|
<br /> Page 10
<br />EJCDC E-500 Agreement Between Owner and Engineer for Professional Services
<br />Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved.
<br />B. If the parties fail to resolve a dispute through negotiation under Paragraph 6.08.A, then either or
<br />both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute
<br />resolution method is specified in Exhibit H, then the parties may exercise their rights under law.
<br />6.09 Environmental Condition of Site
<br />A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos,
<br />PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other
<br />Constituents of Concern located at or near the Site, including type, quantity, and location.
<br />B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other
<br />than those disclosed in writing to Engineer, exist at the Site.
<br />C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer
<br />shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes
<br />that doing so is required by applicable Laws or Regulations.
<br />D. It is acknowledged by both parties that Engineer’s scope of services does not include any services
<br />related to Constituents of Concern. If Engineer or any other party encounters an undisclosed
<br />Constituent of Concern, or if investigative or remedial action, or other professional services, are
<br />necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at
<br />its option and without liability for consequential or any other damages, suspend performance of
<br />services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist
<br />consultants or contractors to identify and, as appropriate, abate, remediate, or remove the
<br />Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws
<br />and Regulations.
<br />E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance
<br />of Engineer’s services under this Agreement, then the Engineer shall have the option of (1)
<br />accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2)
<br />terminating this Agreement for cause on 30 days notice.
<br />F. Owner acknowledges that Engineer is performing professional services for Owner and that
<br />Engineer is not and shall not be required to become an "owner" “arranger,” “operator,” “generator,”
<br />or “transporter” of hazardous substances, as defined in the Comprehensive Environmental
<br />Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be
<br />encountered at or near the Site in connection with Engineer’s activities under this Agreement.
<br />6.10 Indemnification and Mutual Waiver
<br />A. Indemnification by Engineer: To the fullest extent permitted by law, Engineer shall indemnify and
<br />hold harmless Owner, and Owner’s officers, directors, members, partners, agents, consultants, and
<br />employees from reasonable claims, costs, losses, and damages arising out of or relating to the
<br />Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness,
<br />disease, or death, or to injury to or destruction of tangible property (other than the Work itself),
<br />including the loss of use resulting therefrom, but only to the extent caused by any negligent act or
<br />omission of Engineer or Engineer’s officers, directors, members, partners, agents, employees, or
<br />Consultants. This indemnification provision is subject to and limited by the provisions, if any,
<br />agreed to by Owner and Engineer in Exhibit I, “Limitations of Liability."
|