DERR-2024-010356

2154 Torrance Blvd., Suite 200, Torrance, CA 90501 ◊ Phone [phone] ◊ Fax [phone]

August 5, 2024
NV1 LHM VESTA LLC
Contact Person: Jeff Grasso
Address: 3874 E Little Cottonwood Lane
City: Sandy State: UT Zip Code: 84092
Phone [phone] E-mail Address [e-mail]

Subject: Phase I Environmental Site Assessment – Reliance Letter
3715 South Tracy Hall Parkway
Provo, Utah 84606
Partner Project No. 24-453790.1
To Whom It May Concern:
Partner Engineering and Science, Inc. (Partner) issued a Phase I Environmental Site Assessment (ESA) report
of the abovementioned address (the “Subject Property”) on behalf of Vesta Realty Partners dated July 10,
2024 (the “Report”).
NV1 LHM VESTA LLC (“Relying Party”) may rely on the findings of the Report solely for the purpose stated
in the Report, and subject to the Report’s technical limitations. Relying Party understands and
acknowledges that the Report relates only to the Subject Property at the time the Report was prepared.
In consideration for being granted reliance rights, Relying Party agrees to be bound by the Terms and
Conditions that are attached hereto and incorporated herein by reference. Possession of and reliance upon
the Report shall constitute acknowledgement of the receipt and acceptance of such Terms and Conditions
and agreement to be bound thereto.
If you have any questions concerning the Report, or if we can assist you in any other matter, please contact
me at 646-863-8537.
Sincerely,

Sarah M. Fonseca
Principal
Proposal Version: Updated October 2023
TERMS AND CONDITIONS

A. ENTIRE AGREEMENT. These Terms and Conditions, in combination
with those documents incorporating them by reference, constitute the
entire agreement (the “Agreement”) to perform the described services (the
“Services) between Partner as defined in the Proposal (“Partner”) and the
client as defined in the Proposal (“Client”), and shall be deemed a part of
such Agreement as though set forth in full therein. This Agreement
supersedes all prior proposals or negotiations between the parties with
respect to the subject Services. These terms and conditions will also apply
to any contract, change order, or purchase order document issued by the
Client for future services, whether or not it is expressly incorporated by
reference herein. In the event of any conflict between these terms and
conditions and the provisions of any purchase order or other document,
these terms and conditions shall control unless the conflicting document
expressly supersedes specific provisions hereof. This Agreement may not
be modified except in a writing executed by both parties.
B. SERVICES. The Services will be performed in material compliance with
the provisions of the Agreement. Client has reviewed the Agreement in
detail and agrees that the Services are appropriate to meet Client’s needs.
Unless specified elsewhere in the Agreement, Partner shall furnish all
technical and professional services, including labor, material, supplies,
equipment, transportation, accommodation, subsistence and supervision
of Partner’s personnel, to perform the Services. Client acknowledges that
Partner may utilize third-party service providers in the performance of its
obligations hereunder. Partner shall at all times be an independent
contractor and no persons involved in connection herewith shall be
considered employees of the Client for any purpose.
C. FEES, INVOICING AND PAYMENT. Charges for all services shall be
invoiced and paid in accordance with the Lump Sum Price or the Fee
Schedule contained in the Agreement. Unless otherwise specified,
invoices will be submitted to Client at time of report delivery. Payment is
due upon receipt of the invoice and Client agrees that payments shall be
made within thirty (30) days of the invoice date. Payment of Partner’s
invoices shall be the primary, absolute and non-contingent obligation of
the Client, and shall not be conditioned upon the closing of a loan,
transaction or any other event. Should cancellation of the project occur
after a verbal report of the findings has been provided, Client agrees to
make a payment of 80% of the total cost due at the time of cancellation.
Amounts not paid within thirty (30) days shall be subject to a late payment
charge equal to the lesser of one and one-half percent (1½%) per month
or the maximum amount allowed by applicable law. Should any invoice
be in dispute, only that portion of the invoice in dispute may be held in
abeyance until the dispute is resolved. Partner may suspend or terminate
further performance under this or other agreements with Client upon
reasonable notice for the non-payment of invoices. Partner shall have no
responsibility or liability in connection with the Services, and Client shall
have no right to rely on any report or other materials delivered, until all
invoices have been paid in full. Partner shall be entitled to all legal fees,
including but not limited to attorney’s fees associated with any attempt to
collect on unpaid invoices associated with the Services.
D. CONFIDENTIALITY. Information which the Client identifies as
confidential upon provision to Partner, and which is not publicly available
or is identified by Client as proprietary, will be treated as confidential in
accordance with industry customs or standards. However, Partner shall
have no liability to Client or any third party for disclosure of confidential
information in notifications or reports which reveal potential issues
related to the health, safety or welfare of the general public; subject to
court order or other mandate; and/or further subject to public policy
considerations. Partner shall have no liability to Client or any third party
for notifications or reports made in accordance with such laws or orders
and Client shall defend, indemnify and hold harmless Partner from and
against any and all claims, demands, liabilities, costs and expenses,
including reasonable attorney’s fees, incurred by Partner in connection
with such notifications or reports. Should a Partner employee be identified
as a witness in a litigation, dispute, or other legal proceeding relating to
the Services, then Client agrees to pay the regular hourly rate for the cost
of time expended in connection therewith, including but not limited to
time spent responding to document subpoenas, testifying at trial or
deposition, preparation time, and travel time, as well as all costs and
expenses incurred.
E. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE
LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT,
INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, ANY LOSS OF INCOME, PROFITS OR DATA OR
DIMINUTION OF VALUE, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE
POSSIBILITY OF SUCH DAMAGES. CLIENT AND PARTNER
AGREE THAT PARTNER’S AGGREGATE LIABILITY TO THE
CLIENT AND ALL THIRD PARTIES IN CONNECTION WITH THE
SERVICES SHALL BE LIMITED TO GENERAL MONEY
DAMAGES NOT TO EXCEED TWENTY THOUSAND DOLLARS
($20,000.00). THIS LIMITATION SHALL APPLY REGARDLESS OF
THE CAUSE OF ACTION OR LEGAL THEORY PLED OR
ASSERTED. THE PARTIES ACKNOWLEDGE THAT THEY HAVE
CONSIDERED THE ALLOCATION OF RISK PRESENTED BY THE
PROVISIONS OF THIS PARAGRAPH AND THAT THE
ALLOCATION IS REASONABLE UNDER ALL FACTS AND
CIRCUMSTANCES SURROUNDING THE AGREEMENT.
F. WARRANTY. Partner warrants that the Services will be performed in a
good and workmanlike manner in accordance with prevailing standards
and practices applicable to the Services. PARTNER EXPRESSLY
DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
G. SAMPLING. Should collection of samples be required as part of the
Services, Client recognizes and agrees that Partner is acting as a bailee
and at no time assumes title to samples collected in completion of the
Services. Client acknowledges that the act of sampling may affect, alter
or damage the property, terrain, vegetation, and/or building, structures and
improvements at, in or upon the site and Client accepts such risk. Partner
will exercise reasonable efforts to limit such alteration or damage. Unless
otherwise specifically agreed, Partner will not be responsible for the cost
of any required repair or restoration. Partner may discard any and all
samples immediately following analysis. Client may request, in writing,
that any such samples be retained beyond such date, and in such case,
Partner will ship such samples to the location designated by Client, at
Client’s expense. Partner may, upon Client’s written request, arrange for
storage of samples at mutually agreed storage charges. This is the only
notice of intention to discard samples that will be given.
H. INFORMATION PROVIDED TO PARTNER. Client shall provide
Partner with such materials with respect to the assignment as are requested
by Partner and in the possession or under the control of Client. Client shall
provide Partner with sufficient access to the Property, and hereby grants
permission for entry unless discussed in advance to the contrary. Partner
shall have no liability with respect to any loss, damage, claim or expense
incurred by or asserted against Client arising out of, based upon or
resulting from Client’s failure to provide accurate or complete
information or documentation pertaining to an assignment ordered or in
connection with this Agreement, including Client’s failure, or the failure
of any of Client’s agents, to provide a complete copy of the Report to any
third party.

Proposal Version: Updated October 2023
I. RELIANCE. No party shall be allowed to use or rely on any report(s) or
information generated in the completion of the Services until payment in
full is made to Partner for any outstanding invoices related to the Services
rendered. Client understands that Services governed by this Agreement
are strictly for its sole use and benefit. Use of the report for any other
purpose or use by any party not identified as an intended user of the report
and without Partner’s prior written consent is prohibited and Partner
accepts no responsibility or liability for any use of the report in violation
of the terms of this Agreement The parties expressly agree that no third
party, including, but not limited to, any heirs, devisees, representatives,
successors, assigns, affiliates, and subsidiaries of the parties or any
partnership, corporation or other entity controlled by the parties or which
control the parties, may rely on or raise any claim relating to the Services
or this Agreement. Neither the whole report, nor any part, nor reference
thereto, may be referenced or published in any manner without Partner’s
prior written approval. Appraisal services shall be subject to additional
reliance terms as set forth in Paragraphs C and R of the Addendum
attached hereto and incorporated by reference.
J. INDEMNIFICATION. In the event that Client permits a third-party to
rely upon this Agreement, the Services, and/or reports provided by Partner
in breach of Paragraph I of this Agreement and said third-party files a
claim or lawsuit against Partner relating to this Agreement, the Services,
and/or reports provided by Partner, Client agrees to indemnify and hold
Partner harmless from any damages, losses, liabilities, and costs,
including, but not limited to, reasonable attorney fees, costs, and expert
witness fees, arising from any such third-party claim or lawsuit.
K. NON-SOLICITATION. Client shall not hire nor solicit for employment
any of Partner’s employees for a period of one (1) year subsequent to any
services rendered by Partner for Client. In the event that Client hires one
of Partner’s employees fewer than twelve (12) months after services
rendered by Partner to Client, then Client agrees to pay Partner a referral
fee equivalent to twenty five percent (25%) of the employee’s previous
annual compensation and all costs related to training and/or licensure
expended by Partner during the previous year.
L. TERMINATION. This Agreement may only be terminated: (i) by either
Partner or Client prior to substantial completion of the Services by giving
thirty (30) days written notice; or (ii) by Partner at any time for cause,
including but not limited to, Client’s breach of this Agreement, failure to
pay Partner’s invoices, or on the occurrence of fraud or willful misconduct
of Client, its employees or agents, and such termination shall be effective
immediately upon written notice to Client . In the event of termination
prior to completion of the Services (i) by Partner or Client for any reason,
or (ii) by Partner for cause, Partner reserves the right to complete such
analyses and records as are necessary to place its files in order and, where
considered by Partner as necessary to protect its professional reputation,
to complete a report on Services performed to date. Partner shall have the
right to receive a reasonable termination charge to cover such costs and to
be compensated for all Services performed prior to and in connection with
such termination. In the event of termination, client shall have no rights
of use or reliance upon the work. Paragraphs A, C, D, E, F, G, I, J, K, L,
M, N, O, P, Q, R and S shall survive termination.
M. RESOLUTION OF DISPUTES. This Agreement shall be governed by,
subject to, and construed in accordance with the laws of the state of
California, without regard to its conflict of law provisions or the conflict
of law provisions of any other jurisdiction. With the exception of disputes
arising from failure to pay any invoices or fees for services rendered, any
claim, controversy, or action arising out of, or related to, this Agreement
or the alleged breach thereof, shall be submitted to mandatory non -
binding mediation through a third-party mediator to be agreed upon by
the Partner and the moving party. A “Notice of Mediation” shall be served
by any party to commence the mediation process. The service of the
Notice of Mediation shall stay the running of the limitations period set
forth in Paragraph M herein for a period of 60 days unless a longer or
shorter period of time is agreed to by the parties. In the event that the
parties cannot reach a resolution through mediation, the parties may
proceed to litigate their claims in Court. Any litigation so instituted shall
be filed and litigated in the State Court of California, County of Los
Angeles in accordance with the laws of the State of California, and subject
to Paragraph L herein. With the exception of disputes arising from failure
to pay invoices or fees for services rendered, each party shall pay the fees
of its own attorneys, and the expenses of its witnesses and all other
expenses connected with the presentation of its case.
N. LIMITATIONS PERIOD. Partner and Client agree that, other than an
action filed by Partner for nonpayment of invoices under Section C,
above, any legal action or lawsuit by one party against the other party or
its affiliates, officers, directors, employees, contractors, agents,
successors, assigns, or other representatives, whether based in contract,
warranty, indemnity, negligence, strict liability or other tort or otherwise,
relating to (a) this Agreement or the Report, (b) any Services performed
under this Agreement or (c) any acts or conduct relating to such Services,
shall be filed within eighteen (18) months from the date of delivery to
Client of the Report to which the claims or causes of action in the legal
action or lawsuit relate. The time period stated in this section shall not be
extended by any incapacity of a party or any delay in the discovery of the
underlying claims, causes of action or damages.
O. CORPORATE PROTECTION. It is intended by the parties to this
Agreement that Partner’s services in connection with the project shall not
subject Partner’s employees, officers, or directors to any personal legal
exposure for risks associated with this project. Therefore, the Client
agrees that as Client’s sole and exclusive remedy, any claim, demand or
action shall be directed and/or asserted only against Partner, a California
corporation, and not against any of Partner’s employees, officers, or
directors.
P. NO WAIVER. The failure of either party to exercise any right or remedy
hereunder or to take any action permitted on a breach by the other party
shall not be deemed a waiver of such right or remedy or of any other rights
or subsequent breach of a like or different nature.
Q. SEVERABILITY. The provisions of this Agreement are severable. The
invalidity of any part of this Agreement shall not invalidate the remainder
of the Agreement or the remainder of any portion hereof.
R. OWNERSHIP AND RETENTION OF DOCUMENTS. With the
exception of Partner submittals and deliverables to Client (which
submittals shall be jointly owned by Client and Partner), all documents
and information provided, prepared, and/or researched during this
engagement, including, without limitation, historical research, property
data, field data, field notes, photographs, laboratory test data, calculations,
measurements and analyses are prepared as instruments of service and
shall remain the physical and intellectual property of Partner, and shall
not be considered a “work for hire.” Partner will retain all pertinent
records relating to the Services performed for a period of two years,
except for records relating to Appraisal services, if applicable, which shall
be retained for sixty (60) months following the completion of Partner’s
services. After this period, they may be discarded.
S. NO ASSIGNMENT. Neither party shall assign their rights under this
Agreement to any third party, including, but not limited to, any heirs,
devisees, representatives, successors, assigns, affiliates, and subsidiaries
of the parties or any partnership, corporation or other entity controlled by
the parties or which control the parties without the prior written consent
of the other party, which consent shall not be unreasonably withheld or
delayed. Each party, and the person executing on behalf of such party,
represent and warrant that such person has the full power and authority to
bind the party represented.