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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />I. Agreement. These Terms and Conditions shad be incorporated by reference and
<br />shal prevail as the bass of the Client's Agreement to Abonmarche. Any Client
<br />document or communication in addition to or in conflict with these Teams and
<br />Conditions shall be subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has the option to render this Agreement nul and von, I
<br />R B is not executed within they (30) days of delivery.
<br />3. Clew Responsibilities. The Client wig provide al ailerb and information
<br />conceming the requirements of the Project. The Client wig assume responsibility
<br />la bterpretatlon of contract documents and for construction observation and I
<br />wig 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 ni at contfactor's piummance.
<br />4. Perfomance. The standard of care for services performed by or provided by
<br />Abonmarche wit be the care and MINI ordinarily used by Abonmarche's I
<br />profession practicing under similar circumstances at the same time and in the
<br />same locality. Abonmarche makes no warranty, expressed a implied, with
<br />respect to any services provided by Abonmarche. Abonmarche wig not be
<br />Ili for any claim, damages, cost, or expense (including attorney's fees) or
<br />other lablly or loss not directly and safety caused by the negligent acts, enask
<br />or onsol of Abonmarche.
<br />5. Hourly igloo Raes. If payment s on an hourly rote, Client will pay Abonmarche
<br />al the current hourly billing rates. The hourly rates are adjusted annually or as
<br />deemed appropriate. I
<br />6. Relnbunable Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or Indirectly for the Client's Project, will be charged at Abonmarche's I
<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 lekfax charges, copying, printing, and binding
<br />charges, commercial transportation, meals, lodging, special fees, licenses, and
<br />permris. Suloommullant and outside technical or professional services will be
<br />charged on the bash of the actual costs times a factor of 1.15.
<br />]. Additional Servlces. Additional services that may be provided pursuant to the
<br />Agreement or any subsequent modification of the Agreement wig be
<br />authorized, when possible, by wriRen amendment signed on behal of the Client
<br />and Abonmarche. Additional services, performed by Abonmarche are subject 2
<br />to al 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
<br />added to the agreed price. Requests for extra services should be mode in
<br />writing via a change order, but none the kiss, Abonmarche is entitled to be paid
<br />far extra services provided whether or not A is In writing.
<br />8. Underground Structures a Burled URltiles. The Client s responsible fa
<br />dentifaafch and location of al pubic and private bused structures on the
<br />Client's properly and the Project site, such as, but not Fmiled to, storage tanks
<br />and lines, or gas, water, sewer, electrical, phone, cable, a any other public or
<br />private utilfies. It s agreed that Abonmarche is not responsible for accidental
<br />damage to Willies or underground structures, whether known, unknown or
<br />Improperly coaled. The clank shall be responsible for design fees U changes are 2
<br />necessary. Utility locating or marking services provided by Abonmarche are not
<br />subsitlumm for complying with the utility owner notification requirements or the
<br />bcaling services (811 systems) required prior to an excavation. UtM*s shown as
<br />located by ground penetrating radar are approximate only. No excavation
<br />took place to verify the positions shown or to very the type of ably (except as 2
<br />noted). Careful excavation s required for verification of the bukd utility. The
<br />owner or customer assumes the Bk of error and the actual location of the
<br />underground Willy. Abonmarche s not providing any certification or guarantee
<br />regarding the exact location of any underground utiity.
<br />9. Underground Conditions. Abonmarche shal have no responsibiliy for the
<br />identification of existing a unforeseen /differing underground conditions. The
<br />Contractor shall have safe responsibility for determining the naive of
<br />underground conditions and the means and methods of dealing wRh those 2
<br />conditions. Abonmarche s entitled to rely upon the Information provided by
<br />geotechnical consultants and shall have no reeponsiblUy far the accuracy a
<br />correctness of the data contained in the geotechnical reloads.
<br />10.Sih Access and Security. With the exception of access rights that and surveyors
<br />are afforded by law, the Client will provide Abonmarche access to the Project
<br />We and the Client wig be responsible far obtaining any necessary pemmulon
<br />from any affected third party popery owners for use of that lends. The Client m
<br />safety responsible far site security.
<br />Abonmarche, unless specifically stated otherwise m an amendment to this
<br />Agreement. Any electronic media provided under the Agreement to the Client
<br />ore only for the convenience of the Client. Any conclusions or Information
<br />obtained or derived from such electronic files will be at fine user's sole Bic.
<br />S.Bonds and Permits The Client wit 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 wig take responsbilty and pay
<br />any ongoing bond or permH costs tar any bonded or permitted services.
<br />6. Third party Invoicing. If the Client directs Abonmarche to Invoke third pally
<br />payers. Abonmarche wig do so, but the Client agrees to be ultimately
<br />responsible for Abonmarche's compensation until the Client provides
<br />Abonmarche with the Ihkd party's wallen acceptance of al terms of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />7. third Party beneficiaries. Nothing contained In the Agreement shall create a
<br />contactual 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 saey for the Client's benefit, and no other
<br />party or enthy, shol hove any dam against Abonmarche because of this
<br />Agreement or performance or rimperformonce 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 the Project to carry out the Intent of this provision.
<br />B.Suspensin of Services. In the event of non-payment by Client. Abonmarche
<br />WE have the absolute right to cease penortnance of any services.
<br />9.Comeador's Work Abonmarche shall have no authority to direct or control the
<br />wort of the Contractor or to stop the Work of the Contractor. Abonmarche shag
<br />not be liable to any party far the failure of the Conlroctor to perform the Work
<br />consistent with the Pons and Specifications and applicable Codes and
<br />Regulations. Abonmarche steal have no resporobilfy or be gable Im safety
<br />procedures of me Contractor or Its subcontractors.
<br />20.Consequential Damogi The Client and Abonmarche wave consequential
<br />domoges for claims, disputes. or other matters in question relating to services
<br />provided as a part of the Agreement, including for example, but not limited lo,
<br />Nam of business.
<br />1.GOVxning Law. The Agreement wig be deemed to hove been mode in St.
<br />Joseph County, Indiana and shag be governed by and construed In
<br />accordance wBh the awe of tine State of Inclano.
<br />22. Venue. The parties (a) Irrevocably submit to the jurisdiction of any Indiana court
<br />sitting n St. Joseph County, Indiana in any action arising out of the agreement,
<br />and (b) waive, to the fulest extent that they may effectively tlo so, the defense
<br />of on Inconvenient tannin. The parties also agree that a final judgment NI any
<br />such action shall be conclusive and may be enforced In other lurisdicibnsby
<br />suit on the judgment, or in any other manner provided by bw.
<br />23.Conddreations. The successors, executors: administrators, and legal
<br />representatives of the Clint and Abonmarche are hereby bound onto the
<br />other with respect to the covenants, Agreements, and obligations of the
<br />Agreement.
<br />4.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 we not united to, Acts of God,
<br />clvil unrest and war, labor unrest and Stokes, acts of authorities, and events that
<br />could not be reasonably anticipated.
<br />S.Termination. Either the Clint a Abonmarche may terminate the Agreement by
<br />gMng 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, outhorbed 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 ding ongoing services to a logical conclusion. Upon receipt of such
<br />payment, Abonmarche will rekun to the Client all documents and information
<br />Thal are the property of the Client.
<br />Q.Entire Agreement. This Agreement contains the entire agreement between the
<br />panics and there are no ogreements, representations, statements, or
<br />understandings which have been relied on by the parties which are not dated
<br />In this Agreement.
<br />End of Agreement.
<br />I L C Onsutianh. 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 responsbxFy, such as surveys,
<br />geotechnical and environmental assessments. The Client agrees that
<br />Abonmarche will not be responsible far, or in any manner guarantee, the
<br />performance of services by the Consultants. The Cient agrees that
<br />Abonmarche will not be liable far any claim, liability. or defense cost far injury or
<br />Noss sustained by any body allegedly caused by the Consultants' negligence or
<br />willful misconduct.
<br />12.0pinlons of Cost. Any opinions of probable construction cost and/or total
<br />project cost provided by Abonmarche w11 be on the basis of experience and
<br />judgment, but these are only estimates. Abonmarche does not warrant that bids
<br />or ultimate construction m total project costs wil not vary from such estimates.
<br />13.Ownenhip all Work Product. Abonmarche will remain the owner of all original
<br />drawings, reports, and other materials provided to the Clint, whether In hard
<br />copy or magnetic medics forth. The Client h authorized to use the copies
<br />provided by Abonmarche only in connection with the Project. My other use or
<br />reuse by the Clint far any purposes whatever wig be at the Client's risk and lull
<br />legal responsibility, without liability to Abonmarche and the Client wig defend,
<br />Indemnity, and hold Abonmarche harmless from al claims, damages, losses,
<br />and expenses, including attorney lees arming out of or resuting there from.
<br />14111inchonk Media. Copies of data, reports, drawings, specifications, and other
<br />materms furnished by Abonmarche that may be relied upon by lire Client are
<br />united to the printed copies toso known as hard copies) that are delivered to
<br />the Client pursuant to the services under this Agreement. Computer fibs of text,
<br />data, graphics, or of other types of electronic metlb are the safe possession of
<br />Revised 5-411 Page 2 of 2
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