Professional Engineering Services Agreement.pdf

STATE OF MICHIGAN

COUNTY OF OAKLAND

CHARTER TOWNSHIP OF INDEPENDENCE

AGREEMENT FOR PROFESSIONAL ENGINEERING

SERVICES BETWEEN

This Agreement is effective this _____ day of _________________, 2025, and is between the Charter Township of Independence, 6483 Waldon Center Rd, Clarkston, Michigan 48346

(hereafter "Township") and ________________________________________ (hereafter "Consultant").

RECITALS:

The Township desires to engage the professional services of the Consultant to provide general civil engineering, professional consulting services, and design and construction engineering services for and on behalf of the Township.

This is a non-exclusive Agreement. Consultant has been considered by the Township as a “prequalified engineering firm” and may be assigned individual projects, or multiple projects and services on a rotating and/or discretionary basis as determined by the Township.

The Consultant desires to provide such services, as set forth below and in the attached and incorporated Exhibits, under the terms and conditions hereof.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. General Scope of Services and Term of Agreement:

a. For and in consideration of payment by the Township as provided in this Agreement, Consultant shall perform the services described herein, including the services described in Exhibit A—Fee Proposal for Engineering Consultant

Services, if and when such services are assigned by the Township to Consultant by execution and receipt of a Purchase Order, in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances, and in compliance with all terms and conditions of this Agreement.

b. For design and construction engineering services for individual projects, if and when assigned to Consultant, including roadway construction and rehabilitation work, sidewalk and pathway construction, water main construction, sanitary sewer/storm sewer construction, underground utility rehabilitation, and traffic signal construction, consultant shall submit an individual work plan and schedule for each project assigned to Consultant by the Township based upon the scope of the particular project as described in accordance with Exhibit B—Engineering Fee

Schedule for that particular type of project. The approved work plan, schedule, and scope of the project (the “Work Plan, Schedule, Project Scope”) as set forth in _______________, shall be assigned to Consultant by approval by the Township of a Purchase Order. A Purchase Order shall be prepared for each individual project assigned to the Consultant. Consultant shall comply with the work description, insurance requirements, and other terms applicable to each individual project as set forth in the Work Plan, Schedule and Project Scope.

c. Quality of Services under this Agreement shall be of the level of professional quality performed by experts regularly rendering this type of service.

Determination of acceptable quality shall be made solely by the Contract Administrator.

d. The term of this Agreement shall be _____ years from the date set forth above, and will be open for review and negotiation by mutual agreement of Consultant and the Township of Independence for _____additional __year terms. However, either party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other party. This Agreement may be terminated by either party upon 7 days’ prior written notice to the other party in the event of substantial failure by the other party to fulfill its obligations under this agreement through no fault of the terminating party

e. This Agreement is based on the ordinances, policies, procedures, or requirements in effect on the date of the Agreement. Any additional office or field services required as a direct and apparent result of the change of such ordinances, policies, procedures, or requirements shall be negotiated to the mutual consent of the Township and Consultant.

f. Township agrees that the plans, drawings, or other contracted services are primarily for the use of Township. All documents prepared by the engineer, including tracings, drawings, estimates, specifications, field notes, investigations, studies, reports, computer files, field data, notes, etc., in connection with the performance of its duties under this agreement shall become the property of the Township upon completion of the services and payment in full of all monies due to the Consultant with respect to the preparation of such document. Reuse of any such materials by Township on any extension of any project or any other project without the written authorization of Consultant shall be at Township’s sole risk. Consultant shall have the right to retain copies of all such materials.

g. The parties to this Contract intend that the relationship between them created by this Contract is that of the service provider and service purchaser. It is expressly agreed, understood and intended that no employee-employer relationship shall exist or be established, and that Consultant is an independent contractor who has been retained to render services to the Township to achieve specific results in exchange for specified recompense. As an independent contractor, Consultant expressly agrees that: (a) In the performance of this Contract, the relationship of Consultant to the Township shall be that of an independent contractor and not that of an employee or agent of the Township, and neither Consultant, nor any agent, employee or permitted subcontractor of Consultant, shall be or may be deemed to be the employee or agent of, or a servant to, the Township; (b) Consultant will be solely responsible for payment of salaries, wages, and other compensation for its employees and agents; (c) Neither the Consultant nor any officer, agent, employee or subcontractor of the Consultant shall be eligible for coverage under or eligible to receive the benefits of the Township’s Workers' compensation, unemployment or health insurance, pension plans or other benefit plans; (d) Consultant is and shall perform under this Contract as an independent contractor, and no liability or responsibility with respect to benefits of any kind, including without limitation, medical/health benefits, Worker's compensation, pension rights, or other rights or liabilities arising out of or related to a contract for hire or employer/employee relationship shall arise or accrue to either party as a result of the performance of this Contract; and (e) Consultant, as an independent contractor, is not authorized to enter into or sign any agreements on behalf of the Township.

h. Approval of a Work Plan, Schedule, Project Scope by the Township shall not constitute nor be deemed release of the responsibility and liability of Consultant, its employees, associates, agents and subconsultants for the accuracy and competency of their designs, working drawings, and specifications, or other documents and services; nor shall that approval be deemed to be an assumption of that responsibility by the Township for any defect in the designs, working drawings and specifications or other documents prepared by Consultant, its employees, subconsultants, and agents. After acceptance of final plan and special provisions by the Township, Consultant agrees, prior to and during the construction of this project, to perform those engineering services as may be required by Township to correct errors or omissions on the original plans prepared by Consultant and to change the original design as required.

2. Payment for Services:

a. Consultant shall invoice Township monthly on account of Consultant's services.

Township shall pay Consultant within thirty (30) calendar days of the time of receipt of invoice from Consultant on account. Subject to sub-paragraph 2(b) below, the Township shall pay the undisputed portions of each progress invoice within thirty (30) days of the date of the invoice. If payment is not maintained on a thirty (30) day current basis, Consultant may suspend further performance until payments are current. All expenses required to complete the scope of services described herein, including but not limited to costs related to mileage, vehicles, reproduction, computer use, etc., shall be included in the basic fee and shall not be paid separately. However, as compensation for expenses that are not included in the standard scope of services, when incurred in direct connection with the project, and approved by the Township, the Township shall pay the Consultant its actual cost times a factor of 1.15.

b. Township agrees that the periodic billing from Consultant to Township are presumed to be correct, conclusive with regard to the services provided, and binding on Township unless Township, within thirty (30) calendar days from the date of receipt of such billing, notifies Consultant in writing of alleged disagreements with regard to the billing. Errors or discrepancies in a billing recognized after 30 calendar days but not more than 180 calendar days after receipt of invoice from Consultant shall be resolved to the mutual satisfaction of both parties. After 180 calendar days after receipt of invoice from Consultant, the professional services provided by Consultant shall be viewed as acceptable and closed. Final billing under this agreement shall be submitted in a timely manner but not later than three (3) months after completion of the services. Billings for work submitted later than three (3) months after completion of services will not be paid. Final payment will be made upon completion of audit by the Township.

c. All fees and/or costs associated with or due to any governmental or review agencies arising from the services are the sole responsibility of the Township.

d. For individual projects assigned to Consultant in accordance with Section 1(b) above, a more specific procedure for submission and approval of billing statements may be set forth in the Work Plan, Schedule and Project Scope for each project.

The Township shall confirm the correctness of any progress estimates made for billing purposes. Monthly statements for services shall be accompanied by such properly completed reporting forms and such other evidence of progress as may be required by the Township.

e. In the event of termination for a substantial failure by the Consultant to fulfill its obligations under this agreement through no fault of the Township, Consultant shall be paid as compensation in full for services performed to that date an amount calculated in accordance with the Work Plan, Schedule and Project Scope for that particular project. Such amount shall be paid by the Township upon Consultant's delivering or otherwise making available to the Township all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been prepared and/or accumulated by Consultant in performing the services up to the date of termination.

3. Indemnification and Liability:

a. The Consultant agrees to indemnify and hold harmless the Township, its elected and appointed officials and employees, and agents from and against any and all claims, demands, suits, losses and settlements, including actual attorney fees incurred and all costs connected therewith, for any damages which may be asserted, claimed or recovered against the Township by reason of personal injury, death and/or property damages to the extent such injury, death or property damages arises out of or is connected or associated with the actions or inactions of the Consultant in performing or failing to perform the work.

The Consultant agrees that it is its responsibility and not the responsibility of the Township to safeguard the property and materials used in performing this Agreement. Further, this Consultant agrees to hold the Township harmless for any loss of such property and materials used pursuant to the Consultant’s performance under this Agreement.

b. The Township and Consultant acknowledge that the Consultant's Scope of Services does not include any services related to the presence of any hazardous or toxic materials. In the event the Consultant or any other party encounters any hazardous or toxic materials, or should it become known to the Consultant that such materials may be present on or about the jobsite or any adjacent areas that may affect the performance of the Consultant's services, the Consultant may, at its option and without liability for consequential damages, suspend performance of its services under this Agreement until such time as the Township retains appropriate Consultants or contractors to identify and abate or remove the hazardous or toxic materials and warrants that the jobsite is in full compliance with all applicable laws and regulations.

c. Consultant makes no representations concerning site conditions, and Consultant is not responsible for any liability that may arise out of the making or failure to make site surveys, or subsurface tests, or general testing; provided, however, that if the provision of such surveys and testing is required in order for Consultant to provide the particular service being rendered by Consultant under this Agreement, in accordance with the professional standard of care set forth in Paragraph 1.a. above, the making of such representations or the provision of such surveys and testing shall be required.

d. In providing opinions of probable construction costs, it is recognized that neither the Township nor the Consultant has control over the costs of labor, equipment, materials, contractor safety practices, or over a contractor's methods of determining prices or bidding. An opinion of probable construction costs shall be based on a reasonable professional judgment and experience, but shall not constitute a warranty, express or implied, that the contractor's bids or the negotiated price of the work will not vary from the Township's budget or from any opinion of probable cost prepared by the Consultant.

e. Consultant shall not be liable for damages resulting from the actions or inactions of any governmental agencies, including, but not limited to, plan processing;

provided, however, that this provision shall not relieve Consultant of its obligations under this Agreement, including all Exhibits hereto, with respect to its securing, or assisting the Township in securing, various governmental permits and appraisals in a manner consistent with the standard of care set forth in Paragraph 1.a. above.

f. Except as specifically set forth in the Work Description Exhibit, attached hereto as Exhibit A , the Township acknowledges that Consultant is not responsible for the performance or work by third parties, including, but not limited to, construction contractors or their subcontractors.

4. Insurance:

a. During the term of this Agreement, Consultant shall obtain and maintain in full force, at its own expense, the following insurance coverage in not less than the following amounts:

i. Worker's Compensation insurance relative to all Personnel engaged in performing services pursuant to this Agreement, with coverage not less than that required by applicable law,

ii. Comprehensive General Liability Public Liability, for occurrences while engaged in performing services pursuant to this Agreement, with coverage not less than the amount of $1,000,000 per occurrence;

iii. Professional Liability (Including Errors and Omissions) Insurance in the amount of $1,000,000 per claim;

iv. Automotive Insurance covering all owned, hired, and non-owned vehicles with insurance to comply with the Michigan No-Fault Insurance Law, including Regional Liability Insurance with minimum bodily injury limits of $1,000,000 each occurrence and minimum property damage of $1,000,000 per occurrence.

b. Consultant shall be responsible for all deductibles contained in any insurance required hereunder.

c If during the term of this Agreement changed conditions or other pertinent factors should in the reasonable judgment of the Township render inadequate existing insurance limits, the Consultant will furnish on demand such additional coverage as may reasonably be required under the circumstances. The cost of insurance for individual projects shall be factored into the established fee for each particular type of project

g. All policies shall name the Consultant as the insured and shall be accompanied by an endorsement from the insurer that such policies shall not be canceled or reduced without at least thirty (30) days prior notice to the Township.

h. With the exception of Professional Liability, all insurance policies shall name the Township of Independence, its officers, agents, and employees as additional insured, pursuant to endorsement. Certificates of Insurance and required endorsements evidencing such coverage shall be submitted to the Clerks Office Charter Township of Independence, 6483 Waldon Center Rd, Clarkston, Michigan 48346, prior to the commencement of performance under this Agreement and at least fifteen (15) days prior to the expiration dates of expiring policies.

i. If any service is sublet in connection with this Agreement, the Consultant shall require each subcontractor to effect and maintain at least the same types and limits of insurance as fixed for the Consultant.

j. The provisions requiring the Consultant to carry said insurance shall not be construed in any manner as waiving or restricting the liability of the Consultant under this Agreement.

k. Coverage under the general and auto liability policies shall be considered to be the primary coverage rather than any policies and insurance or self-insurance retention owned or maintained by the Chater Township of Independence. This coverage shall be primary to the Additional Insureds, and not contributing with any other insurance or similar protection available to the Additional Insureds, whether other available coverage is primary, contributing or excess.

5. Entire Agreement

a. This Agreement, in conjunction with each applicable Purchase Order and corresponding Work Plan, Schedule and Project Scope which are incorporated herein contains the entire agreement between the Township and Consultant relating to services to be provided by Consultant to the Township. Any prior agreements, promises, negotiations, and representations not expressly set forth in this Agreement are of no force or effect. Subsequent modifications to this Agreement shall be in writing and signed by both Township and Consultant.

b. With respect to any direct conflict between the terms of this Agreement, Work Plan, Schedule and Project Scope as defined in Section 1(b) above, the terms of the Work Plan, Schedule and Project Scope shall control with respect to that individual project set forth in the particular the Work Plan, Schedule and Project Scope only.

Notwithstanding this subsection, insurance, indemnification and liability requirements, shall be additional to those indemnity and hold harmless provisions set forth in any Work Plan, Schedule and Project Scope, except that Section 3(c) of this Agreement shall not apply to individual design and/or construction management projects.

6. Applicable Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan.

7. Jurisdiction and Venue of Contract. T

This Contract shall be considered for all purposes, including the establishment of jurisdiction and venue in any court action between the parties, as having been entered into and consummated in the Charter Township of Independence Oakland County, Michigan.

8. Assignment:

Neither Township nor Consultant shall assign this Agreement without the prior written consent of the other.

9. Severability:

Waiver of any term, condition, or covenant, or breach of any term, condition, or covenant, shall not constitute the waiver of any other term, condition, or covenant, or the breach of any other term, condition, or covenant. If any term, condition, or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding on Township and Consultant, unless the court’s action or holding has the effect of frustrating the purpose of this Agreement.

10. Delays:

It is expected that the consultant will perform the work in a timely fashion in accordance with the schedule that is agreed upon at the commencement of each project. The Township shall provide requested items within ten (10) working days of the request.

Deliverables (review sets, bid documents, approval letters, rejection letters, sign-offs, punch lists, inspection reports, Inspector’s Daily Reports or IDR’s, etc.) shall be submitted to appropriate Township staff no later than ten (10) working days after the work is performed.

Consultant is not responsible for delay caused by activities or factors beyond the Consultant's reasonable control, including but not limited to, delays by reason of strikes, lockouts, service slowdowns or stoppages, accidents, acts of God, failure of Client to furnish timely information or approve or disapprove of Consultant's services or product promptly, faulty performance by the Township or the Township's other contractors or government agencies. When such delays beyond the Consultant's reasonable control occur, Township agrees Consultant is not responsible for damages nor shall Consultant be deemed to be in default of this Agreement.

No charges or claims for damages shall be made by the Consultant for delays or hindrances from any cause whatsoever during the progress of any portions of the services specified in this Agreement, except as hereinafter provided.

In case of a substantial delay on the part of the Township in providing to the Consultant either the necessary information or approval to proceed with the service resulting through no fault of the Consultant, in delays of such extent as to require the Consultant to perform its services under changed conditions not contemplated by the parties, the Township will be responsible for supplemental compensation limited to increased costs incurred as a direct result of such delays. Any claim for supplemental compensation must be in writing and accompanied by substantiating data.

When delays are caused by circumstances or conditions beyond the control of the Consultant as determined by the Township, the Consultant shall be granted an extension of time for such reasonable period as may be mutually agreed upon between the parties, it being understood, however, that the permitting of the Consultant to proceed to complete the services, or any part of them, after the date to which the time of completion may have been extended, shall in no way operate as a waiver on the part of the Township of any of its rights herein set forth.

11. Disclosure:

Consultant affirms that it has not made or agreed to make any valuable gift whether in the form of service, loan, thing, or promise to any person or any of the person's immediate family, having the duty to recommend, the right to vote upon, or any other direct influence on the selection of consultants to provide professional design services to the Township within the two years preceding the execution of this Agreement. A campaign contribution, as defined by Michigan law shall not be considered as a valuable gift for the purposes of this Agreement.

12. Nondiscrimination:

The Consultant shall not discriminate against any employee, or applicant for employment because of race, color, sex, age or handicap, religion, ancestry, marital status, national origin, place of birth, or sexual preference. The Consultant further covenants that it will comply with the Civil Rights Act of 1973, as amended; and the Michigan Civil Rights Act of 1976 (78 Stat. 252 and 1976 PA 4563) and will require a similar covenant on the part of the consultant or subcontractor employed in the performance of this Agreement.

13. Approval; No Release:

Approval of the Township shall not constitute nor be deemed release of the responsibility and liability of Consultant, its employees, associates, agents and consultants for the accuracy and competency of their designs, drawings, and specifications, or other documents and services; nor shall that approval be deemed to be an assumption of that responsibility by the Township for any defect in the designs, drawings and specifications or other documents prepared by Consultant, its employees, subcontractor, agents and consultants.

14.. Compliance With Laws:

This Contract and all of the Consultant’s Professional Services and practices shall be subject to all applicable state, federal and local laws, rules or regulations, including without limitation, those which apply because the Township is a public governmental agency or body. Consultant represents that it is in compliance with all such laws and eligible and qualified to enter into this Agreement.

15 Notices:

Written notices under this Agreement shall be given to the parties at their addresses on page one by personal or registered mail delivery to the attention of the following persons:

Township Clerk: 6483 Waldon Center Rd, Clarkston, Michigan 48346

Section 16. Inspections, Notices, and Remedies Regarding Work.

During the performance of the professional services by Consultant, Township shall have the right to inspect the services and its progress to assure that it complies with this Agreement. If such inspections reveal a defect in the work performed or other default in this Agreement, Township shall provide Consultant with written notice to correct the defect or default within a specified number of days of the notice. Upon receiving such a notice, Consultant shall correct the specified defects or defaults within the time specified. Upon a failure to do so, the Township may terminate this Agreement by written notice and finish the work through whatever method it deems appropriate, with the cost in doing so being a valid claim and charge against Consultant; or, the Township may preserve the claims of defects or defaults without termination by written notice to Consultant.

All questions which may arise as to the quality and acceptability of work, the manner of performance and rate of progress of the work, and the interpretation of plans and specifications shall be decided by the Township. All questions as to the satisfactory and acceptable fulfillment of the terms of this agreement shall be decided by the Township.

Section 17. Dispute Resolution.

The parties agree to try to resolve any disputes as to professional engineering services or otherwise in good faith. In the event that the parties cannot resolve any reasonable dispute, the parties agree to seek alternative dispute resolution methods agreeable to both parties and which are legally permissive at the time of the dispute. The parties agree to use their best efforts to resolve any good faith dispute within 90 (ninety) days notice to the other party. In the event the parties cannot resolve that dispute as set forth above, they may seek such remedies as may be permitted by law.

CHARTER TOWNSHIP OF

INDEPENDENCE

By

Charles Phyle II, Supervisor

By

Cari Neubeck, Clerk

CONSULTANT

By