HomeMy WebLinkAbout2010-161 Planning- FY11 Public Transportation State Capital Grant Agreement for Public Body (not final)~ Q--
STATE OF NORTH CAROLINA PUBLIC TRANSPORTATION
COUNTY OF WAKE STATE CAPITAL -GRANT AGREEMENT
FOR PUBLIC BODY
NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION CFDA NUMBER: DOT-14
and PROJECT NUMBER: 11-SC-056
ORANGE COUNTY WBS ELEMENT: 36226.77.7.3
PO NUMBER: TBD
THIS AGREEMENT made this the day of , 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 (hereinafter referred to as the "Contractor").
WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes
.designated the Department of Transportation as the agency of the State of North Carolina
responsible for administering funding assistance for public transportation in rural and small
urban areas by way of a formula grant program to be administered by the State; and
WHEREAS, the purpose of this Agreement is to provide for the purchase and/or
renovation of a facility, or the construction of a facility for public transportation use 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, conditions, and mutual undertakings of the parties as to the manner in which the Project
will be undertaken and completed.; and
WHEREAS, the Contractor has been designated as the recipient of public transportation
program funds, and
WHEREAS, Article 26 of Chapter 136 of the North Carolina General Statutes
designated 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 within the State
of North Carolina; and WHEREAS, in order to assist in providing transportation services, the
Department, under the terms of this Agreement shall make grants of capital assistance to the
Contractor; and
WHEREAS, the Department and the Contractor desire to secure and utilize Rural
Capital Program 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.. WHEREAS, the purpose of this Agreement is to
provide capital items for public transportation use 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, conditions, and mutual
undertakings of the parties as to the manner in which the Project will be undertaken and
completed..
Section 2. :Scope of Proiect/Proiect Description.
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a. Scope of Proiect. Orange County (operating as Orange Public
Transportation-OPT will continue to provide community transportation
services to human service agencies, the general public and connector
service routes to Chapel Hill.
b. Project Implementation. The Contractor shall undertake and complete the
Project in accordance with the applicable procedures and guidelines set forth in
the following documents:
(1) Office of Management and Budget (OMB) Circular A-102, Grants and
Cooperative Agreements with State and Local Governments (49 CFR 18);
(2) FTA Master Agreement, dated October 1, 2009, at
http://www.fta. dot.gov/docu ments/16-Master. pdf.;
(3) FTA Circular 4220.1 F, Third Party Contracting Guidance
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.
Section 3. Proiect Budget/Cost of Proiiect. The Department shall reimburse the
Contractor the total cost of the Project approved by the Department and as set forth in the
Project Description and Project Budget incorporated into this Agreement as Attachment A.
The total cost of the Project approved by the Department is TWO HUNDRED NINE
THOUSAND FNE HUNDRED DOLLARS ($209,500) as set forth in the Project Description and
Budget, incorporated into this Agreement as Attachment A.
(1 } State Share. The Department shall provide, from State (90%) of the
actual net cost of the Project, not in excess of ONE HUNDRED EIGHTY-EIGHT THOUSAND
FIVE HUNDRED FIFTY DOLLARS ($188,550).
Capital
WBS Capital Total Capital State (90%) Capital Local (10%j
36226.77.7.3 $209,500 $188,550 $20,950
PO
Section 4. Period of Performance. This Agreement shall commence upon the date of
execution, unless specific written authorization from the Department to the contrary is
received. The period of performance for all expenditures shall extend from JULY 1, 2010 TO
JUNE 30, 2011 unless written authorization to the contrary is provided by the Department.
The Contractor shall commence, carry on, and complete the approved Project with all
practicable dispatch, in a sound, economical, and efficient manner.
Section 5. Contractor's Capacity & Federal/State Requirements. 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 Contractor's annual Certifications and
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Assurances to the Department, and applicable Federal and State
laws, regulations, and directives.
(d) Administrative .Requirements. The Contractor agrees to comply with
the following 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/cfrlcfr-table-
search.html#pape1).
(2) Title 9 North Carolina Administrative Code (N.C.A.C.) Subchapter 3M at
(http:/(reports.oah.state.nc.us/ncac.asp).
(3) Title 19A North Carolina Administrative Code (N.C.A.C.) Subchapter
5B at (http://reports.oah.state.nc.us/ncac.asp).
The Contractor agrees that State laws and regulations control Project funding and
implementation. The contractor also agrees that in addition to State law certain Federal laws,
regulations, and directives as noted throughout this Agreement may be applicable to the
Project.
To achieve compliance with changing federal and state requirements, the Contractor makes
note that federal, state requirements may change and the changed requirements will apply to
this Agreement as required.
(e) Contractor's Primary Responsibility to Comply with Federal and State
Requirements. 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 Contractor leases any
Project asset to another party, the Contractor agrees to retain ownership
of the 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.
(1) 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, the Contractor agrees that it,
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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.
(2) 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.
(f). 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 sub-recipients 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 and sub-
recipients to include adequate provisions to ensure compliance with
applicable Federal and State laws, regulations, and directives in each lower
tier sub-contract 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
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Project 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 a
Sub-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 sub-recipient (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 sub-recipient 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.
(g) 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, 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 or third party contractor.
(h) Changes in Project 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 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;
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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.
(i) Limitations of Agreement. This Agreement shall be subject to the
availability of State funds and contingent upon the terms and conditions of this
Agreement.
Section 6. Ethics.
a. Conflict of Interest Policy. Every grantee shall file with the State agency
disbursing funds to the grantee a copy of that grantee's policy addressing conflicts of interest
that may arise involving the grantee'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 grantee's employees or members of
its board or other governing body, from the grantee's disbursing of State funds, and shall
include actions to be taken by the grantee or the individual, or both, to avoid conflicts of
interest and the appearance of impropriety. The policy shall be filed before the disbursing
State agency may disburse the grant funds. (G.S. 143C-6-21)
In accordance with N.C.G.S. 143C-6-23(b), effective July 1, 2007, 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. Any changes in conflict of interest policy must also
be filed before the Department may disburse grant funds.
1. Gifts. It is unlawful for any vendor or contractor (i.e. architect, bidder,
contractor, construction manager, design professional, engineer, landlord, offer or,
seller, sub-contractor, 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. 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 at any tier, any sub-recipient at any tier or agent thereof, or any
lessee. 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
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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, its third party contractors or sub-recipients or their agents..
(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.
c. Debarment and Suspension. 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. 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 State assistance
application for the Project.
e. Lobbying Restrictions. The Contractor agrees that:
(1) In compliance with 31 U.S.C. 1352(a), it will not use 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
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grant, cooperative agreement, or loan. Nevertheless, in accordance with 49 U.S.C. §
5307(k)(2)(B) and 23 U.S.C. § 142(8), the Hatch Act does not apply to a nonsupervisory
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 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 State Government concerning the Project, the 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 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 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), 1'8 U.S.C. § 1001 or
other applicable Federal/State law to the extent the Federal/State Government deems
appropriate.
Section 7. 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
State 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
submifted for reimbursement shall include all eligible cost incurred within the Period
Covered. The Period Covered represents the monthly or quarterly timeframe in which
the project reports expenditures to the Department. All payments issued by the
Department will be on a reimbursable basis unless the Contractor requests and the
Department approve an advance payment. The Department allows grantees 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 three (3) business days. The amount of reimbursement from the Department
shall not exceed the funds budgeted in the approved Project Budget. If applicable, the
Contractor shall initiate and prosecute to completion all actions necessary to enable the
Contractor to provide its share of project costs at or prior to the time that such funds are
needed to meet project costs. The Contractor shall provide its share of project costs
from sources other than FTA and State funds from the Department. Any costs for work
not eligible for Federal and State participation shall be financed one hundred percent
(100%) by the Contractor.
b. Payment. The Contractor shall submit itemized invoices to the Department
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not more frequently than monthly, nor less frequently than quarterly, reporting on the
invoicing forms furnished by the Department for work performed under this Agreement.
Additional forms must be submitted with each reimbursement request including reports
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 excluded
as follows:
(1) Any Project cost incurred by the Contractor before the Effective
Date of the Grant;
(2) Any cost that is not included in the latest Approved Project
Budget;
(3) Any cost for Project property or services received in connection
with a third party contract or sub-agreement with asub-recipient that must
be approved by the Department, or other arrangement required to be, but
has not been, concurred in or approved in writing by the Department;
(4) Any non-project cost consistent with the prohibitions of 49 U.S.C.§
5323(h);
(5) Any profit or fee sought by the Contractor for its services under the
Grant Agreement to the extent that FTA or the Department determines
otherwise in writing; and
(6) Any cost ineligible for the State or Federal participation as provided
by applicable Federal/state laws or regulations, in accordance with
applicable Federal/State directives, except to the extent the Federal/State
Government determines otherwise in writing.
(a) 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. Any reimbursement request for travel, meals, conferences
and seminar facilities must be accompanied by documentation that explains
the cost relationship to the grant scope. The Public Transportation Division
shall make the final determination that such documentation is adequate or
that additional documentation is needed.
(b) For each request for reimbursement for licensing and certification
costs, the Contractor shall include documentation explaining the cost
relationship to the grant scope. The Public Transportation Division shall
make the final determination that such documentation is adequate or that
additional documentation is needed.
(c) The Contractor understands and agrees that payment to the
Contractor 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 the Federal/State Government will not make a final determination about
Updated 07/26/10
the allowability .and eligibility of-any cost until an audit of the Project has
been completed. If the Federal/State Govemment 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 on the
basis of 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) State Claims Excess Payments Disallowed Costs, including
Interest.
Contractor's Responsibility to Pay. Upon notification to the Contractor
that specific amounts are owed to the State Government, whether for
excess payments of 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.
(1) Amount of Interest. The Contractor agrees to remit to the Department
interest owed as determined in accordance with N.C.G.S. 147-86.23.
(e) De-obligation of Funds. The Contractor agrees that the
Department may de-obligate unexpended State funds before Project
closeout.
Section 8. Accounting Records.
a. Establishment and Maintenance of Accounting Records. The Contractor
shall establish and maintain separate accounts for the 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 budget and shall be
reported to the Department in accordance with UPTAS.
b. Documentation of Project 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:
(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
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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
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.
(8) In conformance with the standards for allowability of costs set forth in
Office of Management and Budget (OMB) Circular A-87 "Cost Principles for
State, Local, and Indian Tribal Govemments;"
(a) 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.
(b) 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.
(c) 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.
(d) FAR, at 48 C.F.R., Subpart 31.2, "Contracts with
Commercial Organizations" applies to Project costs incurred by a
Contractor that is afor-profit organization.
Section 9. Reporting. Record Retention, and Access.
(a) Reports. The Contractor shall report to the Department on the progress and
activity of the Project at a minimum quarterly. The Contractor shall collect and submit to
the Department as required, such financial statements, data, records, contracts, and
other documents related to the Project as may be deemed necessary by the
Department. Such reports shall include narrative and financial statements of sufficient
substance to be in conformance with the reporting requirements of the Department.
(b) 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 -Public
Transportation Systems and .Authorities, April 1, 2006," at
(h ttp : //www. a h . d cr. state . n c. u s/records/I o ca I/).
(c) Access to Records of Contractor and Sub-contractors. 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.
Section 10. Proiect Completion, Audit, Settlement, and Closeout.
Updated 07/26/10 11
(a) Project Completion. 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 Governments 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 4g of
this Agreement.
(e) Project 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 11. Amendments 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 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.
Section 12. Civil Rights. The Contractor agrees to comply with all applicable civil rights
laws and implementing regulations including, but not limited to, the following:
a. Non-discrimination in Public Transportation Programs. The Contractor agrees to
comply, and assures the compliance of each third party contractor at any tier and each sub-
recipient 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. Non-discrimination -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 sub-
recipient 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. ~gual Employment Opportunity. The Contractor agrees to comply, and
Updated 07/26/10 12
assures the compliance of each third party contractor at any tier of the Project and each sub-
recipient 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. 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 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.
d. Minority and Women Business Enterprise (MBE/WBE).
(1) Policy. It is the policy of the North Carolina Department of ,Transportation that
Minority Business Enterprises and Women Business Enterprises (MBE/WBEs) as
defined in GS 136-28.4 shall have the equal opportunity to compete fairly for and to
participate in the performance of contracts financed by State Funds.
The Firm is also encouraged to give every opportunity to allow MBE/VI/BE participation
in Supplemental Agreements.
(2) Obligation. The Firm, sub-consultant, and sub-firm shall not discriminate on the
basis of race, religion, color, creed, national origin, sex, handicapping condition or age
in the performance of this contract. The Firm shall comply with applicable requirements
of GS 136-28.4 in the award and administration of.federally assisted contracts. Failure
by the Firm 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 MBE/1NBE goals are not established for this project,
the Department encourages the Firm to have participation from MBE/WBE contractors
and/or suppliers.
(4) Listing of MBE/WBE Sub-contractors. The firm, at the time the Letter of Interest is
submitted, shall submit a listing of all known MBE/V1/BE firms 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 firm has no MBE/WBE participation, the firm
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
https~//apps dot state.nc.us/guickfind/forms/Default.aspx.
(5) Certified Transportation Firms Directory. Real-time information about firms doing
business with the Department and firms 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 kiy entering
https~//apps dot.state.nc.us/vendor/directoN in the address bar of your web browser.
Only firms identified as MBE/WBE certified in the Directory shall be listed in the
proposal.
The listing of an individual firm in the Department's directory shall not be construed as
an endorsement of the firm's capability to perform certain work.
(6) Reporting MBE/WBE Enterprise Participation. When payments are made to
MBE/WBE firms, including material suppliers, firms at all levels (Firm, sub-consultant or
sub-firm) shall provide the Contract Administrator with an accounting of said payments.
The accounting shall be listed on the Department's Subcontractor Payment Information
Updated 07/26/10 13
Form (Form DBE-IS). In the event the firm has no MBE/11VBE participation, the firm 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
https~//apps dot state nc us/guickfind/forms/Default.aspx.
A responsible fiscal officer of the payee Firm, sub-consultant or sub-firm 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 anal 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,
"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;
(90) FTA regulations, "Transportation for Elderly and Handicapped
Persons," 49 C.F.R. Part 609; and
(11) Federal civil rights and nondiscrimination directives implementing the
Updated 07/26/10 14
fore-going 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. §§ 1174 et seq., with the Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970, as amended, 42 U.S.C. §§ 4581 et seq., and with
the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 290dd-3 and 290ee-3, 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 Non-discrimination 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 13. 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) the joint Federal Highway Administration (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 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. Govemmental and Private Nonprofit Providers of Nonemeraency
Transportation. In addition to providing opportunities to participate in planning as described in
Subsection 9a 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
organizatioris 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
Updated 07/26/10 15
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 14. Preference for United States Products and Services. To the extent
applicable, the Contractor agrees to comply with U.S. domestic preference requirements.
Section 15. 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 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 agree
to comply with Executive Order No. 13502, "Use of Project Labor Agreements (FLA) for
Federal Construction projects,: February 6, 2009, 41 U.S.C. § 251 note. As a result the
Recipient is no longer prohibited from requiring an affiliation with a labor organizations, such
as a project labor agreement, as a condition for award of any third party contract or
subcontract at any tier for construction or construction management services, except to the
extent that 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.
Updated 07/26/10 16
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. Project Approval/Third Party Contract Approval. Except to the extent the
Department determines otherwise in writing, the Contractor agrees that the Department's
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. §§ 7406 through 7671q;
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
Updated 07/26/10 17
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 Reauirements. 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 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. Bondin .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
reasonatile.
(2) Geographic location may be a selection criterion in procurements for
Updated 07/26/10 18
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 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.
(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
Updated 07/26/10 19
(3)
(4)
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.
(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.
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).
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;
Updated 07!26110 20
(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. (n accordance with Federal and State
statutes, a third party contract may be awarded to other than the lowest bidder, if the 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 sub-recipient 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.govl.
w. Procurement Notification Requirements. To the extent required by Federal law,
the State of North Carolina and any sub-grantees agree that, in administering any Federal
assistance Program or Project supported by the underlying Grant Agreement or Cooperative
Agreement, any request for proposals, solicitation, grant. application, form, notification, press
release, or other publication involving the distribution of FTA assistance for the Program or the
Project that it will identify the FTA grant source by listing the Catalog of Federal Domestic
Assistance Number of the program. The following FTA grant programs will be eligible to
participate in bids, 20.505, 20.507, 20.500, 20.513, 20.509, 20.516, and 20.521. Federal.
funding assistance up to eighty (80%) percent may be provided.
x. Contract Administration System. The Contractor shall maintain a contract
administration system that ensures that contractors/subcontractors pertorm 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
Updated. 07/26/10 21
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.
Section 16. 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. MBE/WBE/DBE Participation. The Contractor agrees to record and report
DBE/MBE/VVBE 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. Protect 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 17. Leases.
a. Capital Leases. All lease agreements must be approved by the Department
prior to execution. To the extent applicable, the Contractor agrees to comply with FTA
regulations, "Capital Leases," 49 C.F.R: Part 639, and any revision thereto. 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 18. Use of Real Property, Equipment, and Supplies. The Contractor
understands and agrees that the Federal/State Government retains aFederal/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 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
Updated 07/26/10 22
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 turn, 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 this Agreement.
c. Maintenance and Inspection of Vehicles, Facilities and Other Project
Equipment . The Contract or 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 intertere
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 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-
Updated 07/26/10 23
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).
Transfer to Public Agency for Non-Transit Use. Follow procedures for publication in Federal
Register to transfer property (land or equipment) to a public agency with no repayment to FTA.
This is a competitive process, and there is no guarantee that a particular public agency will be
awarded the excess properly. See 49 U.S.C., 5334(h)(1)-(h)(3).
(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.
(3J 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.
Updated 07/26/10 24
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 Sub-section 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 Proiect 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) Proiect 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) Proiect 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 Reauirement. The Contractor agrees to notify the
Department immediately when any Project property is prematurely withdrawn from appropriate
use, whether by planned withdrawal, misuse, or casualty loss.
(b) Calculating the Fair Market Value of Prematurely Withdrawn
Proiect 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 properly
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
Updated 07/26/10 25
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 Propertv. 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
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 Propertv. 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
Updated 07/26/10 26
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 19. Insurance. The Contractor shall be responsible for protecting the state
and/or federal financial interest in the facility construction/renovation, vehicle 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 20. 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 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
UrbarE Development regulations, "Lead-based Paint Poisoning in Certain Residential
Structures."
Section 21. Employee Protections.
a. Construction Activities. The Contractor agrees as applicable to comply, and
assure the compliance of each third party contractor, and each sub-recipient at any tier of the
Updated 07/26/10 27
Project, with the following laws and regulations providing protections for construction
employees:
1) 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
2) Copeland "Anti-Kickback" Act, as amended, 18 U.S.C. § 874, and
implementing. U.S. DOL regulations, "Contractors and Sub-contractors 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 sub-recipient 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 22. 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 23. Patent Rights. If any invention, improvement, or discovery of the
Contractor or any third party contractor or any sub-recipient at any tier of the Project is
conceived or first actually reduced to practice in the course of or under the Project, and that
invention, improvement, or discovery is patentable. under the laws of the United States of
America or any foreign country,. the Contractor agrees to notify-the Department immediately
and provide a detailed report in a format satisfactory to the Department. The Contractor agrees
that its rights and responsibilities, and those of each third party contractor at any tier of the
Project and each sub-recipient at any tier of the Project, pertaining to that invention,
improvement, or discovery will be determined in accordance with 37 C.F.R. Part 401 and any
.applicable Federal and State laws, regulations, including any waiver thereof. .FTA considers
Updated 07/26/10 28
income earned from license fees and royalties for patents, patent applications, and inventions
produced under the project to be project income. Except to the extent FTA determines
otherwise in writing, as provided in 49C.F.R. Parts 18 and 19, the Recipient has no obligation
to the Federal Government with respect to that program income, apart from compliance with 35
U.S. C. 200 et seq., which applies to patent rights developed under a research project.
Section 24. Rights in Data and Copyrights.
a. Data. The term "subject data," as used in this Section 14 of this Agreement
means recorded information, whether or not copyrighted, that is delivered or
specified to be delivered under this Agreement for the Project. Examples include,
but are not limited to: computer software, standards, specifications, engineering
drawings and associated lists, process sheets, manuals, technical reports, catalog
item identifications, and related information. "Subject data" does not include
financial reports, cost analyses, or similar information used for Project
administration. The Contractor acknowledges that, regarding any subject data first
produced in the performance of this Agreement for the Project, except for its own
internal use, the Contractor may not publish or reproduce subject data in whole or
in part, or in any manner or form, nor may the Contractor authorize others to do so,
without the written consent of the Department, unless the Department has
previously released or approved the release of such data to the public.
b. Copyrights. The Contractor acknowledges that the FTA reserves aroyalty-
free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use,
and to authorize others to use, for Federal Government purposes:
(1) The copyright in any work developed under this Agreement or
Sub-agreement/sub-contract; and
(2) Any rights of copyright to which the Contractor or its sub-recipients/
subcontractors purchase ownership with funds awarded for this
Project.
c. 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 State Government, the Contractor agrees to indemnify, save,
and hold harmless the 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 State
Government for any such liability caused by the wrongful acts of Federal or State
employees.
Section 25. 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
Updated 07/26/10 - 29
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. The recipient agrees to comply with the applicable
provisions of 23 U.S.C. _139 pertaining to environmental procedures, and 23 U.S. C. 326
pertaining to State responsibility for categorical exclusions, in accordance with the provisions
of joint FHWA/FTA final guidance, "SAFETEA-LU Environmental Review Process (Public Law
109-59)," 71 Fed. Reg. 6676 et seq, November 15, 2006, and any applicable Federal
directives that may be issued at a later date, except to the extent that FTA or the Department
deem 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 7671 q, 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
Updated 07/26/10 30
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 watertowl
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 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 Watertowl 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 Na.
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
Updated 07/26/10 31
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
maybe identified as commitments in applicable environmental 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 Government 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 26. 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 27. Substance Abuse. To the extent applicable, the Contractor agrees to
comply with the following Federal substance abuse regulations:
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 28. Charter Service Operations.
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
Updated 07/26/10 32
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 29. 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 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 30. 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
sub-agreements involving the Project.
Section 31. 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 32. 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 Government's administration or enforcement of Federal/State laws or
regulations. If the Contractor seeks to name the Federal/State Government 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 an 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
Updated 07/26/10 33
within any third party contract.
d. FTA and Department Concurrence. The FTA and the Department 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 33. 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 Government.
Section 34. Severability. If any provision of 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 35. Termination of Agreement.
a. The Department of Transportation. In the event of the Contractor's
non-compliance 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 pertormance 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. 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 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 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.
b. The Contractor. The Contractor may terminate its participation in the Project
Updated 07/26/10 34
by notifying .and receiving the concurrence of the Department sixty (60) days in
advance of the termination.
Section 36. 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.
For the De artment:
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 X 277
Fax: 919 733-2304
Email: CCWRIGHT NCDOT.GOV
For the Contractor:
IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS
Name: j/~L -'r~1Z1~
Title: -(Y~~sPo~--k~~ib.o /~c~m~~,a~~--"~' Name: (fit. FEZ'-~
Title: 1raaSPor`~~iaa ~~+~~5~-~'
Agency: C~~c~~~ ~~-~ Agency: ®~,~xy~ Cca.~
Postal av~,
Address: low ~'~y ~~ N Street Gao ~,~ ~ ~f1m~~
Address:
City/Zip: ~ 1 fS ~~~-~j'~'-~~ ' G- °~7~'~ $ City: /~h'tjs~ara ~1.G ~?~7 b~
Phone: Q15 D`E'S ~£iOg
Fax: Q~9° ?3~-~l~~'7
Email:G~tetr L~ ~- oranq~. mac. u5
Section 37. Federal Certification Regardinq Lobbying. The Contractor certifies, by
signing this Agreement, its compliance with Subsection 6e of this Agreement.
Section 38. Federal Certification Regardinq Debarment. The Contractor certifies, by
signing this Agreement, its compliance with Subsection 6c of this Agreement.
Section 39. Federal Certification Regardinq Alcohol Misuse and Prohibited Drug
Use. As required by FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use
Updated 07/26/10 35
in Transit Operations," at 49 CFR part 655, subpart I, 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 27b of this Agreement.
Section 40. Ethics Acknowledgement Policy on Gifts.
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."
Updated 07/26/10 36
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: E~ ~- 4fJ063~ `7
CONTRACTOR'S FISCAL YEAR END: JUNE 30, 2011
/ .
BY:
TITLE:
1
ATTEST: ~J:sC.V l~7dill.~.
TITLE: ~ ~, ~ 7" w ~~ ' ' ~
DEPARTMENT OF TRANSPORTATION
BY:
TITLE: DEPUTY SECRETARY FOR TRANSIT
ATTEST:
TITLE: SECRETARY
Updated 07/26/10 37