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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />I . Agreement. These Terms and Conditions shall be Incorporated by reference and
<br />shall prevail as the basis of the Client's Agreement to Abonmarche. Any Client
<br />document or communication in addition to or In conflict with these Terms and
<br />Conditions stall be subordinate and subject to these previsions.
<br />2. Execution. Abanmorche has the option to render this Agreement null and void, 1
<br />If 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 documenis and for construction observation and 1
<br />will %&oive all claims against Abonmorche that may be in any way connected,
<br />unless Abonmarche's services under this Agreement include full -time
<br />construction observation or review W contractor's performance.
<br />4. Performance. The standard of care for services performed by or provided by
<br />Abonmarche will be the care and skill ordinarily used by Abonmarche's 1,
<br />profession practicing under similar circumstances at the some time and in the
<br />some locality: Ab- onmarche makes no warranty, expressed or implied, with
<br />respect to any services provided by Abonrmache. 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 B" Rates. If payment is on an hourly rate, Client wig pay Abonmarche
<br />at the current hourly biAing rates. The hourly rates are adjusted annually or as
<br />deemed appropriote.
<br />6. Relmbufsoble Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmarohe's i
<br />current rates. Examples of reimbursable ewpenAS Include, but are not limited to:
<br />moeoge, tests and analyses, special equipment services, postage and delivery
<br />charges, telephone and telefax charges, copying, printing, and bindirvg
<br />charges, commercial transportation, meals, lodging, special fees, licenses, and
<br />permits. Subconsultonl and outside technical or professional services 'evill bP
<br />charged on the basis of the actual costs times a foOCA of 1.15.
<br />7. Additional $eMces. Additional services that may be provided pursuant to the
<br />Agreement or any subsequent modification of the Agreement will be
<br />outtrorized. when possible, by written amendment signed on behalf of the Client
<br />and Abonmorche. 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 />m�dificolion 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 'a a change order, but none the less, Abonmarche is entitled to be paid
<br />for extra services provided whether or not it is to writing.
<br />8. Underground Structures or hided URIRfes. 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, :Able, or any other public or
<br />prnaie utilities. If is agreed that Abonmarche is 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 Abonmarche are not
<br />substitutes for complying w th the utility owner notification requirements a the
<br />locating services (81 I systems) required prior to an excavation. Utilities shown as
<br />located by ground penetrating rocky are approximate only. No ex ^ovation
<br />took place to verify the positions shown or to verify the typo of utility (except os 2
<br />noted). Careful excavation is required for verification of the buried utilily. 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 utility.
<br />9. Underground Conditions. Abonmarche shall have no responsibility for the
<br />identification of existing or unforeseen /diftering underground conditions. The
<br />Contractor shall have safe responsibility for determining the nature of
<br />underground conditions and the means and methods of dealing with those 2
<br />conditions. Abonmarche 's entitled to rely upon the information provided by
<br />geolechnlcal consultants and stag have no responsib0ity for the accuracy or
<br />correctness of the data contained in the geotechnicol reports.
<br />10.31te Access and Security. With the exception of access rights that land surveyors
<br />are off rded by law, the Client will provide Abonmarche access to the Project
<br />site and the Client wig be responsible for obtaining any necessory permission
<br />from any affected third party property owners for use of their lands. The Client is
<br />Abonmarche, unless specifically- state =j otherwise In an amendment io the
<br />Agreement. Any electronic mF -die 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 flies will be at the user's sole 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 cn their behalf. At
<br />completion of Abonmarche's Fenvice,, the Client will take responsibility and pay
<br />any ongoing bond or permit costs for any bonded a permitted services.
<br />6.TWrd party Imroldrig. If the Client directs Abonmarche to irnvrtce third party
<br />payers, Abonmarche will do so. but the Client agrees to be ultimately
<br />responsible for Abonmarche's compensation unto the Client provides
<br />Abonmorche with the third party's written acceptance of all terms of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />'.Third Party tieiraff rtes. Nothing contained in this Agreement shall create a
<br />contractual relationship with or a cease 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 />Client and Abonmarche agree to require a similar provision in oil contracts with
<br />contractors, subcontractors, subconsuftonts, vendors and other entities involved
<br />in this Project to carry out the intent of ties provision.
<br />B,Suspension of SerAces, In the event of iron- payment by Client, Abonmarche
<br />will have the absolute right to cease performance of any, services.
<br />S. Confraetar's Wodc Abonmarche shall 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 foaure 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 a be liable for safety
<br />procedures of the Contractor or its subcontractors,
<br />20.Corwquentiot Damages, The Client and Abonmarche waive consequential
<br />damages for claims, disputes, or other matters in question relating to services
<br />provided as o part of this Agreement, including for example, but not limited to,
<br />Icss of business.
<br />(.Governing Low. This Agreement will be deemed to have been made in St.
<br />Joseph County, Indiana and stroll be govemed 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 (bj waive, to the fullest extent thot 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 concl&ve and may be enforced in other jurisdictions by
<br />suit on the judgment, or in any other manner provided by law.
<br />23.Conslderations. The successors, executors, administrators, and legal
<br />representatives of the Client and Abonmarche ore hereby bound onto the
<br />other with respect to the covenants, Agreements, and obligations of this
<br />Agreemeni.
<br />4.Acts of God. Neither the Client nor Abonmarche wilt have any ][ability for
<br />nonperformance caused in whole or in Fart by causes beyond Abonmorche'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 onticip=.Aed.
<br />S.Termination. Either the Client a Abonmarche may terminate this Agreement by
<br />giving ten (10) days written notice to the other porn. In such on 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. plus (at the dscreiion
<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 all documents and information
<br />that are the property of the Client.
<br />6.EaRre Agreement. This Agreement contains the entire agreement between the
<br />parties and there are no agreements, representotions, statements. or
<br />understandings which hole been relied on by the parties w'h-ch ore not stated
<br />in this Agreement.
<br />End of Agreement.
<br />solely responsible for site secuniy.
<br />1 I.ConsuNonh. Abonmarche may engage Consultants at the request of the Client Reviewed by City of South Bend Legal Department 5/4/11
<br />to perform services which are typically the Client's responsibility, such as surveys.
<br />geotechnical and environmental assessments. The Client agrees that
<br />Abonmarche will not bEe responsible for, or in any manner guarantee, the
<br />performance of services by the Consultants. The Client agrees that
<br />Abonmarche will not be liable for ony claim, liability, or defense cost for injury or
<br />loss sustained by any pity, allegedly caused by the Consultants' negligence or
<br />willful misconduct.
<br />12.0pkAons of Cost- Any opinions of probable construction cost and /or total
<br />project cost provided by Abonmarche will be on the bosis of experience and
<br />judgment, but these are only estimates. Abonmarche does not warrant that bids
<br />ar ultimate construction of total project costs will not vary from such estimates.
<br />13.0wnershlp 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 authorized to use the copies
<br />provided by Abonmarche 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 fug
<br />legal responsibility, without liability to Abonmarche and the Client will defend,
<br />Indemnity, and told Abonmarche harmless from oil claims. damages, losses,
<br />and expenses, including attorney fees arising out of or resulting there from.
<br />14.115echonlc Media. Copies of data, reports, drawings, specifications, and other
<br />materials furnished by Abonmarche that may be retied 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 ma6o are the sole possession of
<br />Revised 5 -4 -11 ,Page 2 of 2
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