NEW YORK STATE DEPARTMENT OF TRANSPORTATION

P.I.N.: DDDD.DD

COMPTROLLER'S CONTRACT NO. EEEEEEE

Consultant Construction Inspection Backdrop Agreement

PROJECT: BACK-DROP FFFFFFFFFFFFFFFFF

This Agreement made this day of 20 pursuant to Section 14 of the Transportation Law, by and between THE PEOPLE OF THE STATE OF NEW YORK (hereinafter referred to as "STATE") acting by and through the Department of Transportation (hereinafter referred to as "STATE") whose office is at 50 Wolf Road, 1st Floor in the County of Albany, State of New York 12232-0203 and

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(hereinafter referred to as "CONSULTANT")

WITNESSETH:

WHEREAS, the STATE desires the CONSULTANT because of his ability and reputation, to perform the services hereinafter mentioned upon the PROJECT, which is fully described in SCHEDULE "A" and the CONSULTANT agrees to provide these services.

NOW, THEREFORE, the parties hereto, for the consideration hereinafter named do agree as follows:

ARTICLE 1. STANDARD PRACTICES AND REQUIREMENTS. The CONSULTANT shall ascertain the standard practices of the STATE prior to beginning any of the work of this PROJECT. All work required under this Agreement shall be performed in accordance with these standard practices, sound engineering standards, practices and criteria, and any special requirements, more particularly described in SCHEDULE "A".

The CONSULTANT will commence work no later than ten (10) days after receiving notice to proceed from the STATE.

The CONSULTANT shall furnish all labor, render all services and furnish all materials and equipment necessary to provide the STATE with plans, estimate and other data more specifically described in said SCHEDULE "A".

ARTICLE 2. DOCUMENTS FORMING THE CONTRACT. The contract documents shall be deemed to include this Agreement, an Assignment of Work Agreement and supplements related thereto, provided that nothing in this Agreement shall be construed to alter the term of this Agreement and the maximum amount payable set forth in Article 4. This Agreement shall also include accompanying Schedules and revised Schedules including the provisions required by law, accompanying exhibits, and Appendix A, standard clauses for all NY State contracts, is attached hereto and is hereby made a part of this Agreement as is set forth fully herein.

ARTICLE 3. INSPECTION. The duly authorized representatives of the STATE, and on Federally aided projects, representatives of the Federal Highway Administration, shall have the right at all times to inspect the work and related project records of the CONSULTANT.

ARTICLE 4. PROVISION FOR PAYMENT. The STATE shall pay to the CONSULTANT, and the CONSULTANT agrees to accept as full compensation for his services under this Agreement:

Item I Specific Hourly (fully loaded rates) Salary Rates of pay shown in EXHIBIT "A" and “B” for employees assigned to this PROJECT. The Specific Hourly rates and all components of those rates including the number of hours charged are subject to audit. The State may authorize additional titles to be added to the Specific Hourly Rate Table during the term of the Agreement and evidenced by a revised salary schedule. The Specific Hourly Rates for any additional titles shall be computed in a manner consistent with the computation of the initial Specific Hourly Rates.

Item II Actual Direct Non-Salary Costs incurred in fulfilling the terms of this Agreement; all subject to audit. Such costs may include, but are not necessarily limited to those shown in EXHIBIT "B". All reimbursement for travel, meals and lodging shall be made at actual cost paid but such reimbursement shall not exceed the maximum prevailing and per diem rates established by the State Comptroller.

a. Items purchased under this PROJECT shall become the property of the STATE at the completion of the work, or at the option of the STATE, appropriate value shall be established as a credit to the STATE.

Item III Specific services purchased under this Agreement and the amount therefore shall be set forth in the “Assignment of Work Agreement.” The term of this Agreement is from January 1, 2006 until December 31, 20XX, in any event for a period not to exceed five years. Funding may be authorized during the term of this Agreement at an amount not to exceed a Maximum Amount Payable of $4,000,000.

a. The CONSULTANT specifically agrees that the Agreement shall be deemed executory only to the extent of the monies available, and no liability shall be incurred by the STATE beyond the monies available for the purpose.

b. During the term of the Agreement, the CONSULTANT shall submit a CONR-385 to the State’s Contract Management Bureau for each calendar year of the Agreement through the calendar year in which the final bill is accepted by the State’s project manager. The CONR-385 shall be submitted in a method consistent with Consultant Instruction 91-02 or any subsequent revision of that Consultant Instruction. Submission of CONR-385’s annually during the term of this agreement does not constitute a requirement or obligation to modify the overhead component of established Specific Hourly (fully loaded rates) Salary Rates of pay shown in EXHIBIT "A" and “B” of the agreement.

c. During the term of the Agreement, the CONSULTANT shall submit a certified salary roster to the State’s Contract Management Bureau for each calendar year of the Agreement through the calendar year in which the final bill is accepted by the State’s project manager. The certified salary roster shall be submitted in a method consistent with Consultant Instruction 05-01 or any subsequent revision of that Consultant Instruction. Submission of certified salary rosters annually during the term of this agreement does not constitute a requirement or obligation to modify the salary rate component of the established Specific Hourly (fully loaded rates) Salary Rates of pay shown in EXHIBIT "A" and “B” of the agreement.

Item IV The CONSULTANT agrees to complete all the work on this Agreement in a manner satisfactory to the STATE by December 31, 20XX or within such extended periods as are agreed to by the Department of Transportation and approved by the State Comptroller, and within the Maximum Amount Payable (shown in ARTICLE 4, Item III above).

ARTICLE 5. PARTIAL PAYMENTS. The CONSULTANT shall be paid in monthly progress payments based on actual allowable costs incurred during the period in accordance with ARTICLE 4 of this Agreement. Bills are subject to the approval of the State's Representative.

The CONSULTANT shall inform the STATE and all Subcontractors and Subconsultants of the Consultant's schedule for submitting monthly vouchers to the STATE, Said schedule shall be strictly adhered to by the CONSULTANT.

All subcontractor and Subconsultant vouchers received by the CONSULTANT at least ten (10) calendar days prior to a scheduled billing, shall be included in that billing, even if the CONSULTANT does not have other costs to be billed for that period. The CONSULTANT shall inform the subcontractor or Subconsultant of the date the voucher was submitted to the STATE and the amount included for the subcontractor or Subconsultant.

The CONSULTANT is required, within ten (10) calendar days after receipt of payment from the STATE, to make partial payments to subcontractors or Subconsultants by use of a negotiable instrument drawn such that funds are available by said tenth day. The CONSULTANT will not include any provisions in their Subcontracts that would circumvent the intent of 49 CFR 26.29 to require the CONSULTANT to make partial payments to subcontractors and Subconsultants within ten (10) days after receipt of payment from the STATE.

Accounts of the CONSULTANT shall clearly identify the costs of the work performed under this Agreement and shall be subject to periodic and final audit by the STATE and, on Federally aided Projects, by the Federal Highway Administration. Such audit shall not be a condition of partial payment.

ARTICLE 6. FINAL PAYMENT. a) Section 179 of the State Finance Law requires the STATE to make final payment within thirty calendar days after receipt of an invoice which is properly prepared and submitted. The STATE in accordance with the provisions of the State Finance Law has determined that the STATE will require a 60 calendar day audit period for final payments at which time the 30 calendar day interest-free period will commence. The CONSULTANT is required to make final payment to all subcontractors and subconsultants within ten (10) calendar days of receipt of final payment from the STATE.

The CONSULTANT is required, if it is a "foreign" (Out of State) corporation or entity, to obtain and submit the required "Tax Clearance" certificate to the STATE to enable the processing of the final payment. It should be noted that any time taken to satisfy or furnish this "Tax Clearance" certificate shall extend the required date by an equal period of time.

The acceptance by the CONSULTANT of the final payment shall operate as and shall be a release to the STATE from all claims and liability to the CONSULTANT, his representatives and assigns for any and all things done, furnished for or relating to the services rendered by the CONSULTANT under or in connection with this Agreement or for any part thereof except as otherwise provided in ARTICLE 7 (c).

b) The CONSULTANT shall maintain all books, documents, papers, accounting records and other evidence pertaining to cost incurred and make such materials available at his office at all reasonable times during the period of this Agreement and for the period of time specified in Clause No. 10, "Records" on page 3 of SCHEDULE B, for inspection by the STATE, Federal Highway Administration, or any authorized representatives of the Federal Government and copies thereof shall be furnished if requested.

c) The CONSULTANT agrees that the duration of this agreement shall by until December 31, 2011 or such extended periods as are deemed necessary by the STATE. An extension of time may be reason for renegotiation of the Specific Hourly Rates. The STATE shall be the sole judge as to the need for such renegotiation.

ARTICLE 7. EXTRA WORK. a) This Agreement shall be continuously reviewed by the CONSULTANT. The CONSULTANT shall notify the STATE of the results of those reviews in writing by submittal of a monthly Cost Control Report similar to EXHIBIT "D".

b) If the CONSULTANT believes that any work is or may be beyond the scope of the Agreement (extra work), or that additional work is necessary, the CONSULTANT shall notify the STATE, in writing, of this fact prior to beginning any of the work. The notification shall include all information required by the Department. The STATE shall be the sole judge as to whether or not such work is in fact beyond the scope of this Agreement and constitutes extra work. No extra or additional work shall be started prior to written authorization from the STATE. The STATE shall be under no obligation to reimburse the CONSULTANT for any extra or additional work performed without the prescribed notification and authorization. The STATE will not allow fixed fee for any extra work undertaken without prescribed notification and authorization. In the event that the STATE determines that such work does constitute extra work, the STATE shall provide extra compensation to the CONSULTANT in a fair and equitable manner. If necessary, a Supplemental Agreement providing the compensation and describing the work authorized shall be issued by the STATE to the CONSULTANT for execution after approvals have been obtained from necessary State officials and, if required, from the Federal Highway Administration.

c) In the event of any claims being made or any actions being brought in connection with the PROJECT, or if construction support services are requested of the CONSULTANT by the STATE, the CONSULTANT agrees to render to the STATE all assistance required by the STATE. Compensation for work performed and costs incurred in connection with this requirement shall be made in a fair and equitable manner. In all cases provided for in this Agreement for the additional services above described, the STATE's directions shall be exercised by the issuance of a separate Agreement, if necessary.

ARTICLE 8. CONSULTANT LIABILITY. The CONSULTANT shall be responsible for all damage to life and property due to negligent acts, errors or omissions of the CONSULTANT, his sub-contractors, agents or employees, in the performance of his service under this Agreement. Further, it is expressly understood that the CONSULTANT shall indemnify and save harmless the STATE from claims, suits, actions, damages and costs of every name and description resulting from the negligent performance of the services of the CONSULTANT under this Agreement, and such indemnity shall not be limited by reasons of enumeration of any insurance coverage herein provided. Negligent performance of service, within the meaning of this Article, shall include, in addition to negligence founded upon tort, negligence based upon the CONSULTANT's failure to meet professional standards and resulting in obvious or patent errors in the progression of his work. Nothing in this Article or in this Agreement shall create or give to third parties any claim or right of action against the CONSULTANT or the STATE beyond such as may legally exist irrespective of this Article or this Agreement.

Additionally, for all projects with an estimated construction cost of Five Million Dollars ($5,000,000) or more, the CONSULTANT shall procure and maintain for the duration of the work for such project(s), Professional Liability Insurance in the amount of One Million Dollars($1,000,000), issued to and covering damage for liability imposed on the CONSULTANT by this Agreement or law arising out of any negligent act, error, or omission in the rendering of or failure to render professional services required by the Agreement. The CONSULTANT shall supply any certificates of insurance required by the Department and adhere to any additional requirements concerning insurance.