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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 />Abonmarche, unless specifically stated otherwise In an amendment to this <br />Agreement. <br />document a communication In addition to or in conflict with these Tema and <br />Any eleclrork media provided under this Agreement to the Client <br />ore only for the convenience of the Client. Any conclusions Of information <br />Conditions shall be subordinate and subject to these provisions. <br />2. Execution. Abonmorche has the option to render this Agreement null and void. <br />obtained or derived from such electronic riles will be at the user's sale risk. <br />15. Bonds and Permits. The Client will be responsible for the adoption of any <br />If It is not executed within thirty (30) days of delivery. <br />3. Client ResponslbOss. The Client will provide all criteria and information <br />she <br />access or right of way bonds that may be initiated on their behalf. At <br />concerning the requirements of the Protect, The Client will assume responsibility <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 />for interpretation of contract documents and for construction observation and <br />16.Third party Invoking. If the Client directs Abonmarche to invoice third party <br />will waive all claims against Abonmarche that may be In any way connected, <br />unless Abonmorche's services under this Agreement include full -time <br />payers, Abonmarche will do so, but the Client agrees to be ultimatety, <br />construction observation or review of contractor's performance. <br />responsible for Abonmorche's compensators until the Client provides <br />Abonmarche with the third party's written acceptance of oil terms this <br />4. Pedonnanee. The standard of core for services performed by or provided by <br />of <br />Agreement and until Abonmorche agrees to the substitution. <br />Abonmorche will be the Core and skill ordinarily used by Abonmarche's <br />profession procticing under similar circumstances of the some time and In the <br />17.Thkd Party tenelklarles. Nothing contained in this Agreement shall create a <br />same locality. Abonmarche makes no warronty, expressed or Implied, with <br />contractual relationship win or a cause of action in favor of a third party <br />against either the Client or Abonmarche. Abonmarche's services under this <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 />Agreement are being performed solely for the Client's benefit, and no other <br />other liability or loss not directly and solely caused by the negligent acts, errors, <br />party or entity shall have any claim against Abonmarche because of this <br />Agreement ar performance or nonperformance of services hereunder. <br />or omissions of Abonmarche. <br />5. NWS1y tWhg Notes. If payment Is on an hourly rate, Client will pay Abonmarche <br />The <br />Client and Abonmarche agree to require a similar provision in all contracts with <br />contractors, subcontractors, sub-consultants, vendors and other <br />at the current hourly billing rates. The hourly rates ore adjusted annually or as <br />entities involved <br />In this Project to carry out the Intent of this provision. <br />deemed appropriate. <br />6. Nelnlbuaable Expenas. Reimbursable expenses, the actual costs Incurred <br />I8.3uspenslon of Services. In the event of non- payment by Client, Abonmorche <br />will hove the absolute right to cease performance of any services, <br />directly or indirectly for the Client's Project, will be charged at Abonmorche's <br />19. Conhaetor's Woric Abonmarche shall hove no authority to direct or control the <br />current rotes. Examples of reimbursable expenses include, but are not limited to: <br />Work of the Contractor or to stop the Work of the Contractor. Abonmarche <br />mileage, tests and analyses, special equipment services, postage and delivery <br />shall <br />not be liable to any party for the failure of the Contractor to perform the Work <br />charges, telephone and telefox charges, copying, printing, and binding <br />consistent with the Plans and Specifications and applicable Codes and <br />charges, commercial transportation, meals, lodging, special fees, licenses, and <br />Regulations. Abonmarche shall hove no responsibility or be liable for safety <br />permits, Subconsullont and outside technical or professional services will be <br />procedures of the Contractor or its subcontractors. <br />charged on the basis of the actual costs times a factor of 1.15. <br />20. Corn "flillat Damages. The Client and Abonmorche waive consequential <br />7 Additional tervkes. Additional services that may be provided pursuant to the <br />damages for claims, disputes, or other matters In question relating to services <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 />provided as a part of this Agreement. Including for example, but not limited to, <br />loss of business, <br />and Abonmarche. Additional services, performed by Abonmarche are subject <br />21. Governing Low. This Agreement will be deemed to have been made in St. <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 />Joseph County, Indiana and shall be governed by and construed in <br />modification or addition to services covered by this Agreement, the cost will be <br />accordance with the laws of the $tote of Indiana. <br />22. Venue. The parties (a) irrevocably submit to the jurisdiction of any Indiana <br />added to the agreed price. Requests for extra services should be made in <br />court <br />sitting in St, Joseph County, Indiana in any action arising out of this agreement, <br />writing via a change order, but none the less. Abonmarche Is entitled to be paid <br />and (b) waive. to the fullest extent that they may effectively do so, the defense <br />for extra services provided whether or not It Is in writing, <br />8. Underground Shuehrrra or Waled UWPa& The Client is responsible for <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 />Identification and location of all public and private burled structures on the <br />suit on the judgment, or In any other manner provided by law. <br />Client's property and the Project site, such as, but not limited to, storage tanks <br />23.Condderchons, The successors, executors, administrators, and legal <br />and lines, or gas, water, sewer, electrical, phone, cable. or any other public or <br />representatives of the Client and Abonmarche are hereby bound onto the <br />private utilities. It is agreed that Abonmarche is not responsible for accidental <br />other with respect to the covenants, Agreements, and obligations of this <br />damage to utilities or underground structures, whether known, unknown or <br />Agreement. <br />Improperly located. The client shall be responsible for design fees if changes are <br />24. Acts of God. Neither the Client nor Abonmarche will have any kaboty for <br />necessary. Utility locating or making services provided by Abonmarche are not <br />nonperformance caused In whole or in part by causes beyond Abonmorche's <br />substitutes for complying with the utility owner notification requirements or the <br />reasonable control. Such causes include, but are not limited to. Acts of God, <br />locating services (B 11 systems) required prior to on excavation. Utilities shown as <br />civil unrest and war, labor unrest and strikes, acts of authorities, and events that <br />located by ground penetrating radar are approximate only. No excavation <br />could not be reasonably anticipated, <br />took place to verify the positions shown or to verify the type of utility (except as <br />25. Termbsotion. Either the Client or Abonmarche may terminate this Agreement by <br />noted). Careful excavation is required for verification of the buried utility. The <br />giving ten (10) days written notice to the other party. In such on event, the <br />owner or customer assumes the risk of error and the actual location of the <br />Client will pay Abonmarche in full for all services previously authorized and <br />underground utility. Abonmarche is not providing any certification or guarantee <br />performed prior to the effective date of the termination, plus (at the dspetion <br />regarding the exact location of any underground utility, <br />of Abonmarche) a termination charge to cover finalization of services necessary <br />9. Underground CondMons. Abonmarche shall have no responsibility for the <br />to trig ongoing services to a logical conclusion. Upon receipt of such <br />identification of existing or unforeseen /differing underground conditions. The <br />payment. Abonmarche will return to the Client all documents and information <br />Contractor shall have sole responsibility for determining the nature of <br />that are the o <br />pr peaty of the Client. <br />underground condtilons and the means and methods of dealing with those <br />26.En*o Agreement. This Agreement contains the entire agreement between the <br />conditions. Abonmarche Is entitled to rely upon the information provided by <br />parties and there ore no agreements, representations, statements, or <br />geotechrical consultants and shall have no responsibitiy, for the accuracy or <br />understandings which have been relied on by the porffes which ore not stated <br />correctness of the data contained in the geotechnical reports. <br />in this Agreement. <br />101111te Access and SeesxRy, With the exception of access rights that land surveyors <br />End of Agreement <br />are afforded by law, the Client will 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 lands. The Client is <br />solely responsible for site security. <br />11.Conritaift. Abonmarche may engage Consultants at the request of the Client <br />Reviewed by City of South Bend Legal Department 05/04/2011. <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 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 liable for any claim, liability, or defense cost for injury or <br />loss sustained by any party allegedly caused by the Consultants' negligence or <br />willful misconduct. <br />12.0pinlom of Cost Any opinions of probable construction cost and /or total <br />project cost provided by Abonmarche will be on the bash of experience and <br />judgment, but these are only estimates. Abonmarche does not warrant that bids <br />or ultimate construction or total project costs will not vary from such estimates. <br />13.Olwm Mp OF Work hoduat. Abonmarche will remain the owner of all original <br />drawings, reports, and other materials provided to the Client, whether In had <br />copy or magnetic media forth. The Clienf 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 full <br />legal responsibility, without liability to Abonmarche and the Client will defend, <br />indemnify, and hold Abonmarche harmless from ail claims, damages, losses, <br />and expenses, including attorney fees arising out of or resulting there from. <br />14,19eelronk Media. Copies of data, reports, drawings, specifications, and other <br />materials furnished by Abonmarche that may be relied upon by the Client ore <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 files of text, <br />data, graphics, or of other types of electronic media are the sole possession of <br />COSB reviewed 05-04-11 <br />Page 2 of 2 <br />