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HomeMy WebLinkAbout2009-109 Aging - Application for American Recovery and Reinvestment Act Transit Funds ~ . -Please return this copy to -~ 5~,~ Clerk to the Board's office for PAP 5w STATE OF NORTH CAROLINA NONURBANIZED AREA COUNTY OF WAKE PUBLIC TRANSPORTATION GRANT AGREEMENT FOR PUBLIC BODY ORGANIZATIONS NORTH CAROLINA COMMUNITY TRANSPORTATION DEPARTMENT OF TRANSPORTATION PROGRAM - ARRA And CFDA NUMBER: 20.509 ORANGE COUNTY PROJECT NUMBER: 10-AR-056 THIS AGREEMENT made this the~day of 1~~~ 20~~hereinafter referred to as AGREEMENT) by and between the NORTH CAROLINA DEPARTMENT OF ~~ ~~ TRANSPORTATION (hereinafter referred to as Department , an agency of the State of North Carolina) and ORANGE COUNTY, (acting in its capacity as the designated American Recovery and Reinvestment Act grant recipient hereinafter referred to as the "Contractor"). WHEREAS, the purpose of 49 U.S.C. 5311 is to enhance access of people in non- urbanized areas for purposes such as health care, shopping, education, recreation, public services, and employment by encouraging the maintenance, development, improvement, and use of public passenger transportation systems; and WHEREAS, the American Recovery and Reinvestment Act (hereinafter referred to as ARRA) of 2009, (Pub. L. 111-5, 2009 H.R. 1), was signed into law by President Barack Obama on February 17, 2009, and provides $8.4 billion for transit capital improvements; WHEREAS, ARRA includes a total of $103 M in North Carolina transportation funding, of which $33,055,500 is for non-urbanized area projects; WHEREAS, ARRA transportation goals are to preserve and create jobs and promote economic recovery; provide federal investments in transportation infrastructure and transit capital improvement to stimulate jobs, protect the environment and support infrastructure projects that encourage long-term economic benefits; WHEREAS, on June 4, 2009, the North Carolina Board of Transportation approved the 5311 ARRA program of projects and authorized funds for these transportation projects as set forth in the Contractor's application and the approved Project budget; WHEREAS, the Federal Transportation Administration on August 26, 2009 awarded ARRA funds to Department with the understanding that such funds will be used for designated projects pursuant to this Agreement for the purposes specified in Appendix A, attached hereto and incorporated herein by this reference. WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes (N.C.G.S.) designates the Department of Transportation as the agency of the State of North Carolina responsible for administering all Federal and/or State programs relating to public transportation, and granted the Department authority to do all things required under applicable Federal and/or State legislation to properly administer the public transportation Revised 1/6/10 2 within the State of North Carolina; and WHEREAS, the Governor of North Carolina, in accordance with Section 5311 of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act - A Legacy for Users (SAFETEA-LU), Public Law 109-59, August 10, 2005, and the Transportation Equity Act for the 21 sc Century (TEA-21), Public Law 105-178, June 1998, as amended, has designated the North Carolina Department of Transportation as the agency to receive and administer Federal funds under this program; and WHEREAS, the Department, under the terms of this Agreement shall make ARRA grants to the Contractor; and WHEREAS, the Department and the Contractor desire to secure and utilize Section 5311 ARRA grant funds for the above referenced purposes. NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the Department and the Contractor agree as follows: Section 1. Purpose of Agreement. a. Purpose. The purpose of this Agreement is to provide for the undertaking of non- urbanized area public transportation services as described in the project application (hereinafter referred to as "Project") properly prepared, endorsed, approved, and transmitted by the Contractor to the Department, and to state the terms and conditions as to the manner in which the Project will be undertaken and completed. 1) Contractor Responsibilities. The Contractor shall ensure that all subcontracts and other contracts for goods and services for an ARRA-funded project have the mandated provisions of this directive in their contracts. Pursuant to Title XV, Section 1512 of the ARRA, the State shall require that the Contractor provide reports and other employment information as evidence to document the number of jobs created or jobs retained by this contract from the Contractor's own workforce and any sub-contractors. No direct payment will be made for providing said reports, as the cost for same shall be included in the various items in the contract. 2) Recovery Act Funding. The Contractor is notified that this project will be financed with American Recovery and Reinvestment Act of 2009 (hereinafter, "ARRA") funds. The Contractor acknowledges that receipt of Recovery Act funds is a "one time" disbursement that does not create any future obligation by FTA to advance similar funding amounts. 3) Compliance with Federal State and Local Directives. Contractor agrees to comply with the provisions of this agreement. Failure to comply with any and all provisions herein may be cause for the Department or FTA to terminate funding. 4) Integrity. The Contractor agrees that all data submitted to the Department, North Carolina Office of Economic Recovery and Investment (OERI), or its agents, and the FTA in compliance with the Recovery Act requirements will be accurate, objective, and of the highest integrity. Revised 1/6/10 Section 2. Proiiect Scope 8~ Implementation. a. Project Scope. Orange County (operating as Orange Public Transportation) will purchase two (2) 22-ft lift-equipped light transit vehicles and three (3) 28-ft lift- equipped light transit vehicles to replace similar vehicles that have met useful service life, and preventive maintenance for a fleet of eighteen (18) vehicles. b. Compliance. Contractor agrees at all times to comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Contractor and NCDOT/ FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to do so shall constitute a material breach of this contract. 1) Application of Federal State and Local Laws, Regulations, and Directives. a. AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009: The American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, 2009 H.R. 1), including, Section 1553, 1515(a), Section 1604, 1605, Section 1606,but not limited to, the Buy American and Wage Rate Requirements, Article 14 of chapter 124, NCGS 126-84 through 126-88, Article 21 of Chapter 94, NCGS 95-240 through 85-245; b. Federal Transit Administration (hereinafter referred to as "FTA") Circular 9040.1 F, dated April 1, 2007, at: http://www.fta. dot. gov/laws/circulars/leg_reg_6519. html); c. FTA Master Agreement, document number FTA MA (15), dated October 1, 2008 http://www.fta.dot.gov/documents/15-Master.pdf); d. The State Management Plan for title 49 U.S. C. Sections 5310, 5311, 5316 and 5317 dated December 2008, (hereinafter referred to as "State Management Plan"); e. The Section 5311 grant application for financial assistance; and f. The Community Transportation Improvement Plan for Orange County. The aforementioned documents, and any subsequent amendments or revisions thereto, are herewith incorporated by reference, and are on file with and approved by the Department in accordance with the terms and conditions of this Agreement. Nothing shall be construed under the terms of this Agreement by the Department or the Contractor that shall cause any conflict with Department, State, or Federal statutes, rules, or regulations. b. No Federal/State Government Obligations to Third Parties. In connection with performance of the Project, the Contractor agrees that, absent the Federal/State Government's express written consent, the Federal/State Government shall not be subject to any obligations or liabilities to any sub-recipient, third party contractor, lessee or other person or entity that is not a party to this Agreement for the Project. Notwithstanding that the Federal/State Government may have concurred in or approved any solicitation, sub- agreement, or third party contract, the Federal/State Government has no obligations or liabilities to such entity, including any sub-recipient, third party contractor, or lessee. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. c. Changes in Proiect Performance (i.e., Disputes, Breaches, Defaults, or Liti ation . The Contractor agrees to notify the Department immediately, in writing, of any change in local law, conditions (including its legal, financial, or technical capacity), or any other event that may adversely affect the Contractor's ability to perform the Project as provided in this Revised 1/6/10 4 Agreement for the Project. The Contractor also agrees to notify the Department immediately, in writing, of any current or prospective major dispute, breach, default, or litigation that may adversely affect the Federal/State Government's interests in the Project or the Federal/State Government's administration or enforcement of Federal/State laws or regulations; and agrees to inform the Department, also in writing, before naming the Federal or State Government as a party to litigation for any reason, in any forum. d. Limitations of Agreement. This Agreement shall be subject to the availability of Federal and State funds, and contingent upon the terms and conditions of the Master Agreement between the FTA and the Department. Section 3. Proiect Budget. a. General Project Budget. The total cost of the Project approved by the Department and FTA is FOUR HUNDRED FORTY-SEVEN THOUSAND SIX HUNDRED DOLLARS ($447,600) as set forth in the Project Description and Budget, incorporated into this Agreement as Attachment A. The Department shall provide, from Federal ARRA funds, the actual net cost of the capital Project as indicated below, not in excess of the identified amounts for eligible capital expenses. Capital WBS Capital Total Capital Federal 81 % Capital State 19% 51003.23.3.STT1 $447,600 $362,556 $85,044 PO 5r10~5'.3~3 Project Total Project Total Project Total Federal Project Total State $447,600 $362,556 $85,044 `Represents NCDOT funding. Section 4. Timeframe for Period of Performance. The Period of Performance effective date for eligible project costs is August 1, 2009. The closing date for the Period of Performance will not extend beyond June 30, 2011, unless authorized in writing by the Department prior to the current end of the performance period. The majority of projects, excluding new construction and vehicle purchase, should have a goal of completion within 6-12 months of contract execution. New construction projects should be fully completed within 18 months, unless specific written authorization from the Department to the contrary is received. The Contractor shall commence, carry on, and complete the approved Project with all practicable dispatch, in a sound, economical, and efficient manner within the prescribed timeframe. Section 5. Reporting Requirements a. General Reporting. Contractors are required to complete projects or activities which are funded under the ARRA and to report on use of the funds provided through this award. Information from these reports will be made available to the public. The Contractor hereby agrees to comply with the reporting requirements and deadlines of ARRA section 1512 and 1201(c) that may be requested by USDOT, the Department, NC OERI, FTA, the Office of Inspector General (OIG), the Government Accountability Office (GAO), or other entities, to include, but not limited to Congressional Committees or individual members of Congress, or its agents. If any of these entities requests information directly from a Contractor, the Contractor may respond directly. Contractors shall provide a copy of such reports to Revised 1/6/10 NCDOT and the regional FTA office on any responses to such requests for information. b. ARRA Reports. 1) 1512(c) Reports -Reports & Certification Requirements The Contractor agrees to provide information for primary reports and several supplemental reports where data collection is required. Contractor agrees to report the information described in section 1512 of the Recovery Act. The contractor shall provide other documents that may be requested throughout the period of the contract. Contractor also agrees to assure the integrity of the information and that the information is corrected or updated, needed. Contractor shall include all reporting requirements in all subcontracts and is responsible for collecting specific data from any sub-recipients or contractors as pertinent to the request and reporting such information to the department, FTA, USDOT, NC OERI, OIG, Governmental Accountability Office (GAO) or its agents within the prescribed timeframe. The Contractor shall report through the period that includes final project expenditure. a) Section 1512 of the Recovery Act requires the Department to file quarterly reports no later than 10 days after the end of each calendar quarter. The Contractor agrees to supply the information requested within five (5) days following the end of the quarter in a format as directed by NCDOT. The Contractor agrees to complete projects or activities that are funded under the Recovery Act and to comply with Section 1512 that includes specific reporting requirements for recipients of ARRA funds from all Federal agencies, not just DOT. The ARRA (section 1512(f)) requires Federal agencies to impose the reporting requirement on Contractors. FTA has implemented this requirement through a special condition in each ARRA grant and such information will be made available to the public. The Contractor agrees to report the information described in section 1512(c) of the Recovery Act using the reporting instructions and data elements that will be provided by the department and ensure that any information that is pre-filled is corrected or updated as needed. The first is due the within five days following the end of the quarter following ,beginning October 5, 2009, unless otherwise instructed, and will cover the reporting period ending September 30, 2009. Reports will be required monthly thereafter. Recipients of ARRA grants must report on: 1. Detailed information for each ARRA grant about direct recipient and subrecipients; information about projects funded by the grant, including reports of direct jobs created and maintained; and basic information about vendors receiving more than $25,000 threshold from direct recipient or subrecipient. 2. Contractors and subcontractors must maintain current registrations in the Dunn and Bradstreet Data Universal Numbering System (DUNS) and in Central Contractor Registration (http://www.ccr.gov) at all times during which an active federal award is funded through the Recovery Act, and include the numbers on all reporting documents. The DUNS is one of the requirements for registration in the CCR. 3. Contractors must include in their Annual Audit Report, a Schedule of Expenditures of Federal Awards (SEFA) and information to specifically identify Recovery Act funding. Document at the time of award and Revised 1/6/10 6 disbursement of funds the Federal award number CFDA number and amount of ARRA funds. Provide sufficient information that distinguishes the award of ARRA funds from other funds under the existing program. 2) FTA 1201 (c) Report. The contractor agrees to provide the FTA report requests in aggregate information for each ARRA program from February 17, 2009 on an annual basis in the format prescribed by NCDOT through the end of the end of the project or reporting period, which ever comes first. a) The Contractor will provide information to NCDOT for the TEAM Financial Status Reports, Milestone Reports Reporting Requirements that will be reported to FTA. b) The Contractor agrees to provide narrative reports for updates under the Federal Financial Report (FFR) formerly the Financial Status Report (FSR) and Milestone Progress reports (MPR) to the Department within five (5) days following the end of the quarter. 3) Other Reporting. The contractor and its subcontractors agree to provide monthly financial, job, economic impact and other data as prescribed by the department to report to the Transportation and Infrastructure Committee of the United States Congress, the Inspector General (IG), the Government Accountability Office (GAO), North Carolina Office of State Management and Budget, North Carolina Office of State Management and Budget, the Department, or its agents any and all project documentation, narrative reports and/or additional information on the progress/status and expenditures of the ARRA grant. The reports shall be due within 10 days following the end of the month. Section 6. Designation and Use of Emblems The Contractor agrees to use signs and materials that display both the American Recovery and Reinvestment Act (Recovery Act) emblem, the Transportation Investment Generating Economic Recovery. (TIGER) and the State Recovery program emblem to identify its Project(s) financed with Recovery Act funds as directed by NCDOT. This provision is to be included in any subagreements, leases, third party contracts, or other similar documents used in connection with its Recovery Act Project(s). Recipients of ARRA grants must display the USDOT Recovery logo and the State Recovery logos that have high-resolution images, which shall be provided to Contractors. Such emblems suitable for reproduction for grantees to download to produce signs or decals to display on FTA funded ARRA projects are available on the NCDOT website. Contractor agrees to prominently display both logos described above on all projects funded by the ARRA. Given the wide variability of transit projects, NCDOT and FTA does not specify a particular size or format of sign, but provides the following guidelines: • Signs should be designed to maximize visibility of the logos and minimize any accompanying text. Minimal text may be included on the sign, for example, "This Project funded by" preceding the logos, or "This Station Improvement..." or "This Bus...," etc. as appropriate, but text is not required. Revised 1/6/10 • The Recovery.Gov logo should be larger than the TIGER logo. • Because the TIGER logo was designed to identify US DOT ARRA projects, it is not necessary to display the standard DOT triscalion seal in combination with the TIGER logo. • It is not necessary to display the standard FTA mark in combination with the TIGER logo. • Grantees may adapt placement of the logos and may design signs to be suitable to the specific project on which they are displayed, but may not alter the design and colors of the logos themselves. • Signs at construction projects, for example facilities, should be placed where they are visible to passersby and to customers approaching the site. • Revenue service vehicles may be identified by a decal and/or bumper sticker visible to the public and to boarding passengers. • FTA understands that the useful life of a bumper sticker or decal may be less than the useful life of the vehicle to which it is attached, while a costly new facility funded by ARRA might merit a more durable permanent sign. If a construction project involves roadways, grantees should use the guidance for road signs disseminated by the FHWA division offices. • Safety concerns should be taken into consideration in the placement of signs, so as not to obscure traffic control signs, for example, or create a hazard. • Grantees may use the Recovery.Gov and TIGER logos on paper documents and websites related to ARRA funded projects, for example bid documents and website postings of contract awards. Section 7. Posting with the Local Employment Security Commission a. Posting Requirements. The Subrecipient agrees that all Contractors and subcontractors hired will be required to agree that in addition to any other job postings the Contractor (ESC) normally utilizes, the Contractor shall post with the local Employment Security Commission Office all positions for which he intends to hire workers as a result of being awarded this ARRA contract. Labor and semi-skilled positions must be posted for at least 48 hours before the hiring decision. All other positions must be posted a minimum posting of five days before the hiring decision. The Contractor and any Subcontractor shall report the new hires in the manner prescribed by the Employment Security Commission and the OERI. The NC ESC Homepage can be found at www.ncesc.com. Section 8: Contractor Capacity Responsibility a. Contractors Primary Responsibility to Comply with Federal and State Reauirements. Irrespective of involvement by any other participant in the Project, the Contractor agrees that it, rather than the participant, is ultimately responsible for compliance with all applicable Federal and State laws, regulations, and directives, the Master Agreement between the FTA and the Department, and this Agreement, except to the extent that the Department determines otherwise in writing. Unless otherwise authorized in writing by the Department, the Contractor shall not assign any portion of the. work to be performed under this Agreement, or execute any contract, amendment, or change order thereto, or obligate itself in any manner with any third party with respect to its rights and responsibilities under this Agreement without the prior written concurrence of the Department. Further, the Contractor shall incorporate the provisions of this Agreement into any lease arrangement and shall not enter into any lease arrangement without the prior concurrence of the Department. Any lease approved by the Department shall be subject to the conditions or limitations governing the lease as set forth by the FTA and the Department. If the Grantee leases any Project asset to another party, the grantee agrees to retain ownership of the Revised 1/6/10 leased asset, and assure that the Lessee will use the Project asset to provide mass transportation service, either through a "Lease and Supervisory Agreement" between the Contractor and Lessee, or another similar document. The Contractor agrees to provide a copy of any relevant documents. b. Contractors Primary Responsibility to Comply with Federal and State Requirements. Comptroller General of the United States: The Contractor agrees to provide the NCDOT, the FTA, Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts and transcriptions. The Contractor agrees to provide the U.S. Comptroller General and his representatives with the authority and rights as provided under Section 902 of the ARRA not limited to: c. Authority of the Inspector General: The Contractor agrees in accordance with Section 1515(a) of the ARRA to provide representatives of the Inspector General to examine any records or interview any employee or officers working on this contract. The contractor is advised that representatives of the inspector general have the authority to examine any record and interview any employee or officer of the contractor, its subcontractors or other firms working on this contract. Section 1515(b) further provides that nothing in this section shall be interpreted to limit or restrict in any way any existing authority of an inspector general. (1) Examination of any records of the contractor or any of its subcontractors, or any State or local agency administering such contract, that directly pertain to, and involve transactions relating to, the contract or subcontract; and (2) Interviewing of any officer or employee of the contractor or any of its subcontractors, or of any State or local government agency administering the contract, regarding such transactions. d. Financial 8~ Technical Capacity. The Contractor agrees to maintain sufficient legal, financial, technical, and managerial capability to: (1) Plan, manage, and complete the Project and provide for the use of Project property; (2) Carry out the safety and security aspects of the Project; and (3) Comply with the terms of this agreement, the Master Agreement between the FTA and the Department, the Approved Project Budget, the Project schedules, the Contractors annual Certifications and Assurances to the Department, and applicable Federal and State laws, regulations, and directives. e. Administrative Requirements. The Contractor agrees to comply with the following Federal and State administrative requirements: (1) U.S. DOT regulations, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments," 49 C.F.R. Part 18 at http://www.access.gpo.gov/nara/cfr/cfr-table-search.html (2) Title 19A North Carolina Administrative Code (N.C.A.C.) Subchapter 5B at (http/(reports oah state.nc.us/ncac.asp). f. Application of Federal, State, and Local Laws, Regulations, and Directives. To Revised 1/6/10 9 achieve compliance with changing federal requirements, the Contractor makes note that federal, state and local requirements may change and the changed requirements will apply to this Agreement as required. Section 9: Special Provisions a. Wage Rate Provision The Contractor agrees to abide by Section 1606 of the ARRA and require that all laborers and mechanics employed by contractors and subcontractors with funds from the ARRA shall be paid wages at rates not less than the prevailing wage rate under the Davis-Bacon Act. The contractor agrees that all bids and proposals in response to a solicitation funded in whole or in part with recovery funds will be in compliance and maintained with the Davis-Bacon Act. b. Availability and Use of Funds Contractors understand and acknowledge that any all payment of funds or the continuation of funding for the project is contingent upon funds provided solely by ARRA or pre- approved state matching funds. Pursuant to Section 1604 of the ARRA, contractors agree not to undertake or make progress toward any activity using recovery funds that will lead to the development of such activity as casinos or other gambling establishments, aquariums, zoos, golf courses, swimming pools or any other activity specifically prohibited by the Recovery Act. c Whistleblower Provisions Contractors understand and acknowledge that Article 14 of Chapter 124, NCGS 126-84 through 126-88 (applies to the State and state employees), Article 21 of Chapter 95, NCGS 95-240 through 85-245 (applies to anyone, including state employees), and Section 1553 of the Recovery Act (applies to anyone receiving federal funds), provide protection to State, Federal and contract employees. Contractors cannot discharge, demote, or otherwise discriminate against an employee as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, made to the Recovery Accountability and Transparency Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grand jury, the head of a Federal agency or their representative, information that the employee reasonably believes is evidence of: • gross mismanagement of an agency contract or grant. relating to covered funds; • a gross waste of covered funds; • a substantial and specific danger to public health or safety related to the implementation or use of covered funds; • an abuse of authority related to the implementation or use of covered funds; or • a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. Contractor agrees to post notice of the rights and remedies as required by the ARRA. d. Outsourcing outside the USA without Specific Prior Approval Provision Revised 1/6/10 10 Contractor agrees not to use any recovery funds from a contract or any other performance agreement awarded by the State of North Carolina, its agencies, or political subdivisions for outsourcing outside of the United States, without specific prior written approval from the agency issuing the contract. e. Federal, State and Local Tax Obligations By submission of a proposal, contractors and subcontractors assert and self-certify that all Federal, State and local tax obligations have been or will be satisfied prior to receiving recovery funds. f. Anti-Discrimination and Equal Opportunity Pursuant to Section 1.7 of the guidance memorandum issued by the United States Office of Management and Budget on April 3, 2009, recovery funds must be distributed in accordance with all anti-discrimination and equal opportunity statutes, regulations, and Executive Orders pertaining to the expenditure of funds. g. Office of State Budget and Management Access to Records OERI requires that the contractor and subcontractor agree to allow the Office of State Budget and Management internal auditors and state agency internal auditors access to records and employees pertaining to the performance of any contract awarded by a public agency. h. Reports of Fraud or Waste Contractors must report to the Inspector General any suspected incidence of waste, fraud and abuse related to ARRA funds, and should notify FTA regional offices of any problems encountered as they occur. i. Ethics Policy It is unlawful for any vendor or contractor (i.e. architect, bidder, contractor, construction manager, design professional, engineer, landlord, offer or, seller, subcontractor, supplier, or vendor), to make gifts or to give favors to any State employee of the Governor's Cabinet Agencies (i.e., Administration, Commerce, Correction, Crime Control and Public Safety, Cultural Resources, Environment and Natural Resources, Health and Human Services, Juvenile Justice and Delinquency Prevention, Revenue, Transportation, and the Office of the Governor). This prohibition covers those vendors and contractors who: (1) have a contract with a governmental agency; or (2) have performed under such a contract within the past year; or (3) anticipate bidding on such a contract in the future. State Executive Order 24 and G.S. Sec. 133-32. Section 10. Proiect Expenditures. a. General. The Department shall reimburse the Contractor for allowable costs for work performed under the terms of this Agreement, which shall be financed with Federal Section 5311 ARRA funds. The Contractor shall expend funds provided in this Agreement in accordance with the approved Project Budget(s), included as Attachment A to this Agreement. It is understood and agreed that the work conducted pursuant to this Agreement shall be done on an actual cost basis by the Contractor. Expenditures submitted for reimbursement shall include all eligible cost incurred within the Period Covered. The Period Covered represents the monthly timeframe in which the Contractor reports project expenditures to the Department. All payments issued by the Department will be on a reimbursable basis unless the Contractor requests and the Revised 1/6/10 11 Department approves an advance payment. The Department allows Contractors in good standing to request advance payment (prior to issuing payment to the vendor) for vehicles and other high-cost capital items. The Contractor agrees to deposit any advance payments into its account when received and issue payment to the vendor within 3 (three) business days. Contractor must provide to the Department proof that the funds were disbursed within 3 days, ie: cancelled check(s). The amount of reimbursement from the Department shall not exceed the funds budgeted in the approved Project Budget. Any costs for work not eligible or approved for Federal and State participation shall be financed one hundred percent (100%) by the Contractor • Capital Expenditures. The Department shall reimburse the Contractor the full amount specified in the Approved Project Budget. b. Request for Reimbursement & Payment The Contractor shall submit a request for reimbursement to the Department for the Period Covered on a monthly basis, reporting on the Department's Uniform Public Transportation Accounting System (UPTAS) invoicing forms furnished by the Department for work performed under this Agreement. Expenditures submitted for reimbursement shall include all eligible cost incurred within the Period Covered. Failure to request reimbursement for expenses incurred within the Period Covered may result in non-payment. All requests for reimbursement must be submitted within (30) days following the end of the project's reporting period. Additional forms must be submitted with reimbursement requests to report on contracting activities with Disadvantaged Business Enterprise (DBE) firms. Invoices shall be supported by documentation of costs unless otherwise waived by the Department. All requests must be submitted within thirty (30) days following the end of the quarter. Failure to request reimbursement for eligible projects costs as outlined may result in termination of the Project. Invoices shall be approved by the Department's Public Transportation Division and reviewed by the Department's External Audit Branch prior to payment. c. Excluded Costs. The Contractor understands and agrees that, except to the extent the Department determines otherwise in writing, ineligible costs will be treated as follows: (1) In determining the amount of Federal/State assistance the Department will provide, the Department will exclude: (a) Any Project cost incurred by the Contractor before the effective date of the grant; (b) Any cost that is not included in the latest Approved Project Budget; (c) Any cost for Project property or services received in connection with a third party contract, sub-agreement, lease, or other arrangement that is required to be, but has not been, concurred in or approved in writing by FTA; (d) Any non-project cost consistent with the prohibitions of 49 U.S.C. § 5323(h); and (e) Any cost ineligible for FTA/Department participation as provided by applicable Federal/State laws, regulations, or directives. (2) The Contractor shall limit reimbursement for meals, lodging and travel to the rates established by the State of North Carolina Travel Policy. Costs incurred by the Contractor in excess of these rates shall be borne by the Contractor. (3) The Contractor understands and agrees that payment for any Project cost does not constitute the Federal/State Government's final decision about whether that cost is allowable and eligible for payment and does not constitute a waiver of any violation by the Contractor of the terms of this Agreement. The Contractor acknowledges that Revised 1/6/10 12 the Federal/State Government will not make a final determination about the allowability and eligibility of any cost until an audit of the Project has been completed. If the Federal/State Government determines that the Contractor is not entitled to receive any portion of the Federal/State assistance the Contractor has requested or provided, the Department will notify the Contractor in writing, stating its reasons. The Contractor agrees that Project closeout will not alter the Contractor's responsibility to return any funds due the Federal/State Government as a result of later refunds, corrections, or other transactions; nor will Project closeout alter the Federal/State Government's right to disallow costs and recover funds based on a later audit or other review. Unless prohibited by Federal/State law or regulation, the Federal/State Government may recover any Federal/State assistance funds made available for the Project as necessary to satisfy any outstanding monetary claims that the Federal/State Government may have against the Contractor. d. Federal/State Claims Excess Payments Disallowed Costs, including Interest. (1) Contractor's Responsibility to Pay. Upon notification to the Contractor that specific amounts are owed to the Federal/State Government, whether for excess payments of Federal/State assistance, disallowed costs, or funds recovered from third parties or elsewhere, the Contractor agrees to remit to the Department promptly the amounts owed, including applicable interest and any penalties and administrative charges. (2) Amount of Interest. The Grantee agrees to remit to the Department interest owed as determined in accordance with N.C.G.S. 147-86.23. Upon notification to the Contractor that specific amounts are owed to the Federal Government, whether for excess payments of Federal assistance, disallowed costs, or funds recovered from third parties or elsewhere, the Contractor agrees to remit to the Federal Govemment promptly the amounts owed, including applicable interest, penalties and administrative charges. (3) Payment to FTA. Upon receipt of repayment from the Contractor, the Department shall be responsible to remit amounts owed to FTA. e. De-obligation of Funds. The Contractor agrees that the Department may de-obligate unexpended Federal and State funds before Project closeout. Section 11. Accounting Records. a. Establishment and Maintenance of Accounting Records. The Contractor shall establish and maintain separate accounts for the ARRA capital public transportation program, either independently or within the existing accounting system. All costs charged to the program shall be in accordance with most current approved Annual Budget and shall be reported to the Department in accordance with UPTAS. b. Documentation of Proiect Costs. All costs charged to the Project, including any approved services performed by the Contractor or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers evidencing in detail the nature and propriety of the charges, as referenced in 49 C.F.R. 18, the Office of Management and Budget Circulars A-87, "Costs Principles for State, Local, and Indian Tribal Governments" and A-102 "Grants and Cooperative Agreements with State and Local Governments." c. Allowable Costs. .Expenditures made by the Contractor shall be reimbursed as allowable costs to the extent they meet all of the requirements set forth below. They must be: Revised 1/6/10 13 (1) Consistent with the Project Description, plans, specifications, and Project Budget and all other provisions of this Agreement; (2) Necessary in order to accomplish the Project; (3) Reasonable in amount for the goods or services purchased; (4) Actual net costs to the Contractor, i.e., the price paid minus any refunds (e.g., refundable sales and use taxes pursuant to N.C.G.S. 105-164.14), rebates, or other items of value received by the Contractor that have the effect of reducing the cost actually incurred; (5) Incurred (and be for work performed) within the period of performance and period covered of this Agreement unless specific authorization from the Department to the contrary is received; (6) Satisfactorily documented; (7) Treated uniformly and consistently under accounting principles and procedures approved or prescribed by the Department; and (8) In compliance with U.S. DOT regulations pertaining to allowable costs at 49 C.F.R. § 18.22(b) or 49 C.F.R. § 19.27, which regulations specify the applicability of U.S. Office of Management and Budget (U.S. OMB) circulars and Federal Acquisition Regulation (FAR) provisions are follows: (a1) U.S. OMB Guidance for Grants and Agreements, "Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A-87)", 2 C.F.R. Part 225, applies to Project costs incurred by a Contractor that is a State, local, or Indian tribal government. (b1) U.S. OMB Guidance for Grants and Agreements, "Cost Principles for Educational Institutions (OMB Circular A-21), "2 C.F.R. Part 220, applies to Project costs incurred by a Contractor that is an institution of higher education. (c1) U.S. OMB Guidance for Grants and Agreements "Cost Principles for Non- profit Organizations (OMB Circular A-122)," 2 C.F.R. Part 230, applies to Project costs incurred by a Contractor that is a private nonprofit organization. (d1) FAR, at 48 C.F.R., Subpart 31.2, "Contracts with Commercial Organizations" applies to Project costs incurred by a Contractor that is a for-profit organization. Section 12. Amendments/Revisions to the Project. The Contractor agrees that a change in Project circumstances causing an inconsistency with the terms of this Agreement for the Project will require an amendment or revision to this Agreement for the Project, signed by the original signatories or their authorized designees or successors. The Contractor agrees that a change in the fundamental information submitted in its Application will also require an Amendment to its Application or this Agreement for the Project. The Contractor agrees that the project will not incur any costs associated with the amendment or revision before receiving notification of approval from the division. The Contractor agrees that any requests for amendments and or revisions will be submitted in accordance with the policies and procedures established by FTA and the Department. Section 13. Record Retention, and Access. a. Record Retention. The Contractor and its third party contractors shall retain all records pertaining to this Project for a period of five (5) years from the date of final payment to the Contractor, or until all audit exceptions have been resolved, whichever is longer, in accordance with "Records Retention and Disposition Schedule". Revised 1 /6/ 10 14 b. Access to Records of Contractor and Subcontractors. The Contractor shall permit and shall require its third party contractors to permit the Department, the Comptroller General of the United States, and the Secretary of the United States Department of Transportation, or their authorized representatives, to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, records, and accounts of the Contractor pertaining to the Project. The Department shall reserve the right to reject any and all materials and workmanship for defects and incompatibility with Project Description or excessive cost. The Department shall notify the Contractor, in writing, if materials and/or workmanship are found to be unacceptable. The Contractor shall have ninety (90) days from notification to correct defects or to provide acceptable materials and/or workmanship. Failure by the Contractor to provide acceptable materials and/or workmanship, or to correct noted defects, shall constitute a breach of contract. c. Proiect Closeout. The Contractor agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. Section 14. Proiect Completion, Audit, Settlement, and Closeout. a. Within ninety (90) calendar days following Project completion, the end of the Project's period of performance, or termination by the Department, the Contractor agrees to submit a final reimbursement request to the Department for eligible Project expenses. b. Financial Reporting and Audit Requirements. In accordance with OMB Circular A- 133, "Audits of State, Local Govemments and Non-Profit Organizations," revised on June 27, 2003, and N.C.G.S. 159-34, the Contractor shall have its accounts audited as soon as possible after the close of each fiscal year by an independent auditor. The Contractor agrees to submit the required number of copies of the audit reporting package to the Local Government Commission four months after the Contractor's fiscal year-end. c. Audit Costs: Unless prohibited by law, the costs of audits made in accordance with the provisions of OMB Circular A-133 are allowable charges to State and Federal awards. The charges may be considered a direct cost or an allocated indirect cost, as determined in accordance with cost principles outlined in OMB Circular A-87 "Cost Principles for State, Local, and Indian Tribal Governments." The cost of any audit not conducted in accordance with OMB Circular A-133 and N.C.G.S. 159-34 is unallowable and shall not be charged to State or Federal grants. d. Funds Owed to the Department. The Contractor agrees to remit to the Department any excess payments made to the Contractor, any costs disallowed by the Department, and any amounts recovered by the Contractor from third parties or from other sources, as well as any penalties and any interest required by Subsection 10d1 of this Agreement. e. Proiect Closeout. Project closeout occurs when the Department issues the final project payment or acknowledges that the Contractor has remitted the proper refund. The Contractor agrees that Project closeout by the Department does not invalidate any continuing requirements imposed by this Agreement. Section 15: Subcontracts and Lessees a. Significant Participation by a Third Party Contractor. Although the Contractor may enter into a third party contract, after obtaining approval from the Department, in which the third party contractor agrees to provide property or services in support of the Project, or even carry out Project activities normally performed by the Contractor (such as in a Revised 1/6/10 15 turnkey contract), the Contractor agrees that it, rather than the third party contractor, is ultimately responsible to the Department for compliance with all applicable Federal and State laws, regulations, and directives, except to the extent that the Department determines otherwise in writing. b. Significant Participation by a Subcontractor. Although the Contractor may delegate any or almost all Project responsibilities to one or more subcontractors, the Contractor agrees that it, rather than the subcontractor, is ultimately responsible for compliance with all applicable Federal and State laws, regulations, and directives, except to the extent that the Department determines otherwise in writing. c. Significant Participation by a Lessee of a Contractor. Although the contractor may lease project property and delegate some or many project responsibilities to one or more lessees, the Contractor agrees that it, rather than any lessee, is ultimately responsible for compliance with all applicable Federal laws, regulations, and directives, except to the extent that FTA determines otherwise in writing. d. Contractor's Responsibility to Extend Federal and State Requirements to Other Entities. (1) Entities Affected. Only entities that are signatories to this Agreement for the Project are parties to this agreement. To achieve compliance with certain Federal and State laws, regulations, or directives, however, other Project participants, such as subrecipients and third party contractors, will necessarily be involved. Accordingly, the Contractor agrees to take the appropriate measures necessary to ensure that all Project participants comply with applicable Federal and State laws, regulations, and directives affecting their performance, except to the extent the Department determines otherwise in writing. (2) Documents Affected. The applicability provisions of Federal and State laws, regulations, and directives determine the extent to which their provisions affect a Project participant. Thus, the Contractor agrees to include adequate provisions to ensure that each Project participant complies with those Federal and State laws, regulations, and directives, except to the extent that the Department determines otherwise in writing. In addition, the Contractor also agrees to require its third party contractors, subrecipients, and lessees to include adequate provisions to ensure compliance with applicable Federal and State laws, regulations, and directives in each lower tier subcontract and sub-agreement for the Project, except to the extent that the Department determines otherwise in writing. Additional requirements include the following: (a) Third Party Contracts. Because Project activities performed by a third party contractor must comply with all applicable Federal and State laws, regulations, and directives, except to the extent the Department determines otherwise in writing, the Contractor agrees to include appropriate. clauses in each third party contract stating the third party contractor's responsibilities under Federal and State laws, regulations, and directives, including any provisions directing the third party contractor to extend applicable requirements to its subcontractors. at the lowest tier necessary. When the third party contract requires the third party contractor to undertake responsibilities for the Project usually performed by the Contractor, the Contractor agrees to include in that third party contract those requirements applicable to the Contractor imposed by the Grant Agreement for the Project Revised 1/6/10 16 or the FTA Master Agreement and extend those requirements throughout each tier except as the Department determines otherwise in writing. Additional guidance pertaining to third party contracting is contained in the FTA's "Best Practices Procurement Manual." FTA and the Department caution, however, that FTA's "Best Practices Procurement Manual" focuses mainly on third party procurement processes and may omit certain other Federal requirements applicable to the work to be performed. (b) Sub-agreements. Because Project activities performed by asub-contractor/ sub-recipient must comply with all applicable Federal and State laws, regulations, and directives except to the extent that the Department determines otherwise in writing, the Contractor agrees as follows: 1) Written Sub-agreement. The Contractor agrees to enter into a written agreement with each subrecipient (sub-agreement) stating the terms and conditions of assistance by which the Project will be undertaken and completed. 2) Compliance with Federal Requirements. The Contractor agrees to implement the Project in a manner that will not compromise the Contractor's compliance with Federal and State laws, regulations, and directives applicable to the Project and the Contractor's obligations under this Agreement for the Project and the FTA Master Agreement. Therefore, the Contractor agrees to include in each sub-agreement appropriate clauses directing the subrecipient to comply with those requirements applicable to the Contractor imposed by this Agreement for the Project or the FTA Master Agreement and extend those requirements as necessary to any lower level sub-agreement or any third party contractor at each tier, except as the Department determines otherwise in writing. Section 16. Ethics. a. Code of Ethics. The Contractor agrees to maintain a written code or standards of conduct that shall govern the actions of its officers, employees, board members, or agents engaged in the award or administration of third party contracts, sub-agreements, or leases financed with Federal/State assistance. The Contractor agrees that its code or standards of conduct shall specify that its officers, employees, board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential third party contractor, lessee, or sub-recipient at any tier or agent thereof. Such a conflict would arise when an employee, officer, board member, or agent, including any member of his or her immediate family, partner, or organization .that employs, or intends to employ, any of the parties listed herein has a financial interest in the firm selected for award. The Contractor may set de minimis rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. The Contractor agrees that its code or standards shall also prohibit the its officers, employees, board members, or agents from using their respective positions in a manner that presents a real or apparent personal or organizational conflict of interest or personal gain. As permitted by State or local law or regulations, the Contractor agrees that its code or standards of conduct shall include penalties, sanctions, or other disciplinary actions for violations by its officers, employees, board members, or their agents, or its third party contractors or sub- recipients or their agents. 1. Gifts. It is unlawful for any vendor or contractor (i.e. architect, bidder, contractor, construction manager, design professional, engineer, landlord, offeror, seller, Revised 1/6/10 17 subcontractor, supplier, or vendor), to make gifts or to give favors to any State employee of the Governor's Cabinet Agencies (i.e., Administration, Commerce, Correction, Crime Control and Public Safety, Cultural Resources, Environment and Natural Resources, Health and Human Services, Juvenile Justice and Delinquency Prevention, Revenue, Transportation, and the Office of the Governor). This prohibition covers those vendors and contractors who: (1) have a contract with a governmental agency; or (2) have performed under such a contract within the past year; or (3) anticipate bidding on such a contract in the future. State Executive Order 24 and G.S. Sec. 133-32. b. Conflict of Interest Policy. In accordance with N.C.G.S. 143-6.2(b1), the Contractor shall file with the Department a copy of Contractor's policy addressing conflicts of interest that may arise involving the Contractor's management, employees, and the members of its board of directors or other governing body. The policy shall address situations in which any of these individuals may directly or indirectly benefit, except as the Contractor's employees or members of its board or other governing body, from the Contractor's disbursing of Federal/State funds and shall include actions to be taken by the Contractor or the individual, or both to avoid conflicts of interest and the appearance of impropriety. The policy shall be filed before the Department may disburse the grant funds. (1) Personal Conflicts of Interest. The Contractor agrees that its code or standards of conduct shall prohibit the Contractor's employees, officers, board members, or agents from participating in the selection, award, or administration of any third party contract or sub- agreement supported by Federal/State assistance if a real or apparent conflict of interest would be involved. Such a conflict would arise when an employee, officer, board member, or agent, including any member of his or her immediate family, partner, or organization that employs, or intends to employ, any of the parties listed herein has a financial interest in the firm selected for award. (2) Organizational Conflicts of Interest. The Contractor agrees that its code or standards of conduct shall include procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third party contract or sub- agreement, may, without some restrictions on future activities, result in an unfair competitive advantage to the third party contractor or sub-recipient or impair its objectivity in performing the contract work. (3) Gifts/Favors. It is unlawful for any vendor or contractor (i.e. architect, bidder, contractor, construction manager, design professional, engineer, landlord, offer or, seller, subcontractor, supplier, or vendor), to make gifts or to give favors to any State employee of the Governor's Cabinet Agencies (i.e., Administration, Commerce, Correction, Crime Control and Public Safety, Cultural Resources, Environment and Natural Resources, Health and Human Services, Juvenile Justice and Delinquency Prevention, Revenue, Transportation, and the Office of the Governor). This prohibition covers those vendors and contractors who: (1) have a contract with a governmental agency; or (2) have performed under such a contract within the past year; or (3) anticipate bidding on such a contract in the future. State Executive Order 24 and G.S. Sec. 133-32. c. Debarment and Suspension. This contract is a covered transaction for purposes of 2 CFR Part 1200, which adopts and Revised 1/6/10 18 supplements the provisions of U.S. Office of Management and Budget "Guidelines to Agencies on Govemment-wide Debarment and Suspension (Non-procurement)," 2 CFR Part 180. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 2 CFR 180.995 , or affiliates, as defined at 2 CFR 180.905, are excluded or disqualified as defined at 2 CFR 180.940,180.935 and 180.945. The Contractor agrees to comply, and assures the compliance of each third party contractor, sub-recipient, or lessee at any tier, with Executive Orders Nos. 12549 and 12689, "Debarment and Suspension," 31 U.S.C. § 6101 note, and U.S. DOT regulations, "Government-wide Debarment and Suspension (Non-procurement)," 49 C.F.R. Part 29, Subpart C and 49CFR29,Sub-part C in any lower tier covered transaction it enters into. The Contractor agrees to, and assures that its third party contractors, sub-recipients, and lessees will, review the Excluded Parties Listing System at (http://epls.arnet.gov/) before entering into any contracts. d. Bonus or Commission. The Contractor affirms that it has not paid, and agrees not to pay, any bonus or commission to obtain approval of its Federal/State assistance application for the Project. e. Lobbying Restrictions. The Contractor agrees that: (1) In compliance with 31 U.S.C. 1352(a),as amended by the Lobbying Disclosure Act of 1955, that Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies it will not use and has not used Federal assistance to pay the costs of influencing any officer or employee of a Federal agency, .Member of Congress, officer of Congress or employee of a member of Congress, in connection with making or extending the Grant Agreement; (2) It will comply with other applicable Federal laws and regulations prohibiting the use of Federal assistance for activities, designed to influence Congress or a State legislature with respect to legislation or appropriations, except through proper, official channels; and (3) It will comply, and will assure the compliance of each sub-recipient, lessee, or third party contractor at any tier, with U.S. DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20, modified as necessary by 31 U.S.C. § 1352. f. Employee Political Activity. To the extent applicable, the Contractor agrees to comply with the provisions of the Hatch Act, 5 U.S.C. §§ 1501 through 1508, and 7324 through 7326, and U.S. Office of Personnel Management regulations, "Political Activity of State or Local Officers or Employees," 5 C.F.R. Part 151. The Hatch Act limits the political activities of State and local agencies and their officers and employees, whose principal employment activities are financed in whole or part with Federal funds including a Federal grant, cooperative agreement, or loan. Nevertheless, in accordance with 49 U.S.C. § 5307(k) (2) (B) and 23 U.S.C. § 142(g), the Hatch Act does not apply to anon-supervisory employee of a public transportation system (or of any other agency or entity performing related functions) receiving FTA assistance to whom the Hatch Act would not otherwise apply. g. False or Fraudulent Statements or Claims. The Contractor acknowledges and agrees that: (1) Civil Fraud. The Program Fraud Civil Remedies Act of 1986, as amended, 31 Revised 1/6/10 19 U.S.C. §§ 3801 et seq., and U.S. DOT regulations, Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its activities in connection with the Project. By executing this Agreement for the Project, the Contractor certifies or affirms the truthfulness and accuracy of each statement it has made, it makes, or it may make in connection with the Project. In addition to other penalties that may apply, the Contractor also understands that if it makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal/State Government concerning the Project, the Federal/State Government reserves the right to impose on the Contractor the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, to the extent the Federal/State Government deems appropriate. (2) Criminal Fraud. If the Contractor makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal/State Government or includes a false, fictitious, or fraudulent statement or representation in any agreement with the Federal/State Government in connection with a Project authorized under 49 U.S.C. chapter 53 or any other Federal law, the Federal/State Government reserves the right to impose on the Contractor the penalties of 49 U.S.C. § 5323(1), 18 U.S.C. § 1001 or other applicable Federal/State law to the extent the Federal/State Government deems appropriate. The Contractor agrees to comply with the requirements of 49 CFR29, Subpart C throughout the period of any contract that may arise from this offer. The Contractor further agrees to include a provision requiring such compliance in its lower tier covered transactions. Section 17. Civil Rights. The Contractor agrees to comply with all applicable civil rights laws and implementing regulations including, but not limited to, the following: a. Nondiscrimination in Federal Public Transportation Programs. The Contractor agrees to comply, and assures the compliance of each third party contractor at any tier and each subrecipient at any tier of the Project, with the provisions of 49 U.S.C. § 5332, which prohibit discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity. b. Nondiscrimination -Title VI of the Civil Rights Act. The Contractor agrees to comply, and assures the compliance of each third party contractor at any tier and each subrecipient at any tier of the Project, with all provisions prohibiting discrimination on the basis of race, color, or national origin of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., and with U.S. DOT regulations, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part 21. c. Equal Employment Opportunity. The Contractor agrees to comply, and assures the compliance of each third party contractor at any tier of the Project and each subrecipient at any tier of the Project, with all equal employment opportunity (EEO) provisions of 49 U.S.C. § 5332, with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and implementing Federal regulations and any subsequent amendments thereto. Accordingly: (1) General. The Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. The Contractor agrees to take affirmative action to ensure that applicants are employed and that employees are treated during employment Revised 1/6/10 20 without regard to their race, color, creed, sex, disability, age, or national origin. Such action shall include, but not be limited to, employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. (2) Equal Employment Opportunity Requirements for Constriction Activities. For activities determined by the U.S. Department of Labor (U.S. DOL) to qualify as "construction," the Contractor agrees to comply and assures the compliance of each third party contractor at any tier or subrecipient at any tier of the Project, with all applicable equal employment opportunity requirements of U.S. DOL regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order No. 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000(e) note, and also with any Federal laws, regulations, and directives affecting construction undertaken as part of the Project. d. Disadvantaged Business Enterprises. (1) Policy. It is the policy of the North Carolina Department of Transportation that Disadvantaged Business Enterprises (DBEs) as defined in 49 CFR Part 26 shall have the equal opportunity to compete fairly for and to participate in the performance of contracts financed in whole or in part by Federal Funds. The Contractor is also encouraged to give every opportunity to allow DBE participation in Supplemental Agreements. (2) Obligation The Contractor, sub-consultant, and subcontractor shall not discriminate on the basis of race, religion, color, national origin, age, disability or sex in the performance of this contract. The Contractor shall comply with applicable requirements of 49 CFR Part 26 in the award and administration of federally assisted contracts. Failure by the Contractor to comply with these requirements is a material breach of this contract, which will result in the termination of this contract or such other remedy, as the Department deems necessary. (3) Goals. Even though specific DBE goals are not established for this project, the Department encourages the Contractor to have participation from DBE contractors and/or suppliers. (4) Listing of DBE Sub-contractors. The contractor, at the time the Letter of Interest is submitted, shall submit a listing of all known DBE contractors that will participate in the performance of the identified work. The participation shall be submitted on the Department's Form RS-2. In the event the contractor has no DBE participation, the contractor shall indicate this on the Form RS-2 by entering the word 'None' or the number `zero' and the form shall be signed. Form RS-2 may be accessed on the website at hops://apps.dot.state.nc.us/quickfind/forms/Default.aspx. (5) Certified Transportation Firms Directory. Real-time information about contractors doing business with the Department and contractors that are certified through North Carolina's Unified Certification Program is available in the Directory of Transportation Firms. The Directory can be accessed by the link on the Department's homepage or by entering https://apps.dot.state.nc.us/vendor/directory/ in the address bar of your web browser. Only contractors identified as DBE certified in the Directory shall be listed in the proposal. The listing of an individual contractor in the Department's directory shall not be construed as an endorsement of the contractor's capability to perform certain work. Revised 1/6/10 21 (6) Reporting Disadvantaged Business Enterprise Participation. When payments are made to Disadvantaged Business Enterprise (DBE) .contractors, including material suppliers, contractors at all levels (Contractor, sub-consultant or sub-contractor) shall provide the Contract Administrator with an accounting of said payments. The accounting shall be listed on the Department's Subcontractor Payment Information Form (Form DBE-IS). In the event the contractor has no DBE participation, the contractor shall indicate this on the Form DBE-IS by entering the word `None' or the number `zero' and the form shall be signed. Form DBE-IS may be accessed on the website at http:!/www.ncdot.orq/doh/forms/fileslDBE-IS.xls A responsible fiscal officer of the payee Contractor, sub-consultant or sub-contractor who can attest to the date and amounts of the payments shall certify that the accounting is correct. A copy of an acceptable report may be obtained from the Department of Transportation. This information shall be submitted as part of the requests for payments made to the Department. e. Access for Individuals with Disabilities. The Contractor agrees to comply with 49 U.S.C. § 5301(d), which states the Federal policy that elderly individuals and individuals with disabilities have the same right as other individuals to use public transportation services and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement transportation accessibility rights for elderly individuals and individuals with disabilities. The Contractor also agrees to comply with all applicable provisions of Section 504 of the Rehabilitation Act of 1973, as amended, with 29 U.S.C. § 794, which prohibits discrimination on the basis of disability; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities; and with the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities. In addition, the Contractor agrees to comply with applicable Federal regulations and directives and any subsequent amendments thereto, except to the extent the Department determines otherwise in writing, as follows: (1) U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27; (3) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB)/U.S. DOT regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; (4) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; (6) U.S. General Services Administration (U.S. GSA) regulations, Revised 1/6/10 22 "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19; (7) U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (8) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; and (9) U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R. Part 1194; (10) FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and (11) Federal civil rights and nondiscrimination directives implementing the foregoing regulations. f. Drug or Alcohol Abuse-Confidentiality and Other Civil Rights Protections. To the extent applicable, the Contractor agrees to comply with the confidentiality and other civil rights protections of the Drug Abuse Office and Treatment Act of 1972, as amended, 21 U.S.C. §§ 1101 et seq., with the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended, 42 U.S.C. §§ 4541 et seq., and with the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 201 et seq, and any subsequent amendments to these acts. g. Access to Services for Persons with Limited English Proficiency. To the extent applicable and except to the extent that the Department determines otherwise in writing, the Contractor agrees to comply with the policies of Executive Order No. 13166, "Improving Access to Services for Persons with Limited English Proficiency," 42 U.S.C. § 2000d-1 note, and with the provisions of U.S. DOT Notice, "DOT Guidance to Recipients on Special Language Services to Limited English Proficient (LEP) Beneficiaries," 66 Fed. Reg. 6733 et seq., January 22, 2001. h. Environmental Justice. The Contractor agrees to comply with the policies of Executive Order No. 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," 42 U.S.C. § 4321 note, except to the extent that the Department determines otherwise in writing. i. Other Nondiscrimination Laws. The Contractor agrees to comply with all applicable provisions of other Federal laws, regulations, and directives pertaining to and prohibiting discrimination that are applicable, except to the extent the Department determines otherwise in writing. Section 18. Planning and Private Enterprise. a. General. To the extent applicable, the Contractor agrees to implement the Project in a manner consistent with the plans developed in compliance with the Federal planning and private enterprise provisions of the following: (1) 49 U.S.C. §§ 5303, 5304, 5306, and 5323(a)(1); (2) Joint Federal Highway Administration (FHWA)/FTA document, Revised 1/6/10 23 "Interim Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint FHWA/FTA Authorities," dated September 2, 2005, as amended by joint FHWA/FTA guidance, "SAFETEA-LU Deadline for New Planning Requirements (July 1, 2007)," dated May 2, 2006 [clarifying Guidance on Implementation of SAFETEA-LU Planning Provisions], and subsequent Federal directives implementing SAFETEA-LU, except to the extent FTA determines otherwise in writing; (3) Joint FHWA/FTA regulations, "Planning Assistance and Standards," 23 C.F.R. Part 450 and 49 C.F.R. Part 613 to the extent that those regulations are consistent with the SAFETEA-LU amendments to public transportation planning and private enterprise laws, and subsequent amendments to those regulations that may be promulgated; and (4) FTA regulations, "Major Capital Investment Projects," 49 C.F.R. Part 611, to the extent that those regulations are consistent with the SAFETEA-LU amendments to the public transportation planning and private enterprise laws, and any subsequent amendments to those regulations that may be subsequently promulgated. b. Governmental and Private Nonprofit Providers of Nonemergency Transportation. In addition to providing opportunities to participate in planning as described in Subsection 18a of this Agreement, to the extent feasible the Contractor agrees to comply with the provisions of 49 U.S.C. § 5323(k), which afford governmental agencies and nonprofit organizations that receive Federal assistance for nonemergency transportation from Federal Government sources (other than U.S. DOT) an opportunity to be included in the design, coordination, and planning of transportation services. c. Infrastructure Investment. During the implementation of the Project, the Contractor agrees to take into consideration the recommendations of Executive Order No. 12803, "Infrastructure Privatization," 31 U.S.C. § 501 note, and Executive Order No. 12893, "Principles for Federal Infrastructure Investments," 31 U.S.C. § 501 note. Section 19. Preference for United States Products and Services. To the extent applicable, the Contractor agrees to comply with the following U.S. domestic preference requirements: a. Buy America. The Contractor agrees to comply with 49 U.S.C. § 5323Q) and 49 CFR Part 661, FTA regulations, which provide that Federal funds may not be obligated unless steel, iron and manufactured products used in FTA-funded projects are produced in the United State, unless a waiver has been granted by FTA or the product is subject to a general waiver. General Waivers are listed in 49 CFR 661.7 and include microcomputer equipment, software, and small purchases ($100,000 or less made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 49 U.S.C.5323(j)(2)(C) and 49 CFR 661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have a 60 percent domestic content. b. Cargo Preference-Use of United States-Flap Vessels. The Contractor agrees to comply with U.S. Maritime Administration regulations, "Cargo Preference-U.S.-Flag Revised 1/6/10 24 Vessels," 46 C.F.R. Part 381, to the extent those regulations apply to the Project. c. Fly America. The Contractor understands and agrees that the Federal/State Government will not participate in the costs of international air transportation of any individuals involved in or property acquired for the Project unless that air transportation is provided by U.S.-flag air carriers to the extent service by U.S.-flag air carriers is available, in accordance with the requirements of the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and with U.S. GSA regulations, "Use of United States Flag Air Carriers," 41 C.F.R. §§ 301-10.131 through 301-10.143.. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. Section 20 .Procurement. To the extent applicable, the Contractor agrees to comply with the following third party procurement provisions: a. Federal Standards. The Contractor agrees to comply with the third party procurement requirements of 49 U.S.C. chapter 53 and other applicable Federal laws in effect now or as subsequently enacted; with U.S. DOT third party procurement regulations of 49 C.F.R. §§ 18.36 and other applicable Federal regulations pertaining to third party procurements and subsequent amendments thereto, to the extent those regulations are consistent with SAFETEA-LU provisions; and Article 8 of Chapter 143 of the North Carolina General Statutes. The Contractor also agrees to comply with the provisions of FTA Circular 4220.1 F, "Third Party Contracting Requirements," to the extent those provisions are consistent with SAFETEA-LU provisions and with any subsequent amendments thereto, except to the extent the Department or the FTA determines otherwise in writing. Although the FTA "Best Practices Procurement Manual" provides additional procurement guidance, the Contractor understands that the FTA "Best Practices Procurement Manual" is focused on third party procurement processes and may omit certain Federal requirements applicable to the third party contract work to be performed. The Contractor shall establish written procurement procedures that comply with the required Federal and State standards. b. Full and Open Competition. In accordance with 49 U.S.C. § 5325(a), the Contractor agrees to conduct all procurement transactions in a manner that provides full and open competition as determined by the Department and FTA. c. Exclusionary or Discriminatory Specifications. Apart from inconsistent requirements imposed by Federal laws or regulations, the Contractor agrees to comply with the requirements of 49 U.S.C. § 5325(h) by not using any Federal assistance awarded by FTA to support a procurement using exclusionary or discriminatory specifications. d. Geographic Restrictions. The Contractor agrees that it will not use any State or local geographic preference, except State or local geographic preferences expressly mandated or as permitted by FTA. However, for example, in procuring architectural, engineering, or related services, the Contractor's geographic location may be a selection criterion, provided that a sufficient number of qualified firms are eligible to compete. e. In-State Bus Dealer Restrictions. The Contractor agrees that in accordance with 49 Revised 1/6/10 25 U.S.C. § 5325(1), any State law requiring buses to be purchased through in-State dealers will not apply to purchases of vehicles acquired with funding authorized under 49 U.S.C. chapter 53. f. Neutrality in Labor Relations. To the extent permitted by law, the Contractor agrees to comply with Executive Order No. 13202, "Preservation of Open Competition and Govemment Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects," Executive Order No. 13202, as amended by Executive Order No. 13208, 41 U.S.C. § 251 note, which among other things prohibits requirements for affiliation with a labor organization as a condition for award of any third party contract or subcontract for construction or construction management services, unless the Federal Government determines otherwise in writing. g. Federal Supply Schedules. State, local, or nonprofit Recipients may not use Federal Supply Schedules to acquire federally assisted property or services except to the extent permitted by U.S. GSA, U.S. DOT, or FTA laws, regulations, directives, or determinations. h. Force Account. The Contractor agrees that FTA may determine the extent to which Federal assistance may be used to participate in force account costs. i. Department Technical Review. The Contractor agrees to permit the Department to review and approve the Contractor 's technical specifications and requirements to the extent the Department believes necessary to ensure proper Project administration. The Contractor agrees to submit the following to the Department for its review and approval prior to solicitation: (1) New/adapted specifications for equipment, supplies, apparatuses and new-type rolling stock. This requirement does not apply to equipment, supplies, or apparatuses with cost of less than $30,000; or to Minivans; Conversion and Lift Vans; Center Aisle Vans and Standard Vans; and Light Transit Vehicles (Cutaway-type Bus). (2) Drawings, designs, and/or description of work for construction, renovation, or facility improvement projects, including the purchase or construction of bus shelters. j. Department Pre-award Approval. The Contractor agrees to submit procurement documents to the Department for its review and approval prior to award of a contract/ subcontract under this Agreement for any of the following: (1) All new-type rolling stock, excluding Minivans; Conversion and Lift Vans; Center Aisle Vans and Standard Vans; and Light Transit Vehicles (Cutaway-type Bus). (2) All construction projects equal to or greater than $30,000; (3) Any "brand name" product or sole source purchase equal to or greater than $3,000; (4) Any contract/subcontract to other than apparent lowest bidder equal to or greater than $3,000; (5) Any procurement equal to or greater than $90,000; (6) Any contract modification that would change the scope of a contract or increase the contract amount up to or over the formal (sealed) bid threshold of $90,000. k. Protect Approval/Third Party Contract Approval. Except to the extent the Department determines otherwise in writing, the Contractor agrees that the Department's Revised 1/6/10 26 award of Federal and State assistance for the Project does not, by itself, constitute pre- approval of any non-competitive third party contract associated with the Project. I. Preference for Recycled Products. To the extent applicable, the Contractor agrees to comply with U.S. EPA regulations, "Comprehensive Procurement Guidelines for Products Containing Recovered Materials," 40 C.F.R. Part 247, which implements Section 6002 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6962, and with subsequent Federal regulations that may be promulgated. Accordingly, the Contractor agrees to provide a competitive preference for products and services that conserve natural resources, protect the environment, and are energy efficient. m. Clean Air and Clean Water. The Contractor agrees to include in each third party contract and sub-agreement exceeding $100,000 adequate provisions to ensure that each Project participant will agree to report the use of facilities placed on or likely to be placed on the U.S. Environmental Protection Agency (U.S. EPA) "List of Violating Facilities," to not use any violating facilities, to report violations to the Department and the Regional U.S. EPA Office, and to comply with the inspection and other applicable requirements of: (1) Section 306 of the Clean Air Act, as amended, 42 U.S.C. § 7414, and other applicable provisions of the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through 7671 q; and (2) Section 508 of the Clean Water Act, as amended, 33 U.S.C. § 1368, and other applicable requirements of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377. n. National Intelligent Transportation Systems Architecture and Standards. To the extent applicable, the Contractor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and comply with FTA Notice, "FTA National ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8, 2001, and any subsequent further implementing directives, except to the extent FTA or the Department determines otherwise in writing. o. Rolling Stock. In acquiring rolling stock, the Contractor agrees as follows: (1) Method of Acquisition. The Department's Public Transportation Division, through the North Carolina Department of Administration, Purchase and Contract Division, awards vehicle contracts for its grant recipients to purchase public transit vehicles. These vehicle contracts comply with FTA and State requirements. The Contractor will utilize these vehicle contracts to purchase public transit vehicles included in the Approved Budget for this Project. For public transit vehicles not included in these contracts, the Contractor shall conduct a competitive procurement process in accordance with this Agreement. (2) Multi-year Options. In accordance with 49 U.S.C. § 5325(e)(1), the Contractor may not enter into amulti-year contract with options, exceeding five (5) years after the date of the original contract, to purchase additional rolling stock and replacement parts. (3) Pre-Award and Post-Delivery Requirements. The Contractor agrees to comply with the requirements of 49 U.S.C. § 5323(m) and FTA regulations, "Pre- Award and Post-Delivery Audits of Rolling Stock Purchases," 49 C.F.R. Part 663 and, when promulgated, any amendments to those regulations. The Contractor understands and agrees that to the extent the provisions of 49 U.S.C. § 5323(m), as amended by SAFETEA-LU conflict with FTA's implementing regulations, as currently promulgated, the Revised 1/6/10 27 provisions of 49 U.S.C. § 5323(m), as amended, prevail. (4) Bus Testing. To the extent applicable, the Contractor agrees to comply with the requirements of 49 U.S.C. § 5318(e) and FTA regulations, "Bus Testing," 49 C.F.R. Part 665, and any amendments to those regulations that may be promulgated. p. Bonding. For construction projects, the Contractor agrees to provide bid guarantee bond (5% of bid price) and performance and payment bonds (100% of contract price) and comply with any other construction bonding provisions as the Department may determine. q. Architectural Engineering Design, or Related Services. For all architectural, engineering, design, or related services the Contractor shall use qualifications-based competitive proposal [Request for Qualifications (RFQ) in accordance with the Brooks Act] procedures. The Contractor shall follow applicable statutes, N.C.G.S. 143-64.31-34 and requirements set forth in FTA Circular 4220.1 F, to retain a qualified, registered architect or professional engineer. (1) The Contractor agrees to comply with qualifications-based competitive proposal procedures, which require: (a) An offeror's qualifications be evaluated; (b) Good faith effort to use minority-owned businesses; (c) Price be excluded as an evaluation factor; (d) Negotiations be conducted with only the most qualified offeror; and (e) Failing agreement on price, negotiations with the next most qualified offeror be conducted until a contract award can be made to the most qualified offeror whose price is fair and reasonable. (2) Geographic location may be a selection criterion in procurements for architectural and engineering (A&E) services provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract. (3) The Contractor acknowledges and agrees that qualifications- based competitive proposal procedures can only be used for procurement of the following services: (a) Program management; (b) Construction management; (c) Feasibility studies; and (d) Preliminary engineering, design, architectural, engineering, surveying, mapping, and related services. (4) The Contractor also agrees to: (a) Include applicable Federal requirements and certifications in the solicitation; (b) Submit procurement documents to the Department for its review and approval prior to the award of any contract for A&E services for the Project; and (c) Maintain written documentation to support each step of the procurement process. r. Design-Bid-Build Projects. The Design-Bid-Build method of construction is where there are separate contracts and procurement processes for the design and construction. Typically the designer coordinates the numerous prime contractors that are involved in the construction process. The Contractor may use design-bid-build procurements to Revised 1/6/10 28 implement its projects after it has complied with applicable Federal and State requirements and obtains approval from the Department prior to solicitation and award of the contract. s. Design-Build Projects. The Design-Build method of construction is where a single contractor is given responsibility for both design and construction, thus eliminating an intermediate procurement step with possible time saving, and more effective coordination and opportunities for cost savings. Currently, this procurement method is not an allowable method of .procurement by the State of North Carolina. The Contractor may request to use the design-build method as an "alternate" method.. Submission of justification must be presented to the State Building Commission fora 2/3-majority vote of approval. One of the drawbacks of design-build is that the owner does not have an independent source (the A/E in traditional construction) overseeing design implementation and verifying conformance with the drawings and specifications. t. Competitive Proposal/Request for Proposal (RFP). The competitive proposal/ request for proposal (RFP) method of procurement is normally conducted with more than one source submitting an offer, i.e., proposal. Either a fixed price or cost reimbursement type contract is awarded. This method of procurement is generally used when conditions are not appropriate for the use of sealed bids. The Contractor acknowledges that certain restrictions apply under North Carolina law for use of the RFP method and these restrictions and exceptions are discussed below. (1) The Contractor agrees that the RFP Method may not be used in lieu of an invitation for bids (IFB) for: (a) Construction/repair work; or (b) Purchase of apparatus, supplies, materials or equipment. See Subsection 20t(2), this Agreement, regarding information technology goods as services. (2) The Contractor agrees that the RFP method of solicitation may be used (in addition to or instead of any other procedure available under North Carolina law) for the procurement of information technology goods and services [as defined in N.C.G.S. 147- 33.81(2)]. This applies to electronic data processing goods and services, telecommunications goods and services, security goods and services, microprocessors, software, information processing, office systems, any services related to the foregoing, and consulting or other services for design or redesign of information technology supporting business processes. The Contractor will comply with the following minimum requirements [N.C.G.S. 143- 129.8]: (a) Notice of the request for proposals shall be given in accordance with N.C.G.S. 143-129(b). (b) Contracts shall be awarded to the person or entity that submits the best overall proposal as determined by the awarding authority. Factors to be considered in awarding contracts shall be identified in the request for proposals. (c) The Contractor may use procurement methods set forth in N.C.G.S. 143-135.9 in developing and evaluating requests for proposals. (d) The Contractor may negotiate with any proposer in order to obtain a final contract that best meets the needs of the Contractor. Revised 1/6/10 29 (e) Any negotiations shall not alter the contract beyond the scope of the original request for proposals in a manner that deprives the proposers or potential proposers of a fair opportunity to compete for the contract; and would have resulted in the award of the contract to a different person or entity if the alterations had been included in the request for proposals. (f) Proposals submitted shall not be subject to public inspection until a contract is awarded. (3) The Contractor agrees that the RFP method, in accordance with FTA Circular 4220.1 F, under the guidelines of FTA "Best Practices Procurement Manual," should be used for procurements of professional services, such as consultants for planning activities and for transit system operations/management. The Contractor acknowledges that certain restrictions apply under North Carolina law for use of the RFP method and these restrictions and exceptions are discussed in Subsections 20t(1) and 20t(2) of this Agreement. For all architectural, engineering, design, or related services, the Contractor agrees that the qualifications-based competitive proposal process shall be used (see Subsection 20q, this Agreement). (4) When the RFP method is used for procurement of professional services, the Contractor agrees to abide by the following minimum requirements: (a) Normally conducted with more than one source submitting an offer (proposal); (b) Either fixed price or cost reimbursement type contract will be used; (c) Generally used when conditions are not appropriate for use of sealed bids; (d) Requests for proposals will be publicized; (e) All evaluation factors will be identified along with their relative importance; (f) Proposals will be solicited from an adequate number (3 is recommended) of qualified sources; (g) A standard method must be in place for conducting technical evaluations of the proposals received and for selecting awardees; (h) Awards will be made to the responsible firm whose proposal is most advantageous to the Contractor's program with price and other factors considered; and (i) In determining which proposal is most advantageous, the Contractor may award to the proposer whose proposal offers the greatest business value (best value) to the agency. "Best value" is based on determination of which proposal offers the best tradeoff between price and performance, where quality is considered an integral performance factor. u. Award to Other than the Lowest Bidder. In accordance with Federal and State statutes, a third party contract may be awarded to other than the lowest bidder, if the Revised 1/6/10 30 award furthers an objective (such as improved long-term operating efficiency and lower long-term costs). When specified in bidding documents, factors such as discounts, transportation costs, and life cycle costs will be considered in determining which bid is lowest. Prior to the award of any contract equal to or greater than $2,500 to other than apparent lowest bidder, the Contractor shall submit its recommendation along with basis/reason for selection to the Department for pre-award approval. v. Award to Responsible Contractors. The Contractor agrees to award third party contracts only to responsible contractors who possess potential ability to successfully perform under the terms and conditions of the proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. Contracts will not be awarded to parties that are debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs or activities in accordance with the Federal debarment and suspension rule, 49 C.F.R. 29. For procurements over $25,000, the Contractor shall comply, and assure the compliance of each third party contractor and subrecipient at any tier, with the debarment and suspension rule. FTA and the Department recommend that grantees use a certification form for projects over $25,000, which are funded in part with Federal funds. A sample certification form can be obtained from the Department. The Contractor also agrees to check a potential contractor's debarment/suspension status at the following Web site: http://epls.arnet.gov/. w. Procurement Notification Requirements. With respect to any procurement for goods and services (including construction services) having an aggregate value of $500,000 or more (in Federal funds), the Contractor agrees to: (1) Specify the amount of Federal and State funds that will be used to finance the acquisition in any announcement of the contract award for such goods or services; and (2) Express the said amount as a percentage of the total costs of the planned acquisition. x. Contract Administration System. The Contractor shall maintain a contract administration system that ensures that contractors/subcontractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. y. Access to Third Party Contract Records. The Contractor agrees, and agrees to require its third party contractors and third party subcontractors, at as many tiers of the Project as required, to provide to the Federal and State awarding agencies or their duly authorized representatives, access to all third party contract records to the extent required by 49 U.S.C. § 5325(8), and retain such documents for at least five (5) years after project completion. z. Special ARRA Procurement Provisions 1) The N.C. Office of Economic Recovery and Investment has directed all state agencies administering federal funding certain procurement requirements that must be met when using ARRA funding. The following conditions apply to all procurement solicitations for bids or proposals. a) All public transit systems shall list all procurements on the Statewide Interactive Procurement System (IPS). This includes, but is not limited to, Revised 1/6/10 31 informal and formal solicitations of goods, services, and construction projects including design services. The words "Recovery Funds" shall be used in the description column of the IPS system to identify procurement opportunities that are using recovery funds as the method of payment. If you are currently not an IPS user, please contact NCDOT to receive instructions that will enable your organization to post your solicitation electronically. b) Public transit systems using recovery funds will also solicit bids or proposals exceeding the amount of $5,000 in a local newsprint outlet including minority and women owned outlets. The division can provide sources of outlets for systems. c) It is the policy of the State and FTA to promote the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in purchasing of goods and services. Transit systems are encouraged to seek out certified DBE contractors for all ARRA procurements. NCDOT maintains the qualified listing of DBE contractors that can be located at: https://apps.dot.state. nc.us/vendor/directory/default.aspx#0 All construction projects will be required to have a project specific goal set for the ARRA funded project. Section 21. Leases. a. Capital Leases. To the extent applicable, the Contractor agrees to comply with FTA regulations, "Capital Leases," 49 C.F.R. Part 639, and any revision thereto. All lease agreements must be approved by the Department prior to execution. b. Leases Involving Certificates of Participation. The Contractor agrees to obtain the Department's concurrence before entering into any leasing arrangement involving the issuance of certificates of participation in connection with the acquisition of any capital asset. Section 22. Hold Harmless. Except as prohibited or otherwise limited by State law or except to the extent that FTA or the Department determines otherwise in writing, upon request by the Federal or State Govemment, the Contractor agrees to indemnify, save, and hold harmless the Federal and State Government and its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under the Project. The Contractor shall not be required to indemnify the Federal or State Government for any such liability caused by the wrongful acts of Federal or State employees or agents. Section 23. Use of Real Property, Equipment, and Supplies. The Contractor understands and agrees that the Federal/State Govemment retains a Federal/State interest in any real property, equipment, and supplies financed with Federal/State assistance (Project property) until, and to the extent, that the Federal/State Government relinquishes its Federal/State interest in that Project property. With respect to any Project property financed with Federal/State assistance under this Agreement, the Contractor Revised 1/6/10 32 agrees to comply with the following provisions, except to the extent FTA or the Department determines otherwise in writing: a. Use of Project Property. The Contractor agrees to maintain continuing control of the use of Project property to the extent satisfactory to FTA. The Contractor agrees to use Project property for appropriate Project purposes (which may include joint development purposes that generate program income, both during and after the award period and used to support public transportation activities) for the duration of the useful life of that property, as required by FTA or the Department. Should the Contractor unreasonably delay or fail to use Project property during the useful life of that property, the Contractor agrees that it may be required to return the entire amount of the Federal and State assistance expended on that property. The Contractor further agrees to notify the Department immediately when any Project property is withdrawn from Project use or when any Project property is used in a manner substantially different from the representations the Contractor has made in its Application or in the Project Description for this Agreement for the Project. In tum, the Department shall be responsible for notifying FTA. b. General. The Contractor agrees to comply with the property management standards of 49 C.F.R. §§ 18.31 through 18.33, including any amendments thereto, and with other applicable Federal and State regulations and directives. Any exception to the requirements of 49 C.F.R. §§ 18.31 through 18.33 requires the express approval of the Federal Government in writing. The Contractor also consents to the Department's reimbursement requirements for premature dispositions of certain Project equipment, as set forth in Subsection 14i of this Agreement. c. Maintenance and Inspection of Vehicles Facilities and Other Project Equipment . The Contractor shall maintain all project equipment at a high level of cleanliness, safety, and mechanical soundness in accordance with the minimum maintenance requirements recommended by the manufacturer. The Contractor shall register all vehicle maintenance activities in a Comprehensive Maintenance Record or an electronic version of same. The Department shall conduct frequent inspections to confirm proper maintenance pursuant to this Subsection 23c of this Agreement and the State Management Plan. The Contractor shall collect and submit to the Department at such time and in such manner as it may require information for the purpose of the Department's Public Transportation Management System (PTMS). The Contractor shall maintain the facility, including any and all equipment installed into or added on to the facility as part of the Project, in good operating order and at a high level of cleanliness, safety and mechanical soundness in accordance with good facility maintenance and upkeep practices and in accordance with the minimum maintenance requirements recommended by the manufacturer for all equipment installed in or added to the facility as part of the Project. Such maintenance shall be in compliance with applicable Federal and state regulations or directives that may be issued, except to the extent that the Department determines otherwise in writing. The Department shall conduct inspections as it deems necessary to confirm proper maintenance on the part of the Contractor pursuant to Subsection 23c of the Agreement and the State Management Plan. Such inspections may or may not be scheduled ahead of time, but will be conducted such that they shall not significantly interfere with the ongoing and necessary functions for which the Project was designed. The Contractor shall make every effort to accommodate such inspections by the Department in accordance with the Department's desired schedule for such inspections. The Contractor shall collect and submit to the Department at such time and in such manner as the Department may require information for the purpose of the Department's Public Transportation Management System (PTMS) and any and all other reports the Department deems necessary. The Contractor shall also maintain and make Revised 1/6/10 33 available to the Department upon its demand all documents, policies, procedures, purchase orders, bills of sale, internal work orders and similar items that demonstrate the Contractor's maintenance of the facility in good operating order and at a high level of cleanliness, safety and mechanical soundness. d. Records. The Contractor agrees to keep satisfactory records pertaining to the use of Project property, and submit to the Department upon request such information as may be required to assure compliance with this Section 14 of this Agreement. e. Incidental Use. The Contractor agrees that: (1) General. Any incidental use of Project property will not exceed that permitted under applicable Federal and State laws, regulations, and directives. (2) Alternative Fueling Facilities. As authorized by 49 U.S.C. § 5323(p), any incidental use of its federally financed alternative fueling facilities and equipment by non-transit public entities and private entities will be permitted, only if the: (a) Incidental use does not interfere with the Contractor's Project or public transportation operations; (b) Contractor fully recaptures all costs related to the incidental use from the non-transit public entity or private entity; (c) Contractor uses revenues received from the incidental use in excess of costs for planning, capital, and operating expenses that are incurred in providing public transportation; and (d) Private entities pay all applicable excise taxes on fuel. f. Title to Vehicles. The Certificate of Title to all vehicles purchased under the Approved Budget for this Project shall be in the name of the Contractor. The Department's Public Transportation Division shall be recorded on the Certificate of Title as first lien-holder. In the event of project termination or breach of contract provisions, the Contractor shall, upon written notification by the Department, surrender Project equipment and/or transfer the Certificate(s) of Title for Project equipment to the Department or the Department's designee. g. Encumbrance of Project Property. The Contractor agrees to maintain satisfactory continuing control of Project property as follows: (1) Written Transactions. The Contractor agrees that it will not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, third party contract, sub-agreement, grant anticipation note, alienation, innovative finance arrangement (such as a cross border lease, leveraged lease, or otherwise), or any other obligation pertaining to Project property, that in any way would affect the continuing Federal and State interest in that Project property. (2) Oral Transactions. The Contractor agrees that it will not obligate itself in any manner to any third party with respect to Project property. (3) Other Actions. The Contractor agrees that it will not take any action adversely affecting the Federal and State interest in or impair the Contractor's continuing control of the use of Project property. h. Transfer of Project Property. The Contractor understands and agrees as follows: (1) Contractor Request. The Contractor may transfer any Project property financed with Federal assistance authorized under 49 U.S.C. chapter 53 to a local governmental authority to be used for any public purpose with no further obligation to the Federal Government, provided the transfer is approved by the Federal Transit Administrator and conforms with the requirements of 49 U.S.C. §§ 5334(h)(1) through 5334(h)(3). Revised 1/6/10 34 (2) Federal/State Government Direction. The Contractor agrees that the Federal or State Government may direct the disposition of, and even require the Contractor to transfer title to any Project property financed with Federal/State assistance under this Agreement. (3) Leasing Project Property to Another Party. (a) General. Prior to entering into any third party contract for leasing Project property to another party, the Contractor agrees to obtain approval from the Department. If the Contractor leases any Project property to another party, the Contractor agrees to retain ownership of the leased Project property, and assure that the lessee will use the Project property appropriately, through a written lease between the Contractor- and lessee. The Contractor agrees to use the standard lease agreement form provided by the Department and to provide a copy of the signed, executed lease agreement to the Department. In accordance with Subsection 2a1 of this Agreement, regardless of assignment of work to be completed under this Project or lease of Project assets to a third party, it is the Contractor's primary responsibility to comply with Federal and State requirements of this Agreement and assure the compliance of any third party contractors. (b) Lease of Vehicles. The lease of vehicles acquired with financial assistance authorized for 49 U.S.C. 5311 to any third party is contingent upon approval of the Department. It is allowable to lease vehicles to another Community Transportation System providing general public service in the State of North Carolina, upon approval of the Department. It is also allowable for vehicles to be leased to a third party operator or transportation management company that operates the transit service within acounty/region under contract to the Contractor, upon approval of the Department. The Contractor agrees to use the vehicle lease agreement provided by the Department when vehicles are leased, even if on a short-term basis, to another Community Transportation System or a management company. The Contractor agrees to obtain written approval from the Department before the lease is executed and forward a copy of the signed, executed lease agreement to the Department. The Contractor, as a Community Transportation System, shall not lease vehicles to human service agencies, county agencies/government, community agencies or school systems. The Contractor agrees not to loan vehicle(s) to other agencies/individuals for short-term use, even during hours that the transportation system is not providing service, as the vehicle(s) will generally be used to provide service that is "closed-door," i.e., not open to the general public. i. Disposition of Project Property. With prior Department approval, the Contractor may sell, transfer, or lease Project property and use the proceeds to reduce the gross project cost of other eligible capital public transportation projects to the extent permitted by 49 U.S.C. § 5334(h)(4). The Contractor also agrees that the Department shall determine "useful life" for all Project property and that the Contractor will use Project property continuously and appropriately throughout the useful life of that property. Upon the end of the period of useful life, the Contractor may dispose of Project property after notifying and receiving disposition instructions from the Department. (1) Project Property Whose Useful Life Has Expired. When the useful life of Project property has expired, the Contractor agrees to comply with the Department's disposition requirements. (2) Project Property Prematurely Withdrawn from Use. For Project property withdrawn from appropriate use before its useful life has expired, the Contractor agrees as follows: (a) Notification Requirement. The Contractor agrees to notify the Department immediately when any Project property is prematurely withdrawn from Revised 1/6/10 35 appropriate use, whether by planned withdrawal, misuse, or casualty loss. (b) Calculating the Fair Market Value of Prematurely Withdrawn Project Property. The Contractor agrees that the Federal/State Government retains a Federal/State interest in the fair market value of Project property prematurely withdrawn from appropriate use. The amount of the Federal/State interest in the Project property shall be determined by the ratio of the Federal/State assistance awarded for the property to the actual cost of the property. The Contractor agrees that the fair market value of Project property prematurely withdrawn from use will be calculated as follows: 1. Equipment and Supplies. The. Contractor agrees that the fair market value of Project equipment and supplies shall be calculated by straight-line depreciation of that property, based on the useful life of the equipment or supplies as established by the Department. The fair market value of Project equipment and supplies shall be the value immediately before the occurrence prompting the withdrawal of the equipment or supplies from appropriate use. In the case of Project equipment or supplies lost or damaged by fire, casualty, or natural disaster, the fair market value shall be calculated on the basis of the condition of that equipment or supplies immediately before the fire, casualty, or natural disaster, or the amount of insurance coverage, whichever is greater. 2. Real Property. The Contractor agrees that the fair market value of real property financed under the Project shall be determined by FTA either on the basis of competent appraisal based on an appropriate date approved by FTA, as provided by 49 C.F.R. Part 24, or by straight line depreciation of improvements to real property coupled with the value of the land as determined by FTA on the basis of appraisal, or other Federal law or regulations that may be applicable. 3. Exceptional Circumstances. The Contractor agrees that the Department may require the use of another method to determine the fair market value of Project property. In unusual circumstances, the Contractor may request that another reasonable valuation method be used including, but not limited to, accelerated depreciation, comparable sales, or established market values. In determining whether to approve such a request, the Department may consider any action taken, omission made, or unfortunate occurrence suffered by the Contractor with respect to the preservation of Project property withdrawn from appropriate use. (c) Financial Obligations to the Federal/State Government. The Contractor agrees to remit to the Department the Federal and State interest in the fair market value of any Project property prematurely withdrawn from appropriate use. In turn, the Department shall be responsible to remit the Federal interest to the FTA. In the case of fire, casualty, or natural disaster, the Contractor may fulfill its obligations to remit the Federal and State interest by either: 1. Investing an amount equal to the remaining Federal and State interest in like-kind property that is eligible for assistance within the scope of the Project that provided Federal/State assistance for the Project property prematurely withdrawn from use; or 2. Returning to the Department an amount equal to the remaining Federal and State interest in the withdrawn Project property. j. Insurance Proceeds. If the Contractor receives insurance proceeds as a result of damage or destruction to the Project property, the Contractor agrees to: (1) Apply those insurance proceeds to the cost of replacing the damaged or destroyed Project property taken out of service, or (2) Return to the Department an amount equal to the remaining Federal Revised 1/6/10 36 and State interest in the damaged or destroyed Project property. k. Transportation -Hazardous Materials. The Contractor agrees to comply with applicable requirements of U.S. Pipeline and Hazardous Materials Safety ~~ Administration regulations, Shippers - General Requirements for Shipments and Packaging's," 49 C.F.R. Part 173, in connection with the transportation of any hazardous materials. I. Misused or Damaged Project Property. If any damage to Project property results from abuse or misuse occurring with the Contractor 's knowledge and consent, the Contractor agrees to restore the Project property to its original condition or refund the value of the Federal and State interest in that property, as the Department may require. m. Responsibilities after Project Closeout. The Contractor agrees that Project closeout by the Department will not change the Contractor's Project property management responsibilities as stated in Section 23 of this Agreement, and as may be set forth in subsequent Federal and State laws, regulations, and directives, except to the extent the Department determines otherwise in writing. Section 24. Insurance. The Contractor shall be responsible for protecting the state and/or federal financial interest in the facility construction/renovation and equipment purchased under this Agreement throughout the useful life. The Contractor shall provide, as frequently and in such manner as the Department may require, written documentation that the facility and equipment are insured against loss in an amount equal to or greater than the state and/or federal share of the real value of the facility or equipment. Failure of the Contractor to provide adequate insurance shall be considered a breach of contract and, after notification may result in termination of this Agreement. In addition, other insurance requirements may apply, the Contractor agrees as follows: a. Minimum Requirements. At a minimum, the Contractor agrees to comply with the insurance requirements normally imposed by North Carolina State and local laws, regulations, and ordinances, except to the extent that the Department determines otherwise in writing. b. Flood Hazards. To the extent applicable, the Contractor agrees to comply with the flood insurance purchase provisions of Section 102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012a(a), with respect to any Project activity involving construction or an acquisition having an insurable cost of $10,000 or more. Section 25. Relocation. When relocation of individuals or businesses is required, the Contractor agrees as follows: a. Relocation Protections. The Contractor agrees to comply with 49 U.S.C. § 5324(a), which requires compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. §§ 4601 et seq.; and U.S. DOT regulations, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24, which provide for fair and equitable treatment of persons displaced and persons whose property is acquired as a result of Federal and federally assisted programs. [See, new U.S. DOT final rule, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24, at 70 Fed. Reg. 590 et seq., January 4, 2005.] These requirements apply to relocation in connection with all interests in real property acquired for the Project regardless of Federal participation in the costs of that real property. b. Nondiscrimination in Housing. In carrying out its responsibilities to provide housing that may be required for compliance with Federal relocation requirements for individuals, the Contractor agrees to comply with Title VIII of the Civil Rights Act of Revised 1/6/10 37 1968, as amended, 42 U.S.C. §§ 3601 et seq., and with Executive Order No. 12892, "Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively Furthering Fair Housing," 42 U.S.C. § 3608 note. c. Prohibition Against Use of Lead-Based Paint. In undertaking construction or rehabilitation of residential structures on behalf of individuals affected by real property acquisition in connection with implementing the Project, the Contractor agrees that it will not use lead-based paint, consistent with the prohibitions of Section 401 (b) of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4831(b), and the provisions of U.S. Housing and Urban Development regulations, "Lead-based Paint Poisoning in Certain Residential Structures." Section 26. Real Property. For real property acquired with Federal assistance, the Contractor agrees as follows: a. Land Acquisition. The Contractor agrees to comply with 49 U.S.C. § 5324(a), which requires compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. §§ 4601 et seq.; and with U.S. DOT regulations, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. [See, new U.S. DOT final rule, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24, 70 Fed. Reg. 590 et seq., January 4, 2005.] These requirements apply to all interests in real property acquired for Project purposes regardless of Federal participation in the cost of that real property. b. Covenant Assuring Nondiscrimination. The Contractor agrees to include a covenant in the title of the real property acquired for the Project to assure nondiscrimination during the useful life of the Project. c. Recording Title to Real Property. To the extent required by FTA and the Department, the Contractor agrees to record the Federal and/or State's interest in title to real property used in connection with the Project and/or execute at the request of the Department any instrument or documents evidencing or related to the State's interest in the Project's property. As a condition of its participation in a Facility Project, the Department will retain a secured interest in the Project for the estimated life of the Project, expected to be forty (40) years, following completion of the Project; or the prorated share of the original investment or current fair market value (the higher value of the two); whichever comes first. d. Department Approval of Changes in Real Property Ownership. The Contractor agrees that it will not dispose of, modify the use of, or change the terms of the real property title, or other interest in the site and facilities used in the Project without prior written permission and instructions from the Department. e. Disposal of Real Property. If useful life is not attained, upon the sale or disposition of any Project facility, the Department shall be entitled to a refund of the original state and/or federal investment or the state and/or federal prorated share of the current fair market value of the project facility, whichever is greater. For the purpose of this Agreement, the term "any sale or disposition of the Project facility" shall mean any sale or disposition of the facility for a use not consistent with purposes for which the state and/or federal share was originally granted pursuant to the Project Agreement, or for a use consistent with such purposes wherein the transferee in the sale or disposition does not enter into an assignment and assumption agreement with the Revised 1/6/10 38 Contractor with respect to the Contractor's obligation under this Agreement or the Grant Agreement, so that the transferee becomes obligated as if the transferee had been the original party. Section 27. Construction. Except to the extent the Department determines otherwise in writing, the Contractor agrees as follows: a. Drafting Review and Approval of Construction Plans and Specifications. The Contractor agrees to submit drawings, designs, and/or description of work for construction, renovation, or facility improvement projects, including the purchase or construction of bus shelters to the Department for its review and approval prior to solicitation. b. DBE/MBEM/BE Participation. The Contractor agrees to record and report DBE/MBE/WBE business good faith efforts in accordance with N.C.G.S. 143- 128.2(f). c. Supervision of Construction. The Contractor agrees to provide and maintain competent and adequate engineering supervision at the construction site to ensure that the complete work conforms to the approved plans and specifications. d. Construction Reports. The Contractor agrees to provide progress reports and other data and information as may be required by the Department. e. Project Management for Major Capital Projects. To the extent applicable, the Contractor agrees to comply with FTA regulations, "Project Management Oversight," 49 C.F.R. Part 633, and any subsequent Project Management Oversight regulations FTA may issue. f. Seismic Safety. The Contractor agrees to comply with the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. §§ 7701 et seq., with Executive Order No. 12699, "Seismic Safety of Federal and Federally-Assisted or Regulated New Building Construction," 42 U.S.C. § 7704 note, and with U.S. DOT regulations, "Seismic Safety," 49 C.F.R. Part 41, specifically, 49 C.F.R. § 41.117. Section 28. Employee Protections. a. Construction Activities. The Contractor agrees to comply, and assures the compliance of each third party contractor and each subrecipient at any tier of the Project, with the following laws and regulations providing protections for construction employees: (1) Davis-Bacon Act, as amended, 49 U.S.C. § 5333(a), which requires compliance with the Davis-Bacon Act, 40 U.S.C. §§ 3141 et seq., and implementing U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5; (2) Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. §§ 3701 et seq., specifically, the wage and hour requirements of Section 102 of that Act at 40 U.S.C. § 3702, and implementing U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5; and the safety requirements of Section 107 of that Act at 40 U.S.C. § 3704, and implementing U.S. DOL regulations, "Safety and Health Regulations for Construction," 29 C.F.R. Part 1926; and (3) Copeland "Anti-Kickback" Act, as amended, 18 U.S.C. § 874, and Revised 1/6/10 39 implementing U.S. DOL regulations, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States," 29 C.F.R. Part 3. b. Activities Not Involving Construction. The Contractor agrees to comply, and assures the compliance of each third party contractor and each subrecipient at any tier of the Project, with the employee protection requirements for non-construction employees of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. §§ 3701 et seq., in particular the wage and hour requirements of Section 102 of that Act at 40 U.S.C. § 3702, and with U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5. c. Activities Involving Commerce. The Contractor agrees that the provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., apply to employees performing Project work involving commerce. d. Public Transportation Employee Protective Arrangements for Projects in Non-urbanized Areas Authorized by 49 U.S.C. § 5311. The Contractor agrees to comply with the terms and conditions of the Special Warranty for the Non-urbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, U.S. DOL implementing procedures, and any revisions thereto. Section 29. Environmental Protections. The Contractor recognizes that many Federal and State laws imposing environmental and resource conservation requirements may apply to the Project. Some, but not all, of the major Federal laws that may affect the Project include: the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 through 4335; the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through7671 q and scattered sections of Title 29, United States Code; the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901 through 6992k; the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601 through 9675, as well as environmental provisions within Title 23, United States Code, and 49 U.S.C. chapter 53. The Contractor also recognizes that U.S. EPA, FHWA and other Federal agencies have issued, and in the future are expected to issue, Federal regulations and directives that may affect the Project. Thus, the Contractor agrees to comply, and assures the compliance of each third party contractor, with any applicable Federal laws, regulations and directives as the Federal Government are in effect now or ,become effective in the future, except to the extent the Federal Government determines otherwise in writing. Listed below are environmental provisions of particular concern to FTA and the Department. The Contractor understands and agrees that those laws, regulations, and directives may not constitute the Contractor's entire obligation to meet all Federal environmental and resource conservation requirements. a. National Environmental Policy. Federal assistance is contingent upon the Contractor's facilitating FTA's compliance with all applicable requirements and implementing regulations of the National Environmental Policy Act of 1969, as amended, (NEPA) 42 U.S.C. §§ 4321 through 4335 (as restricted by 42 U.S.C. § 5159, if applicable); Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements at 49 U.S.C. § 5324(b); U.S. Council on Environmental Quality regulations pertaining to compliance with NEPA, 40 C.F.R. Parts 1500 through 1508; and joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622, and subsequent Federal environmental protection regulations that may be promulgated. As a result of Revised 1/6/10 40 enactment of 23 U.S.C. §§ 139 and 326 as well as to amendments to 23 U.S.C. § 138, environmental decision making requirements imposed on FTA projects to be implemented consistent with the joint FHWA/FTA document, "Interim Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint FHWA/FTA Authorities," dated September 2, 2005, and any subsequent applicable Federal directives that may be issued, except to the extent that FTA determines otherwise in writing. b. Air Quality. Except to the extent the Federal Government determines otherwise in writing, the Contractor agrees to comply with all applicable Federal laws, regulations, and directives implementing the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through 7671q, and: (1) The Contractor agrees to comply with the applicable requirements of Section 176(c) of the Clean Air Act, 42 U.S.C. § 7506(c), consistent with the joint FHWA/FTA document, "Interim Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint FHWA/FTA Authorities," dated September 2, 2005, and any subsequent applicable Federal directives that may be issued; with U.S. EPA regulations, "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed,. Funded or Approved Under Title 23 US.C. or the Federal Transit Act," 40 C.F.R. Part 51, Subpart T; and "Determining Conformity of Federal Actions to State or Federal Implementation Plans," 40 C.F.R. Part 93, and any subsequent Federal conformity regulations that may be promulgated. To support the requisite air quality conformity finding for the Project, the Contractor agrees to implement each air quality mitigation or control measure incorporated in the Project. The Contractor further agrees that any Project identified in an applicable State Implementation Plan (SIP) as a Transportation Control Measure will be wholly consistent with the design concept and scope of the Project described in the SIP. (2) U.S. EPA also imposes requirements implementing the Clean Air Act, as amended, which may apply to public transportation operators, particularly operators of large public transportation bus fleets. Accordingly, the Contractor agrees to comply with the following U.S. EPA regulations to the extent they apply to the Project: "Control of Air Pollution from Mobile Sources," 40 C.F.R. Part 85; "Control of Air Pollution from New and In-Use Motor Vehicles and New and In-Use Motor Vehicle Engines," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600. (3) The Contractor agrees to comply with notice of violating facility provisions of Executive Order No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans," 42 U.S.C. § 7606 note. c. Clean Water. Except to the extent the Federal Government determines otherwise in writing, the Contractor agrees to comply with all applicable Federal regulations and directives issued pursuant to the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377. In addition: (1) The Contractor agrees to protect underground sources of drinking water consistent with the provisions of the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. §§ 300f through 300j-6. (2) The Contractor agrees to comply with notice of violating facility provisions of Executive Order No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans," 42 U.S.C. § 7606 note. d. Use of Public Lands. The Contractor agrees that in implementing its Project, it will not use any publicly owned land from a park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, and it will not use any land from a Revised 1/6/10 41 historic site of national, state, or local significance, unless the Federal Government makes the findings required by 49 U.S.C. §§ 303(b) and 303(c). The Contractor also agrees to comply with joint FHWA/FTA regulations, "Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites," 23 C.F.R. Parts 771 and 774, and 49 C.F.R. Part 622, when promulgated. e. Wild and Scenic Rivers. The Contractor agrees to comply with applicable provisions of the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C. §§ 1271 through 1287, relating to protecting components of the national wild and scenic rivers system; and to the extent applicable, to comply with U.S. Forest Service regulations, "Wild and Scenic Rivers," 36 C.F.R. Part 297, and with U.S. Bureau of Land Management regulations, "Management Areas," 43 C.F.R. Part 8350. f. Coastal Zone Management. The Contractor agrees to assure Project consistency with the approved State management program developed under the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. §§ 1451 through 1465. g. Wetlands. The Contractor agrees to facilitate compliance with the protections for wetlands in accordance with Executive Order No. 11990, as amended, "Protection of Wetlands," at 42 U.S.C. § 4321 note. h. Floodplains. The Contractor agrees to comply with the flood hazards protections in floodplains in accordance with Executive Order No. 11988, as amended, "Floodplain Management," 42 U.S.C. § 4321 note. i. Endangered Species and Fisheries Conservation. The Contractor agrees to comply with protections for endangered species set forth in the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531 through 1544, and the Magnuson Stevens Fisheries Conservation Act, as amended, 16 U.S.C. §§ 1801 et seq. j. Historic Preservation. The Contractor agrees to encourage compliance with the Federal historic and archaeological preservation requirements of Section 106 of the National Historic Preservation Act, as amended, 16 U.S.C. § 470f; with Executive Order No. 11593, "Protection and Enhancement of the Cultural Environment," 16 U.S.C. § 470 note; and with the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C. §§ 469a through 469c, as follows: (1) In accordance with U.S. Advisory Council on Historic Preservation regulations, "Protection of Historic and Cultural Properties," 36 C.F.R. Part 800, the Contractor agrees to consult with the State Historic Preservation Officer concerning investigations to identify properties and resources included in or eligible for inclusion in the National Register of Historic Places that may be affected by the Project, and agrees to notify FTA of those properties that are affected. (2) The Contractor agrees to comply with all applicable Federal regulations and directives to avoid or mitigate adverse effects on those historic properties, except to the extent the Federal Government determines otherwise in writing. k. Indian Sacred Sites. The Contractor agrees to facilitate compliance with the preservation of places and objects of religious importance to American Indians, Eskimos, Aleuts, and Native Hawaiians, in compliance with the American Indian Religious Freedom Act, 42 U.S.C. § 1996, and with Executive Order No. 13007, "Indian Sacred Sites," 42 U.S.C. § 1996 note, except to the extent the Federal Government determines otherwise in writing. I. Mitigation of Adverse Environmental Effects. Should the proposed Project cause or result in adverse environmental effects, the Contractor agrees to take all reasonable measures to minimize the impact of those adverse effects, as required by 49 U.S.C. § 5324(b), and other applicable Federal laws and regulations, including 23 C.F.R. Part 771 and 49 C.F.R. Part 622. The Contractor agrees to comply with all environmental mitigation measures that may be identified as commitments in applicable environmental Revised 1/6/10 42 documents, (i.e., environmental assessments, environmental impact statements, memoranda of agreement, and other documents as required by 49 U.S.C. § 303) and agrees to comply with any conditions the Federal Govemment might impose in a finding of no significant impact or record of decision. The Contractor agrees that those environmental mitigation measures are incorporated by reference and made part of this Agreement for the Project. The Contractor also agrees that any deferred mitigation measures will be incorporated by reference and made part of this Agreement for the Project as soon as agreement with the Federal Government is reached. The Contractor agrees that those mitigation measures agreed upon may not be modified or withdrawn without the express written approval of the Federal Government. Section 30. Energy Conservation. The Contractor agrees to comply with the North Carolina Energy Policy Act of 1975 (N.C.G.S. 1136) issued in accordance with the Energy Policy and Conservation Act, as amended, 42 U.S.C. §§ 6321 et seq., except to the extent that the Department determines otherwise in writing. To the extent applicable, the Contractor agrees to perform an energy assessment for any building constructed, reconstructed, or modified with FTA assistance, as provided in FTA regulations, "Requirements for Energy Assessments," 49 C.F.R. Part 622, Subpart C. Section 31. Charter Service Operations. FTA defines charter service as transportation using vehicles (buses or vans), equipment, or facilities funded under the Federal Mass Transit Act for a group of persons who pursuant to a common purpose, under a single contract, at a fixed charged for the vehicle or service, have acquired the exclusive use of the vehicle or service to travel together under an itinerary either specified in advance or modified after having left the place of origin. The Contractor acknowledges that Federal and State requirements prohibit the use of vehicles, facilities and equipment funded by Federal or State grant programs for the provision of charter services unless it is determined that there are no willing and able charter operators in the service area. Federal law does not provide exceptions to these regulations for vehicles that are loaned or leased to other agencies or entities. The Contractor agrees that neither it nor any public transportation operator performing work in connection with a Project financed under 49 U.S.C. chapter 53 will engage in charter service operations, except as authorized by 49 U.S.C. § 5323(d) and FTA regulations, "Charter Service," 49 C.F.R. Part 604, and any subsequent Charter Service regulations or FTA directives that may be issued, except to the extent that FTA determines otherwise in writing. Any charter service agreement required by FTA regulations is incorporated by reference and made part of this Agreement for the Project. The Contractor understands and agrees that in addition to any remedy specified in the charter service agreement, if a pattern of violations of that agreement is found, the violator will be barred from receiving Federal transit assistance in an amount to be determined by FTA or U.S. DOT. Section 32. School Transportation Operations. The Contractor agrees that neither it nor any public transportation operator performing work in connection with a Project financed under 49 U.S.C. chapter 53 will engage in school transportation operations for the transportation of students or school personnel exclusively in competition with private school transportation operators, except as authorized by 49 U.S.C. §§ 5323(f) or (g), as applicable, and FTA regulations, "School Bus Operations," 49 C.F.R. Part 605, and any subsequent School Transportation Operations regulations or FTA directives that may be issued. Any school transportation operations agreement required by FTA regulations is Revised 1/6/10 43 incorporated by reference and made part of this Agreement for the Project. The Contractor understands and agrees that if it or an operator violates that school transportation operations agreement the violator will be barred from receiving Federal transit assistance in an amount to be determined by FTA or U.S. DOT. Section 33. Geographic Information and Related Spatial Data. In accordance with U.S. OMB Circular A-16, "Coordination of Geographic Information and Related Spatial Data Activities," August 19,2002, the Contractor agrees to implement its Project so that any activities involving spatial data and geographic information systems activities financed directly or indirectly, in whole or in part, by Federal assistance, consistent with the National Spatial Data infrastructure promulgated by the Federal Geographic Data Committee, except to the extent that FTA determines otherwise in writing. Section 34. Motor Carrier Safety. To the extent applicable, the Contractor agrees to comply with, and assures the compliance of its subrecipients, lessees, and third party contractors with, applicable provisions of the following regulations promulgated by the U.S. Federal Motor Carrier Safety Administration (U.S. FMCSA): a. Financial Responsibility. The Contractor agrees as follows: (1) To the extent that the Contractor is engaged in interstate commerce and not within a defined commercial zone, the Contractor agrees to comply with U.S. FMCSA regulations, "Minimum Levels of Financial Responsibility for Motor Carriers," 49 U.S.C. Part 387, dealing with economic registration and insurance requirements. For recipients of Federal assistance under 49 U.S.C. §§ 5307, 5310, or 5311, 49 C.F.R. Part 387 is modified by 49 U.S.C. § 31138(e)(4) which reduces the amount of insurance required of such recipients to the highest amount of any state in which the transit provider operates. (2) To the extent that the Contractor is engaged in interstate commerce and not within a defined commercial zone and is not a unit of government (defined as Federal Government, a state, any political subdivision of a state or any agency established under a compact between states), the Contractor agrees to comply with U.S. FMCSA regulations, Subpart B, "Federal Motor Carrier Safety Regulations," at 49 CFR Parts 390 through 396. b. Driver Qualifications. The Contractor agrees to comply with U.S. FMCSA's regulations, "Commercial Driver's License Standards, Requirements, and Penalties," 49 C.F.R. Part 383. c. Substance Abuse Rules for Motor Carriers. The Contractor agrees to comply with U.S. FMCSA's regulations, "Drug and Alcohol Use and Testing Requirements," 49 C.F.R. Part 382, which apply to transit providers that operate a commercial motor vehicle that has a gross weight rating over 26,000 pounds or is designed to transport sixteen (16) or more passengers, including the driver. d. Section 35. Substance Abuse. To the extent applicable, the Contractor, its subcontractors or their employees perform a safety-sensitive function under the Agreement, the Contractor agrees to comply with and assure compliance of its subcontractors, and their employees with 49 USC 5331 and FTA regulations "Prevention Revised 1/6/10 44 of Alcohol Misuse and Prohibited Drug Use in Transit Operations," 49 CFR Part 655 and the following Federal substance abuse regulations: (1) Federal Certification Regarding Alcohol Misuse and Prohibited Drug Use. As required by FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations," at 49 CFR part 655, subpart 1, the Contractor certifies, by signing this Agreement, that it has established and implemented an alcohol misuse and anti-drug program, and has complied with or will comply with all applicable requirements of FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations," 49 CFR part 655, and Section 35 of this Agreement. a. Drug-Free Workplace. U.S. DOT regulations, "Government-wide Requirements for Drug-Free Workplace (Financial Assistance), 49 C.F.R. Part 32, that implement the Drug-Free Workplace Act of 1988, 41 U.S.C. §§ 701 et seq. b. Alcohol Misuse and Prohibited Drug Use. FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations," 49 C.F.R. Part 655, that implement 49 U.S.C. § 5331. Section 36. Seat Belt Use. In accordance with Executive Order No. 13043, "Increasing Seat Belt Use in the United States," April 16, 1997, 23 U. S. C. § 402 note, the Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned, rented, or personally operated vehicles, and to include this provision in any third party contracts, third party subcontracts, or subagreements involving the Project. Section 37. Protection of Sensitive Security Information. To the extent applicable, the Contractor agrees to comply with 49 U.S.C. § 40119(b) and implementing U.S. DOT regulations, "Protection of Sensitive Security Information," 49 C.F.R. Part 15, and with 49 U.S.C. § 114(s) and implementing U.S. Department of Homeland Security, Transportation Security Administration regulations, "Protection of Sensitive Security Information," 49 C.F.R. Part 1520. Section 38. Disputes, Breaches, Defaults, or Other Litigation. The Contractor agrees that FTA and the Department have a vested interest in the settlement of any dispute, breach, default, or litigation involving the Project. Accordingly: a. Notification to the Department. The Contractor agrees to notify the Department in writing of any current or prospective major dispute, breach, default, or litigation that may affect the Federal/State Government's interests in the Project or the Federal/State Govemment's administration or enforcement of Federal/State laws or regulations. If the Contractor seeks to name the Federal/State Govemment as a party to litigation for any reason, in any forum, the Contractor agrees to inform the Department in writing before doing so. In turn, the Department shall be responsible for notifying FTA. b. Federal/State Interest in Recovery. The Federal/State Government retains the right to a proportionate share, based on the percentage of the Federal/State share awarded for the Project, of proceeds derived from any third party recovery, except that the Contractor may return any liquidated damages recovered to its Project Account in lieu of returning the Federal/State share to the Department. c. Enforcement. The Contractor agrees to pursue all legal rights provided within any third party contract. d. FTA and Department Concurrence. The FTA and the Department Revised 1/6/10 45 reserve the right to concur in any compromise or settlement of any claim involving the Project and the Contractor. e. Alternative Dispute Resolution. The Department encourages the Contractor to use alternative dispute resolution procedures, as may be appropriate. Section 39_ Privacy If Contractor or its employees administer any system of records on behalf of the Federal Government, Contractor and its employees agree to comply with the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a (the Privacy Act). Specifically, Contractor agrees to obtain the express consent of the Federal Govemment before the Contractor or its employees operate a system of records on behalf of the Government. Contractor acknowledges that the requirements of the Privacy Act, including the civil and criminal penalties for violations of the Privacy Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of this Agreement. The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Govemment financed in whole or in part with Federal assistance provided by FTA. Section 40. Information Obtained Through Internet Links. This Agreement may include electronic links/Web site addresses to Federal/State laws, regulations, and directives as well as other information. The Department does not guarantee the accuracy of information accessed through such links. Accordingly, the Contractor agrees that information obtained through any electronic link within this Agreement does not represent an official version of a Federal/State law, regulation, or directive, and might be inaccurate. Thus, information obtained through such links is neither incorporated by reference nor made part of this Agreement. The Federal Register and the Code of Federal Regulations are the official sources for regulatory information pertaining to the Federal Govemment. Section 41. Severability. If any provision of the FTA Master Agreement or this Agreement for the Project is determined invalid, the remainder of that Agreement shall not be affected if that remainder would continue to conform to the requirements of applicable Federal/State laws or regulations. Section 42. Termination of Agreement. a. The Department of Transportation. In the event of the Contractor's noncompliance with any of the provisions of this Agreement, the Department may suspend or terminate the Agreement by giving the Contractor thirty (30) days advance notice. Any failure to make reasonable progress on the Project or violation of this Agreement for the Project that endangers substantial performance of the Project shall provide sufficient grounds for the Department to terminate the Agreement for the Project. In general, termination of Federal and State assistance for the Project will not invalidate obligations properly incurred by the Contractor before the termination date to the extent those obligations cannot be canceled. If, however, the Department determines that the Contractor has willfully misused Federal/State assistance by failing to make adequate progress, failing to make reasonable and appropriate use of Project property, or failing to comply with the terms of this Agreement for the Project, the Department reserves the right to require the Contractor to refund the entire amount of Federal and State assistance provided for the Project or any lesser amount as the Department may determine. Expiration of any Project time period established for the Project does not, by itself, constitute an expiration or termination of the Agreement for the Project. Revised 1 /6/ 10 46 The Department, before issuing notice of Agreement termination, shall allow the Contractor a reasonable opportunity to correct for noncompliance. Upon noncompliance with the nondiscrimination Section 17 of this Agreement or with any of the said rules, regulations or orders, this Agreement may be cancelled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for contracts in accordance with procedures authorized in Executive Orders No. 11246 and No. 11375, and such other sanctions including but not limited to withholding of payments until the Contractor complies, may be imposed and remedies invoked as provided in the said Executive Order or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by law. In addition to the Department's rights of termination described above, the Department may terminate its participation in the Project by notifying and receiving the concurrence of the Contractor within sixty (60) days in advance of such termination. In the event that the Contractor does not comply with the provisions of this Agreement, the Department shall impose such contract sanctions as it or FTA may determine to be appropriate b. The Contractor. The Contractor may terminate its participation in the Project by notifying and receiving the concurrence of the Department sixty (60) ,days in advance of the termination. Section 43. Contract Administrators. All notices permitted or required to be given by one Party to the other and all questions about this Agreement from one Party to the other shall be addressed and delivered to the other Party's Contract Administrator. The name, postal address, street address, telephone number, fax number, and email address of the Parties' respective initial Contract Administrators are set out below. Either Party may change the name, postal address, street address, telephone number, fax number, or email address of its Contract Administrator by giving timely written notice to the other Party. Fir the Department: IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS Name: MR CHARLIE C. WRIGHT Name: MR CHARLIE C. WRIGHT Title: FINANCIAL MANAGER Title: FINANCIAL MANAGER Agency: NCDOT/PTD Agency: NCDOT/PTD MSC: 1550 MSC Street TRANSPORTATION BLDG Address: 1 S WILMINGTON ST RM 524 City/Zip: RALEIGH NC 27699-1550 City: RALEIGH NC Phone: 919-733-4713, EXTENSION 277 Fax: 919-733-2304 Email: CCWRIGHT NCDOT.GOV Revised 1/6/10 47 For the Contractor: IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS Name: ~ia~-+„~~!,,~;~ Name: ~t~,~ ~~,r=mss _ Title: ~i?~'`.~,,-Y,s l~v-,ti;~,s~nnF-~;2.. Title: ~~L.;;~..~-,-Y,~ r~~i~,~-i; s~-~~~a;..~ Agency: l~n,.s,-~-,ra~ Cyr 7.~~-(~t`. o ~~ /~~ ~S Agency: ~s~._..,.~-.~~ ~ Z~~-I~j- ~~-, ~~; ~~ Postal ~~--~~ 1~sv~,sC-vim ~-- Street ~--~~ /-~,-,-,~s~,~~si'? Address: Address: ~~ ..--~ ~; ~ f , y~~ .~ fix-' r ~ _~~~`~~ Gt /Zi v P~~~`V-~`-i ~: IC, /~ ~.~s~4 city: Phone: y iia-~~ ~ - ~ U ~C, Fax: ~~~r- ~/~~'- Nzo~f3 Email: ~~'a~ ~~ ~-' ~~ : (,~2~a. -' 1~.-}~~, ~c Section 44. INCORPORATION OF FTA TERMS: The. preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether .or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.IF, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. "N.C.G.S. § 133-32 and Executive Order 24 prohibit the offer to, or acceptance by, any State Employee of any gift from anyone with a contract with the State, or from any person seeking to do business with the State. By execution of any response in this procurement, you attest, for your entire organization and its employees or agents, that you are not aware that any such. gift has been offered, accepted, or promised by any employees of your organization." Revised 1/6/10 48 IN WITNESS WHEREOF, this Agreement has been executed by the Department, an agency of the State of North Carolina, and the Contractor by and through a duly authorized representative, and is effective the date and year first above written. ORANGE COUNTY CONTRACTOR'S FEDERAL TAX ID NUMBER: CONTRACTOR'S FISCAL YEAR END: ;~ ~~ -~~_ '~ 171 ~`, ~, ~. ~ ATTEST: ~~, ~, 1( r ~,~_~ '°~~; fie TITLE: C~~~ ~ .S~ ~ ~o~0 32'7 ,~~~~ 3n BY: ~~~.-L TITLE: ~/ _ \ CJ4~A~ERSON DEPARTMENT OF TRANSPORTATION BY: TITLE: DEPUTY SECRETARY FOR TRANSIT ATTEST: TITLE: SECRETAR Revised 1/6/10 49 ATTACHMENT B ARRA DEFINITIONS A. Approved Project Budget means the most recent statement, approved by the FTA, of the costs of the Project, the maximum amount of Federal assistance for which the City is currently eligible, the specific tasks (including specified contingencies) covered, and the estimated cost of each task. B. Contractor means the individual or entity awarded a third party contract financed in whole or in part with Federal assistance originally derived from FTA. C. Cooperative Agreement means the instrument by which FTA awards Federal assistance to a specific Recipient to support a particular Project or Program, and in which FTA takes an active role or retains substantial control. D. Federal Transit Administration (FTA) is an operating administration of the U.S. DOT. E. FTA Directive includes any FTA circular, notice, order or guidance providing information about FTA's programs, application processing procedures, and Project management guidelines. In addition to FTA directives, certain U.S. DOT directives also apply to the Project. F. Grant Agreement means the instrument by which FTA awards Federal assistance to a specific Recipient to support a particular Project, and in which FTA does not take an active role or retain substantial control, in accordance with 31 U.S.C. § 6304. G. Government means the United States of America and any executive department or agency thereof. H. Project means the ta~k or set of tasks listed in the Approved Project Budget, and any modifications stated in the Conditions to the Grant Agreement or Cooperative Agreement applicable to the Project. In the case of the formula assistance program for urbanized areas, for elderly and persons with disabilities, and non-urbanized areas, 49 U.S.C. §§ 5307, 5310, and 5311, respectively, the term "Project" encompasses both "Program" and "each Project within the Program," as the context may require, to effectuate the requirements of the Grant Agreement or Cooperative Agreement. I. Recipient means any entity that receives Federal assistance directly from FTA to accomplish the Project. The term "Recipient" includes each FTA "Grantee" as well as each FTA Recipient of a Cooperative Agreement. J. Secretary means the U.S. DOT Secretary, or his or her duly authorized designee. K. Third Party Contract means a contract or purchase order awarded by the Recipient to a vendor or contractor, financed in whole or in part with assistance awarded by FTA. L. Third Party Subcontract means a subcontract at any tier entered into by Contractor or third party subcontractor, financed in whole or in part with Federal assistance originally derived from FTA. M. USDOT is the acronym for the U.S. Department of Transportation. Revised 1/6/10 APPENDIX A NORTH CAROLINA DEPARTMENT OF TRANSPORTATION PUBLIC TRANSPORTATION DIVISION PROJECT NUMBER: 10-AR-056 APPROVED BUDGET SUMMARY EFFECTIVE DATE 8/1/2009 PROJECT SPONSOR: ORANGE COUNTY PROJECT DESCRIPTION: FY2010 AMERICAN RECOVERY AND REINVESTMENT ACT (ARRA) PROGRAM I. TOTAL PROJECT EXPENDITURES DEPARTMENT - 5302 ARRA CAPITAL - 51003.23.3.STT1 PERIOD OF PERFORMANCE AUGUST 01, 2009 -JUNE 30, 2011 II. TOTAL PROJECT FUNDING TOTAL FEDERAL STATE 100% 81% 19% CAPITAL I 51003.23.3.STT1 $447,600 $362,556 $85,044 PURCHASE ORDER # 5700005303 TOTAL CAPITAL $447,600 $362,556 $85,044 $447,600 LOCAL 0% $0 $0 NORTH CAROLINA DEPARTMENT OF TRANSPORTATION PUBLIC TRANSPORTATION DIVISION APPROVED PROJECT BUDGET PROJECT: 10-AR-056 SPONSOR: ORANGE COUNTY WBS: 51003.23.3.STT1 DEPARTMENT 5302 -CAPITAL APPROVED OBJECT TITLE BUDGET G523 SCHEDULING SOFTWARE $ - G524 TELEPHONE SYSTEM $ - G526 MOBILE DATA DEVICES $ - G527 AUTOMATIC VEHICLE LOCATION $ - G528 DATA COMMUNICATION DEVICE $ - G529 OTHER ADVANCED TECHNOLOGY $ - G531 NEW CONSTRUCTION OF TRANSIT FACILITY $ - G532 PURCHASE OF MODULAR STRUCTURE $ - G533 LEGAL FEES, APPRAISAL, SURVEY, PERMITS $ - G534 PLANNING & NEEDS ASSESSMENT / ENVIRO STUDY $ - G535 LAND ACQUISITION $ - G536 SITEWORK /GRADING $ - G537 UTILITY WORK /HOOK-UPS $ - G538 FENCING /LIGHTING $ - G539 LANDSCAPING / ACCESSWAY / SIGNAGE $ - G541 30 TO 40 FT TRANSIT BUS W/ LIFT (REP.) 12-YR $ - G542 30 TO 40 FT TRANSIT BUS W/ LIFT (REP.) 10-YR $ - G543 25 FT LIGHT TRANSIT VEHICLE (REPLACEMENT) $ - G544 22 FT LIGHT TRANSIT VEHICLE (REPLACEMENT) $ - G545 VAN CONVERSION (REPLACEMENT) $ - G547 25 FT LIGHT TRANSIT VEHICLE W/ LIFT (REP.) $ - G548 LIFT EQUIPPED VAN (REPLACEMENT) $ - G549 CENTER AISLE VAN (REPLACEMENT) $ - G551 VEHICLE SPARE PARTS $ - G552 SHOP EQUIPMENT $ - G553 REPEATER STATION $ - G554 RADIO BASE STATION $ - G555 RADIO UNIT (MOBILE OR HAND HELD) $ - G557 FAREBOXES $ - G559 OTHER EQUIPMENT $ - G561 30 TO 40 FT TRANSIT BUS W/ LIFT (EXP.) 12-YR $ - G562 30 TO 40 FT TRANSIT BUS W/ LIFT (EXP.) 10-YR $ - G563 25 FT LIGHT TRANSIT VEHICLE (EXPANSION) $ - G564 22 FT LIGHT TRANSIT VEHICLE (EXPANSION) $ - G565 VAN CONVERSION (EXPANSION) $ - G567 25 FT LIGHT TRANSIT VEHICLE W/ LIFT (EXP.) $ - G568 LIFT EQUIPPED VAN (EXPANSION) $ - G569 CENTER AISLE VAN (EXPANSION) $ - G571 MINI-VAN (REPLACEMENT) $ - G572 MINI-VAN (EXPANSION) $ - G573 ALLOWABLE ALTERNATE VEHICLE (REP/EXP) $ - G574 SUPPORT VEHICLE (SPECIFY REP. OR EXP.) $ - Orange County 10-AR-056 Page 1 of 2 APPROVED OBJECT TITLE BUDGET G575 20 FT LT TRANSIT VEHICLE (SPECIFY REP OR EXP) $ - G576 22 FT LIGHT TRANSIT VEHICLE W/ LIFT (REP.) $ 146,000 G577 OTHER TRANSIT VEHICLE (EXPANSION) $ - G578 20 FT LT TRANSIT VEHICLE W/ LIFT (REP. OR EXP.) $ - G579 22 FT LIGHT TRANSIT VEHICLE W/ LIFT (EXP.) $ - G581 CONSTRUCTION/PROJECT MGMT SERVICES $ - G582 FACILITY ACQUISITION $ - G583 BUS STOP SHELTERS/BENCHES $ - G584 PARK AND RIDE LOTS $ - G585 BUS STOP SIGNS $ _ G586 BUILDING SECURITY/SURVEILLANCE EQUIPMENT $ - G587 PAVING/RESURFACING $ - G588 ENGINEERING & DESIGN SERVICES $ - G589 CQTHER FACILITY IMPROVEMENTS $ - G591 VEHICLE LETTERING AND LOGOS $ - G595 SERVICE VEHICLE (SPECIFY REP. OR EXP.) $ - G596 VEHICLE SECURITY/SURVEILLANCE EQUIPMENT $ - G597 CONTINGENCY $ - G598 28' LIGHT TRANSIT VEHICLE W/LIFT (REP) $ 277,200 G599 PREVENTIVE MAINTENANCE $ 24,400 TOTAL ARRA CAPITAL $ 447,600 Orange County 10-AR-056 Page 2 of 2