17-DOC 00 52 00 AGREEMENT.pdf

Agreement

AGREEMENT

THIS AGREEMENT for services entered into this _______ day of ____________________, 2026, by and between ___________________________________________________, with an address of

__________________________________________________________________ (“Contractor”) and

Montgomery Township, a second class township with its principal office at 1001 Stump Road, Montgomeryville, Pennsylvania 18936 ("Township").

WHEREAS, the Township has requested Contractor to provide all labor and materials required to transport a John Deere 6120M tractor off-site, supply and installation of a LAFORGE PR5.5/6R front power take-off (PTO) and front 3-point hitch system, and an 11-foot or 12-foot 3-point hitch mounted hydraulic angle snowplow, including any required adapter kits, hardware, and integration with an existing John Deere 6120M tractor, and transport of the tractor back to the Township; and

WHEREAS, Contractor is qualified to and has agreed to perform such services as are more particularly described in a Proposal dated ____________________________________________, for the unit prices shown in the Proposal.

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Services.

A. Contractor will perform the services described in the Proposal which is attached to this Agreement (the “Services”). These Services shall be performed in accordance with the terms of this Agreement and the Proposal and in accordance with all regulatory requirements in effect. The scope of the Services to be performed by Contractor may be modified from time to time by an addendum to this Agreement agreed to in writing by Contractor and the Township. Under no circumstances shall Contractor subcontract any of the Services hereunder without the prior written consent of the Township, which consent may be withheld in the Township’s sole discretion. If the terms of this Agreement and the Proposal are inconsistent, the terms of this Agreement shall control.

B. The Contractor represents and warrants to the Township that it is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or which will interfere with the performance of its duties.

2. Contractor’s Responsibility.

The responsibilities of the Contractor under this Agreement are as follows:

A. The Services will be performed on behalf of and solely for the exclusive use of the Township and for no others. The Services performed by Contractor shall be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the same profession and field in the same locale acting under similar circumstances and conditions.

B. The Contractor shall be and remain liable in accordance with applicable law for all damages to the Township caused by the Contractor’s negligent performance of any of the Services furnished under this Agreement or furnishing services contrary to the terms of this Agreement.

3. Compensation.

A. The contractor shall submit one invoice upon completion.

B. The Township shall compensate Contractor in accordance with the rates set forth in the Proposal.

C. Unless the Township in good faith disputes any item on an invoice, the Township agrees to pay Contractor’s invoices within thirty (30) days of the invoice date, but no earlier than ten (10) days after the next meeting of Montgomery Township Board of Supervisors (the “Township Board”), provided that the invoice is delivered at least ten

(10) days prior to the date the Township Board meets to approve any unpaid invoices;

otherwise, the invoice will be paid within ten (10) days of the next meeting of the Townships Board.

D. The TOWNSHIP reserves the right to withhold payment to Contractor or to require Contractor to return payments, or parts therefore, received from the TOWNSHIP in the event the Contractor’s performance does not comply with the provisions of these Specifications, or does not comply with applicable local, state, or federal standards, regulations, or policies.

E. Tax Exemptions

(i) Contractor will be responsible for the payment of all Excise, Sales, or Use Taxes, and all other taxes required by law on all labor, materials, tools, apparatus, equipment, fixtures, and incidentals which Contractor purchases or uses for the purpose of fulfilling the work.

(ii) Tax Exemption. Contractor may purchase equipment, materials and supplies exempt from tax through the use of an Exempt Purchaser's Certification and Sales and Use Tax Exemption Certificate furnished by TOWNSHIP if the equipment, materials and supplies being purchased will be directly used in this project, including restoration activities which are directly associated with and necessary to complete this project.

F. If Contractor determines at any time prior to the completion of its Services that the amount of its estimate for such Services will be exceeded, Contractor shall notify the Township in writing the cause of such excess cost and of its best estimate to complete the remaining Services. The Township shall have the right upon receipt of such estimate to: (1) increase the Contractor budget by the negotiated amount; (2) insist on completion of the Services for the price and scope originally outlined on the Appendix;

or (3) agree with Contractor for a reduction in the scope of Services remaining to be performed under the Proposal, so that the total amount to be paid for the Services shall approximate the original estimate.

G. In the event that the Township disputes any invoice submitted by Contractor it will, prior to the scheduled payment date of such invoice, advise Contractor in writing of the dispute and the cause of such dispute with a suggested resolution of the dispute if one is available.

H. Invoice shall be sent directly to:

Montgomery Township Department Public Works 1001 Stump Road Montgomeryville, Pennsylvania 18936

4. Disputes.

All controversies or claims arising out of or related to this Agreement, or breach thereof, shall be filed in the Court of Common Pleas of Montgomery County, Pennsylvania. The prevailing party shall be entitled to recover its reasonable attorney fees and costs. Neither party will be responsible to the other for punitive or consequential damages including, but not limited to, loss of profit, loss of investment or business interruption.

5. Indemnification and Insurance.

A. Contractor, for itself and its successors and assigns, hereby agrees to reimburse the Township for reasonable attorney fees/costs of suit that it incurs, indemnify, and hold harmless, the Township, and its officers, supervisors, employees, attorneys, successors and assigns from and against losses, liabilities, claims, demands, causes of action, damages, costs, including reasonable attorneys’ fees, and expenses of every kind and nature, whether or not covered by insurance, arising out of, resulting from or caused by, in whole or part, any negligent act, error, omission or willful misconduct on part of Contractor, its agents, employees or subcontractors in connection Contractor’s performance of the services pursuant to this Agreement, including but not limited to, those in connection with loss of life, bodily injury, personal injury, damage to property, contamination or adverse effects on the environment, any liability for fines, fees or penalties for violations of any statutes, ordinances, codes, rules, regulations or standards applicable to the services performed by Contractor, its agents, employees or subcontractors (hereinafter “Acts and/or Omissions”). These obligations contained within this Section shall survive the termination of this Agreement. Notwithstanding anything to the contrary as may be contained above, the Contractor shall reimburse the Township for reasonable attorney’s fees/costs of suit that it incurs in defending any suits or claims attributable (as determined by a Court of competent jurisdiction) to any Acts and/or Omissions.

B. Throughout the life of this Agreement, the Contractor shall pay for and maintain in full force and effect with an insurance company(ies) admitted by the Pennsylvania Insurance Commissioner to do business in the Commonwealth of Pennsylvania and rated not less than A in Best Insurance Key rating Guide, the following policies of insurance:

(i) Commercial general liability insurance, including property damage liability and personal injury liability of not less than $1,000,000 for each occurrence and a $2,000,000 minimum aggregate amount.

(ii) Owned, hired, and non-owned Automobile bodily injury liability insurance of not less than $500,000 for each person; $1,000,000 each occurrence or Combined Single Limit, Bodily Injury and Property Damage of $1,000,000, each occurrence.

(iii) Workers’ Compensation insurance for the Contractor’s employees. Coverage must be in accordance with statutory requirements, including Employers Liability of not less than $500,000; Bodily Injury for each employee of not less than $500,000; Bodily Injury for each accident of not less than $500,000 and Disease for each Employee of not less than $500,000.

(iv) Professional liability insurance covering damages to the Township and others resulting from errors or omissions of Contractor of not less than $2,000,000.

(v) Umbrella Liability Insurance at a minimum limit of $2,000,000 on a following form basis, excess of the General Liability, Automobile Liability and Employers Liability coverages. Umbrella Policies shall spell out the primary coverage to which the excess coverage shall apply.

C. Contractor’s Property Insurance

(i) Any property or work to be provided by the Contracor under this Contract will remain at the Contractor’s risk until final written acceptance by the TOWNSHIP.

The Contractor will replace, at its expense, all property or work lost, damaged, or destroyed by any cause whatsoever. As such, the Contractor may, at its option, purchase and maintain installation floater or other property insurance covering the work and the materials going into the Work.

(ii) The Contractor shall, at their own expense, purchase and maintain property insurance coverage for their owned, leased or rented machinery, tools or equipment. The Contractor hereby waives all rights against the TOWNSHIP and its elected and appointed officials, officers and employees for property damage to or loss of use of such machinery, tools or equipment to the extent that such property damage or loss of use is covered by the Contractor's property or equipment floater insurance or other similar property insurance maintained by the Contractor. The policies shall provide such waivers of subrogation by endorsement or otherwise.

D. All policies of commercial general liability insurance required hereunder shall name the Township, its officers, supervisors and employees as additional insured’s.

Specifically, Contractor commercial general liability insurance policy shall name the Township, its officers, agents, supervisors, elected officials and employees as an additional insured under ISO endorsement CG 20 26 07 04 or non-ISO equivalent. A copy of ISO endorsement CG 20 26 0704 is attached hereto as Exhibit “A.” The Contractor’s CGL insurance policy shall also afford coverage for “bodily injury” or “property damage” arising out of the “products- completed operations hazard.”

E. Certificates of insurance shall state that coverage shall not be cancelled by either party except after thirty (30) days’ prior written notice by U.S. certified mail, return receipt requested, to the Township.

F. Regardless of the minimum insurance requirements herein, the Contractor shall agree to commit the Contractor’s full policy limits and these minimum requirements shall not restrict the Contractor’s liability or coverage limit obligations.

G. The Contractor shall furnish the Township with certificates of insurances and the requisite endorsements for all required insurance, prior to the Township’s execution of the Agreement and the start of work.

H. All Contractor’s employing mechanical digging devices or requiring blasting must procure and maintain underground and/or blasting liability insurance (XCU) for the period of time work is in progress. Limits shall be the same as required under Public Liability and Property Damage herein being specified.

I. All policies, except for Employers Liability, shall name Montgomery Township and their officers, agents and employees as additional insureds on a primary and noncontributory basis, including for completed operations. All polices, except for Employers Liability, shall provide a waiver of subrogation in favor of the additional insured parties, and be on a “Per Project Basis”.

J. Upon notification of receipt by the Township of a notice of cancellation, major change, modification or reduction in coverage, the Contractor shall immediately, after the effective date of a new or renewal policy, file with the Township a copy of the required new or renewal policy and certificates for such insurance and list the Township as additional insureds.

K. If at any time during the term of this Agreement, or any extension thereof, the Contractor fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately, and all payments due or that may become due to the Contractor shall be withheld until acceptable replacement coverage notice is received by the Township. Any failure to maintain the required insurance shall be sufficient cause for the Township to terminate this Agreement.

L. If the Contractor should subcontract all or any portion of the work to be performed under this Agreement, the Contractor shall cover the subcontractor and require each subcontractor to adhere to all subparagraphs of this Insurance section, written evidence of which shall be provided to the Township prior to commencement of work by the subcontractor. Similarly, any cancellation, lapse, reduction or change of subcontractors’ insurance shall have the same impact as described above.

6. Schedule

A. Time of the Essence. Contractor shall supply, install and deliver a LAFORGE PR5.5/6R front power take-off (PTO) and front 3-point hitch system, and an 11-foot or 12-foot 3-point hitch mounted hydraulic angle snowplow, including any required adapter kits, hardware, on an existing John Deere 6120M tractor within 90 days of executed Agreement.

B. Commencement of Contract Times. Unless otherwise provide by the TOWNSHIP in writing, in no event will the Contract Times commence to run later than the thirtieth (30th) day after the Effective Date of the Agreement.

C. Liquidated Damages. Contractor and Owner recognize that time is of the essence as stated in Paragraph 6.A above and that TOWNSHIP will suffer financial loss if the Work is not completed within the time specified in Paragraph 6.A above, plus any extensions approved by TOWNSHIP in writing. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by TOWNSHIP if the Work is not completed on time. Accordingly, instead of requiring any such proof, TOWNSHIP and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay TOWNSHIP $500.00 for each day that expires after the time specified above for completion and readiness for final payment until the Work is completed and ready for final payment.

7. Assignment

Contractor will not delegate, assign, sublet or transfer any of its obligations or interests in this Agreement without the prior written consent of the Township.

8. Independent Status

Contractor shall serve as an independent contractor to the Township and not as its agent or employee. Should it be determined appropriate or necessary to rely on subcontractors, Contractor shall obtain written consent from the Township. The Township shall assign a representative authorized to act on the Township’s behalf with respect to the Services to be performed pursuant to this Agreement. The Township or such authorized representative shall render decisions in a reasonably timely manner after alternative courses of action are presented in reasonable detail pertaining to Contractor’s Services to avoid unreasonable delay in the orderly and sequential progress of Contractor’s Services.

9. Termination

This Agreement may be terminated in whole or in part, in writing by either party subject to the terms, definitions, conditions and remedies as set forth herein.

(1) Definitions.

(a) Termination: To immediately discontinue rendering services hereunder.

(b) Fault: Substantial failure of either party to fulfill its obligations under the Agreement as determined by a court of competent jurisdiction, if requested by the terminated party.

(c) Convenience: At will of terminating party without fault of the terminated party, and without justification.

(2) Right to Terminate.

(a) Fault of Contractor: The Township may terminate this Agreement upon failure of Contractor to perform its obligations under the Agreement.

(b) Fault of the Township: Contractor may terminate this Agreement upon failure of the Township to perform its obligations under the Agreement.

(c) Convenience of the Township: The Township may terminate this Agreement at its convenience. Contractor may not terminate the Agreement for its convenience.

(3) Remedies upon Termination.

In the event of termination hereunder, the following rights and remedies shall apply:

(a) Fault of Contractor: If termination is caused by the fault of the Contractor, then:

(i) Subject to offset for costs incurred by the Township to complete the scope of work as set forth in Section 3(a)(iii) below, including the costs of reasonable attorneys’ fees and engineering fees, the Township shall pay Contractor for all services and expenses rendered to the date of termination in accordance with compensation terms in the Agreement.

(ii) The Township shall not pay anticipated profits or other penalties or damages.

(iii) Contractor shall pay the Township all reasonable/necessary costs incurred by the Township to complete Contractor’s scope of work. Such costs may include the cost incurred by the Township of employing another Contractor to complete such work, provided Contractor was given notice of any alleged fault and a reasonable opportunity to cure such alleged fault.

(b) Fault of the Township: If termination is caused by the fault of the Township, then:

(i) The Township shall pay Contractor for all authorized services and expenses rendered by Contractor to date of the termination.

(ii) The Township shall not pay for anticipated profits or other penalties or damages.

(c) Convenience of the Township: In the event of termination for convenience by the Township, then:

(i) The Township shall pay Contractor for authorized services and expenses to date of termination, including the pro rata share of any fixed fee(s) to that date.

(ii) The Township shall not pay for anticipated profits or other penalties or damages.

(4) Termination of Contractor for Default Reversed.

(a) If, after termination for failure of Contractor to fulfill contractual obligations, it is determined by a court of competent jurisdiction or the Township that the Contractor had not failed to fulfill contractual obligations, the termination shall be deemed to have been for the convenience of the Township. In such event, payments to the Contractor shall be made as provided in Paragraph 3(c) of this clause.

(5) Notice Requirements.

(a) No termination for fault or convenience shall take place hereunder by either party, unless:

(i) An opportunity for consultation is afforded between the parties prior to sending the notice of termination; and

(ii) A notice of termination is sent to the other party in writing, at least ten

(10) calendar days prior to the effective date of termination, by certified mail, return receipt requested. The termination shall be effective upon receipt of the certified mail.

(6) Obligations upon Termination.

(a) Up for on receipt of a termination action for fault or convenience as set the above, the Contractor shall:

(i) Promptly discontinue all affected work (unless notice directs otherwise); and

(ii) Deliver or otherwise make available to the Township all data, drawings, specifications, reports, estimates, summaries, and such other information and material as may have been accumulated by the Contractor in performing this Agreement whether completed or in process and all digital documents need to be updated to their latest software revision.

(iii) The Township may take over the work and/or may award another party an Agreement to complete the work hereunder.

(iv) Contractor shall be prohibited from disclosing any information pertaining to the Project, including, but not limited to the name of the Township and the name of the Project, in Contractor’s advertisement and/or public relations materials without the prior written consent of the Township.

10. Bonds Required

A. Performance Bond

Contractor at its expense, will furnish a performance bond equal to one hundred percent (100%) of the bid amount for the term of the award within ten (10) days of the bid award. The form included with bid documents, or a form approved by the TOWNSHIP, shall be used by the Surety.

B. Payment Bond

In accordance with the Pennsylvania Codified Statutes, Contractor at its expense, will furnish a payment bond, or payment escrow account, to the TOWNSHIP equaling one- hundred percent (100%) of the full amount of this Agreement. The form included with bid documents, or a form approved by the TOWNSHIP, shall be used by the Surety.

11. Restriction Regarding Township and its Employees and Agents

It is understood that the employees of the TOWNSHIP or individuals acting as agents of the TOWNSHIP are not authorized to receive any type of personal payment, reimbursement, compensation, commission, gratuity, or gift for services provided under any agreement, or as in relation to the bid process, between the TOWNSHIP and Contractor. Contractor warrants that no employee or agent of the TOWNSHIP has been or will be retained to solicit or secure any agreement witnessed and that Contractor has not paid or agreed to pay and will not pay or agree to pay any employee of the TOWNSHIP any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon the making of any agreement with the TOWNSHIP or as an inducement for entering into any agreement with the TOWNSHIP. The unauthorized offering or receipt of such payments may result in the immediate termination of any agreement between the TOWSHIP and Contractor.

12. Subcontractors

No Subcontractors are permitted under this contract.

13. Warranty

The Contractor shall guarantee the materials, equipment, parts, workmanship, supplied to the TOWNSHIP against all defects (whether in design, material or workmanship) for a period of one (1) year from the date of accepted delivery. The contractor shall replace all defective parts or assemblies without cost to the TOWNSHIP. In addition, the contractor warrants the merchantable quality of the goods sold hereunder, and that such goods shall be fit for the purpose for which they were purchased. The aforementioned warranties are in addition to all express warranties contained in the detailed specifications and elsewhere, and any policy guarantees usually extended to the general public, and shall run to the benefit of the TOWNSHIP, the TOWNSHIP’s employees, agents, and purchasers.

14. Patents

The contractor undertakes and agrees to hold harmless, defend and indemnify the TOWNSHIP and its employees at its own expense from and against all suits, actions, or proceedings of any nature and description in which the TOWNSHIP is made a defendant for actual or alleged infringement of any United States or foreign letters patent, trademark, or copyright for or account of the use of patents and appliance, products, or processes or otherwise resulting from the use or sale of items or work purchased under this contract. The contractor further agrees to pay and discharge all judgments or decrees which may be rendered in any suits, action or proceeding.

15. Protection Against Loss

During supply, installation, and delivery of the materials and performance of the work, the Contractor shall take all necessary precautions to prevent damage to equipment and existing tractor, and to preserve property within or adjacent to the area in which the work is to be performed. The Contractor shall be responsible for all damage to property so situated. The contractor shall indemnify, defend, and hold harmless the TOWNSHIP from suits, actions, damages, and costs of every name and description resulting from the supply, installation, and delivery of materials and the performance of any work.

16. Applicable Law

This Agreement and all questions relating to its validity, interpretation, performance and enforcement, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict-of-laws doctrines of such state or any other jurisdiction to the contrary.

17. Nondiscrimination

Contractor shall comply with all applicable provisions of state and federal constitutions, laws, regulations and judicial orders pertaining to nondiscrimination and equal employment opportunity.

18. Steel Products Procurement Act

CONTRACTOR shall comply with the Steel Products Procurement Act (P.L. 6, No. 3 enacted March 3, 1978).

19. Public Works Employment Verification

CONTRACTOR shall comply with the requirements of the Public Works Employment Verification Act (P.L. 1086, No. 127 enacted July 5, 2012) if the Contract Price exceeds $25,000. CONTRACTOR shall comply with the requirements of the Public Works Employment Verification Act, including submission of the Public Works Employment Verification Form included with these bid documents to the TOWNSHIP if the Contract Price exceeds $25,000.00.

20. Submittals

Contractor shall furnish required submittals with sufficient information and accuracy in order to obtain required approval of an item with no more than three submittals.

21. Notices

All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given and received, when delivered personally, or the day after sent by an express overnight delivery service, or three (3) days after posting when sent by certified United States mail, postage prepaid, addressed as follows:

If to Contractor:

If to the Township: 1001 Stump Road Montgomeryville, Pennsylvania 18936 Attn: Carolyn McCreary, Township Manager

Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this subsection for the giving of notice.

22. Miscellaneous

A. Regardless of where the services of the Contractor and its subcontractors under this Agreement are actually performed, they shall be deemed to be performed in Montgomeryville, Montgomery County, Pennsylvania.

B. The Contractor agrees to abide by the terms of the Pennsylvania Right to Know Act (the “Act”) with respect to documents prepared under this Agreement that are in the possession of the Contractor. The Contractor further acknowledges that any documents or work product produced by Contractor under this Agreement may be subject to public disclosure as required under the Act and that Contractor hereby agrees work with the Township to timely produce any such documents as required under the Act. The Contractor agrees to indemnify and hold the Township harmless for any penalties or damages incurred by the Township that are related to the Contractor’s failure to abide by the terms of this paragraph. The terms of this paragraph shall survive termination of the Agreement.

C. All work product of the Contractor for this project, including work product created in electronic format, are instruments of service for this project only and shall become the property of the Township whether the project is completed or not. The parties hereto do not intend, nor will any clause of this Agreement be interpreted, to grant to any third party any benefits or rights under this Agreement. Any reuse of Contractor work product for any purpose other than that specifically intended in this Agreement, including providing a copy of any Contractor work product to a third party not specifically identified herein, will be at the Township’s sole risk and without financial liability or legal expense to Contractor.

D. Neither the Township nor Contractor shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents or other events beyond the control of the other or the other’s employees and agents.

E. In the event the Township retains the services of counsel in connection with the enforcement of any rights under this Agreement, whether or not legal proceedings are instituted and whether or not the Township formally declares default, the Township shall be entitled to collect from Contractor all of its reasonable counsel fees and costs incurred.

F. In the event any provision of this Agreement shall be invalid or unenforceable, the remaining provisions shall be valid and binding upon the parties hereto. One or more waivers by either party of any provision, term, condition or covenant shall not be construed by the other party as a waiver of subsequent breach of the same by the other party.

G. This Agreement is to be binding on the heirs, successors, and assigns of the parties hereto and is not to be assigned by either party without first obtaining the written consent of the other. Nothing herein shall be construed to give any rights or benefits hereunder to anyone other than the Township and Contractor.

H. The parties acknowledge that this Agreement constitutes the entire Agreement between them and supersedes all prior representations, warranties, agreements and understandings, whether verbal or written, between the parties with respect to its subject matter.

I. Unless stated otherwise in this Agreement, this Agreement may not be modified except in writing signed by both parties.

J. The headings to this Agreement are for convenience and reference purposes only and shall not constitute a part of the Agreement.

23. Contract Documents

A. Contents

1) The Contract Documents consist of the following:

a. The Agreement (pages 1 to _____, inclusive);

b. Performance Bond (page 1 to _____, inclusive);

c. Payment Bond (pages 1 to _____, inclusive);

d. Specifications as listed in the table of contents od the Project Manual;

e. Addenda (numbers ____ to _____, inclusive)

f. Exhibits to this Agreement (enumerated as follows):

i. CONTRACTOR’s Bid (including PennBid Bid Form/Bid Table) (pages 1 to _____, inclusive) and marked Exhibit 1 and attached to the Agreement;

ii. Documentation submitted by CONTRACTOR prio to Notice of Award (pages 1 to ___, inclusive);

iii. Insurance Certificate(s)

g. The following which may be delivered or issued on or after the Effective Date of the Agreement

i. Notice to Proceed

ii. Change Orders

2) There are no Contract Documents other than those listed above in Paragraph 23.A.

3) The Contract Documents may only be amended, modified, or supplemented in writing signed by both parties.

ATTEST: MONTGOMERY TOWNSHIP

BY:

Carolyn McCreary, Township Manager

ATTEST/WITNESS: CONTRACTOR

BY:

Name: