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TERMS AND CONDITIONS OF AGREEMENT 1.0 AGREEMENT 1.1 Lowney's services are defined by and limited to (1) those services (the "Work") described in the attached proposal, which is incorporated by this reference, and (2) these Terms and Conditions of Agreement ("Terms and Conditions"). Together, the proposal and Terms and Conditions form our Agreement. This Agreement represents the parties' entire agreement and supersedes all prior negotiations, representations, or agreements, either written or oral. The Agreement can only be amended by a written instrument signed by both the Client and Lowney. Failure to immediately enforce any provision in this Agreement shall not constitute a waiver of the right to enforce that provision or any other provision. 2.0 MISCELLANEOUS CHARGES 2.1 Expenses and other similar project-related costs are billed at cost plus eighteen and one-half (18'12) percent. Reproduction charges wiil be bilied at twenty-five cents ($0.25) per page plus the technical assistant's time billed at their houriy rate. Fixed fee services will be performed for the agreed fixed fee sum. 3.0 TERMS OF PAYMENT 3.1 The Client's obligation to pay for the Work is in no way dependent upon the Client's ability to obtain financing or dependent upon the Client's successful completion of the project. Payment for Work and expenses shall be due and payable upon receipt of Lowney's statement. To be recognized, any dispute over charges must be claimed in writing within thirty (30) days of the billing date. Disputes or questions about a statement shall not be cause for withholding payment for remaining portions due. Amounts unpaid thirty (30) days after the issue date of Lowney's statement shall be assessed a service charge of one (1) percent per month on balances outstanding to compensate Lowney for the cost and burden of administering the account and collecting fees owed. Should any iegal proceeding be commenced between the parties to this Agreement seeking to enforce any of its provisions, including, but not limited to, fee provisions, the prevailing party in such a proceeding shail be entitled to, in addition to such other relief as may be granted, a reasonabie sum for attorneys' fees and other costs. For purposes of this provision, "prevailing party" shall include a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding. Lowney may at its option withhold delivery of reports and other data pending receipt of payment for all Work rendered and shall have no liability to the Client for delay or damage caused because of such withholding. 4.0 INSURANCE 4.1 Lowney, its officers, employees, and agents (hereafter referred to as Lowney) are protected by Worker's Compensation Insurance (and/or Employer's Liability Insurance), by Commercial General Liability Insurance for bodily injury and property damage, and by Professional Liability Insurance (including Contractor's Pollution Liability Insurance), and will furnish certificates thereof upon request. Client specifically agrees that Lowney will not be responsible for property damage from any cause, including fire and explosion, beyond the amounts actually paid by Lowney's insurance carriers under Lowney's available insurance. 5.0 LIMITATIONS 5.1 Client recognizes the inherent risks connected with construction activities, geotechnical investigations, environmental investigations, and assessments. Client also recognizes that actual conditions at the site may vary from those observed by Lowney when performing the Work. Client specifically acknowledges and agrees that the interpretations and recommendations of Lowney are based on information actually reviewed and conditions actually observed by Lowney. Lowney shall not be responsible for the validity or accuracy of data collected by others or interpretations made by others. 5.2 The Client agrees to defend and indemnify Lowney from any and all claims, damages, costs, and losses (included attorneys' fees and costs) arising out of or in any way related to the Work or the performance or non-performance of obligations under this Agreement except when the Claim arises from the sole negligence of Lowney or where the Claim arises from the willful, wanton, or reckless conduct of Lowney. 5.3 In performing its professional services, Lowney will strive to use that degree of care and skill ordinarily exercised, under similar circumstances, by members of its profession practicing in the same or similar locality and under the same standard of care. No warranty, expressed or implied, is made or intended by Lowney by the proposal for consulting services, the contract between Lowney and Client, or by furnishing oral or written reports of the findings made to the Client or any other person. 5.4 This paragraph limits Lowney's liability-READ IT CAREFULLY. The Client understands and acknowledges that the Work poses certain risks to both Lowney and the Client. Client further acknowledges and agrees that the amount of risk that Lowney accepts by this Agreement is commensurate with the amount of compensation received under this Agreement for the Work. Lowney's fee for the Work is based on and reflects Client's agreement to limit Lowney's liability as described below. Client specifically acknowledges and agrees that but for this promise to limit Lowney's liability, Lowney's fee would be significantly higher to accommodate Lowney for the risks posed by the Work and entering this Agreement. Client acknowledges its right to discuss this provision with legal counsel and negotiate with Lowney regarding this provision and the proposed fee. In reliance on the foregoing and in consideration for the fee proposed, Client specifically acknowledges and agrees that, to the fullest extent permitted by law, Lowney's total liability for any and all injuries, claims, liabilities, losses, costs, expenses, or damages whatsoever including, without limitation, attorneys' fees and legal costs (hereinafter "Claims") to Client and any third party arising out of or in any way related to the Work or this Agreement from any cause or causes including, but not limited to, Lowney's negligence, errors, omissions, or breach of contract or any duty, is limited to and shall not exceed $50,000 or the amount of Lowney's fee, whichever is greater (Option 1) except when the Claim arises from the sole negligence of Lowney or where the Claim arises from the willful, wanton, or reckless conduct of Lowney. In consideration of an additional fee of four (4) percent of Lowney's total Work fee or $400, whichever is greater, Lowney will raise the limitation of liability up to the amount actually paid by Lowney's insurance carriers for the Claims under Lowney's available insurance coverage (Limitation Increase) if and only if Client makes its written request for the Limitation Increase before the commencement of the Work and Client and Lowney each initial and date this paragraph 5.4 below (Option 2) except when the Claim arises from the sole negligence of Lowney or where the Claim arises from the willful, wanton, or reckless conduct of Lowney. LIMITATION INCREASE: AGREED THAT LIMITATION OF LIABILITY INCREASED TO ACTUAL AMOUNT OF PROCEEDS PAID BY LOWNEY'S INSURANCE CARRIERS IN EXCHANGE FOR ADDITIONAL FEE OF FOUR (4) PERCENT OF TOTAL SERVICE CHARGE OR $400, WHICHEVER IS GREATER. Client Initial Date Lowney Initial Date 5.5 Client agrees on its behalf and on behalf of Client's officers, directors, partners, principals, agents, employees, successors, representatives, and assignees (collectively referred to as "Client Group") that in no event shall any action or proceeding be brought against Lowney by Client or Client Group for any claim or cause of action arising from or in any way related to the Work or this agreement unless such action or proceeding is commenced within three (3) years from the Date of Completion of Work provided by Lowney under this Agreement. Client and Client Group agree and acknowledge that the limitations period set forth herein supersedes, replaces, and supplants any and all limitation periods which would otherwise apply including, but not limited to, those appearing in the California Code of Civil Procedure. The Date of Completion shall be the date of the final invoice for the Work performed under this Agreement. 5.6 If Client requests that Lowney's work product be relied upon by a third party, including, but not limited to, a lender, Client specifically agrees to provide the third party with a copy of these terms and conditions and Client agrees to limit Lowney's total liability to Client and any third party as described in paragraph 5.4 above, and Client agrees to defend and indemnify Lowney from any and all third party claims, damages, costs, and losses arising out of or in any way related to the Work or the performance or non-performance of obligations under this Agreement except when the Claim arises from the sole negligence of Lowney or where the Claim arises from the willful, wanton, or reckless conduct of Lowney. Any third party which accepts Lowney's work product does so under the strict understanding that the third party is bound by all provisions in these Terms and Conditions including, but not limited to, the provisions of paragraphs 5.4 and 5.5, above, and this paragraph 5.6. Every report, recommendation, finding, or conclusion issued by Lowney shall be subject to the limitations stated therein. .