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TERMS AND CONDITIONS Of PROFESSIONAL SERVICES AGREEMENT
<br />1. Agreement. T he C Bent m ay ou thorize Abonmarche t o pro ceed with w ork
<br />either b y signing a Profession al Services Agree ment or by issuing on
<br />acknowledgement, confirmation. purchase order, or other communication.
<br />Regardless of the method used, these T erms and Con ditions shat I be
<br />Incorporated b y re ference and sho II p revall as the basis of the Client's
<br />Agreement to Ab onmarche. Any C (lent docum ent or co mmunication in
<br />addition to or In c onfiict with t heses T erms and Condit Ions shat I be
<br />subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has t he op, tlont o render this Agree ment nu II and
<br />void, If It Is not executed within thirty (30) days of delivery.
<br />3. Client Responsibilities. The Client w 11 pr ovide a II Grit eda a nd Inform atlon
<br />concerning the requirements of the Project.
<br />4. Performance. The standard of care for services performed by or provided by
<br />Abonmarche w III b e the care and skit I ordlnad ly use d by Abonm arche's
<br />profession practicing under similar circumstances at the some time and In the
<br />same locality.
<br />S. Hourly Billing Rates. Unless stipulated otherwise, the Client will compensate
<br />Abonmarche a t the curen It houd y bl Iling ra tes, In pl ace w hen the services
<br />are provided by Abonmarche.
<br />6. Reimbursable Expenses. Reimbursable expenses, the ac tual cosh incurred
<br />directly or Indirectly for the Client's Project, will be charged at Abonmarche's
<br />current rates. Examples of In -house reimbursable expenses Include, but are
<br />not I imlted to: m fleage, tests and an alyses, special equl pment services
<br />postage and d elivery c harges, telephone and telefax c harges, c opying,
<br />printing, and binding charges. Ou tslde rel mbursable ex penses w iII be
<br />charged on the basis of the actual c osts times a fac for of 1.15. Examples of
<br />outside reim bursable expenses Inc Jude, bu 1 are no t I imlted to: Comm erciai
<br />transportation, Subcontractors, 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 ociffication of the Agr eement w III be
<br />authorized, when possible, by written amendment signed o n behalf of the
<br />Client and Abonmarche. Additional services, performed by Abonmarche are
<br />subject to of I T erns and Condi bons and t he Client w III be responsibl a for
<br />payment. Shout d t he C lient, regul story agenc y, or an y public body or
<br />Inspector direct modification or addition to work covered by This Agreement,
<br />the cost will be ad ded to the agreed price. Verbal requests for ex tro work
<br />should be made i n w riling via a c hange order, bu t none the I ess,
<br />Abonmarche is entitled to be paid for extra w ork provided w hether 1 t is in
<br />writing or not.
<br />8. Underground Structures or Buried Utilities. Abonm arche will use pub llcutility
<br />location services w here ovoll able t o perform this service . T he Cl lent Is
<br />responsible for Id entificotioh and location of at I pub lic and priva to burled
<br />structures on The Client's property and the Project site, such as but not limited
<br />to storage tanks and lines, or gas, w oter, sewer, electrical, phone, cable, or
<br />any other public or private utilities. Abonmarche will take reasonable care to
<br />avoid such st ructures but will not be respo nsible for 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. Site Access and Security. With the excep lion of access righ is that I and
<br />surveyors are afforded by law, the Client will provide Abonmarche access t o
<br />the Project site and the Client will be responsible for obtaining any necessary
<br />permission from any offec led third pa rty prope rty ow ners f or use of their
<br />lands. The Client is solely responsible for site security.
<br />10. Subcontractors. Abonmarche may engage Subcontractors) on behalf of the
<br />Client to perform any portion of the services to be provided by Abonmarche.
<br />11. Opinions of Cost. Any opinions o f prob able c onstruction c ost and /or total
<br />project cost provided by Abonmarche will be on the basis of experience and
<br />judgment, but these are on ly estimates. Abonmarche does not warrant that
<br />bids o r u Itimate c onstructlon o r total p roject c osts w ill 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 Bent is au thorized to use t he copies
<br />provided by Abonmarche only in connection with the Project. Any other use
<br />or reuse by the Client for any purposes whatever will be at the Client's risk
<br />and full legal responsibility, without liability to Abonmarche and the Client will
<br />defend, Inde mnffy, and no Id Abonm arche hor mless from a 11 c laims,
<br />damages, losses, and expenses, Inc luding a ttomey fees a rising ou t of or
<br />resulting there from.
<br />13. Electronic Media. Copies of data, reports, drawings, specifications, and other
<br />materials fumishe d by Abonm arche that m ay be re lied upo n by the Cl lent
<br />are limited to the printed copies (also know n as hard copies) that are
<br />delivered t o the Cl lent pursuan t to the services under t his Agreem ent.
<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 />on amendment to this Agreement. Any el ectronic media provided under
<br />this Agreement to the Client are only for the convenience of the Client. Any
<br />conclusions orinformotion 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 righ t of way bonds that m ay be IN Tlated on their behalf. A t
<br />completion of Abonmarche's services, the Cl lent will take responsibility 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 Cl lent a grees to be ul tlmately
<br />responsible for Abonm arche's co mpensatlon un ill t he C (lent provides
<br />Abonmarche w tth the third p arty's w ritten accep tone of all t erns of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />16. Stop Work. In add ition to any other r emedles Abon marche m ay have,
<br />Abonmarche will have the absolute right to cease performance of any basic
<br />or additional services In T he event that payment Is no t made as provided or
<br />otherwise agreed.
<br />17. Legal Expenses. If either the Client or Abonmarche- makes ac balm against
<br />the other arising out of this Agreement, the prevailing party will be entitled to
<br />recover reasonobt a expenses of litigation, Inc[ uding reaso noble attorney'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 collection expenses. Including attorney fees.
<br />18. Arbitration. Any claims, counterclaims, disputes, and other matters in question
<br />between the parties arising out at 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 Ith the Ru les of the A medcon Arbit ration Associa Bon. The
<br />award of the Arbitratorw01 be final and binding on t he parties. Judgm ent
<br />upon any award rendered may be entered In any court having jurisdiction.
<br />19. Indemnity. Abonmarche will defend, Indemnity, and hold the Client harmless
<br />from any c lalm, liability, or d efense c ost for inju ry or I ass su stained b y any
<br />party from exposur es caused by Ab onmarche's neg ligence or w Illfui
<br />misconduct. Cl lent agrees to defend. Inde mnffy, and ho Id Abonm arche
<br />harmless for any ci aim, liability, or of efense cost for inju ry or loss sustained by
<br />any party from exposures allegedly caused by Abonmarche's performance
<br />of services hereunder, except for 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 in question relating to services
<br />provided as a par t of this Agreement. Including for exam pie, but not limited
<br />to, loss of business.
<br />21. Governing Law. This Agreement will be dee med to have been m ade in St.
<br />Joseph County, Indiana and sholi govem by and construed In ac cordance
<br />with the laws of the State of Indiana.
<br />22. Considerations. The, successo rs, execu tors, adm inistrators, and legal
<br />representatives of the Client and Abonmarche are hereby bound on to the
<br />other w ith respec t to the coven ants, A greements, and obi igatlons o f this
<br />Agreement.
<br />23. Acts of God. Nett her the Client nor Ab onmarche w III have any I lability f or
<br />nonperformance c oused In whole or in par t b y c cruses bey and
<br />Abonmarche's reasonable control. Such causes Inc Jude, but are not limited
<br />to, Ac is of God , civi I unrest and w or, labor unrest and strikes, acts o f
<br />authorities, and events that could not be reasonably anticipated.
<br />24. Termination. Either the Client or Abonmarche may terminate this Agreement
<br />by giving ten (10) days written notice to the other party. If Client terminates
<br />this Agreement, the Client will pay Abonmarche In full for ail work previously
<br />authorized an performed prior to the effective date of the termination, plus
<br />(at the discretion of Abonmarche) a termination charge to cover finalization
<br />of w ork necessary to bring on going w ork to a 1 oglcal co nclusion. Such
<br />charge will not exceed thirty (30) percent of all charges previously incurred.
<br />Upon recelp t o f such pay ment, Abon marche will ret um to the Cl lent at 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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