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D. It is acknowledged by both parties that Engineer's scope of services does not include any
<br />services related to undisclosed Constituents of Concern. If Engineer or any other party
<br />encounters, uncovers, or reveals an undisclosed Constituent of Concern, or if encountered,
<br />uncovered, or revealed Constituents of Concern are present in substantially greater
<br />quantities or substantially different locations than disclosed or anticipated, or if investigative
<br />or remedial action, or other professional services, are necessary or required by applicable
<br />Laws and Regulations with respect to such Constituents of Concern, then Engineer may, at
<br />its option and without liability for direct, consequential, or any other damages, suspend
<br />performance of services on the portion of the Project adversely affected thereby until such
<br />portion of the Project is no longer so affected; and Client shall promptly determine whether
<br />to retain a qualified expert to evaluate such condition or take any necessary corrective
<br />action.
<br />E. If the presence at the Site of undisclosed Constituents of Concern, or of Constituents of
<br />Concern in substantially greater quantities or in substantially different locations than
<br />disclosed or anticipated, adversely affects the performance of Engineer's services under this
<br />Agreement, then:
<br />1. if the adverse effects do not preclude Engineer from completing its Project services in
<br />general accordance with this Agreement on unaffected or marginally affected portions
<br />of the Project, Engineer may accept an equitable adjustment in its compensation or in
<br />the time of completion, or both; and the Agreement will be amended to reflect changes
<br />necessitated by the presence of such Constituents of Concern; or
<br />2. if the adverse effects are of such materiality to the overall performance of Engineer that
<br />it cannot complete its services without significant changes to the scope of services, time
<br />of completion, and compensation, then Engineer may terminate this Agreement for
<br />cause on 7 days' written notice.
<br />F. Client acknowledges that Engineer is performing professional services for Client and that
<br />Engineer is not and will not be required to become an "Client," "arranger," "operator,"
<br />"generator," or "transporter" of hazardous substances, as defined in the Comprehensive
<br />Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are
<br />or may be encountered at or near the Site in connection with Engineer's activities under this
<br />Agreement.
<br />6.10 Indemnification and Mutual Waiver
<br />A. Indemnification by Engineer: To the fullest extent permitted by Laws and Regulations,
<br />Engineer shall indemnify and hold harmless Client, and Client's officers, directors,
<br />members, partners, agents, and employees, from losses, damages, and judgments
<br />(including reasonable consultants' and attorneys' fees and expenses) arising from third -
<br />party claims or actions relating to the Project, provided that any such claim, action, loss,
<br />damages, or judgment is attributable to bodily injury, sickness, disease, or death, or to
<br />injury to or destruction of tangible property (other than the Work itself), including the loss
<br />of use resulting therefrom, but only to the extent caused by any negligent act or omission
<br />of Engineer or Engineer's officers, directors, members, partners, agents, employees,
<br />Subconsultants, or Engineer's Subcontractors. This indemnification provision is subject to
<br />and limited by the provisions, if any, agreed to by Client and Engineer in Exhibit I,
<br />"Limitations of Liability."
<br />EJCDC® E-500, Agreement between Client and Engineer for Professional Services.
<br />Copyright® 2020 National Society of Professional Engineers, American Council of Engineering Companies,
<br />and American Society of Civil Engineers. All rights reserved.
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