PSA- Bowman Creek Improvements at Lincoln Way East – WBK Engineering, LLC

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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT I Agreement. These Terms and Condflions shall be incorporated by reference and shall prevail as the basis of the Clieril's Agreement to Abonmarche, Any Client document or communicalion in addition to or in conflict with these Terms and Conditions shall be subordinate and subject to these provisions. 2. Execution. Abonmarche has the option to render this Agreement null and void, if if is not executed within thirty (30) days of delivery. 3, Client Responsibilities. The Client will provide all criteria and information concerning the requirements of the Project. The Client will assume responsibility for interpretation of contract documents and for construction observation and will waive all claims against Abonmarche that may be in any way connected, unless Abonmarche's services Linder this Agreement include full-time construction observation or review of contractor's performance, 4.Performance. The standard of care for services performed by or provided by Abonmarche will be the care and skill ordinarily used by Abonmarche's profession practicing under similar circurnstonces at the some firne and in the same locality. Abonmarche makes no warranty, expressed or implied, with respect to any services provided by Abonmarche, Abonmarche will not be liable for any claim, damages, cost, or expense (including attorney's fees) or other liability or loss not directly and solely caused by the negligent acts, errors, or omissions of Abonmorche, 5. Hourly Billing Rates. If payment is on an hourly rate, Client will pay Abonmarche at the current hourly billing rates. The hourly rates are adjusted annually or as deemed appropriate, 6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred directly or indirectly for the Client's Project, will be charged at Abonmarche's current rates. Examples of reimbursable expenses include, but are not limited IQ: mileage, tests and analyses, special equipment services, postage and delivery charges, telephone and lelefax charges, copying, printing, and binding charges, commercial transportation, meals, lodging, special fees, licenses, and permits Subconsultani and outside technical or professional services will be charged on the basis of the actual costs times a factor of I J 5. 7, Additional Services. Additional services that may be provided pursuant to the Agreement or any subsequent modification of the Agreement will be authorized, when possible, by written amendment signed on behalf of the Client and Abonmarche. Additional services, performed by Abonmarche are subject to all Terms and Conditions and the Client will be responsible for payment. Should the Client, regulatory agency, or any public body or inspector direct modification or addition to services covered by this Agreement, including costs relating to the relationship between the Client and a third party i.e. punch lists, change orders, and dispules,the cost will be added to the agreed price. Requests for extra services should be made in writing via a change order, but none the less, Abonmarche is entitled to be paid for extra services provided whether or not 11 is in writing, 8. Underground Structures or Burled Utilities. The Client is responsible for identification and location of all public and privole buried structures on the Client's properly and the Project site, such as, but not limited to, storage lanks and lines, or gas, water, sewer, electrical, phone, cable, or any other public or private ulklifies. 11 is agreed that Abonmorche is not responsible for accidental damage to utilities or underground structures, whether known, unknown or improperly located The client shall be responsible for design fees if changes are necessary. Uliflylocaling or marking services provided by Abonmarche are not substitutes for complying with the utility owner notification requirements or the locating services (811 systems) required prior to an excavation. Utilities shown as located by ground penetrating radar are approximale only. No excavation look place to verify the positions shown or to verify the type of utility (except as noted). Careful excavation is required for verification of the buried utility. The owner or customer assumes the risk of error and the actual location of the underground utility. Abonmarche is not providing any codification or guarantee regarding the exact location of any underground Lifilty. 9. Underground Conditions. Abonmarche shall have no responsibility for the identification of existing or unforeseen/differing underground conditions, The Contractor shall have sole responsibility for determining the nature of underground conditions and the means and methods of dealing with [hose conditions, Abonmarche is emitted to rely upon the information provided by geotechnical consultants and shall have no responsibility for the accuracy or correctness of the data contained in the geotechnical reports. tO.Site Access and Security. With the exceplion W access rights that land surveyors are afforded by law, the Clienl, will provide Abonmarche access to the Project site and the Client will be responsible for obtaining any necessary permission from any affected third party property owners for use of their lands. The Client is solely responsible for site secudly. I I.Consultunfa. Abonmarche may engage Consultants at the request of the Client to perform services which are typically the Client's responsibility, such as surveys, geotechnical and environmental assessments, The Client agrees that Abonmorche will not be responsible for, or in any manner guarantee, the performance of services by the Consultants. The Client agrees that Abonmarche will not be liable tor any claim, liability, or defense cost for injury or loss sustained by any party allegedly caused by the Consultants' negligence or willful misconduct. 12.0pinions of Cost. Any opinions of probable construction cost and/or total project cost provided by Abonmarche will be an the basis of experience and judgment, but these are only estimates. Abonmarche does not warrant that bids or ultimate construction or total project costs will not vary from such estimates. 13rOwnership of Work Product. Abonmarche will remain the owner of all original drawings, reports, and other materials provided to the Client, whether in hard copy or magnetic media form. The Client is authorized to use Ihe copies provided by Abonmarche only in connection with the Project. Any other use or reuse by the Client for any purposes whatever will be at the Client's risk and full legal responsibility, without liability to Abonmarche and the Client will defend, indemnify, and hold Abonmorche harmless from all claims, damages, losses, and expenses, including attorney tees arising out of or resulting Ihere from. 14.Electronic Media. Copies of data, reports, drawings, specifications, and other materials furnished by Abonmarche that may be relied upon by the Client are limited to the printed copies (also known as hard copies) that are delivered to the Client pursuant to the services under this Agreement. Computer files of texL, data, graphics, or of other types of electronic media are the sole possession of Abonmarche, unless specifically stated otherwise in an amendment to this Agreement. Any electronic media provided under this Agreement to the Client are only for the convenience of the Client. Any conclusions or information obtained or derived frorn such electronic files will be at the user's sole risk- 15, Bonds and Permits. The Client will be responsible for the adoption of any site access or right of way bonds that may be initiated on their behalf. At completion of Abonmorche's services, the Client will take responsibility and pay any ongoing bond or permit costs for any bonded or permitted services 16.1risurance. The Client will cause Abonmarche and Abonmarche's employees to be listed as additional insured on all general liability and property insurance policies carried by the Client that are applicable to the Project. Upon request, the Client and Abonmarche will each deliverio the olher certificates of insurance evidencing their coverage. The Client will require the Contractor to purchase and mainlain general liability and other insurance as specified in the Contract Documents and to cause Abonmarche and Abonmorche's employees to be listed as additional insured with respect to such liability and other insurance purchased and maintained by the Contractor for the Project. 17,ThIrd party Invoicing. If the Client directs Abonmorche to invoice third party payers, Abonmarche will do so, but the Client agrees to be ultimately responsible for Abonmorche's compensation until the Client provides Abonmorche with the third party's written acceptance of all terms of this Agreement and until Abonmorche agrees to the substitution. 18.1hird Party Beneficiaries. Nothing contained in this Agreement shall creole a contractual relationship with or a cause of action in favor of a third party against either the Client or Abonrnorche. Abonmarche's services under this Agreement are being performed solely for the Client's benefit, and no other party or entity shall have any claim against Abonmarche because of this Agreement or performance or nonperformance of services hereunder. The Client and Abonmarche agree to require a similar provision in all contracts with contractors, subcontractors, subconsultanis, vendors and other entities involved in this Project to carry out the intent of this provision, 19.Susponsion of Services. In the event of non-payment by Client, Abonmarche will have the absolute right to cease performance of any services. 20.Contractor's Work: Abonmarche shall have no authority to direct or control the Work of the Contractor or to stop the Work of the Contractor. Abonmarche shall not be liable to any party for the failure of lhe Contractor to perform the Work consistent with the Plans and Specifications and applicable Codes and Regulations. Abonmarche shall have no responsibility or be liable for safely procedures of the Contractor or its subcontractors. 21, Notice of Lien Rights. Abonmarche hereby notifies, and the Client acknowledges that Abonmarche has lien rights on the Client's land and property when Abonmorche provides labor and malenals, for Projects on the Client's land and the Client does not pay for those services. 22.Legal Expenses. If Abonmarche brings a lawsuit against the Client to collecl invoiced fees and expenses, the Client shall be legally liable to pay Abonmarche's expenses, including its actual attorney fees and costs, 23.Liablilty Limitation. Client and persons claiming through Client agree to limit the liability of Abonmarche, its agents and employees, for all claims arising our of, in connection with, or reselling from, the performance of the services under this agreement to an amount of $25,000 or the fee paid to us for professional services on Ithis project, whichever is greater- Client acknowledges that Abonmarche is a corporation and agrees that any claim made by Client arising out of any act or mission of any direclor, officer, or employee of Abonmarche, in execution or performance of this Agreement, shall be made against Abonmorche and not against such director, officer, or employee. 24.Consequential Damages. the Client and Abonmarche waive consequential damages for claims, disputes, or other matters in question relating to services provided as a pan of this Agreement, including for example, but not limited lo, loss of business. 25.Governing Law. this Agreement will be deemed to have been made in Berrien County, Michigan and shall be governed by and construed in accordance with the laws of the State of Michigan. 26,Exclusive choice of forum. Each party irrevocably and unconditionally agrees that it will not bring any action, litigation, or proceeding against any other party in any way arising from or relating to this Agreement in any forum other than the courts of the slate of Michigan sitting in Berrien and any applicable Michigan appellate court. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of those courts and agrees to bring any such action, litigation, or proceeding only in [hose courts. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by low. 27,Consideraflons. The successors, executors, administrators, and legal representatives of the Client and Abonmarche are hereby bound onto the other with respect to the covenants, Agreements, and obligations of this Agreement. 2B.Acts of God. Neither the Client nor Abonmarche will have any liability for nonperformance caused in whole or in part by causes beyond Abonmarche's reasonable control- Such causes include, but ore not limited to, Acts of God, civil unrest and war, labor unrest and strikes, acts of authorities, and events that could not be reasonably anticipated, 29,Terminaflon. Either the Client or Abonmarche may terminate this Agreement by giving Ion (10) days written notice to the other party. In such an event, the Client will pay Abonmarche in full for all services previously authorized and performed prior to the effective date of the termination, plus (of the discretion of Abonmarche) a lermination charge to cover finalization of services necessary to bring ongoing services to a logical conclusion, Such charge will not exceed thirty (30) percent of all charges previously incurred. Upon receipt of such payment, Abonmarche will return to the Client all documents and information that are the property of the Client. 30,Entire Agreement. This Agreement contains the entire agreement between the parties and there are no agreements, representations, statements, or understandings which have been relied on by the parties which are not stated in this Agreement, End of Agreement. Revised 8-19-2014 Page 2 of 2