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TERMS AND CONDITIONS Of PROFESSIONA4 SERVICES AGREEMENT
<br />1. Agreement.. These Terms and Conditions shall be irccrporot -d by reference and
<br />shill prevail as the basis of the Client's Agreement to Abonmorche. 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 prorislons.
<br />2. E%ecution. A.bonmarche 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 deliver).
<br />3. Client ResponslbWffers. The Client vrT1 provide all criteria and infor atinn
<br />concerning the requirements of the Project. The Client will assume responsibility
<br />for interpretation of contract documents and for construction oC.en•atlon and
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<br />will svol.e oil cioirns against Abonmorche that may be In any wo'y, connected.
<br />unless Abonmarche's services under this Agreement Include full -time
<br />construction cbser ;otion cr review of contractor's performance.
<br />4. Performance. The standard of core for services performed by or provided ty
<br />Abonmorche ?411 be the care and skill ordinarily used by Abonmarche's
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<br />pcofossion practicing under similar circumstances at the same time aril in the
<br />some locality- ALonmorche makes no warranty, expresed or implied, with
<br />respect to any services provided by Abonmorche. Abonmorche :kill not be
<br />liable for any da(m, damages, cost, or expense (including attome'y's fees] c,
<br />other liohility or loss not directly and sole, caused ty the negligent acts, errors.
<br />or Cmls6iora of Abonmorche.
<br />5. Hourly R111Ing Rales. It payment is on on hourly rate, Client will poi Abort arche
<br />at the current honey billing rates. The hourly rates ore adjusted annually or as
<br />deemed oporopriote.
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<br />6. Reimbursable Expenses, Relmbursabie expenses, the actual costs incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmorche's
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<br />current rates. Examples of reimbuaable e: <penses include. but are not limited to:
<br />mileage, tests and analyses, special equipment services. postage and delivery
<br />charges, telephone and telefox chages, - copying, printing, and binding
<br />charges, commercial ironsportatlon, meals, lodging. °•pectol fees. licenses, any
<br />p`rmils. Subccnsultonf and outside fechnicol or professional services v:iN 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 prcvide-d pursuant to the
<br />Agreement or any subsequent modification of the Agreement will be
<br />authorized, ,vhvn pcssibla, by .vAlten amendment signed on behalf of the Client
<br />and Abonmorche. Additional servk_es, performed by Abonmorche are wbiect
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<br />to oil Terms and Conditons and the Client will be responsible for payment.
<br />Should The Client, regulator; agency. a ony public b -dd; 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 should be made in
<br />varifing via a change order. but none the less, Abonmorche Is entitled to be gold
<br />,x extra services provided whether or not l is in writing.
<br />8. Underground Structures or Buried URRtks. The Client is responsble for
<br />idenfiricallon and location or oil public and private buried stru_tures on the
<br />Client's property and the Project site, such as, but not limited to, storage tanks
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<br />and lines, or go:, water, sewer. electrical, phone, Cable- or any other public or
<br />private U1Pdtie'$. It is agreed that Abonmorche 's rot responsible for accidental
<br />damage to utilities or underground structures, .whether known. unknov,n or
<br />improperly located. The client shall be responsible for desi-`m fees R changes ore
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<br />necessary. Utility locatino or marking semlces provided by Abonmarche are not
<br />substitutes for complying with the utility owner notification requirements or the
<br />locating se Aces (WI systerrs) required prior to an excavation. Utilities shoran 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 lexcepf as
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<br />noted). Careful excavation u required for verification of the buried utility. The
<br />owner or customer os5umes the risk of error and the actual location of the
<br />underground ullity. Abonmorche is no' prei:dinp any certification or guarantee
<br />regarding the exact Iccotion Cf any underground ufilily.
<br />9. Underground Conditions. Atonmorche shall have no responsibility for The
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<br />identify otion of existing or unforeseen /differirra underground conditions. The
<br />' Contractor shall hove sole responsibility for determining the nature of
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<br />underground conditions and the means and methods of cleating Aith those
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<br />conditions- Abonmarche Is entitled to rely upon the information provided by
<br />teoiechnicol consuttants and shall have no responsibility for the accuracy or
<br />correctness of the data contained in the geotechnicd reports.
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<br />IO.SIW Access and Security. With the exception of oCcess rights that land surveyors
<br />are afforded by la.v, the Client w71 provide Abonmorche access to the Project
<br />site and the Client will be responsible for obtaining arn• necessary permision
<br />from any affected third party property awner :. for use of their ands. The Client is
<br />solely respor a for site iecurity.
<br />Abonmorche, unless specifically stated otherwise in on amendment to this
<br />Agreement. Any electronic media provided under this Agreement to the Client
<br />are only for the con•:enience of the Client. Any conclusions or Information
<br />obtained or dewed hem such electronic files viol be at the users sole r'r,k.
<br />S.Ronds and Per"&. The Client -rll t,2 tosponsibie for the adoption of any site
<br />access or right cf way bonds that ma: be initialed on their behalf. At
<br />completion of Abonmarche's sen4ces, the Client wilt to' a responsibility and pay
<br />any ongoing bond or permit costs for any bonded or permitted services.
<br />6.Thkd party Invoteksg. N the Client directs Abonmorche to involr� lhkd party
<br />paten. Atonmarche rnll do so, but the Client agrees to be ultimately
<br />responsible fcsr Abonmorche's compensotion until the Client provides
<br />Abonmorche vvlth the third party's w,Tlten acceptance of all terms of this
<br />Agreement and until Abonmorche agrees to the substitution.
<br />.Third Party Renefklarl". Nothing contained in this Agreement shall creole o
<br />confroctual retotionsh -p with or a cause of action in fovor of o third party
<br />against either the Client or Abonmorche. Abonmarche's services under this
<br />Agreement ore being perforni i solely for the Client's benefit. and no other
<br />porn; or entity shall have any doim against Abonmorche be:ause of this
<br />Agreement or performance or nonperformance of services hereunder- The
<br />Client and Abonmorche agree to require a similar provision in all contracts with
<br />contractors, subcontractors• subconsultonts, cendo -s and ocher entities irraolvod
<br />in this Project to carry out the intent of this pro: ision.
<br />.Suspension of Services. In the event of non- poymeni by Client, Abonmorche
<br />swill have the absolute tight to cause performance of any services.
<br />.Co lroctor's Work: Abonmorche malt 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 cry party for the failure of the Contractor to perform the wort;
<br />content with the Plan_ and Specifications and applicable Codes and
<br />Regulations. Abonmorche shall have no responsibility or bn Noble for safety
<br />procedures of the Contractor or its subcontractors.
<br />Consequential Damages. The Client and Abonmorche walve consequential
<br />damages for claims, disputes• or other molten In question relating to services
<br />provided as a part of !hi: Agreement, includinn for example, but not limited to,
<br />loss of business.
<br />Governing LaW. This ?.greement will be deemed to have been made in St.
<br />Joseph County, Indiana and shall be governed by and coristrued In
<br />occordonce, vvUh the laws, of the Slate of Indana.
<br />Venire. The parties (o) irrevocably submit to the jurisdiction of arty Indiana court
<br />sitting in St. Joseph County, !ndiano in any action arising out of this agreement,
<br />and (b) waive. to the Viest extent that they may effectively do so, this defense
<br />of an inccnvenlent forum. The parties also agree that a final judgment in any
<br />such action shall be conclusr�e and may be enforced in other jurisdictiora by
<br />suit on the judgmem, or in any other manner provided by law,
<br />ConsklereUors. The successors, executors, administrators, and legal
<br />representatives of the Clk�nt and Abonmarche are hereby bound onto the
<br />other with respect to the covenonts, Agreements, and obtipotions of this
<br />Agreement.
<br />Acts of God. Neither the Client nor Abonmarche "i have any lability for
<br />nonperformance cause•] in whole or in part by causes beyond Abonmorche's
<br />reasonable control. Such causes include, but are not limited to, Acts of Goat,
<br />civil unrest and wor. Icbor unrest and strikes, acts of authorities, and events that
<br />could not berecsonabl•= anticipated.
<br />TertnMollon. Either the Crlenl or AMnmarche may terminate th Agreement by
<br />giving ten (10) days written notice to the other party. In such an event. the
<br />Client will pay Abonmorche In full for all services previously authorized and
<br />performed prior to the effecttie date of the termination, plus (at the discretion
<br />of Abonmorche) o termination charge to cover finalization of sepAces necessary
<br />o bring ongoing services to a logical conclusion. Upon recelpf of such
<br />payment. Abonmorche will return to the Client oil do_uments and Information
<br />hill are the property of the Client.
<br />Entire Agreement. This Agreement contains The entire agreement between the
<br />parties and there nre no agreements, representations, statements, or
<br />understandings which have been relied on by the parties which are not stated
<br />n this Agreement.
<br />End of Agreement.
<br />I1.Consulfards. Abonmorche 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 sur ••eys,
<br />gootechnicaf and environmental assessment,,. Thn Client agrees that
<br />Abonmorche will not be responsible for, or in onv manner guarantee, the
<br />performance or services by The Consultants. The Gent agrees that
<br />Abonmarche •will not be liable for cnt claim, IlelbNity. or defense cost for Injury or
<br />loss sustained ty any party allegedly cotrGd by the Cortsultonts' negligence or
<br />w;!:ful misconduct.
<br />12.0pinlam of Cost Any opinions of probable construcfion cost and /or total
<br />project cost provided by Abonmorche will Lc on the basis of experience and
<br />judgment, but these are ontt estimates. Abonmarche does not worront that ads
<br />or ultimate construction air total project test, grill not vary frorr, such estimates.
<br />13.0wnership of Work Product. Abonmorche will remain the owner of all or!ginol
<br />diavdnps, report:, and other materials provided to the Client. whether in hard
<br />copy or magnetic medla form. The Client is outhorized to use the copies
<br />provided try Abonmorche only in connection vAth the Project. Any other use n
<br />reuse by the Client for any purposes whatever Mil be at the Client's risk and full
<br />legal responsibility, without Iiabirity to Abonmorche and tth; Client will defend,
<br />indemnify, and hold Abonmorche hormfess from all caims, damages, asses.
<br />and expenses, including attorney fees arising out of or resullinc there from.
<br />,.Electronic Media. Copies of data, reports, drawings, specifications. and other
<br />moieriols furnished by Abonmorche that may be relied upon b; the Client ore
<br />limited to the printed copies (also kncwn as hard copied that are delivered to
<br />the Client pursuont to the services under this Agreement. Computer files of text,
<br />data. graphics. or of other types of electronic media are the sde possession of
<br />Revised 5-4-11 Page 2 of 2
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