|
<br />e
<br />
<br />e
<br />
<br />6.10 Hazardous Environmental Condition
<br />
<br />1. To the fullest extent permitted by law,
<br />ENGINEER shall indemnify and hold harmless
<br />OWNER, OWNER's officers, directors, partners, and
<br />employees from and against any and all costs, losses,
<br />and damages (including but not limited to all fees and
<br />charges of engineers, architects, attorneys, and other
<br />professionals, and all court or arbitration or other
<br />dispute resolution costs) caused solely by the negligent
<br />acts or omissions of ENGINEER or ENGINEER's
<br />officers, directors, partners, employees, and
<br />ENGINEER's Consultants in the performance and
<br />furnishing of ENGINEER's services under this
<br />Agreement.
<br />
<br />Agreement, such dispute resolution method and procedure
<br />is set forth in Exhibit H, "Dispute Resolution."
<br />
<br />A. OWNER represents to Engineer that to the best of
<br />its knowledge a Hazardous Environmental Condition does
<br />not exist.
<br />
<br />B. OWNER has disclosed to the best of its
<br />knowledge to ENGINEER the existence of all Asbestos,
<br />PCB's, Petroleum, Hazardous Waste, or Radioactive
<br />Material located at or near the Site, including type, quantity
<br />and location.
<br />
<br />C. If a Hazardous Environmental Condition is
<br />encountered or alleged, ENGINEER shall have the
<br />obligation to notify OWNER and, to the extent of
<br />applicable Laws and Regulations, appropriate
<br />governmental officials.
<br />
<br />2. To the fullest extent permitted by law,
<br />OWNER shall indemnify and hold harmless
<br />ENGINEER, ENGINEER's officers, directors,
<br />partners, employees, and ENGINEER's Consultants
<br />from and against any and all costs, losses, and damages
<br />(including but not limited to all fees and charges of
<br />engineers, architects, attorneys, and other
<br />professionals, and all court or arbitration or other
<br />dispute resolution costs) caused solely by the negligent
<br />acts or omissions of OWNER or OWNER's officers,
<br />directors, partners, employees, and OWNER's
<br />consultants with respect to this Agreement or the
<br />Project.
<br />
<br />D. It is acknowledged by both parties that
<br />ENGINEER's scope of services does not include any
<br />services related to a Hazardous Environmental Condition.
<br />In the event ENGINEER or any other party encounters a
<br />Hazardous Environmental Condition, ENGINEER may, at
<br />its option and without liability for consequential or any
<br />other damages, suspend performance of services on the
<br />portion of the Project affected thereby until OWNER: (i)
<br />retains appropriate specialist consultant( s) or contractor( s)
<br />to identify and, as appropriate, abate, remediate, or remove
<br />the Hazardous Environmental Condition; and (ii) warrants
<br />that the Site is in full compliance with applicable Laws and
<br />Regulations.
<br />
<br />3. To the fullest extent permitted by law,
<br />ENGINEER's total liability to OWNER and anyone
<br />claiming by, through, or under OWNER for any cost,
<br />loss, or damages caused in part by the negligence of
<br />ENGINEER and in part by the negligence of OWNER
<br />or any other negligent entity or individual, shall not
<br />exceed the percentage share that ENGINEER's
<br />negligence bears to the total negligence of OWNER,
<br />ENGINEER, and all other negligent entities and
<br />individuals.
<br />
<br />E. OWNER acknowledges that ENGINEER is
<br />performing professional services for OWNER and that
<br />ENGINEER is not and shall not be required to become an
<br />"arranger," "operator," "generator," or "transporter" of
<br />hazardous substances, as dermed in the Comprehensive
<br />Environmental Response, Compensation, and Liability Act
<br />of 1990 (CERCLA), which are or may be encountered at or
<br />near the Site in connection with ENGINEER's activities
<br />under this Agreement.
<br />
<br />A. Indemnification
<br />
<br />4. In addition to the indemnity provided under
<br />paragraph 6.11.A.2 of this Agreement, and to the
<br />fullest extent permitted by law, OWNER shall
<br />indemnify and hold harmless ENGINEER and its
<br />officers, directors, partners, employees, and
<br />ENGINEER's Consultants from and against all costs,
<br />losses, and damages (including but not limited to all
<br />fees and charges of engineers, architects, attorneys, and
<br />other professionals, and all court or arbitration or other
<br />dispute resolution costs) caused by, arising out of or
<br />resulting from a Hazardous Environmental Condition,
<br />provided that (i) any such cost, loss, or damage is
<br />attributable to bodily injury, sickness, disease, or death,
<br />or to injury to or destruction of tangible property (other
<br />than completed Work), including the loss of use
<br />resulting therefrom, and (ii) nothing in this paragraph
<br />6.II.AA. shall obligate OWNER to indemnify any
<br />individual or entity from and against the consequences
<br />
<br />F. If ENGINEER's services under this Agreement
<br />cannot be performed because of a Hazardous
<br />Environmental Condition, the existence of the condition
<br />shall justify ENGINEER's terminating this Agreement for
<br />cause on 30 days notice.
<br />
<br />6.11 Allocation of Risks
<br />
<br />Standard Form of Agreement
<br />Between Owner and Engineer for Professional Services
<br />Page 7 of 12
<br />
|