No. 3203 approving and authorizing the execution of an Amendment to the Addendum to the Master Agency Agreement (Hill & Colfax Drainage Improvement Project - Supplement #1)

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TERMS AND CONDITIONS OF PROFESSIONAL SERVICES AGREEMENT I. Agreement. These Terms and Conditions shall be incorporated by reference and shag prevail as the basis of the Client's Agreement to Abonmarche. Any Client document or communication in add +lion to a 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 vote, 1 if if is not executed within thirty (30) days of delivery. 3, Client Responsibilfffes. The Client will provide oil criteria and information concerning the requirements of the Project. The Client will assume responsibility for interpretation of contract documents and for construction observation and 1 will waive oil claims against Abonmarche that may be in any way connected, unless Abonmorche's services under 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 17 profession practicing under similar circumstances of the some time and in the same locality. Abonmarche makes no warranty. expressed or implied, with respect to any services provided by Abonmarche. Abonmorche 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 Abonmarche. 5, Hourly Billing Rates. It payment is on on hourly rate, Client will pay Abonmarche at the current hourly billing rates. The hourly rotes are adjusted annually a as deemed appropriate. 18 6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred directly or indirectly for the Cent's Project, will be charged of Abonmorche's 19 current rates. Examples of reimbursable expenses Include, but are not "led to, mileage, tests and analyses. special equipment services. postage and delivery charges, !elephone and telefax charges, copying, printing, and binding charges, commercial transportation, meals, lodging, special fees, licenses, and permits. Subconsultont and outside technical or professional services will be charged on the basis of the actual costs limes a factor of 1.15. 20 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 Abonmorche are subject 21 to all Terms and Conditions and the Client will be responsible for payment. Should the Client, regulatory agency, ar any public body or inspector direct modification or addition to services covered by this Agreement, the cost will be 22 added to the agreed price. Requests for extra services should be made in writing via a change order, but none the less, Abonmorche a entitled to be paid for extra services provided whether or not it is In writing. 8. Underground Structures or Burled URNes. The Client is responsible for identification and location of all public and private burled structures on the Client's property and the Project site, such as, but not limited to, storage tanks 23 and Ones, or gas, water, sewer, electrical, phone, cable, or any other public ar Private utilities. If is agreed that Abonmarche k 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 24 necessary. Utility locating or marking services provided by Abonmorche ore 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 rodeo are approximate only. No excavation took place to verity the positions shown or to verity the type of utility (except as 25, noted). Careful excavation's 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 certification or guarantee regarding the exact location of any underground utility. 9. Underground Conditions. Abonmarche shall hove no respxrsibility for the identification of existing or unforeseen /differing underground conditions. The Contractor shag hove sole responsibility for determining the nature of underground conditions and the means and methods of deding with those 26. conditions. Abonmarche Is entitled to rely upon the information provided by geotechnicof consultants and shag have no responsibility for the accuracy or correctness of the data contained In the geotechnical repass. 10. Site Access and Security. With the exception of access rights that land surveyors are afforded by law, the Client 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 security. 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 from such electronic files will be at the user's sole risk. S.8onds 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 Abonmarche's services, the Client will take responsibility and pay any ongoing bond or permit costs for any bonded or permitted services. 6.Third party invoicing. If the Client directs Abonmarche to invoice third party Payers. Abonmarche will do so, but the Client agrees to be ultimately responsible for Abonmarche's compensation until the Client provides Abonmarche with the third party's written acceptance of dl terns of this Agreement and until Abonmarche agrees to the substitution, .Third Party beneficiaries. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Client or Abonmarche, Abonmarche's services under this Agreement are being performed solely for the Client's benefit, and no other party or entity shag have any clam against Abonmorche because of this Agreement or performance or nonperformance of services hereunder. The Client and Abonmarche agree to requite a similar provision in all contracts with contractors, subcontractors, subconsultonts, vendors and other enfilies involved in this Project to cony out the intent of this provision. suspension of services. In the event of non- payment by Client. Abonmarche will have the absolute right to cease performance of any services. .Contractor's Work: Abonmarche shall have no authority to direct of control the Work of the Contractor or to stop the Work of the Contractor. Abonmarche shod not be liable to any party for the foil re of the Contractor to perform the Work consistent with the Plans and Specifications and applicable Codes and Regulations. Abonmorche shag have no responsibility at be Noble for safety procedures of the Contractor or its subcontractors. .Consequential Damages. The Client and Abonmarche waive consequential damages for claims, disputes, or other matters in question relating to services provided as a part of this Agreement. Including for example, but not limited to. loss of business. .Governing taw. This Agreement will be deemed to have been made in St. Joseph County, Indiana and shall be governed by and construed in accordance with the laws of the State of Indiana. Mon". The parties (a) irrevocably submit to the jurisdiction of any Indiana court sitting in St. Joseph County, Indlono in any action arising out of this agreement, and (b) waive, to the fullest extent that they may effectively do so, the defense of an inconvenient forum. The parties also agree that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment, or in any other manner provided by law, Considerations. The successors, executors, odministrotors. 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. Acts of God. Neither the Client nor Abonmorche will have any liability for nonperformance caused in whole or in part by causes beyond Abonmache's reasonable control, Such causes include, but are 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. Termination, Either She Client or Abonmarche may terminate This Agreement by giving ten {101 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 lot the discretion of Abonmarche) a termination charge to cover finalization of services necessary to bring ongoing services to a logical conclusion. Upon receipt of such payment. Abonmorche will return to the Client at documents and information that ore the property of the Client, Entire Agreement. This Agreement contains the entire agreement between the parties and there ore no agreements, representations, statements, or understandings which have been relied on by the parties which are not stated in this Agreement, End of Agreement. I I. Consultants, Abonmarche may engage Consultants at the request of the Client Reviewed by City of South Bend Legal Department 5/4/11 to perform services which are typically the Client's res sibilit such pan y, uc as surveys, geotechrical and environmental assessments. The Client agrees that Abonmarche will not be responsible W. or in any manner guarantee, the performance of services by the Consultants. The Client agrees that Abonmarche will not be liable for any claim, liability, or defense cost for injury or loss sustained by any potty allegedly caused by the Consultants' negligence or willful misconduct. 12.0ptnlons of Cost. Any opinions of probable construction cost and /or total project cost provided by Abonmorche will be on the basis of experience and judgment, but these are only estimates. Abortmorche does not warrant that bids or ultimate construction or total project costs will not vary from such estimates, 13.0wnership 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 outhorzed to use the 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 felt legal responsibility, without liability to Abonmorche and the Client will defend, indemnity, and hold Abonmarche harmless from all claims, damages, lasses, and expenses, including attorney fees arising out of or resulting there from. 14. Electronic Media. Copies of data, reports, drowings, specifications, and other molerials furnished by Abonmorche that may be relied upon by the Client are limited to the printed copies (also known as hard coplesl that are delivered to the Client pursuant to the services under this Agreement. Computer files of text, data, graphics, or of other types of electronic media are the sole possession of Revised 5-4-11 Page 2 of 2