Draft Agreement.pdf

AGREEMENT NO. ###

CORE I.D. ###

AGREEMENT FOR RAIL PROPERTY MANAGEMENT SERVICES

THIS AGREEMENT for property management services (the “Agreement”) has been concluded at Newington, Connecticut, by and between the State of Connecticut Department of Transportation (“CTDOT”), and INSERT corporation/company (“Contractor”) authorized to do business in the State of Connecticut and having a principal place of business located at [INSERT address]. CTDOT and the Contractor may each be referred to individually as a “Party,” and collectively as the “Parties.”

WHEREAS, CTDOT owns and manages certain rail properties and related assets to support public transportation services and issued a competitive procurement for professional services for the management of such rail properties and related assets;

WHEREAS, CTDOT selected the Contractor, and the Contractor wishes to perform the services as more particularly described in the Agreement; and

WHEREAS, pursuant to § 13b-34(a)of the Connecticut General Statutes (CGS) and the Memorandum of Understanding between the Connecticut Department of Administrative Services and CTDOT dated September 30, 2025, CTDOT has authority to enter into this Agreement.

NOW, THEREFORE, the Parties agree as follows:

ARTICLE 1. WORK AND PERFORMANCE REQUIREMENTS

1.1 The acronyms and definitions that shall apply to this Agreement, including its attached Schedules, are set forth in Schedule A attached to this Agreement or defined in the body of this Agreement.

1.2 The Contractor shall perform all Work set forth in the Scope of Work attached as Schedule B to this Agreement, including without limitation any option(s) exercised by CTDOT in accordance with the Scope of Work.

1.3 In performing under this Agreement, the Contractor shall comply with all applicable Federal and State laws, regulations, codes, standards, guidelines, and guidance (“Requirements”).

In case of conflict between the Federal and State laws, regulations, codes, standards, guidelines, or guidance, the most stringent Requirement shall prevail as the minimum with respect to the performance of Work under this Agreement, except that in case of a conflict between a Federal statute or regulation and a State statute or regulation, the Federal statute or regulation shall prevail where the State statute or regulation is preempted by Federal law.

1.4 Upon prior written approval from CTDOT, the Contractor may engage subcontractors to perform portions of the Work in accordance with the Scope of Work. In the event of subcontracting, the Contractor shall impose onto its subcontractor(s) all requirements under this Agreement related to such Work being subcontracted and, accordingly, include in its subcontracts all applicable “flow-down” provisions. Notwithstanding the ability to impose Work obligations onto its subcontractor(s), the Contractor shall remain the responsible party for the successful completion of the Work to CTDOT’s satisfaction under this Agreement.

1.5 The Contractor shall be responsible for paying any and all fines or damages (a) imposed for failure of the Contractor or any of its subcontractors to comply with any applicable Requirements, or (b) associated with any acts or omissions of the Contractor or any of its subcontractors (including without limitation the employees, agents and representatives of the Contractor or any subcontractor) with regard to their performance under this Agreement. The cost of all such fines and damages is not transferable to CTDOT.

1.6 Reserved

1.7 If any portion of the Work performed by the Contractor or its subcontractors is not completed in accordance with the requirements and performance standards set forth in this Agreement, and if upon notification by CTDOT, the Contractor fails to complete or correct (or have its subcontractor(s) complete or correct) within the reasonable timeframe designated by CTDOT in its notification to the Contractor or other time period as may be agreed to by the Parties, CTDOT reserves the right to arrange for others to complete or correct such Work and, at CTDOT’s discretion, all costs and expenses incurred by CTDOT in doing so shall be deducted from monies due or to become due to the Contractor from CTDOT or shall otherwise be reimbursed by the Contractor and its surety.

1.8 The Contractor shall perform any additional work required in order to correct deficiencies resulting from the acts or omissions of the Contractor or its subcontractor(s) performing under the Agreement, as determined by CTDOT in its sole reasonable discretion, without charge to CTDOT. Any investigation associated with such additional work shall be performed by the Contractor at its sole cost and expense and shall not be considered Change Order Work.

ARTICLE 2. COMMENCEMENT OF WORK AND TERM

2.1 This Agreement shall not be effective until the date it is approved as to form by the Attorney General (“Effective Date”). Once effective, the Agreement itself is not an authorization for the Contractor to begin performing Work. The Contractor may begin to perform Work, or a portion of the Work, only after it has received from CTDOT a written Notice to Proceed (NTP) for the Work or a portion of the Work.

Performance without a written NTP from CTDOT is prohibited and shall be at the Contractor’s sole cost and risk.

2.2 The initial term of this Agreement shall commence upon the Effective Date and continue for three (3) years from issuance of NTP by CTDOT (“Initial Term”), unless earlier terminated in accordance with any other provision of this Agreement. As used in this Agreement the “Term” shall mean and include the Initial Term and any extension of the Term as provided in Section 2.3 of the Agreement.

2.3 CTDOT may extend the Initial Term for successive one (1) year periods by submitting written notice to the authorized representative of the Contractor at least sixty (60) days prior to the expiration of the Initial Term or the previous one (1) year extension term, as applicable. Such extension shall be made by written Amendment and on the same terms and conditions set forth in the Agreement unless otherwise agreed to by the parties in said written Amendment.

ARTICLE 3. PERSONNEL

3.1 The Contractor shall ensure that the Work is performed by qualified and experienced personnel, including its own personnel and the personnel of its subcontractors (collectively referred to for the purposes of this Article as “Personnel”). For purposes of this Article, “qualified” shall mean having satisfied the training requirements for a specified position and possessing the background, skills and experience necessary to fulfill the duties of the specified position as described in the respective section of the Scope of Work referring to such specified position.

The Contractor shall be and remain responsible for the performance of all the Work, whether or not subcontracted, and shall utilize to the fullest extent the specialized expertise and experience of the Personnel that it listed in its Proposal.

3.2 CTDOT shall have the right to demand that the Contractor immediately remove any Personnel or subcontractor, when CTDOT determines in its reasonable discretion, such removal to be in the best interest of the State. Demand shall be made by sending written notice from CTDOT’s Rail Administrator or his/her authorized designee (hereinafter referred to as the “Rail Administrator”) to the Contractor’s authorized designee. In a timely fashion, the Contractor shall secure replacement Personnel or a replacement subcontractor who possesses the expertise and experience necessary, in CTDOT’s sole discretion, to perform the Work. CTDOT reserves the right to approve all replacement Personnel and subcontractors prior to their commencement of any Work, provided such approval shall not be unreasonably withheld, conditioned or delayed. If CTDOT unreasonably withholds, conditions or delays such approval, and, as a result, a Scope of Work deadline requires adjustment, such adjustment shall be addressed pursuant to the terms and conditions of Section 4.3.

3.3 The Contractor shall be responsible for any additional costs and expenses caused by the need to replace Personnel or subcontractor(s).

3.4 The Contractor shall fully comply with all applicable laws, rules and regulations with respect to workers’ compensation, social security, unemployment insurance, hours of labor, wages, working conditions, and other employer-employee related subjects.

The Contractor agrees to comply with, if applicable, the prevailing wage requirements under State of Connecticut law.

ARTICLE 4. COMPENSATION (to be completed upon selection of Proposal and negotiation of final agreement)

4.1 The Contractor shall be compensated in accordance with --- [ reference the rates set forth in Schedule C].

ARTICLE 5. INVOICING & PAYMENT

5.1 To be eligible for payment, the Contractor must submit valid, properly prepared invoices, containing a level of detail as set forth below and acceptable to CTDOT for processing, all in accordance with the following requirements:

(a) Invoices must reference “CORE I.D.##DOT#######” and the amount(s) being invoiced consistent with terminology of the Agreement, and be accompanied by a completed form titled “Invoice Summary and Processing (ISP) form” (available from CTDOT’s website www.ct.gov/dot as fillable .xls file);

(b) Invoices must meet generally accepted accounting standards and must be in a format acceptable to CTDOT;

(c) The Contractor shall maintain documentation to support the Contractor’s invoice. With respect to invoiced amounts other than the Monthly Fixed Price Amounts, such documentation must be forwarded to CTDOT with the invoice.

(d) The Contractor’s invoices may not be submitted more frequently than monthly.

5.2 An invoice, or portion thereof, submitted by the Contractor may be rejected by CTDOT for any or all of the following reasons:

(a) The amount invoiced is inconsistent with Article 4

(b) The invoice is for performance of Work under the Agreement that is in dispute or for which the Contractor has failed to otherwise comply with applicable Agreement provisions;

(c) The Contractor has not submitted satisfactory documentation or other evidence required by CTDOT for processing invoices, as set forth in Section 5.1; or

(d) The invoice or ISP form is not properly prepared or does not contain a level of detail as set forth in Section 5.1.

If CTDOT rejects an invoice pursuant to this section 5.2, CTDOT will notify the Contractor in writing.

5.3 If an audit should disclose any payment to the Contractor that exceeds 100% of the invoiced amount, this excess shall be returned to CTDOT within sixty (60) days from the date that CTDOT notifies the Contractor of the excess payment.

ARTICLE 6. REVIEW OF WORK & COOPERATION

6.1 CTDOT shall have the right to review at any time, the Work performed under this Agreement. The Contractor shall be and remain fully responsible for the Work performed under this Agreement, and any review by CTDOT shall not relieve the Contractor of this responsibility.

6.2 The Contractor shall:

(a) provide reasonable cooperation with staff, representatives, and contractors of CTDOT and individuals or entities identified by CTDOT including, without limitation, municipalities, MTA, public utility companies, freight rail operators and other affected parties relating to CTDOT rail property;

(b) attend such meetings, discussions, hearings as may be reasonably requested from time to time by CTDOT to effectuate this cooperation; and

(c) comply with all directives reasonably given by CTDOT with respect to specific coordination required with the aforementioned individuals or entities.

ARTICLE 7. REQUIRED INSURANCE

7.1 The Contractor shall carry AUTOMOBILE LIABILITY, WORKERS COMPENSATION OR FEDERAL EMPLOYERS LIABILITY ACT, and CRIME insurance coverage, in full force and effect, throughout the Term, unless otherwise specified below, with the Contractor and the “State of Connecticut, Department of Transportation” listed as named insureds for subsection (a), and with the State, CTDOT and its officers, agents and employees of all the foregoing, named as additional insureds for subsections (b) and (e), at no direct cost to CTDOT, and in accordance with the following:

(a) The Automobile Liability Insurance policy shall cover the operation of all motor vehicles, including those hired or borrowed, used in connection with the Agreement and shall be covered by Automobile Liability Insurance 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 or destruction of property in any one accident or occurrence. In cases where an insurance policy shows an aggregate limit as a part of automobile liability coverage, the aggregate limit must be at least Two Million Dollars ($2,000,000);

(b) Workers’ Compensation insurance in compliance with the laws of the State of Connecticut and any other state in which work is performed under this Agreement. Such coverage shall include Employers’ Liability coverage with limits of not less than One Million Dollars ($1,000,000) each accident. The Workers’ Compensation insurance policies of the Contractor shall state that the policies waive all rights of subrogation against CTDOT.

(c) Commercial General Liability Insurance covering bodily injury, personal injury, and property damage, including premises and operations, independent contractors, products/completed operations, and contractual liability coverage. Such insurance shall have limits of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, or such higher limits as may be required by the Department. The State of Connecticut, acting through the Connecticut Department of Transportation, shall be named as an Additional Insured on a primary and contributory basis.

(d) Professional Liability Insurance The Contractor shall secure and maintain, and/or require its subcontractor(s) to secure and maintain, at no direct cost to the Department, a Professional Liability Insurance policy for errors and omissions in the minimum amount of One Million Dollars ($1,000,000). The Contractor, or its subcontractor(s), as applicable, shall obtain the appropriate and proper endorsement to its Professional Liability Policy to cover the work performed by the Contractor, or its subcontractor(s), as applicable. The Contractor, or its subcontractor(s), as applicable, shall continue this liability insurance coverage for a period of three (3) years from the date of expiration or termination of this Agreement or any extension thereof.

(e) The Contractor shall secure and maintain, and/or require any of its subcontractors to secure and maintain, a Valuable Papers Insurance Policy at no direct cost to CTDOT. Said Policy will assure the Department that all records, papers, maps, statistics, survey notes, tracings, highway and bridge design and other data and documents shall be reestablished, recreated, or restored if made unavailable by fire, theft, flood, or any other cause. When survey data is furnished by the Department, the Contractor shall retain in its possession duplications of all survey plans and field notes. The Contractor shall retain in its possession duplications of all products of its work under this Agreement, if, and when it is necessary for the originals to be removed from its possession during the time that this policy is in force. This policy shall provide coverage in the amount of Twenty-Five Thousand Dollars ($25,000) regardless of the physical location of the insured items.

(f) All insurance set forth in Section 7.1 shall include policy wording denying the insurer rights of subrogation against CTDOT, the State and the officers, agents and employees of all of the foregoing. All insurance set forth in Section 7.1 shall be primary insurance and provide that any other insurance carried by CTDOT shall be excess and shall not be required to contribute in any manner with such insurance.

7.2 Before issuance of the NTP, the Contractor shall provide certificate(s) of insurance for each policy required under Section 7.1. The Certificates shall be fully executed by an insurance company or companies satisfactory to CTDOT on a form acceptable to CTDOT and evidence that said policies are in accordance with the requirements of Section 7.1.

7.3. The Contractor shall produce, within five (5) business days of CTDOT’s request, a copy or copies of all applicable insurance policies required in Section 7.1. When providing said policies, the Contractor may redact provisions of the policy that are proprietary. This provision shall survive the suspension, expiration or termination of this Agreement.

7.4 The Contractor shall be solely responsible for and shall pay any and all costs associated with deductibles or self-insured retentions under any policy of insurance required under this Agreement, including without limitation the Required Insurance maintained by the Contractor. Under no circumstances shall CTDOT be responsible for any deductible or self-insured retention. The Contractor shall also be responsible for the payment of all insurance premiums and any audit charges associated with the Required Insurance. Unless otherwise approved in writing by CTDOT, any deductible or self-insured retention applicable to the foregoing policies shall not exceed Five Hundred Thousand Dollars ($500,000). Each such policy shall not be subject to cancellation or material reduction in coverage unless written notice is provided to CTDOT in accordance with Article 16 at least thirty (30) days prior to the effective date of cancellation, except that ten (10) days’ notice shall apply in the event of cancellation for non-payment of premium.

7.5 Except otherwise expressly provided in this Article 7, the Required Insurance may be satisfied through any combination of primary, umbrella, or excess insurance coverage, including through endorsements or rider to separate or blanket policies maintained by the Contractor. The Contractor shall provide CTDOT with certificates of insurance and any applicable endorsements, riders or other documentation demonstrating that such policies comply with all insurance requirements of this Agreement. The coverage and protection afforded to the State under such policies shall be at least equivalent to the coverage and protection provided if separate policies were maintained specifically for the services or work performed under this Agreement. If the limits of the Required Insurance are satisfied through a combination of primary and excess or umbrella policies, the excess or umbrella policies shall provide that they will apply in the event of a reduction or exhaustion of the underlying policy limits.

7.6 If the Contractor fails to obtain, maintain, or provide evidence of the Required Insurance, including renewals, CTDOT may, but shall not be obligated to, procure such insurance on the Contractor’s behalf. The Contractor shall reimburse CTDOT for all costs incurred in procuring such insurance, together with interest at the rate established pursuant to § 4a-71 of the Connecticut General Statutes, until paid in full or upon demand by CTDOT. CTDOT shall not be responsible for, nor incur any liability arising from, the insolvency of any insurer or the insurer’s failure to perform under any policy obtained pursuant to this Section 7.6.

7.7 The Contractor shall not, and shall ensure that its subcontractors do not, take any action that would invalidate, in whole or in part, any Required Insurance. If the Contractor or any subcontractors take any action that could invalidate such coverage, the Contractor shall promptly use commercially reasonable efforts to remedy the condition or circumstance. The Contractor shall be solely responsible for and shall pay all deductibles under any insurance policy maintained by the

Contractor. The Contractor shall also be responsible for all premiums and any audit changes associated with the Required Insurance. Each insurance policy shall ensure that the insurer agrees to investigate and defend the insured against all claims for damages, even if such claims are groundless.

7.8 The Contractor acknowledges and agrees that the insurance coverage and limits required under this Agreement shall not limit or otherwise affect the Contractor’s liabilities or responsibilities under this Agreement or applicable law.

7.9 The Required Insurance coverage of the types and minimum limits as required by this Article 7 must be provided by an “authorized” insurance company or companies, meaning that each insurance company, or if it is a subsidiary then its parent company, is authorized pursuant to the Connecticut General Statutes to write insurance coverage in the State of Connecticut and/or in the state in which it, or in which the parent company, is domiciled. In either case, the company must be authorized to underwrite the specific line coverage.

ARTICLE 8. RESERVED

ARTICLE 9. ASSIGNMENT OR TRANSFER OF AGREEMENT

9.1 The Contractor shall not sell, transfer, assign, or otherwise dispose of the Agreement or any portion of it, or of the Work provided for in the Agreement, or of its right, title, or interest in the Agreement, to any person, party, entity, firm, partnership, company or corporation without the prior written consent of CTDOT, which consent shall not be unreasonably withheld. Any such prohibited action shall be void and of no force or effect. For breach or violation of the above stipulation, CTDOT shall have the right to terminate this Agreement without liability.

9.2 The Contractor shall not subcontract any portion of the Work required for the completion of this Agreement without the prior written approval of CTDOT. The form of any subcontract shall be developed by the Contractor and must be approved by

CTDOT.

9.3 CTDOT may assign this Agreement, in full or in part, at any time without the consent of the Contractor and will provide Official Notice to the Contractor regarding such assignment.

ARTICLE 10. WARRANTY OF NON-INFRINGEMENT; OWNERSHIP OF DOCUMENTS

10.1 The Contractor warrants that the processes, design, equipment, materials, or devices used in the performance of the Work shall be free of any rightful claim by any third-party for infringement of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right. If a suit or proceeding based on a claimed infringement of a patent or copyright is brought against CTDOT, the Contractor shall, at its own cost and expense, defend or settle any such suit or proceeding if authorized to do so in writing by CTDOT, and indemnify and hold harmless the State and CTDOT, its successors and/or assigns, its subsidiaries, agents and employees from all liability, reasonable damages, costs, and expenses associated therewith, including, without limitations, defense costs and attorney fees, subject to any applicable limitations set forth in Article 8.

10.2 All Records, documents, materials, procedures, and processes prepared and/or developed by the Contractor and/or its subcontractors as required under this Agreement shall be the sole property of CTDOT and shall be delivered to CTDOT in accordance with the Scope of Work. Original copies of all such Records, documents, materials, procedures, and processes, including any electronic media of such shall be delivered to CTDOT in accordance with the deadlines set forth in the Scope of Work.

10.3 The Contractor shall not release, publish, or otherwise disclose any materials or technical data prepared under this Agreement to any third-party, except as necessary for the performance of the Work or as required by applicable law, regulation, or court order. The Contractor shall not issue any press release or publish any information related to this Agreement without the prior written approval of the Rail Administrator.

ARTICLE 11. REGISTRATION AND REVISIONS IN ORGANIZATION

11.1 Simultaneously with the execution of this Agreement, the Contractor shall provide evidence to CTDOT that it is registered with the Secretary of State of Connecticut.

The Contractor shall maintain its legal existence in good standing with the Secretary of State of Connecticut throughout the Term, and, if requested by CTDOT, provide evidence thereof.

11.2 The Contractor shall notify CTDOT in writing when there is a change in its certificate of registration with the Connecticut Secretary of State’s Office, or a change in the Key Personnel. Any such change shall not relieve the Contractor of any responsibility for the accuracy and completeness of all services and products of the Work under this Agreement, including any amendments or extensions to this Agreement.

ARTICLE 12. DISPUTE RESOLUTION

12.1 With respect to disputes between the Parties arising out of or relating to the performance of their respective obligations under the Agreement and subject to

Section 12.3 below, the Parties shall attempt in good faith to promptly resolve any dispute or controversy by negotiation.

12.2 Any Party shall give the other Party written notice of any dispute not resolved in the normal course of business, specifically referring to Section 12.2, delivered in accordance with Article 16. The receiving Party shall promptly submit to the other a written response. A copy of the written notice and response shall additionally be transmitted by electronic mail, if to the Contractor, addressed to the General Manager, and if to CTDOT, addressed to the Rail Administrator with a copy to dot.ctrail@ct.gov. The notice and the response shall each include a statement of the Party’s position and a summary of arguments supporting that position. If deemed appropriate, the Parties shall meet at a mutually acceptable time and place, and, thereafter, as often as they reasonably deem necessary, to attempt to resolve the dispute. The Parties agree that in efforts to resolve disputes, all reasonable requests for relevant information made by one Party to the other will be honored. The Parties shall attempt to negotiate resolutions within thirty (30) days of the date that the written notification of a dispute is received by the receiving Party. If the issue is not resolved after meeting or if the Parties fail to meet for whatever reason, the matter shall automatically elevate to CTDOT’s Bureau Chief for the Bureau of Public Transportation and to the designated corporate representative of the Contractor to attempt to resolve the dispute. If such Bureau Chief and designated corporate representative of the Contractor are unable to reach agreement as to the resolution of the disputed issues(s), the issue(s) may be subject to non-binding mediation set forth in Section 12.3.

12.3 If the Parties are unable to resolve their dispute through negotiation, such dispute may be subject to non-binding mediation as a condition precedent to any other proceedings by either Party unless both Parties agree to waive the mediation process. A Party’s request for mediation shall be submitted in writing to the other Party in accordance with Article 16. The Parties shall jointly select one (1) disinterested mediator with proven expertise concerning the issue at hand. In the event the Parties are unable to agree on a mediator, the mediator shall be selected by alternative strikes by each Party from a list of five (5) mediators provided by the American Arbitration Association. The Parties shall share the mediator’s fee and any filing fees equally. The mediation shall commence within thirty (30) days after receipt of the requests, or other period of time as mutually agreed upon by the Parties, and shall be held at 2800 Berlin Turnpike, Newington, Connecticut, unless another location is mutually agreed upon by the Parties. If the Parties are unable to resolve their dispute through mediation, the Parties reserve all other remedies under the Agreement and law.

12.4 For issues related to compliance with Federal and State law or other matters for which CTDOT determines immediate redress is required but that the Contractor disputes, the Contractor shall not delay its performance of any work required to redress such issues during the pendency of any dispute resolution process that the mailto:dot.ctrail@ct.gov

Contractor may initiate under this Article. If a Federal, State or local authority having jurisdiction over the operations performed by the Contractor pursuant to this Agreement makes a determination that there is a violation by the Contractor of applicable regulations, that determination shall be final and binding on the Contractor, and shall not, as between CTDOT and the Contractor, be the subject of dispute resolution under this Agreement.

12.5 The Contractor shall continue to fully perform the Work and all of its obligations under the Agreement, notwithstanding any dispute or Dispute Resolution process, and accordingly, CTDOT shall continue to pay the Contractor pursuant to the Agreement, provided that the Contractor is participating in good faith in the Dispute Resolution, and if the dispute is regarding a Breach, that the Contractor is making reasonable progress towards a cure as set forth in Section 13.2.

ARTICLE 13. BREACH

13.1 The following shall be deemed to be a “Breach” of this Agreement by the Contractor:

(a) the Contractor fails to observe or perform any covenant, agreement, obligation, condition or provision of this Agreement, including, but not limited to, the Scope of Work, if such failure shall continue outside of any applicable cure period, excluding the Contractor’s nonperformance specified in Section 15.7 below;

(b) the Contractor admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consent to the appointment of a trustee or receiver for itself or for a substantial part of its property;

(c) a trustee or receiver is appointed to the Contractor for a substantial part of its property, and it is not discharged within sixty (60) days after such appointment; or

(d) bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any Federal or State bankruptcy law, or similar law for the relief of debtors are instituted by or against the Contractor, and, if instituted against the Contractor, are allowed against it or are consented to buy it or are not dismissed within sixty (60) days after such institution.

13.2 If a Breach has occurred, CTDOT shall provide Official Notice to the Contractor pursuant to Article 16. Such Official Notice will commence a thirty (30) day time period for the Contractor to cure such Breach (the “Cure Period”) except for Breaches related to safety in which CTDOT reserves the right, in its sole discretion, to set forth a shorter Cure Period. CTDOT may extend the Cure Period if CTDOT is satisfied that the Contractor is making a good faith effort to cure, but the nature of the Breach is such that it cannot be cured within the Cure Period. If the Contractor is making reasonable progress towards a cure in the specified time period, CTDOT shall not withhold payment on the Monthly Invoice Amount, unless the dispute is regarding a Breach related to safety as determined by CTDOT.

13.3 In the event of a Breach, CTDOT may require the Contractor to prepare and submit to CTDOT a corrective action plan in connection with the Breach. The corrective action plan shall provide a detailed explanation of the reasons for the cited deficiency, the Contractor’s assessment or diagnosis of the cause, and a specific proposal to cure or resolve the deficiency. The Contractor shall submit the corrective action plan within ten (10) business days following the request for the plan by CTDOT. The corrective action plan is subject to approval by CTDOT.

Notwithstanding the submission and acceptance of a corrective action plan, the Contractor remains responsible for achieving all performance standards, levels and requirements set forth in the Scope of Work. The acceptance of a corrective action plan shall not excuse prior substandard performance, relieve the Contractor of its duty to comply with performance standards, levels and requirements or its obligations to pay damages, or prohibit CTDOT from pursuing additional remedies or other means to correct substandard performance.

13.4 The Official Notice of the Breach may include an effective termination date of this Agreement. If the identified Breach is not cured by the stated termination date, unless otherwise modified by CTDOT in writing prior to such date, no further action shall be required of CTDOT to effect the termination as of the stated date. If the notice does not set forth an effective termination date, CTDOT shall be required to provide the Contractor no less than twenty-four (24) hours Official Notice prior to terminating the Agreement, in accordance with Article 14.

13.5 If CTDOT reasonably and in good faith determines that Contractor has not performed in accordance with the Agreement, CTDOT may withhold payment in an amount reasonably related to the non-performance pending resolution of the performance issue, provided that CTDOT notifies the Contractor in writing prior to the date that the payment would have been due. If any such withheld amount is ultimately determined through the Dispute Resolution or Mediation process to have been improperly withheld in whole or in part, CTDOT shall pay such improperly withheld amount bearing interest pursuant to the requirements of § 4a-71 of the CGS, as revised, from the date that the payment was originally due until the date payment is sent by CTDOT to the Contractor.

13.6 A failure of either Party to enforce or require compliance with any provision of this Agreement at any time during the Term of this Agreement shall in no way affect the validity of this Agreement, or any portion hereof, and shall not be deemed a waiver of the right of the Party thereafter to enforce any and each such provision.

13.7 The Contractor’s failure to perform any obligations of the Agreement due to any of the following shall not be considered a Breach of the Agreement if:

(a) CTDOT’s nonpayment of the Monthly Fixed Price amount submitted on a properly prepared invoice pursuant to Article 5, for which the Contractor has issued notice of nonpayment to CTDOT and which in turn CTDOT has not disputed or paid within thirty (30) days of the notice of nonpayment;

or

(b) CTDOT’s suspension of the Work in accordance with Section 15.7; or

(c) Force Majeure pursuant to Section 18.1.

In the event of any of the foregoing, the Parties agree to meet and work cooperatively to reach needed resolution and address reasonable compensation to the Contractor as may be appropriate. If the Parties cannot reach a mutually agreed upon resolution, the matter shall be subject to Dispute Resolution.

ARTICLE 14. TERMINATION

14.1 In addition to termination of the rights set forth in Article 13 of this Agreement, CTDOT may terminate the Agreement whenever CTDOT makes a written determination that such termination is in the best interests of CTDOT or the State.

CTDOT shall notify the Contractor in writing of the termination in accordance with Section 14.2 of this Agreement.

14.2 In the event CTDOT decides to terminate the Agreement, CTDOT shall send the notice of termination to the Contractor (a “Termination Notice”) pursuant to the Official Notice requirements of Article 16. The Termination Notice shall specify the effective date of termination, no less than thirty (30) days from the date of the Termination Notice, and the extent of Work, if any, that the Contractor shall complete prior to such date. Upon receipt of a Termination Notice, the Contractor shall cease all operations as CTDOT directs in the Termination Notice, undertake commercially reasonable efforts to mitigate any losses or damages, take all actions that are necessary or appropriate, or that CTDOT may reasonably direct, for the protection and preservation of the goods and materials and any other property.

Except for any Work which CTDOT directs the Contractor to perform in the Termination Notice prior to the effective date of termination, and except as otherwise provided in the Termination Notice, the Contractor shall terminate or conclude all existing subcontracts and purchase orders and shall not enter into any further subcontracts, purchase orders or commitments. With respect to any The Records that at the time of termination have not yet been provided to CTDOT, Contractor shall deliver all such Records to CTDOT, at no cost or expense to CTDOT, no later than thirty (30) days after the termination of the Agreement. The Contractor shall deliver all Records in electronic, magnetic or other intangible form in a non-proprietary format.

14.3 Reserved

14.4 Except as otherwise provided in this Agreement, upon termination of the Agreement, all rights and obligations shall be null and void, so that no Party shall have any further rights or obligations to any other Party, except with respect to the provisions in this Agreement which survive termination. All representations and warranties of the parties under the Agreement shall survive such termination to the extent not otherwise limited in the Agreement and without each one of them having to be specifically mentioned in the Agreement.

14.5 Termination of the Agreement pursuant to this Article 14 shall not be deemed to be a breach of the Agreement by CTDOT or the State.

ARTICLE 15. SUSPENSION OF THE WORK

15.1 CTDOT, in its sole discretion, reserves the right to stop or suspend all or any portion of the Work for such period as it may deem necessary or in the best interest of the State, including without limitation, due to the failure on the part of the Contractor to carry out orders given or to perform any obligations under the Agreement or to factors that are not the responsibility of the Contractor. The Contractor shall comply immediately with the written order of CTDOT to suspend the Work in whole or in part.

15.2 In the event that CTDOT orders a suspension of the Work in part, the Contractor shall, to the extent reasonably practicable under the circumstances, safeguard the existing non-suspended Work.

15.3 If the suspension of the Work is attributable to the Contractor’s failure to perform Work in accordance with the requirements and performance standards set forth in this Agreement and where such failure is not cured within the Cure Period, all costs related to the suspension shall be borne by the Contractor.

15.4 If the suspension of the Work is due to factors that are not the responsibility of the Contractor or its subcontractors, or if CTDOT purports to order a suspension of the Work under Section 15.3 but is finally determined under the Dispute Resolution Procedure that there exists no basis under Section 15.3, then such suspension of all or any portion of the Work may entitle the Contractor, if so determined by Dispute Resolution process, to compensation and/or schedule extensions pursuant to Section 15.7 of this Agreement.

15.5 It is expressly understood and agreed that CTDOT’s ordering of a suspension of Work under this Article 15 shall not prejudice CTDOT’s rights to seek any remedies under the Agreement or at law or in equity and obtain full reimbursement from the Contractor of all damages caused by the Contractor.

15.6 In the event of a suspension of the Work the Contractor shall not be relieved of responsibilities under this Agreement, except the obligations to perform the Work which CTDOT has specifically directed the Contractor to suspend under this Article 15.

15.7 The Contractor shall resume suspended Work pursuant to written direction from CTDOT and the requirements and the timeframe or schedule set forth in such written direction. CTDOT shall reimburse the Contractor for the reasonable costs and expenses incurred by the Contractor in relation to the exercise of CTDOT’s rights pursuant to Section 15.1, due to factors set forth in Section 15.4, that would not otherwise have been incurred by the Contractor in the proper performance of its obligations under this Agreement that are directly incurred by the Contractor in complying with those written requirements of CTDOT to suspend the Work. Within seven (7) calendar days of receipt of the written direction to resume Work, the Contractor may submit to CTDOT in writing a request for adjustment for additional time, and/or additional compensation, to complete the Work. The request shall set forth the reasons and support for any adjustment. CTDOT will notify the Contractor within thirty (30) calendar days whether the Contractor’s request for additional time or compensation is or is not approved or if additional information is needed for CTDOT to complete its review of the request.

ARTICLE 16. OFFICIAL NOTICE

16.1 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 (hardcopy) addressed to:

(b) When CTDOT is to receive such notice –

Commissioner of Transportation Connecticut Department of Transportation 2800 Berlin Turnpike P.O. Box 317456 Newington, Connecticut 06131-7546

And with copies to:

Rail Administrator Connecticut Department of Transportation Office of Rail

4 Brewery Street 4th Floor New Haven, Connecticut 06511-5408

(c) When the Contractor is to receive such notice –

INSERT

And with copies to:

INSERT

(d) To be delivered to the address recited herein in person, by email with evidence of receipt, by the U.S. Postal Service with return receipt requested by mail, electronic means, or any other methods of receiving the return receipt as identified by the mailing standards of the U.S. Postal Service, as may be revised from time to time, or by recognized overnight courier (that provides confirmation of delivery); and

(e) Contain complete and accurate information in sufficient detail to properly and adequately identify and describe the subject matter thereof.

16.2 The term “Official Notice” as used herein, shall be construed to include, but not be limited to, any request, demand, authorization, direction, waiver, and/or consent of the Party(ies) as well as any document(s), including any electronically – produced versions, provided, permitted, or required for the making or ratification of any change, revision, addition to or deletion from the document, contract, or agreement in which this Official Notice specification is contained.

16.3 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 affiliation) to which such Official Notice(s) is (are) to be addressed; alternate means of conveying such Official Notice(s) to the particular Party(ies); and/or alternate locations to which the delivery of such Official Notice(s) is (are) to be made, provided such subsequent agreement(s) is (are) concluded pursuant to adherence to this Article 16.

ARTICLE 17. STATE OF CONNECTICUT REQUIREMENTS

17.1 The Contractor shall comply with the State of Connecticut Required Provisions attached as Schedule D to this Agreement and the Required Information Technology Provisions attached as Schedule E to this Agreement.

17.2 The Contractor shall comply with the provisions contained in § 1-86e of the CGS, which provides as follows:

(a) No person hired by the State as a consultant or independent contractor shall:

(i) Use only the authority provided to the person under the contract, or any confidential information acquired in the performance of the contract, to obtain financial gain for the person, an employee of the person or a member of the immediate family of any such person or employee;

(ii) Accept another State contract which would impair the independent judgment of the person in the performance of the existing contract; or

(iii) Accept anything of value based on an understanding that the actions of the person on behalf of the state would be influenced.

(b) No person shall give anything of value to a person hired by the State as a consultant or independent contractor based on an understanding that the actions of the consultant or independent contractor on behalf of the State would be influenced.

17.3 The Contractor shall comply with the Americans with Disabilities Act of 1990 (ADA), as amended, and all applicable regulations. The Contractor shall indemnify and hold harmless CTDOT and the State from any liability arising from the Contractor’s failure to comply with such requirements.

17.4 The failure of CTDOT to require Contractor compliance with any of the terms and conditions of this Agreement, or the waiver of any Contractor breach thereof, of any of the terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17.5 If any term or provision of this Agreement or its application to any person, entity or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder of the Agreement or the application of such term or provision shall not be affected as to persons, entities or circumstances other than those as to whom or to which it is held to be invalid and unenforceable. Each remaining term and provision of the Agreement shall be valid and enforced to the fullest extent possible by applicable law.

ARTICLE 18. FORCE MAJEURE

18.1 In the event the Contractor is rendered unable in whole or in part by a Force Majeure Event to carry out its obligations under this Agreement, the Contractor shall deliver an Official Notice to CTDOT setting forth the particulars of such Force Majeure Event, and thereafter the obligations of the Contractor to the extent affected by such Force Majeure Event shall be suspended, , and such cause shall be remedied with all reasonable dispatch.

ARTICLE 19. THIRD-PARTY AGREEMENTS

19.1 The Contractor acknowledges and agrees that neither CTDOT nor the State will be bound by the provisions of any third-party agreement (including, but not limited to any third-party license agreement) that acts as a modification, compromise or waiver by CTDOT or the State of any rights or defenses of any immunities provided by Federal law of the law of the State of Connecticut to CTDOT, the State or any of its officers and employees, which they may have had, now have or will have with respect to all matters arising out of the Proposal or this Agreement. The Contractor further acknowledges that neither CTDOT nor the State will be party to any such third-party agreement or be in privity of contract with the third-party of parties.

ARTICLE 20. RESERVED

ARTICLE 21. MISCELLANEOUS

21.1 Waiver; Modification. No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing, signed by the Party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought, and, if applicable, approved by the Attorney General.

No waiver at any time of any of the provisions hereof, and a waiver at any time of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions.

21.2 Severability. If any term or provision of this Agreement or its application or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each remaining term and provision of this Agreement shall be valid and enforced to the fullest extent possible by law.

21.3 Electronic Signatures & Counterparts.

(a) This Agreement may be executed by electronic signatures, and such electronic signatures shall be deemed to be the original signatures of the Parties.

(b) This Agreement may be signed in counterpart copies, all of which taken together shall constitute but one and the same document and single binding agreement. The Parties agree that executed counterparts may be transmitted by electronic means and that such counterparts shall be treated as originally executed instruments.

21.4 References. References to a “Section,” “Sections,” “Article,” or “Articles” herein refer to this Agreement unless otherwise stated. Any headings preceding the texts of the Articles and Sections of this Agreement, and any table of contents or index of schedules shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.

21.5 Words importing the singular number mean and include the plural number and vice versa. The use of any gender shall include all genders.

21.6 Drafting of Agreement. CTDOT and the Contractor have participated in the drafting of this Agreement, and any ambiguity contained in this Agreement shall not be construed against CTDOT or the Contractor solely by virtue of the fact that either CTDOT or the Contractor may be considered the drafter of this Agreement or any particular part hereof.

21.7 Consent or Approval. Any consent or approval provided by CTDOT hereunder with respect to the Work, subcontractors or any other matters or items as to which such consent or approval is required, is not intended to, and shall not be construed to constitute

(a) representation or warranty by CTDOT as the quality, sufficiency or compliance with any applicable legal requirements of any such Work, subcontractor or any such other matter or item or

(b) acceptance by CTDOT to complete the Work or otherwise perform the obligations of the Contractor as to the task consented to or approved.

Any consent or approval by CTDOT shall not impose liability of any kind to CTDOT or relieve the Contractor of its obligations hereunder.

21.8 Conflicts in the Agreement. In case of conflict within the terms of this Agreement, including all Schedules hereto, the more stringent…