella policy including at least the following coverages: (a) Broad Form Blanket Contractual Liability; and (b) Broad Form Property Damage and Personal Injury Liability (with employees exclusion void) or its equivalent. In addition, the Consultant shall procure and maintain Professional Liability (Errors and Omissions) Insurance, written on an occurrence basis with $1,000,000 limit of liability, which shall cover all persons for whose acts the Consultant may be liable against any and all liabilities arising out of or in connection with the professional acts, errors, or omission of the Consultant. All such professional liability policies shall include a contractual indemnification endorsement covering the indemnification provisions of this Agreement. Professional Liability Insurance may be furnished on a claims made basis provided that the Consultant represents that the Consultant shall maintain such coverage in effect for not less than three (3) years after the completion of all phases of the work provided by the Consultant hereunder. 12

14 5.3 Additional Insureds: The Consultant shall have the commercial general liability policy required under Section 5.2 endorsed as follows: (a) To include the Owner, NYU Hospitals Center/New York University, as additional insureds in connection with any services to be performed pursuant to this Agreement. It is understood that the Owner and the other additional insureds are not to be responsible for the payment of any premium for additional insured status (b) This insurance shall be primary of any similar insurance carried by the Owner in accordance with the additional insured endorsement. It is understood that any notice the Consultant shall give its insurers of a claim, suit, proceeding or occurrence resulting from, arriving out of or occurring in connection with the services performed under this Agreement shall also be deemed by that insurer as notice by the Owner and other additional insureds as additional insureds. 5.4 Workers Compensation Insurance: The Consultant shall procure and maintain during the life of this Agreement and for a reasonable time thereafter, workers compensation insurance as required by the New York State Workers Compensation Law, and any other applicable law, for all employees engaged in services under this Agreement. Employer s liability insurance shall also be provided with a limit of at least $1,000,000 for each occurrence for all such employees covering work-related liability not otherwise protected by workers compensation insurance or statute. Should any class of employees engaged in work under the Agreement not be protected under the Worker s Compensation Statute, the Consultant shall procure adequate Employer s Liability Insurance for the protection al all such employees who are not otherwise protected. The Consultant shall procure and maintain appropriate Disability and Unemployment Insurance for all of their employees engaged in the performance of work under the Agreement. 13

15 5.5 Additional Insurance: By carrying the required insurance, the Consultant shall not be relieved of any responsibility whatever, and may, at its own expense, carry such additional insurance as it deems necessary. 5.6 Certificates: Certificates of insurance evidencing all the required insurance shall be delivered to the Owner s Director of Insurance at 7 East 12 th Street, New York, New York 10003, before performance of any services under this Agreement and upon the replacement of any required insurance. Such certificates of insurance shall show the type, amount and class of operations covered, as well as the effective date and expiration date of the various insurance policies. Such certificates of insurance shall also contain in substance the following language: The insurance indicated in this certificate will not be terminated or canceled for any reason (within the control of the respective insurance companies) without at least thirty (30) days prior written notice to the Owner s Director of Insurance. 5.7 Copies of Policies: Copies of the required insurance policies shall be delivered to the Owner within ten days after request therefor by the Owner. 5.8 Correspondence: All correspondence regarding compliance with these insurance requirements must be sent to the attention of the Owner s Director of Insurance at the aforementioned address. 5.9 Hold Harmless Agreement: The Consultant shall indemnify and hold harmless the Owner, NYU Hospitals Center/New York University, and their respective agents, consultants and employees, from and against any and all claims, damages, losses, expenses, suits and proceedings, including attorneys fees and for damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether 14

16 employees of the Consultant or otherwise, and to all property, including, without being limited to, property of the Owner or loss of use thereof, caused by, resulting from, arising out of or occurring in connection with the execution of the work required to be performed by the Consultant pursuant to this Agreement and by any negligent act, error or omission on the part of the Consultant or any of the Consultant s agents, servants or employees. This Agreement shall continue in effect notwithstanding the fact that the Owner has accepted and paid for the Consultant s services. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. OWNER: NEW YORK UNIVERSITY/ NYU HOSPITALS CENTER By: Name: Title: CONSULTANT: By: Name: Title: 15

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