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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />1. Agreement. These Terms and Conditions shall be incorporated by reference and
<br />shall prevail as the basis of the Client's Agreement to Abonmorche. Any Client
<br />document or communication in addition to or in conflict with these Terms and
<br />Conditions shall be subordinate and subject to these Provisions.
<br />2. Execution. Abonmorche has the option to render this Agreement null and void, i
<br />9 it is not executed within thirty (30) days of delivery.
<br />3. Client Responsibilities. The Client will provide all criteria and information
<br />concerning the requirements of the Project. The Client will assume responsibility
<br />for interpretation of contract documents and for construction observation and I
<br />will waive all claims against Abonmorche that may be in any way connected,
<br />unless Aborlmorche's services under this Agreement include full-time
<br />construction observation or review of contractor's performance.
<br />4. Performance. The standard of care for services performed by or provided by
<br />Abonmorche will be the core and stall ordinarily used by Abonmorche's 1
<br />profession practicing under similar circumstances at the same time and in the
<br />some locality. Abonmorche makes no warranty, expressed or implied, with
<br />respect to any services provided by Abonmarche. Abonmarche will not be
<br />liable for any claim, damages, cost, or expense (including attorney's fees) or
<br />other liability or loss not directly and solely caused by the negligent acts, errors,
<br />or omissions of Abonmarche.
<br />5. Hourly BBMng Rates. if payment is on on hourly rate, Client will pay Abonmarche
<br />at the current hourly billing rates. The hourly rates are adjusted annually or as
<br />deemed appropriate. 1
<br />6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmorche's 1
<br />current rates. Examples of reimbursable expenses include, but are not limited to:
<br />mileage, tests and analyses, special equipment services, postage and delivery
<br />charges, telephone and telefox charges, copying, printing, and binding
<br />charges, commercial transportation, meals, lodging, special fees, licenses, and
<br />permits. Subconsulfont and outside technical or professional services will be
<br />charged on the basis of the actual costs times a factor of 1.15.
<br />7. Additional Services. Additional services that may be provided pursuant to the
<br />Agreement or any subsequent modification of the Agreement will be
<br />authorized, when possible, by written amendment signed on behalf of the Client
<br />and Abonmarche. Additional services, performed by Abonmarche are subject 2
<br />to all Terms and Conditions and the Client will be responsible for payment.
<br />Should the Client, regulatory agency, or any public body or inspector direct
<br />modification or addition to services covered by this Agreement, the cost will be
<br />added to the agreed price. Requests for extra services should be made in
<br />writing via a change order, but none the less, Abonmarche is entitled to be paid
<br />for extra services provided whether or not if is in writing.
<br />S. Underground Structures or Buried Utilities. The Client is responsible for
<br />identification and location of all public and private buried structures on the
<br />Client's property and the Project site, such as, but not limited to, storage tanks
<br />and lines, or gas, water, sewer, electrical, phone, cable. or any other public or
<br />private utilities. It is agreed that Abonmorche a not responsible for accidental
<br />damage to utilities or underground structures, whether known, unknown or
<br />improperly located. The client shall be responsible for design fees if changes are 2
<br />necessary. Utility locating or marking services provided by Aborunarche are not
<br />substitutes for complying with the utility owner notification requirements or the
<br />locating services (811 systems) required prior to an excavation. Utilities shown as
<br />located by ground penetrating radar are approximate only. No excavation
<br />took place to verify the positions shown or to verify the type of utility (except as 2
<br />noted). Careful excavation is required for verification of the buried utility. The
<br />owner or customer assumes the risk of error and the actual location of the
<br />underground utility. Abonmarche is not providing any certificatlon or guarantee
<br />regarding the exact location of any underground utility.
<br />9, Underground Conditions. Abonmarche shag have no responsibility for the
<br />identification of existing or unforeseen /differing underground conditions. The
<br />Contractor shag have sole responsibility for determining the nature of
<br />underground conditions and the means and methods of dealing with those 2
<br />conditions. Abonmarche is entitled to rely upon the Information provided by
<br />geotechnical consultants and shag have no responsibility for the accuracy or
<br />correctness of the data contained in the geotechnical reports.
<br />iO.Site Access and Security. With the exception of access rights that land surveyors
<br />are afforded by law, the Client will provide Abonmorche access to the Project
<br />site and the Client will be responsible for obtaining any necessary permission
<br />from any affected ihird party property owners for use of their lands. The Client ls
<br />solely responsible for site security.
<br />Abonmarche, unless specifically stated otherwise in an amendment to this
<br />Agreement. Any electronic media provided under this Agreement to the Client
<br />are only for the convenience of the Client. Any conclusions or information
<br />obtained or derived from such electronic toes will be at the user's sole risk.
<br />5.Bonds and Permits. The Client will be responsible for the adoption of any site
<br />access or right of way bonds that may be initiated on their behalf. At
<br />completion of Abonmarche's services, the Client will take responsibility and pay
<br />any ongoing bond or permit costs for any bonded or permitted services.
<br />6.Third party Invoicing. If the Client directs Abonmorche to invoice third party
<br />payers, Abonmarche will do so, but the Client agrees to be ultimately
<br />responsible for Abonmarche's compensation until the Client provides
<br />Abonmorche with the third party's written acceptance of ail terms of this
<br />Agreement and until Abonmorche agrees to the substitution.
<br />].Third Party Beneficiaries. Nothing contained in this Agreement shall create a
<br />contractual relationship with or a cause of action in favor of a third party
<br />against either the Client or Abonmarche. Abonmorche's services under this
<br />Agreement ore being performed solely for the Client's benefit, and no other
<br />party or entity shall have any claim against Abonmorche because of this
<br />Agreement or performance or nonperformance of services hereunder. The
<br />Client and Abonmarche agree to require a similar provision in all contracts with
<br />contractors, subcontractors, subconsultants, vendors and other entities involved
<br />in this Project to carry out the intent of this provision.
<br />8.Suspension of Services. In the event of non - payment by Client, Abonmarche
<br />will hove the absolute right to cease performance of any services.
<br />9.Contractor's Work: Abonmarche shag have no authority to direct or control the
<br />Work of the Contractor or to stop the Work of the Contractor. Abonmorche shall
<br />not be liable to any party for the failure of the Contractor to perform the Work
<br />consistent with the Plans and Specifications and applicable Codes and
<br />Regulations. Abonmarche shall have no responsibility or be liable for safely
<br />Procedures of the Contractor or its subcontractors.
<br />20.Consequential Damages. The Client and Abonmorche wave consequential
<br />damages for claims, disputes, or other matters in question relaying to services
<br />provided as a part of this Agreement, including for example, but not limited to,
<br />loss of business.
<br />(.Governing Law. This Agreement will be deemed to hove been made in St.
<br />Joseph County, Indiana and shag be governed by and construed in
<br />accordance with the laws of the State of Indiana.
<br />22.Venue. The parties (a) irrevocably submit to the jurisdiction of any Indiana court
<br />sitting in St. Joseph County, Indiana in any action arising out of this agreement,
<br />and (b) waive, to the fullest extent that they may effectively do so, the defense
<br />of on Inconvenient forum. The parties also agree that a final judgment in any
<br />such action shag be conclusive and may be enforced in other jurisdictions by
<br />suit on the judgment, or in any other manner provided by law.
<br />23.Considerations. The successors, executors, administrators, and legal
<br />representatives of the Client and Abonmarche are hereby bound onto the
<br />other with respect to the covenants, Agreements, and obligations of this
<br />Agreement.
<br />4.Acts of God. Neither the Client nor Abonmorche will have any liability for
<br />nonperformance caused in whole or in part by causes beyond Abonmarche's
<br />reasonable control. Such causes include, but are not limited to, Acts of God,
<br />civil unrest and war, labor unrest and strikes, acts of authorities, and events that
<br />could not be reasonably anticipated.
<br />S.Termination. Ether the Client or Abonmarche may terminate this Agreement by
<br />giving ten (10) days written notice to the other party. In such an event, the
<br />Client will pay Abonmarche in full for of services previously authorized and
<br />performed prior to the effective date of the termination. plus (ail the discretion
<br />of Abonmarche) a termination charge to cover finalization of services necessary
<br />to bring ongoing services to a logical conclusion. Upon receipt of such
<br />payment, Abonmarche will return to the Client ail documents and information
<br />that ore the property of the Client.
<br />6.Entire Agreement. This Agreement contains the entire agreement between the
<br />parties and there are no agreements, representations, statements, or
<br />understandings which have been relied on by the parties which are not slated
<br />in this Agreement.
<br />End of Agreement.
<br />I ].Consultants. Abonmarche may engage Consultants at the request of the Client Reviewed by City of South Bend Legal Department 05/04/2011.
<br />to perform services which are typically the Client's responsibl'IAy, such as surveys,
<br />geotechnical and environmental ossessments. The Client agrees that
<br />Abonmorche will not be responsible for, or in any manner guarantee, the
<br />performance of services by the Consultants. The Client agrees that
<br />Abonmarche will not be gable for any claim, liability, or defense tort for injury or
<br />loss sustained by any party allegedly caused by the Consultants' negligence or
<br />willful misconduct.
<br />12.0pinfons of Cost. Any opinions of probable construction cost and /or total
<br />project cost provided by Abonmarche will be on the bas's of experience and
<br />judgment, but these are any estimates. Abonmarche does not warrant that bids
<br />or ultimate construction or total project costs will not vary from such estimates.
<br />13.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. The Client is authorised to use the copies
<br />provided by Abonmorche only in connection with the Project. Any other use or
<br />reuse by the Client for any purposes whatever will be at the Client's risk and full
<br />legal responsibility, without Iiability to Abonmorche and the Client will defend,
<br />indemnify, and hold Abonmorche harmless from all claims, damages, lasses,
<br />and expenses, including attorney fees arising out of or resulting there from.
<br />14.Eectronic Media. Copies of data, reports, drawings, specifications, and other
<br />materials fumbshed by Abonmorche that may be relied upon by the Client are
<br />limited to the printed copies (also known as hard copies) that are delivered to
<br />the Client pursuant to the services under this Agreement. Computer ties of text,
<br />data, graphics, or of other types of electronic media are the sole possession of
<br />COSB reviewed 05 -0411 Page 2 of 2
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