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6.0 SCOPE AND EXECUTION OF SERVICES 6.1 Lowney will serve the Client by providing professional counsel and technical advice based on information furnished by the Client. The Client will make available to Lowney all known information regarding existing and proposed conditions of the site, including the location of all underground utilities and installations, and will immediately transmit any new information that becomes available or any change in plans. When hazardous materials are known, assumed or suspected to exist at a site, Lowney may be required by law to take appropriate precautions to protect the health and safety of its personnel. Client hereby warrants that if It knows or has any reason to assume or suspect that hazardous materials may exist at the project site, Client will immediately inform Lowney and warrants that Client has done its best to inform Lowney of the known or suspected hazardous materials' type, quantity, and location. Client and Lowney agree that Lowney shall not be responsible for any claims, damages, costs, or losses arising from or in any way related to conditions not actually encountered during the course of Lowney's work and Lowney shall not have any liability or responsibility for losses resulting from inaccurate or incomplete information supplied by Client, and Client agrees to defend and indemnify Lowney against claims, damages, costs, or losses arising there from. Lowney shall not be liable for failing to discover any condition the discovery of which would reasonably require the performance of services not authorized by Client. 6.2 Lowney will diligently proceed with its services and will submit its report in a timely manner, but it is expressly agreed and understood by Client that Lowney shall not be held responsible for delays occasioned by factors beyond its control, nor by factors which could not reasonably have been foreseen at the time of the execution of the Agreement between the parties. Lowney will not be responsible for any damages, consequential or otherwise, caused by delays in the completion of the Work. Lowney makes no warranties regarding time of completion of the Work. In the event that the Work is interrupted or delayed due to causes beyond Lowney's control (including, but not limited to, acts of God, war, riot, insurrection, inclement weather, fire acts of third parties or governmental bodies, or matters within the control of Client), Lowney shall be paid compensation for labor, equipment, and other costs Lowney incurs in order to perform the Work for the Client's benefit during the interruption or delay. 6.3 The individual or individuals who contract with Lowney on behalf of the Client warrant that they are duly authorized agents of the Client and are empowered to so contract. 6.4 Unless otherwise agreed in writing, the Client shall be entitled to two copies of each report prepared by Lowney. 6.5 In the event that Lowney submits a proposal including these Terms and Conditions of Agreement, to provide professional services and the Client authorizes the Work by means of a purchase order or other writing ("Confirmation"), it is expressly agreed that these Terms and Conditions shall apply, and any terms, condition, or provisions appearing in the Confirmation are void and inapplicable except to the extent the Confirmation authorizes the Work and binds Client to this Agreement. 7.0 SITE SAFETY 7.1 Lowney shall not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the job or the work of any contractor, subcontractor, or their agents or employees, or any other person performing work or services on the job or at the site. 8.0 TERMINATION 8.1 Either party may terminate this Agreement by giving the other party seven (7) days' written notice. Notice shall be effective as of the date of deposit in the U.S. Mail of the written notice, properly addressed to the person to be notified. In the event that the Client requests termination of the services prior to completion of Work, Lowney reserves the right to complete such analyses and records as may be necessary to place its files in order and, where considered necessary to protect its professional reputation, to complete a report on the services performed to date. A termination charge of 10 percent of the total contract amount in addition to all costs incurred to the date of Work stoppage may be made at the discretion of Lowney. 9.0 OWNERSHIP OF DOCUMENTS 9.1 All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, and other documents prepared by Lowney, as instruments of Work, shall remain the property of Lowney. Client agrees that all reports and other services furnished to the Client or its agents, which are not paid for, will be immediately returned upon demand and will not be used by the Client for any purpose whatever. CI ient warrants that Lowney, in order to perform its Work under this Agreement, has the unrestricted license and right to use any information provided to Lowney by the Client or others. 10.0 RIGHT OF ENTRY 10.1 The Client will provide for right of entry of Lowney personnel and all necessary equipment, in order to complete the Work. While Lowney will take all reasonable precautions to minimize any damage to the property including underground utilities, it is acknowledged and agreed by Client that in the normal course of the Work some damage may occur, the correction of which is not part of this Agreement. Accordingly, Client shall waive any claim against Lowney and agree to defend and indemnify Lowney from any claims arising from entering or working on the site which is the subject of the Work. 11.0 MONITORING OF CONSTRUCTION 11.1 The Client hereby acknowledges and understands that unanticipated or changed conditions may be encountered during construction. Further, there is a substantial risk to both the Client and to Lowney if Lowney is not engaged to provide complete services, including but not limited to, construction observation services. Such risks include the increased likelihood of misinterpretation of Lowney's findings and conclusions, and error in implementing recommendations by Lowney. Therefore, if the Client fails to retain Lowney to provide complete services, the Client agrees to defend and indemnify Lowney against any and all claims, damages, costs, and losses arising out of or in any way related to the Work or arising out of implementing or interpreting Lowney's work product 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. 12.0 DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS 12.1 Hazardous materials or other toxic substances may exist at a site where there is no reason known to Client to believe they could or should be present. Lowney and Client agree that the discovery of unanticipated potentially hazardous materials constitutes a changed condition mandating a renegotiation of the scope of Work or termination of Work. Lowney and Client also agree that the discovery of unanticipated potentially hazardous materials may make it necessary for Lowney to take immediate measures to protect public health, safety, and the environment. Lowney agrees to notify Client as soon as practically possible should unanticipated hazardous materials be encountered. Client encourages Lowney to take any or all measures that in Lowney's professional opinion are justified to preserve and protect the health and safety of Lowney's personnel, the public, and the environment, and Client agrees to compensate Lowney for the cost of such services. Further, the Client agrees to defend and indemnify Lowney from any and all claims, damages, costs, and losses arising out of or in any way related to subsurface sampling, including, but not limited to, claims, damages, costs, and losses arising from cross-contamination 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. 13.0 CONTAMINATION OF A WATER-BEARING ZONE 13.1 Subsurface sampling may result in unavoidable contamination of certain subsurface areas, as when a probe or boring is advanced or drilled through a contaminated area, into a clean soil or a water-bearing zone. Because of the risks posed by such Work, and because subsurface sampling is often a necessary part of Lowney's Work, the Client hereby agrees to waive all claims against Lowney that in any way arise out of subsurface sampling, including claims relating to cross-contamination. 14.0 DISPOSAL OF SAMPLES AND DRILL CUTTINGS 14.1 Lowney shall hold samples collected during the performance of its Work no longer than 45 calendar days after issuance of any document that includes data obtained from them unless Client advises in writing otherwise; drill cuttings will be left on-site. In the event that soil, rock, water, or drill cuttings, and/or other samples or material are contaminated or are suspected to contain hazardous materials or other toxic substances hazardous or detrimental to public health, safety, or the environment as defined by federal, state, or local statutes, regulations, or ordinances, Lowney will, after completion of testing, notify the Client of same in order for the Client to arrange for the disposal of samples and materials. The Client recognizes and agrees that Lowney at no time assumes title to said samples and/or materials. The Client, not Lowney, remains ultimately responsible for selecting the disposal or treatment facility to which such samples and/or materials are to be delivered. The Client agrees to pay all P:\Standards\Proposal Attachments\Word documents of rate sheets and terms\TERMS & Conditions May 2003.DOC - 2 - .