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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 Abonmarche. Any Client
<br />document or communication in addition to or in conflict with these Terms and
<br />Conditions shall be subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has the option to render this Agreement null and void,
<br />if it is not executed within thirty (30) days of delivery.
<br />3. Client ResponsibRlties. 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 documents and for construction observation and 1
<br />will waive all 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 care and skill ordinarily used by Abonmarche's 1
<br />profession practicing under similar circumstances at the same time and in the
<br />some locality. Abonmarche makes no warranty, expressed or implied, with
<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 />other liability or loss not directly and solely caused by the negligent acts, errors,
<br />or omissions of Abonmarche.
<br />5. Hourly Billing Rates. If payment is on an hourly rate, Client will pay Abonmarche
<br />at the current hourly billing rates. The hourly rates are adjusted annually or as
<br />deemed appropriate. 1
<br />6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmarche's 1
<br />current rates. Examples of reimbursable expenses include, but are not limited to:
<br />mileage, tests and analyses, special equipment services, postage and delivery
<br />charges, telephone and telefax charges, copying, printing, and binding
<br />charges, commercial transportation, meals, lodging, special fees, licenses, and
<br />permits. Subconsultant and outside technical or professional services will be
<br />charged on the basis of the actual costs times a factor of 1.15. 20
<br />7. Additional Services. Additional services that may be provided pursuant to the
<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 />and Abonmarche. Additional services, performed by Abonmarche are subject 21
<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 />modification or addition to services covered by this Agreement, the cost will be 22
<br />added to the agreed price. Requests for extra services should be made in
<br />writing via a change order, but none the less, Abonmarche is entitled to be paid
<br />for extra services provided whether or not it is in writing.
<br />8. Underground Structures or burled Utilities. 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 23
<br />and lines, or gas, water, sewer, electrical, phone, cable, or any other public or
<br />private utilities. It 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 24
<br />necessary. Utility locating or marking services provided by Abonmarche are not
<br />substitutes for complying with the utility owner notification requirements or the
<br />locating services (811 systems) required prior to an excavation. Utilities shown as
<br />located by ground penetrating radar are approximate only. No excavation
<br />took place to verify the positions shown or to verify the type of utility (except as 25
<br />noted). Careful excavation is required for verification of the buried utility. 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 /differing underground conditions. The
<br />Contractor shall have sole responsibility for determining the nature of
<br />underground conditions and the means and methods of dealing with those 26
<br />conditions. Abonmarche is entitled to rely upon the information provided by
<br />geotechnical consultants and shall have no responsibility for the accuracy or
<br />correctness of the data contained in the geotechnical reports.
<br />1 O.Site Access and Security. With the exception of access rights that land surveyors
<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 />Abonmarche, unless specifically stated otherwise in an amendment to this
<br />Agreement. Any electronic media 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 files 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 on their behalf. At
<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 />6.Third party Invoicing. If the Client directs Abonmarche to invoice third party
<br />payers, Abonmarche will 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 of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />7.Thlyd Party 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 />Client and Abonmarche agree to require a similar provision in all contracts with
<br />contractors, subcontractors, subconsultants, vendors and other entities involved
<br />in this Project to carry out the intent of this provision.
<br />B.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 />9.Contractor'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 any 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 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 Law. 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 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 (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 law.
<br />Considerations. The successors, executors, administrators, and legal
<br />representatives of the Client and Abonmarche are hereby bound onto the
<br />other with respect to the covenants, Agreements, and obligations of this
<br />Agreement.
<br />.Acts of God. Neither the Client nor Abonmarche will have any liability for
<br />nonperformance caused in whole or in part by causes beyond Abonmarche'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 anticipated.
<br />.Termination. Either the Client or Abonmarche may terminate this 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, plus (at the discretion
<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 />.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 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 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 />12.0pinions of Cost. 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 total project costs will not vary from such estimates.
<br />13.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 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 full
<br />legal responsibility, without liability to Abonmarche and the Client will 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.Electronic Media. 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 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
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