Agreement in Connection with Cost of Relocating

A224 (2/14)

AGREEMENT IN CONNECTION WITH COST OF RELOCATING

MUNICIPALLY OWNED FACILITIES MAINTAINED FOR PUBLIC USE

IN CONNECTION WITH PROJECT _________________________

(SUBDIVISION 24 SECTION 10 OF THE HIGHWAY LAW)

This agreement made this ____________ day of _________________ 20____ , by and between the People of the State of New York (hereinafter referred to as “State”) acting by and through the Commissioner of Transportation (hereinafter referred to as “Commissioner”) with the principal office at 50 Wolf Road in the City and County of Albany and State of New York,

and the , a Municipal Corporation in the County of and State of New York (hereinafter referred to as “Municipality”).

WITNESSETH:

WHEREAS, the Municipality is desirous of having the work of removal, relocation, replacement and reconstruction of such facilities performed, in accordance with the provisions of this agreement.

NOW, THEREFORE, in consideration of the mutual benefits moving to each of the parties hereto, and in pursuance of Subdivision 24 of Section 10 of the Highway Law, it is agreed as follows, viz:

1. General Description of Work. Such work herein contemplated consists generally of

and other facilities in connection therewith as shown and described generally or particularly in the plans, estimates and specifications which provide; such plans, estimates and specifications having been heretofore submitted to and having been duly approved by the Municipality and Commissioner.

2. Time Schedule. Such work shall be undertaken and completed in accordance with a time schedule established by the State in conjunction with the Municipality. The Municipality shall coordinate its activities with the State's construction contractor so as to avoid unnecessary delays. The Municipality agrees and understands that adherence to such time frames is essential to the orderly progression of the State highway project by the State's contractor. Delays to the project caused by the failure of the Municipality to adhere to the time schedule may result in damages to the State. Such damages may include actual liability by the State to its highway contractor which is measurable by a negotiated settlement or court award, and/or other ascertainable damages. In addition, there may be other damages suffered by the People of the State of New York using the highway Facilities and by the Department which are incapable of or are very difficult to accurately estimate, including but not limited to the inconvenience to the public of not being able to use the improved facility, and additional overhead, administrative and other personnel costs suffered by the Department in managing the delayed highway project.

In the event that the Municipality fails to relocate or adjust its Facilities in accordance with the aforementioned time schedule, the Municipality understands that, under the provisions of common law or any applicable statute, it may be responsible for the failure to relocate or adjust its Facilities in accordance with such agreed upon time frames. Where the Municipality is responsible for failure to relocate or adjust its Facilities in accordance with the agreed upon time frames, the Municipality shall be liable directly to the State's contractor for damages incurred as a result of delay in accordance with subdivision 3 of Section 11-102 of the General Obligations Law. In the event the State's contractor recovers directly from the State for damages incurred as a result of such delay, by a negotiated settlement, court award, and/or otherwise, the Municipality shall be liable to the State for such damages. In addition to damages described above, the Municipality, where it fails to move its Facilities in accordance with the schedule, shall also be liable for liquidated damages for costs incapable of or very difficult to accurately estimate. Such damages shall be assessed at $1,000.00 per day. Delays caused by forces beyond the control of the Municipality and where the Municipality is under emergency status shall not be included in delays for which the Municipality is responsible under this paragraph.

3. Method of Performance of Work. Such work may be performed (a) by the employment of forces and the use of the equipment of the Municipality and by the use of any material on hand or necessary to be purchased by the Municipality or (b) when consent therefor is stated in writing by the State, by contract as provided in Section 103 of the General Municipal law, or if this method is deemed to be impracticable by the Municipality, or Commissioner, then, upon such written consent, by such other method or combination of methods as the Commissioner shall approve. The Utility Facilities shall be adjusted in accordance with this agreement, as directed by the State’s Engineer in charge, without causing delay to the State’s Contractor, and before completion of the State’s contract.

4. Reimbursement of Costs. Upon written notice from the Municipality to the Commissioner that such work has been completed, and upon final inspection thereof to the satisfaction of the State, or in case the Municipality finds it necessary to have partial reimbursement made intermediately between the start of such work of construction and the final inspection thereof by the State, the State shall reimburse the Municipality up to 90% of the costs of such work as such costs are disclosed by the said records thereof, and the balance of such reimbursement shall be made by the State upon final inspection of such work and the acceptance thereof by the State, but in any event the State shall not be obligated for an estimated sum in excess of

$______________, unless a Supplemental Agreement is made therefor. All items included by the Municipality in said record of costs shall be subject to final audit by the Commissioner, and the Commissioner reserves the right to reduce or to eliminate any of such items as he may deem such action to be proper for the best interest of the State.

5. Releases. As a condition of and prior to payment by the State of the aforesaid reimbursement, the Municipality shall furnish to the State, in a form acceptable to the Commissioner:

(a) a release forever discharging the State from any and all claims, damage, or causes of action arising from or growing out of the acts or failures to act of the Municipality, its agents, employees, contractors, subcontractors, or representatives under this Agreement; and

(b) a release of all claims arising from or growing out of any estate or interest in real property acquired for the purpose of the above captioned project.

6. Maintenance of Facilities. The Municipality covenants with the Commissioner that the maintenance of the facilities as long as they shall be in use by the Municipality and are and shall continue to the sole and primary obligation of the Municipality.

7. Other Contracts Relative to Work. The Commissioner reserves the right to the right to let other contracts in connection with such work. The Municipality shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate its work with theirs. Temporary structures, equipment or materials of the Municipality, its agents or contractors, shall be located where directed and if not so located they shall be moved when so directed.

8. Access To and Control of Work. The State shall have access to all phases of such work during its prosecution and to records pertaining thereto, including time records, payrolls, invoices, work orders, etc.

9. Unsatisfactory Work; Ambiguity of Plans. Should such work, or progress of same, at any time be unsatisfactory to the State, that fact will, without unnecessary delay, be brought to the attention of the Municipality who will take remedial action promptly. In the event the Commissioner determines that such remedial action is unsatisfactory or has not occurred within a reasonable period of time, he/she may provide for completion of the work in such manner as he/she deems necessary.

In case if any ambiguity in the plans, specifications, or maps, or between them, the matter must be immediately submitted to the State which shall adjust the same, and its decision in relation thereto shall be final and conclusive upon the parties.

10. Retention of Records. All records established by the Municipality pursuant to this agreement shall be maintained by the Municipality for a period of not less than three years after payment of the final voucher by the Federal Government to the State in connection with a federal-aid project or the custody of such records shall be turned over to the Commissioner. Such records shall be available for inspection by representatives of the State upon reasonable notice during regular business hours.

11. Contract Clauses Required in Work. In connection with any contract let by the Municipality for all or any part of such work, it is understood between the parties hereto that the contract shall comply with all applicable Federal, state and local laws, copies of the Federal and State required contract provisions appearing as Appendices A, A-1 and B (if applicable), attached hereto.

12. Insurance. Municipality shall procure and maintain, until the work covered by this Agreement has been completed to the satisfaction of the State and the Municipality, insurance for liability and damages imposed by law or otherwise of the kinds and in the amounts hereinafter provided, with insurance companies authorized to do such business in the State of New York, covering all work under this Agreement. Before commencing the work, the Municipality shall furnish to the State a certificate or certificates of insurance in a form satisfactory to the State showing that the Municipality or its contractor has complied with this Article, which certificates shall provide that the policies shall not be changed or cancelled until thirty (30) days written notice has been given to the State. The Municipality may elect to retain these risks.

The kinds and amounts of insurance, subject to agreement that different coverage or higher limits shall apply, are as follows:

(a.) Commercial General Liability Insurance: Each and every party performing work in connection with the PROJECT described herein shall be required to be insured under a policy of insurance. Municipality or its contractor shall maintain an occurrence form commercial general liability policy or policies insuring against liability arising from personal injury or death, advertising injury, liability insured under an insured contract (including the tort liability of another assumed in a business contract) occurring on or in any way related to the premises or occasioned by reason of the operations of the primary named insured. Such coverage shall be written on an ISO occurrence form (ISO Form CG 00 01 12 07 or a policy form providing equivalent coverage), including any excess liability insurance providing coverage in an amount of five million dollars ($5,000,000.00) per occurrence and five million dollars ($5,000,000.00) aggregate. Aggregate coverage must be secured on a per-project basis. This insurance must be endorsed to provide coverage to “the Municipality, the Municipality, the State of New York/New York State Department of Transportation, any Municipality in which the event is conducted, and any governmental entity whose facilities are affected by the event, and any of their employees or agents working for or on the facility,” using ISO Form CG 20 10 07 04 or a form that provides equivalent coverage.

(b.) Workers’ Compensation and Disability Insurance and Employers’ Liability Insurance. As required by State Finance Law '142, any Contractor working on the PROJECT Municipality shall maintain in force workers’ compensation insurance for all of the Contractor’s employees. Contractors shall also maintain disability insurance as required by the Disability Benefits Law of the State of New York. Municipality shall provide evidence of the required coverage or exemption where appropriate (usually Form C-105.2 and Form DB-120.1). Municipality may furnish proof of coverage under the Federal Employers Liability Act and similar statutes for the protection of employers for injuries to or death of employees engaged in the work.

(c.) Automobile Insurance (applicable where automobiles or other vehicles will be used in relation to the event). Municipality or its Contractor(s) shall maintain a commercial or other automobile policy or policies insuring against liability for bodily injury, death, or damage to property and other mandatory coverages, relating to the use, operation, loading or unloading of any automobiles (including owned, hired and non-owned vehicles) on and around the project. Coverage shall be in an amount of not less than one million dollars ($1,000,000.00), each accident.

13. Funds Available. It is understood by and between the parties thereto that this agreement shall be deemed executory only to the extent of the moneys available to the State and no liability on account thereof shall be incurred by the State beyond moneys available for the purposes hereof.

14. Assignment or Other Disposition of Contract. The Municipality agrees not to assign, transfer, convey, sublet or otherwise dispose of this contract or any part thereof, or of its right, title or interest therein, or its power to execute such contract to any person, company, or corporation without previous consent in writing of the Commissioner of Transportation.

15. Notices

1. All notices permitted or required hereunder shall be in writing and shall be transmitted either:

(a) via certified or registered United States mail, return receipt requested;

(b) by facsimile transmission;