Agreement No CORE ID #

AGREEMENT BETWEN THE STATE OF CONNECTICUT AND THE TOWN OF FAIRFIELD FOR THE CONSTRUCTION, INSPECTION AND MAINTENANCE OF THE FAIRFIELD METRO RAILROAD STATION UTlLIZING FUNDS FROM THE SPECIAL TAX OBLIGATION BOIWS State Proj~ct 301-136 No.

THIS AGREEMENT, concluded at Newington, Connecticut, this day of , 2010, by and between the State of Connecticut, Department of Transportation, Joseph F. Marie, Commissioner, acting herein by Thomas A. Harley, P.E., Bureau Chief, Bureau of Engineering and Construction, duly authorized, hereinafter referred to a s the State, and the Town of Fairfield, John J. Sullivan Town Hall, 725 Old Post Road, Fairfield, Connecticut 06824, acting herein by Kenneth A. Flatto, First Selectman, hereunto duly authorized, hereinafter referred to as the Municipality. WITNESSETH THAT,

WHEEAS, the required contract plans, specifications and estimates have been prepared by the Municipality for improvements relative to the Fairfield Metro Railroad Station, and

WHERIZAS, said improvements include, but are not limited to, constructing a roadway from Blackrock Turnpike to the bridge. over METRO-NORTH (hereinafter Access Road), installing a drainage system and required site remediation, constructing and completing a parking lot, installing required and necessary lighting and other utilities, collectively herein identified as State Project No. 301-136, and hereinafter referred to as the State-Town Project; it being understood that the StateTown Project does not include the work to be performed by the Municipality pursuant to its legally binding instrument for the Town-Developer Project, and
WHEREAS, the Office of Policy and Management (OPM) submitted a request to the State Bond Commission to authorize, the issuance of Fifty-one Million Four Hundred Thousand Dollars ($51,400,000) in bonds for the Department of Transportation to finance the design and construction of various rail line improvements under section 2(c) of Public Act 06-136, and
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WHEREAS, pursuant to section 2(c) of Public Act 06-136, the State Bond Commission approved the allocation and bond authorization to the Department of Transportation at its meeting held on January 8,20 10, and WHEREAS, the Department of Transportation will set aside Nineteen Million Four Hundred Thousand Dollars ($19,400,000) for construction of the State-Town Project, and have those funds available.for this State-Town Project in accor.dancewith section 2(c) of Public Act 06136, and WHEREAS, the Municipality has budgeted Five Million Dollars ($5,000,000) of local bond funding toward the State-Town Project, and WHEREAS, the Municipality shall be responsible for the construction phase of the StateTown Project, which includes, but is not limited to, construction, administration, inspection, field density testing and construction engineering services in conjunction therewith, and WHEREAS, the Municipality has previously approved a bond resolution and a Three Party Agreement in 2003 authorizing this State-Town Project and authorizing associated State-Municipal grant in aid agreements to be accepted, discharged and entered to by the First Selectman, and WHEREAS, the Municipality has obtained approved local and state permits to proceed with the improvements relative to the Fairfield Metro Railroad Station, and
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WHEREAS, section 13b-4(8) of the Connecticut ~ e n e r a'Statutes, 'as revised,.authorizes l , t h e Commissioner of Transportation to 'cooperate,with local agencies performing activities relating to transportation.

NOW, THEREFORE, KNOW YE THAT: THE PARTIES JXERETO AGREE AS FOLLOWS:

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THE MUNICIPALITY SHALL: Designate. an individualto act as liaison with the State to provide for the proper (1) exihange of information during theconstruction phaseof the State-Town Project and all adtivities related thereto. The liaison will be responsible for coordination with municipal agencies, moniioring the progress of construction, and assuring conformance with small business enterprise requirements.
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by consultantsall the activities necessary to' accomplish (2) Perform or have t h e construction phase of the State-Town project. The ~ u n i c i ~ a lhereby acknowledges and it~ agrees to comply with .the guidelines stipulated in the Office Of Policy and Management's General Letter No. 97-1, dated November 21, 1996 when architects, engineers, and/or consultants are. retained. General Letter No. 97-1 is attached hereto and hereby made a part of this Agreement. .
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Assume full legal responsibility for the accuracy of all products of its work or that of (3) the consultant engineer of record or other assistants under this Agreement and so indicate by having the signature and the Connecticut Professional Engineer's Seal of the municipal engineer and/or its consultant engineer in charge of the work performed under the terms of this Agreement affixed on the title sheet(s) of all plans and/or documents. In addition, the title sheet(s) of all plans and/or documents will be signed by the authorized individual within the Municipality responsible for receipt of "officiiil notices".

(4) . Award ten percent (10%) of the construction contract bid amount and consultant inspection services to a Small Business Enterprise (SBE), as certified by the Connecticut Department :of Administrative Services. The Municipality also acknowledges and agrees to comply with "Special Provisions, Small.Contractor and Small Contractor Minority Business ~ n t e r ~ r i s e ~ (Set Aside)" dated March, 2001, insofar as the State-Town project is concerned, a copy of which is attached hereto and made a part of this Agreement.
~drninister construction activities associated with the State-Town Project and the . . (5) perform the construction phase of the State-Town Project utilizing municipal forces or contractors hired through a competitive bidding process. If contractors are retained by the Municipality, the Municipality is solely responsible for making payments to said contractors. Upon receipt of construction bids, review all bids for accuracy and conformance to (6) bidding inst'mctionsand determine the. responsible low bidder. . Deliver to the State, prior to the commencement of the construction activities, the (7) following items as applicable: (a>
(b)

Documentation that adequate funding is available to construct the State-Town Project. List'of all bidders with names of bidders and total bid amount. Recommendation of award of the c6nstruction contract to the responsible low bidder. Written justification for awarding the construction contract to any bidder other than the 1owest bidder. A schedule of progress and time chart for the State-Town Project. A complete statement of the origin and manufacturer of any manufactured materials Project. In conjunction to be used in the construction phase of the therewith, the "Anticipated Source of Material - CON 83" form will be providedby the State.

(c) (dl (4
(f)

state- own

(g)

Contractor's "SBE Participation Approval Request" form, which is attached to and made a part of this Agreement.

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Contractor's Certification of Compliance with Connecticut General Statute section 3 1- 57b, which is attached to and made a part of this Agreement.

Make no change which will increase the cost of the State-Town Project and make'no (8) change that will. alter the termini, character or scope of work of the State-Tom Project without prior State approval. In addition, the Municipality shall not grant any contract time extensions without advance State approval.

1 (9) -Provide administration, inspection, field density testing, and construction engineering services during the construction phase of the State-Town Project. The construction engineering services may include, but not be limited to, consultation, advice, visits to the work site and such design services as may be required. The ~ u n k i ~ a l i t ~also submit to the state for shall review and approval, the narne(s) and qualifications of the individuaI(s) responsible for'the 'administration and inspection of the State-Town Project prior to awardingof bids for the StateTown Project.
(10) - Cooperate fblly with the State and'.@xmitthe State to review, at any time, all work performed under the termsof this Agreement. (I 1) Agree that if at any time during the construction phase of the State-Town Project, the State determines that the administration of the State-Town Project by the Municipality is not adequate, the State may take over or supplement said administration of the State-Town Project. The additional costs associated with this action will be considered part of the State-Town Project and will be fimded by reducing the amount indicated in Article (32) - Item "B"- Incidentals to Construction-Municipal Services accordingly to cover said State costs. (12) Obtain for the contractor(s).,.the right to enter into and pass over and utilize the right-of-way owned by the Municipality and other interested parties, as may be required for the construction phase of the State-Town Project.
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(13) Document expenses .by recording all contractor's costs, consultant fees and all municipal costs including payroll hours on time sheets, material purchases (including bills), and equipment charges. Equipment rates will be based on a municipal audit, if available, acceptable to . the State. In the- absence:of acceptable rhunicipa'l rates, the rental rateshall be established in accordance with section 1.09.04jd) of the "State ofConnecticut, ~ e ~ a r t m eoft~ r a n s ~ b r k t i o n , n Standard Specificitions for Roads, Bridges, and Incidental Construction - Form 8.16," and . . Supplemental specifications, as revised.
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(14) Pay one hundred percent (100%) of all construction costs which are the result of errors andor omissions, solely of the Municipality or the consultant engineer of -record, in the contract plans, specifications and estimates, or due to inadequate adrnini~tr~t'ion, inspection andor construction engineering services. Reimburse the State foi all State-Town Project related expenditures incurred in the (15) event the Municipality cancels the State- own Project without "good cause." However, the Municipality may request cancellation of the State-Town Project, and if determined by the-State to

be justifiable and with "good cause", State participation will be provided up to the percentage of acceptable work completed to the approved date of cancellation, subject to ArticIe (23) of h s Agreement: A shift in municipal priorities, or insufficient municipal. funding, is considered to be within the control of the Municipality and will not be considered as "good cause." (16) Pay for advertising, constmction contract items, administration, inspection and construction engineering services, including 'assistants andlor consultants or contractors, rendering professional, technical, engineering or other assistance and advice during the construction phase of the State-Town Project. Expenditures approved by the State will be reimbursed under the provisions of Articles (20), (23), (3l)'and (32) of this Agreement. Written documentation-shallbe provided to the State indicating procedures utilized for the employment of municipal forces andor retention-of consultants providing construction services for the State-Town Project. (17) Assume all responsibility and liability for: .
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(a). The proper maintenance and operation of all the Municipality's facilities constructed as part of this State-Town Project, including but not limited to, -hydrodynamic separators north and south of the .tracks, roadway surface, road lighting and drainage,walls supporting the roadway, landscaping and embedded utilities, upon completion of the 'state- own Project, to the satisfaction of the State.
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@) Any and all claims by the construction contractor(!).

(18) Notify the State, in writing, when the construction phase of the State-Town Project has 'been completed. . (19) Comply with the provisions contained in Exhibit A entitled "Administrative and dated March 1,2010, a copy of which is attached hereto and hereby made Statutory ~e~uirements,'' part of this Agreement.
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THE STATE SHALL:

'Upon proper execution of ,this Agreement,' make available to the Municipality Nineteen Million One Hundred Thousand Dollars ($19,100;000) in accordance with the terns and conditions contained herein. . .
(20)

(21) Provide 'services including, but not limited to, material testing, periodic cohstruction inspection, administrative oversight, and liaison with other governmental agencies to ensure satisfactory adhefenceto State requirements. (22) Reserve the right.to inspect all construction activities and records for the State-Town Project.

THE STATE AND MUNICIPALITY MUTUALLY AGREE:

That the bond authorization in the amount of Nineteen Million Four Hundred Thousand Dollars ($19,400,000) shall be the maximum participation by the State, which includes the cost of Three Hundred ~housand Dollars ($300,000) for State provided services and Nineteen Million C i Hundred Thousand Dollars ($19,100,000) for reimbursement to:.theMunicipality for h the State-Town Project. Any and all addtional costs for the State-Town Project will be the responsibility of the Municipality. The Municipality shall not use any of the Nineteen Million One Hundred Thousand Dollars ($19,100,000) for other than the State-Town Project.
(23)

(24) -That the final. payment by the State to the Municipality shalI be based upon the actual participating construction costs as determined by a post-construction audit, using t h e h d i n g limits established in this Agreement. The ~ u n i c i ~ a l i isy also required to perf6rm an aidit in t .accordancewith Article (7) of Exhibit A.
(25) That the plans, specifications, and estimates prepared and approved by the Municipality and reviewed by the State-have been incorporated in the State-Town Project contract documents currently being prepared by the ~ u n i c i ~ a l i for bidding the State-To%:Project pursuant to this ty -Agreement. Before completion of the construction phase of the State-Tom: ,Project, the Municipality, in concert with the State, shall perform semi-final and final inspections of the' StateTown Project. The State will be notified at least fiie (5) days in advance of such inspections, in writing, by -theMunicipality.
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obligations under this Agreement that the Municipality performs or engages a prime contractor to perform, and also .those performed for the Municipality by.subcontractors of the prime contractor, the Municipality will be required to carry, and-shallensure that its prime contractor and any subcontractor(s) performing work in conjunction with-the State-Town Project shall carry, for the duration of this Agreement and any supplements thereto, with the State being named as an additional insured party for paragraphs (a) and (b) below, the -followingminimum liability insurance coverages at no direct cost to the State. In the event the Municipality secures excess/umbrella liability insurance to meet the minimum requirements specified in paragraphs (a) and/or @) below, the State shall benarned as an additional insured. Said coverages shall be provided by an insurance company or.companiessatisfactoryto the State; except that;with respect fo work performed directly . d m exclusively by the Municipality, the Municipality ' may request the State to accept coverage provided under ii municipal seIf insurance program.
(26)

hat 'kith respect to. the Municipality's

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(a) The Municipality shill cany Commercial General Liability Insurance, including . Contractual Liability Iniurance, providing for a total limit of One illi ion Dollari ($1,000,000) for all darnages arising out of bodily injuries to:oi.death ofall persons.. in any one accident.or occurrence, and for all damages arising out of injury to or. destruction .ofproperty in any one accident or occurrence, 'and, subject'to 'that limit p.er accident, a total (or aggregate) limit of Two Million Dollars ($2,000,000) for all damages arising out of bodily injuries to .or death of all persons .in ,all accidents or occurrences and out of injury to or destruction of property during the policy period, and
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(b) The Municipality shall cany Automobile Liability Insurance for the operation of all motor vehicles, including those hired or borrowed, used in connection with this Agreement providing for a total limit of One Million Dollars ($1,000,000) for all damages arising out of bodily injuries to .or death of all persons in any one accident or occurrence, and for all damages arising out of injury to or destruction of property n in any one accident or occurrence. I cases where an insurance policy shows an aggregate limit as part of the automobile liability coverage, the aggregate limit must be at least Two Million Dollars ($2,000,000);
The Municipality shall produce, within five (5) business days, a copy or copies of all applicable insurance policies when requested by the State. In providing such policies, the ~ u n i c i ~ a l imay redact provisions of the policy that are proprietary. This provisionshall survive ty of sixty (60) months. the suspension, expiration or termination of this Agreement fora
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(27) That when the ~greementrequees work on, over or under the right of way of any railroad company, the .Municipality shall provide, with respect to the operations that it, its prime contractor,' or any subcontractor(s) thereof perfom(s) under the Agreement, Railroad Protective Liability Insurance foi and on behalf of the railroad company as named insured, and the State named as additional insured, providing for coverage limits of (1) not less than Two Million Dollars ($2,000,000) for all damages arising out of any one accident or occw&ce, in connection with and (2) subject to this limit per bodily injury or.death .md/or injury to of destruction of accident, a total (or aggregate) limit of Six Million Dollars ($6,000,000) for all injuries to persons or property during the policy period.. If such Insurance is required, the Municipality shall obtain and submit the minimum coverage indicated above to the State prior to the commencement of railrelated work and/or activities and Shall maintain coverage until' the work and/or activities islare accepted by the State. (28) .. (a) That the State, on written notice, may, in its sole discretion, suspend, postpone, or terminate this ~ ~ r e e m e n t , such action shill in no event be deemed.a breach of contract. and Any such Bction m& betaken by the State forits own convenience
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(b) 1f the State terminates this Agreement pursuant tothis Article, the State shall reimburse the Municipality (subject io the limitations set forth in Article (23) of this. Agreement) at the contract unit prices for the actual number of units or items of work completed to the effective date of termination, or as may be agreed upon by the parties for items of work partially completed. No claim for loss of overhead or anticipated profits shall be allowed.
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(29) That Ulis Agreement shall beterminated upon mutual consent of the Municipality and the state 'upon satisfactory completion of the conditions of this Agreement. This ~ ~ i e r n e can nt also be terminated by the state if 'non-c~mpliance' with the termsof- this Agreement occurs. Termination of the Agreement shall not relieve the Municipality. or its kintractor of its responsibility for the completed work, nor - shall it relieve the contractor, its surety or the Municipality of its obligations concerning any claims arising 'out of the work performed or any obligations existing under bonds o r insurance required by the Connecticut General Statutes or by this or any other agreement with the State or Municipality.

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(30) That any official notice from one such party to the other such party, in order for such notice to be binding thereon, shall:

(a) Be in writing addressed to: (i) When the State is to receive such notice Commissioner of Transportation Connecticut Department of Transportation 2800 Berlin Turnpike P.O. Box 317546 Newington, Connecticut 06.1 1-7546; 3 t to When the ~ u n i c i ~ a l iisy receive such notice .

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First Selectman . Town ofFairfield John J. :Sullivan Independence Hall 725 Old Post Road Fairfield, ~onnedticut 06824;
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(b) Be deliveredin person or be mailed by theunited States Postal ~Lrvice . -"Certified Mail" to the address recited herein as being the address of the party to receive such . notice; and
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(c) Contain complete and ~ c c u a t einformation in.sufficient detail to properly and adequately identify and-describethe subject matter thereof. The te-m "official notice," as used herein, shall be construed to include, but -notbe limited to, any request, demand, authorization, direction, waiver, ahdlor consent of the partyties) i s well a s any docurn&t(s) provided, permitted, or required foi the making or ratification of any change, revision, addition to, or deletion fiom, the document, contract, or agreement in which this "official notice" specification is contained. Further,.it is understood and agreed that,nothing hereinabove contained shall preclude the parties hereto from subsequently agreeing, in writing, to designate alternate persons (by name, title, and 'iffiliati&) to which such notice(s) is(are) t o be addressed; a1ternaie:means of conveying such notice(s) to the particular party(ies);. andlor alternate lo'cations to which the delivery of such noticets) is(are) to be mad< provided such subsequent *eement(s) is(are) concluded pursu&t to the adherence to thls specification.
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(31) That the State shall reimburse the Municipality for approved construction, advertising, construction.engineering services, participating contract items and contingencies, inspection and administrative costs in accordance with the Articles (20), (23) and (32) of this Agreement. Reimbursement will be made in the following manner: (a) The Municipality,. on a monthly basis, during active construction periods, shall submit to the State on an appropriate State voucher form titled "Invoice and Summary Processing Form (ISP)" with supporting data, the cost of sel-vices rendered with supporting data, the cost of services rendered and expenses incurred for the billing period. Municipal costs shall be limited to the actual payroll for the StateTown project; fringe benefits associated with payroll and d k c t cost charges for the State-Town Project.
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@)Upon review and approval of the voucher by the State, payment o f the reimbursement of said costs and expenses shall be made to the Municipality within . sixty (60) days of submission.
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(32) That the total estimated cost for the construction phase of the State-Town Project is Twenty-nine Million Six Hundred Forty-three Thousand Five Hundred Sixty-four Dollars ($29,643,564), which includes anticipated expenditures of up to Three Hundred Thousand Dollars ($300,000) for services to be provided by the State.
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ThIhe maximum amount of reimbursement to t h e Munjbipality..under the terms of Ulis Agreement is Nineteen Million .One~ u n d r e d ~housand o l l a r ($1 9,100,000). ~ s
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ESTIMATED CONSTRUCTION COSTS

State Project No. 301-136

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Contract Items and Contingencies...................;.................................... Incidentals to Construction-MunicipalServices......................................... . Total Municipal Cost (A+B)....i .......................................................... Incidentals to Construction- State Materials Testing.. ................................. .
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D. E.
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Incidentals to Construction- State Administrative.Oversight & Audits.. ............ Total Incidentals to construction-State (D+E)...:.. -TotalParticipating Construction Cost (C+F) .
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Total Non-Participating Construction Costs ............................................ Total Estimated Construction Costs (G-tH) .............'. ............................:.;. ~ o t aState Participation of Construction Costs (100% of G). .............. l ~aximurn Amount of Reimbursement to the Municipality (100% of C). ............

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(33) That this Agreement shall not be effective unless and until the ~ u n i c i ~ a l i t ~ and its developer have entered into a legally binding instrument and -41eMunicipality has received from the developer h d s in the amount of $4.4 million in cash, together with all necessary conveyances, easements and the assignment of two Conservation bonds for the Town-Developer Project. (34) That the State assumes no liability for payment under the terms of this Agreement until the Municipality is notified, in writing, by the State that said Agreement has been approved by the Attorney General of the State of Connecticut.

(35) That the Agreement itself is not an authorization for the Municipality to provide goods o r begn i n any way. T h e Municipality may provide goods or begin performance only after it has received a duly issued purchase order against the Agreement. A Municipality providing goods or commencing performance without a duly issued purchase order in accordancewith this Article does so at the Municipality's own risk. .
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The state shall issue a purchase order against t h e ~ ~ r e e r n e directly to theMunicipality nt and to no other party.

IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day and year indicated.

STATE OF CONNECTICUT Department of Transportation J o s e p H Marie, Commissioner (Seal) Name:

PATRICIA b. PWUEGF

Bureau Chief 4 Bureau of Engineering and Construction Date:

~ / 5) d t , 2 0 1 ~
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TOWN OF FAIRFIELD

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kemeth.A. Flatto First Selectman

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L a u r e n ?anham

Date:

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APPROVED AS TO FORM: Date: Attorney General State of;: ~onnecticut *\ .. 5: . ;: <7 y.<< ,= ,

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