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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT
<br />1. Agreement. These Toms and Conditions shalt be Incorporated by reference and
<br />shall prevail as the bask of the Client's Agreement to Abonmarche. Any Client
<br />document or communication In addition to or in conflict with these Tema and
<br />Conditions shalt be subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has the option to render this Agreement null and void, I
<br />If It Is not executed within thirty (30) days of delivery.
<br />3. CReM RespondbM*L The Client will provide an clRerfo and Information
<br />concerning the requirements of the Project. The Client will assume responsibifrty
<br />for Interpretation of contract documents and for construction observation and 1
<br />will waive all clams against Abonmorche that may be in any way connected,
<br />unless Abonmorche's services under this Agreement Include full -time
<br />construction observation or review of contractor's performance.
<br />4. Performance. The standard of core for services performed by or provided by
<br />Abonmorche will be the care and sill ordinarily used by Abonmache's 1
<br />profession practicing under similar circumstances at the some time and in the
<br />same locality. Abonmarche makes no worT", expressed or implied, with
<br />respect to any services provided by Abonmarche. Abonmorche will not be
<br />liable for any claim, damages, cost, or expense (including attorney's fees) or
<br />other nobility or lass not directly and solely caused by the negligent acts, eras.
<br />or omissions of Abonmarche.
<br />5. Hourly Nang Rates. If payment a on an hourly rate. Client will pay Abonmarche
<br />at the cement hwurty billing rotes. The hourly rates as ociusted onnuaity, or as
<br />deemed appropriate. 1
<br />6, ReMSbuaabk 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 limned to:
<br />mileage, tests and analyses, special equipment services, postage and delivery
<br />charges, telephone and telefax charges, copying, printing, and binaling
<br />charges. commercial transportation, meols, lodging, special fees, fcenses, and
<br />permits, Subcorsultant and outside technical or professional services will be
<br />charged on the basis of the actual costs times a factor of 1.15.
<br />7. Additional Savfces. A�tionol services that may be provided pursuant to the
<br />Agreement or ary subsequent modification of the Agreement will be
<br />oulhatzed, when possible, by ashen amendment signed on behalf of the Client
<br />and Abonmarche. Additional services, perforned by Abonmorche are subject 21
<br />to an Terms and Conditions and the Client will be responsible for payment.
<br />ShoWal the Client, regulatory agency, a 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 made in
<br />writing via a change order, but none the less, Abonmorche is entitled to be paid
<br />for extra services provided whether or not it k in writing.
<br />8. Underground Structures or bubd Ufittitei The Client is responsible for
<br />Identification and location of an public and private buried structures on the
<br />Client's property and the Project site, such as, but not limited to, storage tartly
<br />and lines, or gas, water. sewer, electrical, plane, cable, or any other public or
<br />private utilities. It's agreed that Abonmarche is not responsible for accidental
<br />damage to ulities or underground structures, whether known, unknown a
<br />Improperly located. The client shall be responsible for design fees If charges are 2
<br />necessary. Utility locating or marking services provided by Abonmarche are not
<br />substitutes for complying with the utlniy owner notification requirements or the
<br />locating services (8 11 systems) required prior to an excavation. Utilities shown as
<br />located by ground penetrating rodar ore approximate only. No excavation
<br />took place to verity the positions shown or to verify the type of utility (except as
<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. Abonmorche ls not providing any certRication or guarantee
<br />regarding the exact location of any underground utility.
<br />9. Underground Conditions. Abonmorche shall have no resposibiny for the
<br />Identification of existing or unforeseen/dI fering underground conclflom. The
<br />Contractor shall have sole responsibility for determining the nature of
<br />underground conditions and the means and methods of dealing with those 2
<br />conditions. Abonmorche 's entitled to rely upon the information provided by
<br />geotechnicat consultants and shall have no responsibility for the accuracy or
<br />correctness of the data contained in the geofechnicat reports.
<br />I O.Stie Access and Security. With the exception of access rights that land surveyors
<br />ore afforded by law, the Client will provide Abonmarche access to the Project
<br />site and the Client will be responsible for obtaining ory necessary permission
<br />from any affected third party property owners for use of their lands. The Client is
<br />I nsble for site secLd
<br />Abonmorche, unless specifically stated otherwise In an amendment to this
<br />Agreement. Any electronic media provided under this Agreement to the Client
<br />are oniy for the convenience of the Client, Any concluslons or Information
<br />obtained a derived from such electronic flies will be of the user's sole risk.
<br />S. Bonds and Pern)h_ The Cllent win be responsible for the adoption of any site
<br />access or right of wary bonds that may be Initiated on their behalf. At
<br />completion of Abonmarche's services, the Client will take responslbEiry and pay
<br />any ongoing bond or permit costs for any bonded or permitted services.
<br />6.Thtrd party Irwaicksg. R the Client directs Abonmorche to invoice third party
<br />payers, Abonmarche will ao so, but the Client agrees to be ultimately
<br />respornRsle for Abonmorche's compensation until the Client provides
<br />Abanmarche 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 ki 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 a Abonmarche. Abonmarche's services under thin
<br />Agreement are being performed solely for the Client's benefit, and no oilier
<br />party or entity shad have any claim against Abonmorche because of the
<br />Agreement or performance a nonperformance of services hereunder. The
<br />Client and Abonmarche agree to require a similar provision in ail contracts with
<br />contractors, subcontractors, subcornultonts, vendors and other entities involved
<br />in this Project to Cary out the intent of this provision.
<br />B.Suapenslon of Services. In the event of non- payment by Client, Abonmorche
<br />will have the absolute right to Cease performance of any services.
<br />9. Conlmcbts Work Abonmorche shaft have no ouli orfiy to direct or control the
<br />Work of the Contractor a to stop the Work of the Contractor. Abonmorche shill
<br />not be noble 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 />20.ConsequeMfd Damages. The Client and Abonmorche waive consequential
<br />damages for claims, disputes, or other matters In question relaffng 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 />22. Venue. The parties (a) i evocoby 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 inal 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 taw.
<br />23.Conddewflons. The successors. executors, administrators, and legal
<br />representatives of the Client and Abonmorche ore hereby bound onto the
<br />other with respect to the covenants. Agreements, and obfigatbrs of this
<br />Agreement.
<br />4.Ads of God. Neither the Client nor Abonmarche will have any nobility for
<br />nonperformance caused In whale or in part by causes beyond Abonmarche's
<br />reasonable control, Such causes Include, but are not limited to, Acts of God,
<br />civil urvest and war, labor unrest and strikes, acts of authorities, and events that
<br />could not be reasonably anticipated.
<br />25.Tem*mI1Icn_ Ether the Client or Abonmaram may terminate fii6 Agreement by
<br />grvhg 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 dote of the temAnatlon, plus jot 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, Abonmorche will return to the Client all documents and information
<br />that are the property of the Client.
<br />6.En*o 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 />so ey fespo y.
<br />I i.CaraAtanh. 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 ors surveys.
<br />geotechnicol and environmental assessments. The Client agrees that
<br />Abonmorche 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 table for any claim, liability, or defense cost for injury or
<br />loss sustained by any party dlegedy 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 Abonmorche win be on the basis of experience and
<br />judgment, but these are only estimates. Abonmomhe does not warrant that bids
<br />or ultimate construction or total project costs will not vary from such estimates.
<br />13.0wrarship of Work Product. Abonmorche 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 ony 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 fun
<br />legal responsibility, without liability to Abonmarche and the Client will defend.
<br />Indemnify, and hold Abonmorche harmless from dl claims, damages, losses,
<br />and expenses, inch ding attorney fees arising out of or resulting there from.
<br />14.Eleckonic Media. Copies of data, reports, drawings, specAlations, and other
<br />materials furnished by Abonmorche that may be relied upon by the Client ore
<br />Iir ited 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 />Revised 5 -4-11 Page 2 of 2
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