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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />I. Agreement._ These Terms and Conditions sholl be ircorporoted by reference and
<br />shall prevail os the basis of the Client's Agreement to Abonmarche. Any Client
<br />document or communication in addition to or in conflict with fiese Terms aria
<br />Conditions shall be subordinate and subject to these pravKons.
<br />2. Execution. Abonmarche has the option to render this Agree :nenl nul and void.
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<br />if It is not executed v, thin thirty (3C) dry; of delivery.
<br />3. Client ResponsibW fes. The Client vv:ll provide of aderia and information
<br />ec :ncerning the requirements of ine Project. The Client c ill assume responsibility,
<br />for interpretation of contract documents and for construction of:en,allon anc
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<br />will wot.e all c�oims against Abonmarche that may be In any woy conne_ted.
<br />unless Atxrtmorche's services under this Agreement 'include lull -time
<br />constructien cbser: c ion cr riiii of contractor's performori
<br />4. Pedormance. The standard of care for services performed by or provided by
<br />Abonmarche ••;ill bi the care and skill ordinarily used by Abcnmorche's
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<br />profession practicing under similar crcumstances of the same time aruJ in the
<br />some Iccolity. ALortmorche makes no 'worranty, expressed or implied, with
<br />respe ^_t to an' services provided by Abonmarche. Abonmarche 41 not be
<br />liable for any claim, damages, cost, or expense (including attorney's fees; a
<br />other liohility or loss not directfy and safe;; coined try the negligent acts, errors,
<br />or omlssiorc of Abonmarche.
<br />5. Hourly Billing Rates. If payment is on on hourly rote, Client v.ill pay J.bonmarche
<br />at the current hourly billing rates. The hourly rates are adjusted annually- or as
<br />deemed appropriate.
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<br />6. Reimbursable Expenses. Reimbursobie expenses, the ocluol costs incurrerJ
<br />directly or indirectly for the Client's Project. MR be charged at Abonmarche's
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<br />current rates. Exomples of reimbucable a pensers include, but are not limited lo:
<br />mieager, tests and analyses. special equipment services. postage and deli„ety
<br />charges, telephone and lelefox char ,.,. ^;es, copyino, priniin ^, and binding
<br />charges, commercial transportation, meals, lodging. ••pecial fees, licenses, and
<br />permits. Subcensultont and outside technical or professional services Y:il1 be
<br />charged on the basis of the actual costs times a (actor of 1.15.
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<br />7. Additional Services. Addifiinal services that may be provide -d purst,am to the
<br />Agreement or any svhsegvenl modlficalion of the Agreement will be
<br />aulhorized, ,.vh n passible, by v:rifter) amendment signed or behalf cf the Client
<br />and Abonmarche. nddilional setvk•es, p rormed by Abonmarche are wbiect
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<br />to all Terms and Conditions and the Client will be responsible for payment.
<br />Should the Client, regulator; agency. or am public c -7d': or inspector duvet
<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 fen extra ter<ices should be made in
<br />writing via a change order. but none the les >, Atx;nn-orche Is entitled to be cold
<br />`or extra services provided whether or not it is in vrriting.
<br />& Underground Structures or Burled URRfles. The Client i, responsible for
<br />identifi< :dllon and location of oil public and private buried stru =lures on the
<br />Client's properly and the Projccl sale, such as, but not limited to, storage looks
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<br />and lines, or gas, 'water, sewer, electrical. phone, cci or any other public or
<br />private utilities. It a carried that Abonmarche 's not responsible for Occidental
<br />damage 10 utilities or underground Wiuclvrec, whether known, unknown or
<br />improperly located. The client shall be responsible for des�n fees if changes are
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<br />nc cessort. Uf ily locatin(-A or marking servizes provided by Abonmarche are not
<br />substifuir_s for complying with the utility owner notification requirements or the
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<br />locating services (811 systems) required prior to an excavation. Utilities snoNn os
<br />located ty ground penetrating radar are approximate ony, No exco ction
<br />took place to verify the positions shown or to .erii the type of utility (except as
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<br />noted). Careful excavation Is required for verification of the buried utility. The
<br />owner a customer assumes the risk of error and the actual location of the
<br />underground ulility. Abonmarche is not pro•; idling any certification or guarantee
<br />regarding the exact Iccolion cf any underground utility.
<br />9. Underground Conditions. i tonmorche shall have no responsibility for 1he
<br />idcmtificotion al existing or unforeseen /diffedrra under conditions. The
<br />Contractor shall have sole responsibility for determining the nature of
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<br />underground conditions and the means and methods of dealing arith those
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<br />conditions. Abonmarche is entitled to rely upon the information provided by
<br />peoiechnicol consultants and shall haze no responsibility for the accuracy or
<br />correctness of tine data contained in the geotechnii reports.
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<br />IO.Sli Access and Security. With the e: <ception of access rights that land surveyors
<br />ore afforded by law. the Client w :ll provide Abonmarche access to the Project
<br />site and the Cient will be responsible for obtaining any necessary permission
<br />from, ony affected third party properly owner: for use of their land!. The Client is
<br />solely responsible for site security.
<br />Abonmorche, unless specificgIly slated ofhe ^.vise in an amendment to this
<br />Agreement. Any efecironic media prCiided under this Agreement to the Client
<br />are oni= fa the con.-enience of the Client. Any conclusions or information
<br />obtained or derived from suer, electronic files , :it be at the user's sole ri,,K
<br />SJonds and Permits. The Client will oa responsible for the adoption of any site
<br />access or night cf v:ay bonds that mo- be initiated on then behalf. At
<br />completion of Abonmarche's services, lh• Client will taf:e responsibility and pay
<br />any ongoing Land or rerrri f costs for any bonded of permitted sery ices.
<br />6.Third party Invoicing. If the Client dke_is Abonmarche to invoice third pert,
<br />payers, Abonmarche rrll do so, but the Client agrees to be ultimately
<br />responsible for Abonmorche's compensation until the Client provides
<br />Abonmarche Min ll third party's vritlen acceptance at all terms of this
<br />Agreement and until Abonmarche agrees to the suostitution.
<br />.Thkd Party Beneficiaries. Nothing containeo in this Agreement shall create o
<br />controctuat retationsh:o .vlth or a cause of action in favor of a third party
<br />against either the Client or Afxmmarche. Abonmarche's Services under this
<br />Agreement are being performs •d sole} for the Client's benefit, and no other
<br />pork; or entity shall have ony claim. against Abonmarche because of this
<br />Agreement or pertcrr.,ance or nonperformance of services hereunder. The
<br />Client and Abonmarche agree to require a similar provision in oil contracts with
<br />contractors, subeontreetorl subconsulfonts, cendoi and other entities involved
<br />in this Project to carry out the intent of this pro: ision.
<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 />Contnoctor's 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 liable to cry 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 hove no responsibility or br': Noble for safety
<br />procedures of the Contractor o- its subcontractors.
<br />Consequential Damages. The Client and Abonmorche valve consequential
<br />damages for claims, disputes. or other matters In questlor, relating to services
<br />provided as a part of this Agreement, including for example, but not limitec,' to.
<br />loss of business.
<br />Governing Low. This - .greemenl Mill be deemed to have been made in Si.
<br />Jc�ph County, Indiana and shall be governed by and construed In
<br />occord•ancr with the taws of the State of Indiana.
<br />Venue. The parties (a) irevocobhy submit to the jurisdiction of any Indiana court
<br />sitting in St. Joseph County, !nd�ono in any action arising out of this agreement,
<br />and (b) wafve, to the'ullest extent that they may effectively do so, the defense
<br />of an inccnvenlent 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 judgmem. cr ,n any other manner prc:ided by'dw.
<br />Cotsidetotions. The successors, executors, administrators. and legal
<br />representatives of the Clemf and Abonmarche are hereby bound onto the
<br />otri Frith respect to the covenants. Agreements, and oblgations of this
<br />Agreement.
<br />Acts of God. Neither the Client nor Abonmarche v.iti have any liability for
<br />nonperformance caused in whole a in part by causes beyond Abonmarche's
<br />'eosonable control. Such causes include, but are not limited to, Acts of God,
<br />civil unrest and war. Icbor unrest and strikes, acts of authorities, and events that
<br />could not be reasonabt,• anticipated.
<br />Temidnation. Either the Client or Abonmarche may terminate this Agreement by
<br />?wing 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 dale of the termination, plus (at the discretion
<br />of Abonmarche) a termination charge to cover finol'eofion of services necessary
<br />o bring ongoing services to a logical conclusion. Upon receipt of such
<br />poyrrii Abonmarche will return to the Client all documents and information
<br />hat are the property of the Client.
<br />ntire Agreement. This Agreement contains The entire agreement between the
<br />parties and there ore no agreerrionis, representations. statements, a
<br />undersiardings which Note been relied on by the parties which are not stated
<br />n this Agreement.
<br />End of Agreement.
<br />11.Conwltants. Abonmarche may engage Consultants of the request of the Client Reviewed by City of South Bend Legal Department 5/4/11
<br />to perform services which are t/ plcolly the CIIerJ's responsibility, such as sureys,
<br />geotechnical and environmental assessment:. The• Client agrees that
<br />Abonmarche will not be responsible for, or in any manner guarantee. The
<br />performance or services by the Consultants. The Client agrees that
<br />Abenfnarche •Hill not be liable for an claim, lii or defense cost for Injury or
<br />Icss wstoined ty any part; allegedly cause=d by the Consultants' negligence or
<br />wiSful misconduct.
<br />12.0plMoro of Cost. Any opinions of probable construction cost and/or total
<br />project cost r :ro.,ided by Abonmarche wit Lc on the'~,osis of experience and
<br />judgment, but these are only estimates. Abonmarche does not warrtlni that bids
<br />or ultimate construction or total project costs will not sors from such estimates.
<br />13.0wnenhlp of Work Product. Abonmarche will remain the owner of nN original
<br />droveinas. report:. end other materials prc:ided to the Client, whether in hard
<br />copy or magnetic meCla form. The Ciioni is uuthcrized to use the copies
<br />provided by t :bonmo,che onhj in connect :fin Min the Project. Any other use n
<br />reuse by the Client for ony purposes whatever twill be at the Client's risk and full
<br />legal responsibility, - .vithout fobiity to Abonmorche and ter- Client will defend,
<br />indemnify, and hold Abonmarche harmless from all claims, damages, IC55E5,
<br />and expenses. Including attorney fees arising out of or resulting there from.
<br />14.9ectronic Media. Copies of data, report., dravAngs, specifications, and ether
<br />materials furnished by . "bonmarche that mcy be relied upon b; the C!ieni ore
<br />limited to the printed copies (also knc -em as hard copie_) that are delivered to
<br />the Client pursuont to the services under this Agreemert. Computer files of text,
<br />data, graphics. or of other types of electronic media are the sole possession of
<br />Revised 5-4-11 Page 2 of 2
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