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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />1, Agreement. These Tema and Conditions shall be Incorporated by reference and
<br />shall prevail as the basis or the Client's Agreement to Abonmarche. Any Client
<br />document or commuricotion 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,
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<br />If It is not executed within thirty (30) days of delivery.
<br />3. Client Responsibilities. The Client wit provide all criteria and information
<br />concerning the requirements of the Project. The Client YAP assume responsibility
<br />for Interpretation of contract documents and for construction observation and
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<br />will waive al claims against Abonmarche that may be in any way connected,
<br />unless Abonmarche'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 />Abonmarche will be the ogre and skip ordinarily used by Abonmarche's
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<br />profession pracidng under similar circumstances at the some time and In the
<br />some locally. Abonmarche makes no warranty, expressed or implied, with
<br />respect to any services provided by Abonfnarche. Abonmarche will not be
<br />liable for any claim, damages, cost, or expense (Wrckxing attorney's fees) or
<br />other liability or loss not cirecty and solely cawed by the negligent acts, errors,
<br />or omissions of Abonmarche.
<br />5. Hourly Killing Rates. It payment Is on an hourly rate, Client will pay Abonmarche
<br />ai the current hourly biting rates. The hourly rates ore adjusted annually or as
<br />deemed appropriate.
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<br />6. Reimbursable Expenses. Reimbursable expenses, the octuol costs Incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmarche's
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<br />current rotes. Examples of reimbursable expenses Include, but are not limned 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. Subconsuiant and outside technical or professional services will be
<br />charged on the basis of the actual costs times a factor of 1.15.
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<br />7. Additional Services. Additional services that may be provided pursuant to the
<br />Agreement or arty 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
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<br />to all Terms and Conditions and the Client will be responsible for payment.
<br />Should the Client, regulatory agency, or any pubic body or inspector direct
<br />modification or addition to services covered by this Agreement, the cost will be
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<br />added to the agreed price. Requests for extra services shovid be made In
<br />wilting via a change order, but none the less, Abonmarche Is entitled to be paid
<br />for extra services provided whether or not R is in writing.
<br />8. Underground Structures a Burled WmRes. The Client is responsible for
<br />identification and location of of pubic and private buried structures on the
<br />Client's property and the Project slue, such as, but not limited to, storage torks
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<br />and Ines, or gas, water, sewer, electrical, phone, cable, or any other pubic a
<br />private utilities. U Is agreed that Abonmarche ls not responsible for accidental
<br />damage to utilities or underground structures, whether known, unknown or
<br />improperly located. The ciend shall be responsible for design fees if changes are
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<br />necessary. Utility locating or marking services provided by Abonmarche ore not
<br />substitutes for complying with the utility owner notification requirements or the
<br />locating services (811 systems) required prior to an excavation. Unities shown as
<br />located by ground penetrating radar are approximate only. No excavation
<br />took place to verify the positions shown or to verity the type of utility (except as
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<br />noted). Careful excavation is required for verification of the buried Witty. The
<br />owner or customer assumes the risk of error and the actual location of the
<br />underground utility. Abonmarche is not providing any certification or guarantee
<br />regarding the exact location of any underground utilty.
<br />9. Underground Conditions. Abonmarche shall have no responsibility for the
<br />identification of existing or unforeseen /differing underground conditions. The
<br />Contractor shall have 3010 responsibility for determining the nature of
<br />underground conditions and the means and methods of deaing with those
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<br />conditions. Abonmarche Is entitled to rely upon the information provided by
<br />geotech nIcal consultants and shall have no responsibility for the accuracy or
<br />correctness of the data contained In the geotechniccl reports.
<br />IO.Ah Access and Security. With the exception of access rights that land surveyors
<br />are afforded by law, the Client wig provide Abonmarche access to the Project
<br />site and the Client will be responsible for obtaining any necessary permission
<br />from any affected third party property owners for use of their lards. The Client is
<br />solely reaporsibie for site security.
<br />Abomtarche, unless specifically staled otherwise In an amendment to this
<br />Agreement. Any electronic media provided under this Agreement to the Client
<br />are any for the convenience of the Client. Any conclusions or information
<br />obtained or delved from such electronic flies will be at the user's sale risk.
<br />S. 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 wig take responsibility and pay
<br />any ongoing bond or permit costs for any bonded or permitted services.
<br />6.Thkd party Invoicing. If the Client directs Abonmarche to Invoice third party
<br />payers, Abonmarche wit do so, but the Client agrees to be ultimately
<br />responsible for Abonmarche's compensation until the Client provides
<br />Abonmarche with the third party's written acceptance of all terms d this
<br />Agreement and until Abonmmarche agrees to the substitution.
<br />7.Third PeMy 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. Abonmarche's services under this
<br />Agreement are being performed solely for the Client's benefit, and no other
<br />party or entity shall have any claim against Abonmarche because of this
<br />Agreement or performance or nonperformance of services hereunder. The
<br />Chant and Abonmarche agree to require a similar provision in all contracts with
<br />contractors, subcontractors, subcorsuiants, vendors and other entities Involved
<br />In this Project to carry out the intent of this provision.
<br />.Suspension of Services, In the event of non - payment by Client, Abonmarche
<br />will have the absolute right to cease performance of any services.
<br />.CordracWs Work: Abonmarche shall have no authority to direct or control the
<br />Work of the Contractor or to stop the Work of the Contractor. Abonmarche shall
<br />not be gable to any parry for the failure of the Contractor to perform the Work
<br />consistent with the Plans and Specificaions and applicable Codes and
<br />Regulations. Aborvnorche shall have no responsibility or be liable for safety
<br />procedures of the Contractor or its subcontractors.
<br />.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 part of this Agreement, including for example, but not limited to,
<br />loss of business.
<br />.Governing low. This Agreement will be deemed to have been made In St.
<br />Joseph County, Indiana and shall be governed by and construed In
<br />accordance with the laws of the State of Indiana.
<br />.Venue. The patios (a) Irrevocably submit to the Junction 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 an Inconvenient forum. The parties also agree that a final judgment In any
<br />such action shall be conclusive and may be enforced in other Jurisdictions by
<br />suit on the judgment, or in any other manner provided by taw.
<br />Considerations. The successors, executors, administrators, and legal
<br />representatives of the Client and Abormarche are hereby bound onto the
<br />other With respect to the covenants, Agreements, and obligations of itis
<br />Agreement.
<br />Acts of God. Neither the Client nor Abonmorche will have any lability for
<br />nonperformance caused in whole or in part by causes beyond Abonmarche's
<br />reasonable control. Such causes include, but are not Ilmied to, Acts of God,
<br />civil unrest and war, labor unrest and strives, acts of authorities, and events that
<br />could not be reasonably anticipated.
<br />Termksaion. Ether the Client or Abonmorche may terminate thrs 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 all services previously authorized and
<br />performed prior to the effective date of the termination, pus (at the discretion
<br />of Abonmorche) a termination charge to cover finolaation of services necessary
<br />to bring ongoing services to a logicat conclusion. Upon receipt of such
<br />payment, Abonmarche will return to the Client all documents and information
<br />that are the property of the Client.
<br />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 stated
<br />in this Agreement.
<br />End of Agreement.
<br />11. 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 responsibility, such os surveys,
<br />geotechnical and environmental assessments. The Client agrees that
<br />Abonmarche 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, liabiiy, or defense cost for injuy or
<br />loss sustained by any party allegedly caused by the Consultants' negligence or
<br />willful misconduct.
<br />12.Opksfons of Cod. 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 warrant that bids
<br />or ultimate construction or told project costs wig not vary from such estimates.
<br />13.0wnership of Work Product. Abonmarche will remain the owner of oil original
<br />drawings, reports, and other materials provided to the Client, whether In hard
<br />copy or magnetic media form. The Client is authorized to use the copies
<br />provided by Abonmorche only in corrwwtion with the Project. Any other use or
<br />reuse by the Client for any purposes whatever will be at the Client's risk and fug
<br />legal responsibility, without gabiity to Abonmarche and the Client ail defend,
<br />indemnify, and hold Abonmarche harmless from all claims, damages, losses,
<br />and expenses, Including attorney fees arising out of or resulting there from.
<br />14_111ectronic Nledlo. Copies of data, reports, drawings, specifications. and other
<br />materials furnished by Abonmarche that may be relied upon by the Client are
<br />limited to the printed copies (also known as lard copies) that ore deiwered to
<br />the Client pursuant to the services under this Agreement. Computer Has of text.
<br />data, graphics, or of other types of electronic medfo are the sole possession of
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