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TERMS AND CONDITIONS Of PRC~EESSIOF~IAL SERVICES AGREEMENT
<br />1. Agreement. The Client may authorize Abonmorche to proceed with work
<br />either by signing a Professional Services Agreement or by issuing an
<br />acknowledgement, confirmation, purchase order, or other communication.
<br />Regardless of the method used, these Terms and Conditions shall be
<br />incorporated by reference and shall prevail as the balls of the Client's
<br />Agreement to Abonmarche. Any Client document or communication In
<br />addition to or in conflict wtth theses Terms and Condttons shall be
<br />subordinate and subject to these provisbns.
<br />2. Execution. Abonmarche has the option to render this Agreement null and
<br />void, 'rf it is not executed within thirty (30) days of delNery.
<br />3. Client Responsibilities. The Client will provide all criteria and information
<br />concerning the requirements of the Project. fie Client will assume
<br />responsibulTy for interpretation of contract documents and for conshuction
<br />observation and will waive all claims against Abonmarche that may be in
<br />any way connected, unless Abonmarche's services under This Agreement
<br />Include full-time construction observation or review of contractor's
<br />performance.
<br />4. Performance. The standard of care for services performed by or provided by
<br />Abonmarche will be the care and skill ordinary used by Abonmarche's
<br />profession practicing under simYar circumstances at the same time and In the
<br />same locdiry. Abonmarche makes no warranty, expressed or implied, with
<br />respect to any services provided by Abonmarche. Abonmarche will not be
<br />liable for any Gaim, damages, cost, or expense (including attorney's fees) or
<br />oMer liability or loss not directly and solely caused by the negligent acts.
<br />erors, or omissions of Abonmarche.
<br />5. Hourly Billing Rates, Unless stipulated otherwise, the Client will compensate
<br />Abonmarche at the curent hourly billing rates, in place when the services
<br />are provided by Abonmarche.
<br />6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or Indirectly for the Client's Project, will be charged at Abonmarche's
<br />cunent rates. Examples of in-house reimbursable expenses include, but are
<br />not limited to: mileage, tests and analyses, special equipment services,
<br />postage and delNery charges, telephone and telefax charges, copying,
<br />printing, and binding charges. Outside reimbursable expenses will be
<br />charged on the basis of the actual costs times a factor of 1.15. Examples of
<br />outside reimbursable expenses Incude, but are not limited to: commercial
<br />transportation, Subconhactors, meals, lodgng, special fees, licenses. pernits.
<br />and outside technical or professional services.
<br />7. Additional Services. Additional servk;es that may be provided pursuant to the
<br />Agreement or any subsequent modificatbn of the Agreement will be
<br />authorized, when possible, by written amendment signed on behalf of the
<br />Client and Abonmarche. Additional services, performed by Abonmarche are
<br />subject to all Terms and Conditions and the Client will be respons't>le for
<br />payment. Should the Client, regulatory agency, or any public body or
<br />inspector dkect modrf~ation or addition to work covered by this Agreement,
<br />the cost will be added To The agreed price. Verbal requests for extra work
<br />should be made in writing via a change order, but none the less.
<br />Abonmarche is entitled to be poid for extra work provided whether R is in
<br />writing or not.
<br />8. Underground Shuctures or Buried Utilities. Abonmarche will use public utility
<br />location services where avdlable to perform this service. fie Client is
<br />responsible for Identification and location of all public and prtvate buried
<br />shuctures on the Gient's property and the Project site, such as but not limited
<br />to storage tanks and lines, or gas, water, sewer, elechical, phone, cable, or
<br />any other public or prNate utilities. Abonmarche will take reasonable care to
<br />avoid such structures but will not be responsible for accidentd damage to
<br />utilities or shuctures that were not specifically or dearly located by the CIIenT
<br />or for damages or losses dalmed by third parties related hereto.
<br />9. Site Access and Security. Wrth the exception of access rghts that land
<br />surveyors are afforded by law, the Client will provide Abonmarche access to
<br />The Project site and The Client will be responsmle for obtaining any necessory
<br />permission from any affected third parry property owners for use of Their
<br />lands. The Client is solely responsible for site secur8y.
<br />10. Subcontractors. Abonmarche may engage Subcontractor(s) on behalf of the
<br />Client to perform any portbn of the services to be provided by Abonmarche.
<br />Client agrees that Abonmarche will not be liable for any claim, liability, or
<br />defense cost for injury or loss sustained by ony party from exposures allegedly
<br />caused by the Subcontractor's negligence or willful misconduct during
<br />performance of services hereunder.
<br />11. Opinbns of Cost. Any opinions of probable construction cost and/or total
<br />project cost provided by Abonmarche will be on the basis of experience and
<br />judgment, but these are only estimates, Abonmarche does not waranT That
<br />bids or ultimate conshuctbn a total project costs will not vary from such
<br />eshnates.
<br />12. Ownership of Work Product. Abonmarche will remain the owner of all original
<br />drawings, reports, and other materials provided to The Client, whether in hard
<br />copy or magnetic media form. fie Client is authorized to use the copies
<br />provided by Abonmarche only in connection with the Project. Any other use
<br />or reuse by the Client for ony purposes vnratever unit be at The CIIenYs risk
<br />and full legal responsibility, without liability to Abonmarche and The Client will
<br />defend, indemnify, and hdd Abonmarche harmless from dl daims.
<br />damages, losses, and expenses, Including attorney fees arising out of or
<br />resulting there from.
<br />13. Electronic Media. Copies of data, reports, drawings, specifications, and other
<br />materials furnished by Abonmarche that may be relied upon by the talent
<br />are limited to the printed copies (also known as hard copies) that are
<br />delNered to The Client pursuant to the services under this Agreement.
<br />Computer files of text, data, graphics, or of other types of electronic media
<br />are the sole possession of Abonmarche, unless specifically stated otherwise In
<br />an amendment To this Agreement. Any elechonic media provided under
<br />this Agreement to the Client are only for the convenience of the Client. Any
<br />conclusions or Information obtained or derived from such electronic files will
<br />be at the user's sole risk.
<br />14. Bonds and Permits. The Client will be responsible for the adoption of any site
<br />access or right of way bonds that may be Inlflated on their behalf. At
<br />completion of Abonmarche's seances, the Client will Coke responsibility and
<br />pay any ongoing bond or permit costs for any bonded or permitted work.
<br />15. Insurance. The Client will require the Contractor to purchase and maintain
<br />general liability and other insurance as spec'rfied in the Conhact Documents
<br />and to cause Abonmarche and Abonmarche's employees to be listed as
<br />additional insured's with respect to such liability and other insurance
<br />purchased and maintained by the Contractor for the Project.
<br />16. Late Fee. Thirtl party Invoicing. If the Client directs Abonmarche to invoice
<br />another party payers, Abonmarche will do so, but the Client agrees to be
<br />ulflmately responsible for Abonmarche's compensation until the Client
<br />provides Abonmarche with The Third party's written acceptance of all terms
<br />of th's Agreement and until Abonmarche agrees to the substitution.
<br />17. Stop Work. In oddition to any other remedies Abonmarche may have,
<br />Abonmarche will have the absolute right to cease performance of any basic
<br />or additional services in the event that payment is not made as provided or
<br />otherwise agreed.
<br />18. Notice of Lien Rights. Abonmarche hereby notifies, and the Client
<br />acknowledges that Abonmarche has lien rights on the Client's land and
<br />property when Abonmarche provides labor and materials for Projects on the
<br />Client's land and the CIIenT does not pay for those services.
<br />19. Legal Expenses. tf either the Client or Abonmarche makes a claim against
<br />the other arising out of This Agreement, the prevailing party will be entitled to
<br />recover reasonable expenses of litigation, including reosonable attorney's
<br />fees. If Abonmarche brk~gs a lawsuit against the Gient to collect invdced
<br />fees and expenses, the Client agrees to pay Abonmarche reasonable
<br />collection expenses, Including attorney fees.
<br />20. Indemnify. Abonmarche will defend, indemnHy, and hold the Client harmless
<br />from any claim, liabil'rfy, or defense cost for Injury or loss sustained by any
<br />party from exposures caused solely by Abonmarche's negligence or willful
<br />misconduct. Client agrees to defend, indemnify, and hold Abonmarche
<br />harmless from doim. liability, or defense cost for injury or loss sustained by any
<br />party from exposures, caused solely by the Client's negligence or willful
<br />misconduct.
<br />21. Consequential Damages. The Client and Abonmarche waive consequential
<br />damages for daims, disputes, or other matters In question relating to services
<br />provided as a part of this Agreement, including for example, but not limited
<br />to, loss of business.
<br />22. Governing Law. This Agreement will be deemed to hove been made in St.
<br />Joseph County, Indiana and shall governed by and conspired In
<br />accordance with the laws of the State of Indiana.
<br />23. Consitlerations. The, successors, executors, adminishators, and legal
<br />representatNes of the Client and Abonmarche are hereby bound on to the
<br />other with respect To The covenants, Agreements, and obligatbns of This
<br />Agreement.
<br />24. Acts of God. Neither The talent nor Abonmarche will have any liability for
<br />nonperformance caused In whole or in part by causes beyond
<br />Abonmarche's reasonable conhd. Such causes include, but are not limited
<br />to, Acts of God, civil unrest and war, labor unrest and spikes, acts of
<br />authorfties, and events that could not be reasonably antidpated,
<br />25. Termination. Either the Client or Abonmarche may terminate this Agreement
<br />by giving Ten (10) days written notice to the other party. In such on event,
<br />the Client wAl pay Abonmarche In full for all work previously outhorzed an
<br />performed prior to the effective date of the termination, plus (at the
<br />discretion of Abonmarche) a termination charge to cover finalization of work
<br />necessary to bring ongoing work to a logical conclusion. Such charge will
<br />not exceed thirty (30) percent of all charges previously Incured. Upon
<br />receipt of such payment, Abonmarche will return to the Client all documents
<br />and Information that are the property of The Client.
<br />End of Agreement
<br />Amended 2/11/05 from
<br />City of South Bend's Legal Department
<br />Revised 05-15-03
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