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TERMS AND CONDITIONS Of PROFESSIONAL SERVICES AGREEMENT
<br />1. Agreement. T he C Rent m ay authorize Abonmarche t o pro teed with w ork
<br />either b y signing a Profession at Services Agree merit or by Issuing an
<br />acknowledgement. con(irmol6on. purchase order, or other communication.
<br />Regardless of the method used. these T erms and Con ditlons shat I be
<br />incorporated b y re ference and sha II p revolt as the basis of the Client's
<br />Agreement to Ab onmarche. Any C Rent datum ent or co mmunicatfon In
<br />addition to or in c onflict with T hews T erms and Condit Ions shat I be
<br />subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has t he op Lion T o render this Agreement nu II and
<br />void. I( It is not executed within thirty 130J dogs of delivery.
<br />3. Client Responsibilities. The C11en1 w ill pr ovide a II crlt erla a rid Inform atlon
<br />concerning the requirements of the Protect.
<br />4. Pertormance. The standard of care f or services performed by or provided by
<br />Abonmarche w 111 b e the care and skit I ordlnari ly use d by Abonm arche's
<br />profession practicing under similar circumstances of the same time and in the
<br />same locality.
<br />5. Hourly BIIIing Rates. Unless stipulated otherwise. the Cllentwlllcompensate
<br />Abonmarche at the cunent hourly billing rates, In pl ace when the services
<br />are provided by Abonmarche.
<br />b. Reimbursable Expenses. Reimbursable a xpenses, the ac lust cos is Incurred
<br />directly or Indirectly for the Client's ProJeci, will be charged at Abonmarche's
<br />cunent rates. Examples of in-house reimbursable expenses i nclude. bu t are
<br />not I Imlted to: m ileage, tests and an alyses, special equi pment services ,
<br />postage and d elivery c harges, telephone and telefax c harges, c opying.
<br />printing, and binding charges. Ou aside rei mbursable ex penses w III be
<br />charged on the basis of the actual costs times a fat for of t .15. Examples of
<br />outside ream burnable expenses Inc Jude, bu t are no t I Imited to: comm erclal
<br />transportation, Subconfractors, meals, lodging, special fees, licenses, permits,
<br />and outside technical or professional services.
<br />7. Additional Services. Additional services that may be provided pursuant to the
<br />Agreement or an y subsequent m odificatlon of the Agr Bement w 111 be
<br />authorized, w hen possible, by written a mendment signed o n beha If of the
<br />Client and Abonmarche. Additional services, performed by Abonmarche are
<br />subject to ai I T erms and Condl bons and 1 he Client w III be responslbl a for
<br />payment. Shaul d t he C Rent, regul story agent y, or any public body or
<br />Inspector direct modiFlcatlon or addition to work covered by this Agreement,
<br />the cost will be ad ded to the agreed price. Verbal requests for ex ha work
<br />should be made I n w riling via a c hhnge order, but none the I ens.
<br />Abonmarche Is entitled t o be paid for extra w ork provided w hehher I t Is in
<br />writing or not.
<br />8. Underground Shuctures or Buried Utilities. Abonmarche will use public utility
<br />location services w here avail able t o perorm this service . T he CI lent Is
<br />responsible for id entlflcatlon and location of al I pub Iic and prlva to burled
<br />structures on the Client's property and the ProJeci site, such as but not Ilmited
<br />to storage tanks and Ilnes, or gas, w ater, sewer, electrical, phone, cable, or
<br />any other public or private utilities. Abonmarche will take reasonable care to
<br />avoid such structures but will no 1 be respo risible f or accidental damage to
<br />utilities or structures that were not specifically or clearly located by the Client
<br />or for damages or losses claimed by third parties related hereto.
<br />9. Slie Access and Security. Wlih the excep flan of access righ is that I and
<br />surveyors are afforded by law, the Clleni will provide Abonmarche access t o
<br />ttre Protect site and the Clleni will be responsible for obtaining any necessary
<br />permission from any affec fed third pa rty grope rty ow Hers f or use of their
<br />lands. The Client Is solely responsible for site security.
<br />10. Subconhactors. Abonmarche may engage Subconfractor]s) on behalf of the
<br />Clleni to perform any portion of the services to be provided by Abonmarche.
<br />1 I . Opinions of Cost. Any opinions o f grab able c onsfructlon c osf and /or total
<br />protect cost provided by Abonmarche will be on the basis of experience and
<br />Judgment, but these are only estimates. Abonmarche does not wanant that
<br />bids o r u Itlmate c onsfrucflon o r total p roJect c ants w III n of v ary from s uch
<br />estimates.
<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 m agnetic media form . T he C (lent is au ihorized to use i he copies
<br />provided by Abonmarche only In connection with the Protect. Any other use
<br />or reuse b y the CI lent for any purposes whatever will be a 1 the CI tent's risk
<br />and full legal responsibility, without liability to Abonmarche and me Client will
<br />defend, inde mnify, and ho Id Abonm arche har miens from a II c lalms,
<br />damages. losses. and expenses, Inc luding a tiorney fees a rising out of or
<br />resulting there from.
<br />13. Electronic Media. Copies of data, reports, drawings, speclficatlons, and other
<br />materials furnlshe d by Abonm arche that may be re lied upon by the CI lent
<br />are limited to the printed copies ]also know n as hard cagiest that are
<br />delivered t o the CI lent pursuant to the services under t his Agreem Brit.
<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. An y el ecfronlc m edla provided under
<br />this Agreement to the Client are only for the convenience of the Client. Any
<br />conclusions or infor motion obtained or derived from such electronic files will
<br />be ai the user's sole risk.
<br />14. Bonds and PennMs. The Clleni will be re sponslble for the adoption of an y site
<br />access or righ 1 of way bonds that m ay be ini tinted on their behalf. A i
<br />completion of Ab onmarche's services. the Client will take responziblllty and
<br />pay any ongoing bond or permit costs for any bonded or permitted work.
<br />15. Third party Invoicing. If the Client directs Abonmarche to Invoice other party
<br />payers, Ab onmarche w III do so. bu t the CI Tent a green to be ul tlmately
<br />responsible for Abonm arche's co mpensation un 111 1 he C Rent provides
<br />Abonmarche w fah the third p arty's w ritten acceptance of all t erms of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />16. Stop Work. In add ltfon to any other r emedies Abon marche m ay have,
<br />Abonmarche will have the absolute right to cease performance of any basic
<br />a atldnional services In the event that payment is not made as provided or
<br />otherwise agreed.
<br />17. Legal Expenses. If either the Client or Abonmarche makes a c laim against
<br />the other arising out of this Agreement, the prevailing party will be entlfletl to
<br />recover reasonabl a expenses of INigafion. Intl uding reaso noble ai torney's
<br />fees. If Abonmarche brings a successful lawsuit against the Client to collect
<br />invoiced fees and expenses, the Client ag rees to pa y Abonm arche
<br />reasonable cdlection expenses. including attorney fees.
<br />16. Arbitaton. Any claims. counterclaims, disputes, and other matters In question
<br />between the parties arising out of or relating to the Agreement or the breach
<br />thereof will be sub miffed to Arbitration In the City of S outh Bend, Indiana In
<br />accordance w Bh the Ru les of the A merican Arblt radon Associa Tlon. The
<br />award of the Arbitrator will be trial and binding on i he parties. Judgm ent
<br />upon any award rendered may be entered in any court having Jurisdiction.
<br />19. Indemnity. Abonmarche wRl defend. Indemnify. and hold the Client harmless
<br />from any c Iaim, liability, or d etense c osf for InJu ry or I osz su stained b y any
<br />party from exposur es caused by Ab onmarche's neg Iigence or w Illful
<br />misconduct. CI lent agrees to defend, inde mnlfy, and ho Id Abonm arche
<br />harmless for any cl aim, liability, or d etense c osf for InJu ry or loss sustained by
<br />any party from exposures allegedly caused by Ab onmarche's performance
<br />of services hereunder. except f a injury or loss caused by the negligence or
<br />willful misconduct of Abonmarche.
<br />20. Consequential Damages. The Client and Abonmarche waive consequential
<br />damages for claims. disputes. or other matters {n question relating to services
<br />provided as a par t of this Agreement, Including for example, bu t not I imited
<br />to, loss of business.
<br />21 . Governing Law. This Agreement will be dee med to h ave been m ode in 51 .
<br />Joseph County. Indiana and shall govern by and construed in ac cordance
<br />with the laws of the State of Indiana.
<br />22. Considerations. The, successo rs, execu tors, adm Inlsfrators, and legal
<br />representatives of the Client and Abonmarche are hereb y bound on to the
<br />other w ith respec 1 to the coven ants. A greements, and obi igatlons o f this
<br />Agreement.
<br />23. Acts of God, Nelt her the Client nor Ab onmarche w ill have any I lability f or
<br />nonpertormance c aused In whole or In par t b y c cruses bey and
<br />Abonmarche's reasonable control. Such causes Inc Jude, but are not Ilmited
<br />to, Ac is of God civl I unrest and war, labor unrest and strikes, acts o f
<br />authorities, and events that could not be reasonably anilcipated.
<br />24. Termination. Either the Client or Abonmarche may terminate this Agreement
<br />by giving ten (la) days written notice To the other party. If Client terminates
<br />this Agreement, the Client will pay Abonmarche In fu II for al I work previously
<br />authorized an performed prior to the effective date of the termination, plus
<br />(at the discretion of Abonm arche) a termination charge to cover Flnalizailon
<br />of w ork necessary to bring on going w ork to a I ogicat co nclusion. Such
<br />charge will not exceed t hirty (30) percent of al I charges previously incurred.
<br />Upon recelp t o f such pay merit, Abon marche will ref um to the CI tent al I
<br />documents and information that are the property of the Client.
<br />End of Agreement
<br />Reviewed by City of South Bend Legal Department
<br />03/08/06
<br />COSB Reviewed 03/08/06 Page 2 of 2
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