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HomeMy WebLinkAboutAgenda - 09-19-2007-4jORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 19, 2007 Action Agenda m Item No. _~~ ~ SUBJECT: Resolution Endorsing Congestion Mitigation and Air Quality (CMAQ). Grant Agreement with the NCDOT DEPARTMENT: Planning and Inspections ~ PUBLIC HEARING: (Y/N) ~~ ATTACHMENT(S): CMAQ Agreement & Resolution INFORMATION CONTACT: Karen Lincoln, 245-2594 Craig Benedict, 245-2592 PURPOSE: To consider a resolution to accept conditions set forth in a Congestion Mitigation and Air Quality (CMAQ) Agreement with the North Carolina Department of Transportation (NCDOT). BACKGROUND: The County, in December 2004, endorsed a resolution to approve a Congestion Mitigation and Air Quality (CMAQ) Program grant application for a Transit Center at the Durham Tech satellite campus site at Waterstone, including a Park and Ride Facility and three years operations assistance for a new Orange Public Transportation intra-Hillsborough service. The County, in that resolution, committed funding, subject to any additional information and review, for the required local match for each year's allocation, and for future operations of the intra- Hillsborough transit route. The County submitted the grant application to the Durham-Chapel Hill- Carrboro (DCHC) Metropolitan Planning Organization (MPO) and the Triangle Area Rural Planning Organization (TARPO). Transportation Advisory Committees of both the DCHC MPO and the TARPO endorsed Orange County's CMAQ application and recommended it to be included in the CMAQ program. The NCDOT programmed the proposed projects in a revision to the 2006-2012 Transportation Improvement Program (TIP). The TIP schedule delayed project implementation one year from that proposed by the DCHC MPO and TARPO (park & ride lot delayed from FFY 2007 to FFY 2008, and operations assistance delayed from FFY 2008-2010 to FFY 2009-2011). The CMAQ Agreement for TIP Project C-4932 parts A and B, as included in the current 2007-2013 TIP, incorporates the following funding schedule. Part A (Funded through DCHC CMAQ funds) Construction A FFY `08 $ 22,242 - (CMAQ) Operations A .FFY `09 $ 41,104 - (CMAQ) Part B (Funded through TARPO CMAQ funds) Construction B FFY `08 $ 89,018 - (CMAQ) Operations B FFY `09 $ 57,896 - (CMAQ) $ 5,561 - (Local Match) $ 41,104 - (Local-Match) $ 22,255 -.(Local Match) $ 57,896 - (Local Match) 2 Operations B FFY `10 $ 99,000 - (CMAQ) Operations B FFY `11 $ 99,000 - (CMAQ) Total: $733,076 $408,260 - (CMAQ) $ 99,000 $ 99,000 $324,816 - (Local Match) - (Local Match) - (Local Match) FINANCIAL IMPACT: Orange County would agree to provide $324,816 ($46,665 in FFY 2008 and $99,000 each year for FFY 2009-2010), and all costs that exceed the total amount of $733,076. After the initial three years, the County would be responsible for the entire operating expenses for the new transit route. $46,665 committed for FFY 2008 will come from monies programmed for the Durham Technical Community College Orange Campus. RECOMMENDATION(S): The Manager recommends that the Board: 1. Endorse the Resolution Accepting Conditions in the CMAQ Agreement with NCDOT, and authorize the County Manager to sign the agreement, subject to final review and approval by the staff and County Attorney to ensure that the County's policies and procedures adhere to federal requirements of the agreement; and 2. Direct staff to initiate discussions with the Town of Hillsborough regarding sharing in the local match for the first three years operating expenses for the intro-Hillsborough transit route, contributing to capital expenses to initiate the service, and contributing to future capital and operations costs of that service. 3 NORTH CAROLINA ORANGE COUNTY NORTH CAROLINA DEPARTMENT OF 5/09/07 TRANSPORTATION AND CONGESTION MITIGATION AND AIR QUALITY (CMAQ) AGREEMENT COUNTY OF ORANGE PROJECT: C-4932 CFDA NO. 20.205 THIS CMAQ AGREEMENT is made and entered into on the last date executed below, by and between the North Carolina Department of Transportation, an agency of the State of North Carolina, hereinafter referred to as the "Department" and the County of Orange, hereinafter referred to as the "County". WITNESSETH: WHEREAS, Title 23, Section 149 of the United States Code establishes a Congestion Mitigation and Air Quality Improvement Program; and, WHEREAS, the County has requested CMAQ provide funding for the construction of a 125 space park and ride lot, Orange County, North Carolina; and, WHEREAS, the Department has programmed funding in the 2006-2012 Transportation Improvement Program, as revised, for said Project C-4932, Orange County; and, WHEREAS, the Department and the County have agreed to assume certain responsibilities for said project as hereinafter set out. WHEREAS, the parties hereto shall execute this Agreement within ninety (90) days of receipt of this Agreement. In the event the County fails to execute said Agreement within ninety (90) days of receipt, said party shall be evaluated by the Department to determine whether forfeiture of CMAQ funds is warranted; and NOW, THEREFORE, in consideration of the foregoing recitals, the mutual agreements set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: -3- 4 1. The project shall consist of the construction of a 125 space park and ride lot. The project is divided into two sections as follows: Section A (DCHC): Orange County -Hillsborough to construct a 125 space park and ride lot and operating assistance for three years for new transit service including two transit shelters and four bicycle racks for transit buses. Section B (TARPO): Orange County -Hillsborough to construct a 125 space park and ride lot operating assistance for three years for new transit service including two transit shelters and four bicycle racks for transit buses. Said project, and the Department's funding participation in the project, shall be restricted to the design engineering and construction as described above. 2. Upon execution of this Agreement by the Department, the Department will request Preliminary Engineering authorization from the Federal Highway Administration. The County shall submit a letter of request to the Department's Transportation Planning Branch requesting the Department to set up preliminary engineering funds after receipt of the executed agreement. The Department will proceed with authorizing funds for preliminary engineering to guarantee availability of the funds for project authorization. The Department will notify the County, in writing, once project funds have been authorized and can be expended. The County shall not contract for, or pertorm, any work prior to receipt of written authorization from the Department to proceed. Any work performed, or contracts executed, prior to receipt of written authorization to proceed will be deemed ineligible for reimbursement. 3. Upon receipt of written notification to proceed, the County shall prepare the Project Planning Report and the Department will coordinate any required project reviews. The County shall be responsible for preparing and filing with all proper agencies the appropriate planning documents, if required, including notices and applications required to apply for those permits necessary for the project. Copies of approved permits should be forwarded to the Department. -4- 5 A. The County shall advertise and conduct any required public hearings. The County shall be responsible for conducting any needed public hearing meetings to collect public comments from all interested parties and securing an encroachment agreement, if necessary, from the Department for any project work adjacent or intersecting the State Highway System prior to finalizing design plans. B. If any permit issued requires that action be taken to mitigate impacts associated with the improvements, the County shall design and implement a mitigation plan. The County shall bear all costs associated with said mitigation plan, including penalties for violations and claims due to delays. C. The County shall be responsible for designing an erosion control plan if required by the North Carolina Sedimentation Pollution Control Act of 1973, G. S. 113A- 50, et seq., and obtaining those permits required thereby in order to construct the project. During the construction of the improvements, the County, and its contractors and agents, shall be solely responsible for compliance with the provisions of said Act and the plan adopted in compliance therewith. 4. If the County causes the professional engineering services required by this Agreement to be performed by contracting with a private engineering firm and seeks reimbursement for said services under this Agreement, it is agreed as follows: A. The County shall ensure that an engineering firm is obtained through an equitable selection process and that prescribed work is properly accomplished in a timely manner, at a just and reasonable cost. B. The County, when procuring architectural, professional and engineering services, must adhere to North Carolina Department of Transportation Rules and Regulations for Major Professional or Specialized Services Contracts. This policy conforms to N.C.G.S. 143-64, Parts 31 and 32, anct Title 23 of the Code of Federal Regulations, Part 172. The County shall comply with the policies and standards for negotiated contracts as contained in the -5- 6 Federal-Aid Policy Guide, Part 172; said policies and standards being incorporated in this Agreement by reference, and currently available at (www.fhwa.dot.gov/legsregs/legislat.html). C. The County shall submit all professional services contract proposals to the Department for review and prior to execution of the professional services contract by the County. Iri the event that the professional services contract proposal (professional and/or engineering) exceeds $30,000, apre-negotiation audit must be requested from the Department's External Audit Branch. D. Reimbursement for construction administration costs cannot exceed $61,239 which equals fifteen percent (15%) of the federal award amount of $408,260. This applies to private engineering firms and/or work performed by the County and/or the Department. The County, and/or its agent, shall perform project administration in accordance with all State and Federal policies and procedures. 5. Upon approval of the Project Planning Report, the Department shall provide notice to proceed for the County to develop, implement and administer the conversion of the construction of space park and ride lot. The County shall be responsible for administering all work performed and for certifying to the Department that all terms set forth in this Agreement are met and adhered to by the County and/or its contractors and agents. The Department will provide technical oversight to guide the County. 6. The County shall provide a detailed program plan to the Department's Transportation Planning Branch within sixty -(60) days after receiving notification to proceed. The program shall address the details of program implementation to include but not be limited to, a project schedule, procedural plan, specific tasks and deliverables, eligible technologies, and an explanation of emissions savings calculations. Project evaluations plans shall be submitted to the Department's Transportation Planning Branch addressing short-term and long- term concerns as well as evaluation reports assessing the progress for the educational and outreach programs. Interim reports are due quarterly for review by the Department's -6- Transportation Planning Branch. The County is responsible for submittal to the Department's Transportation Planning Branch quarterly project evaluation reports that assess the progress and potential benefits realized for the project as required by federal regulations governing reimbursement of Congressional funding. 7. The County, at no expense to the Department shall acquire any needed right of way and/or construction easements required for the project and shall remove from said rights of way all obstructions and encroachments of any kind or character with the exception that the County shall secure an encroachment agreement for any utilities which shall remain or are to be installed within the right of way. The acquisition of right of way and/or construction easements may be undertaken only after the County receives written authorization from the Department to proceed with this phase of the project. Acquisition of all right of way and/or construction easements shall be in accordance with the Right of Way Acquisition Policy contained in the Federal-Aid Policy Guide, 49 CFR Part 24. Further, the County shall indemnify and save harmless the Department, FHWA, and the State of North Carolina, their respective officers, directors, principals, employees, agents, successors, and assigns from and against any and all claims for damages that might arise on account of the acquisition of right of way, drainage and construction easements for the construction of said project in accordance with the plans on file with the Department. If during construction of this project, underground storage tanks or contaminated and/or hazardous material is discovered or becomes known to the County, the County must remove and dispose of said material. The County shall be solely responsible for any damages caused by the existence of said material and shall provide the Department with documentation proving said material's proper disposal. 8. The County, at no expense to the Department, shall accomplish or cause to be accomplished the relocation or adjustment of any and all publicly, municipally, or privately- owned utilities in conflict with construction of the project. Said utility work shall be undertaken only after the~County receives written authorization from the Department to proceed and shall -7- 8 be accomplished in accordance with departmental standards, specifications, policies and procedures. A plan showing utility conflicts shall be included in the final plans 9. The County shall prepare, or cause to be prepared, the project plans, specifications for the project and engineer's estimates of project costs (PS&E package). All work shall be performed in accordance with State and Federal standards and American Association of State Highway and Transportation Official's (AASHTO) specifications, policies, and procedures. Said work shall be submitted to the Department's Transportation Planning Branch for review and approval. The plans shall be completed to show the design, site plans, landscaping, drainage, and easements. 10. The preliminary PS&E package is due to the Department within twelve (12) months of execution of this Agreement with a final PS&E package due within eighteen (18) months of execution of this Agreement. The Department reserves the right to revoke the. CMAQ funds if the County is unable to submit the PS&E package to the Department for review and approval by the dates noted above. The Department may extend the deadline for PS&E submittal and/or project completion if, in the opinion of the Department, circumstances so warrant an extension of time for the required submittal. Extensions of time granted will be documented in writing. 11. In the event construction has not begun on the project, or the project has not been let to contract within six (6) months after receiving final approval of PS&E plans and proposals from the Department, the County shall be responsible for documenting to the Department justification for project delay and that the project remains in compliance with the terms of this Agreement, the approved plans and specifications, and current codes. 12. The County shall provide relocation assistance services and payments for families, businesses, and non-profit organizations being displaced by the project. Relocation assistance services and payments may be accomplished by contract with any other corporation, or State or Federal agency, rendering such services upon approval by the Department and -8- 9 Federal Highway Administration. Such services and payments shall be made in accordance with Federal-Aid Policy Guide, 49 CFR Part 24 and the North Carolina General Statutes, Chapter 133, Article 2, Sections 133-5 through 133-18. 13. The County shall follow all State and Federal Highway Administration regulations pertaining to bid procedures in the award of the contract. Said Federal Highway Administration regulations are contained in Federal-Aid Policy Guide, 23 CFR Part 633, Subpart A and 23 CFR Part 635, Subpart A; said policy being incorporated in this Agreement by reference as fully as if herein set out, and currently available at http://www.fhwa.dot.gov/legsregs/directives/fapgtoc. htm. 14. The required environmental and/or planning document, right of way certification, final construction plans, total contract proposal, and an estimate of the project costs shall be submitted to the Department's Transportation Planning Branch for review and approval prior to advertising the project for construction bids. Subject to successful completion and approval of the environmental and/or planning document, right of way certification, final construction plans, total contract proposal, and an estimate of the project costs (final PS&E package), the . Department's Transportation Planning Branch will request construction authorization from the Federal Highway Administration. Prior to advertising, the County shall submit, in writing, to the Department's Transportation Planning Branch, a request for approval to advertise. This request shall include a certification that the County has acquired all necessary right-of--way.. and/or easements for the construction of the project, and that arrangements have been made with all utility owners to relocate or adjust their facilities in accordance with the Right of Way Acquisition Policy contained in the Federal-Aid Policy Guide, 49 CFR Part 24. Upon receipt of written construction authorization from the Department, the County may advertise the project. The County shall review the bids and recommend, through resolution of the County, a qualified low bidder. Any contract for which bids are received in excess of one million two hundred thousand dollars ($1,200,000) will be reviewed by the Department's State Contract Officer and -9- 10 must be approved by the Board of Transportation. Bids received, depicting DBE Goals along with the recommendation of the qualified low bidder, shall be submitted to the Department's Transportation Planning Branch for approval prior to the contract being awarded by the County. The Department will review all bids and the County's recommendation of the qualified low bidder, and the Board of Transportation may approve or reject the County's recommendation. After approval of a qualified low bidder by the Board of Transportation, the County may award the contract. Further, upon award of the project to contract, the County will furnish to the Department two (2) sets of plans with one (1) final contract. All work shall be performed in accordance with Departmental standards and specifications and the plans must be prepared in Microstation format using Geopak software. Letting of contracts for construction and purchases shall be in accordance with Federal Aid Policy Guide, 23 CFR Part 635 and the North Carolina General Statute 143-129. 15. The County shall construct, or cause to be constructed, the project in accordance with the plans and specifications of the project as filed with, and approved by, the Department and in accordance with Federal policies and procedures. The County shall enter into and shall administer.the construction contract for said project and the procedures set out herein below shall be followed: (A) The County, and/or its agent, shall cause to be performed, or will perform, all work required with its own forces. (B) The County shall perform or cause to be performed the necessary construction engineering, sampling and testing, and supervision required during construction of the Project. (C) The County shall be responsible for all sampling and testing required; however, upon written request from the County, the Department will consider pre-testing items that are included in the Department's established statewide program. -10- 11 (D) The County shall sample and test all materials in reasonable close conformity with the Department's Guide for Process Control and Acceptance Sampling and Testing. The inspections shown on the attachment will be at no cost to the County. The County shall certify to the Department that said compliance was accomplished in accordance with State and Federal procedures, guidelines, standards and specifications. (E) The Department and/or a representative of the Federal Highway Administration shall have the right to inspect, sample or test, and approve or reject, any portion of the Project during construction. (F) The Department, at its discretion, may assign a district and/or resident engineer to the project who shall have the right to inspect any portion of the work being performed by the County or the County's contractor to ensure compliance with the provisions of this Agreement. The district and/or resident engineer will be the Department's representative on the project. The district and/or resident engineer will furnish the County with any forms that may be needed in order to follow standard Department practices and procedures in the administration of the contract. (G) During construction of the project, if any changes in the plans. are necessary, such changes must be approved by the Department prior to the work being performed. (H) Prior to final approval and payment by the Department, the Department and/or a representative of the Federal Highway Administration will be given the opportunity to make a final inspection of the completed work. (I) The County will be responsible for insuring that the contractor complies with all of the terms of the contract and any instructions issued by the Department and/or the Federal Highway Administration as a result of any review or inspection. (J) Upon completion of the Project, the County will furnish or cause to be furnished to the Department, a certification that contract administration has been accomplished -11- 12 in accordance with State and Federal procedures, guidelines, standards and specifications. The County shall also furnish certification that materials used in the construction meet the requirements as set forth in this Agreement. (K) Upon completion of the project, the County will furnish the Department with two (2) complete sets of "Plan of Record" plans. (L) The County shall maintain records to document quantities for which the contractor is paid during any monthly estimate period. (M) The County shall maintain all records that establish final documentation of quantities incorporated into the Project in accordance with established federal procedures. (N) All Project records developed by the County that are not submitted to the Department shall be retained by the County for a period of five (5) years after the final voucher is paid by the Federal Highway Administration. (O) During construction of the Project, the County shall provide and maintain adequate barricades, signs, signal lights, flagmen, and other warning devices for the protection of traffic in conformance with the traffic control plan for the Project and with the current edition of the Manual on Uniform Traffic Control Devices for Streets an Highways, or any subsequent revision of the same, published by the Federal Highway Administration. (P) Failure on the part of the County to comply with any of these provisions will be grounds for the Department to withdraw participation on any or all of the-items of work involved. 16. If in the opinion of the Department and/or FHWA, satisfactory progress has not been made to complete the project per the terms of this agreement, the Department and/or FHWA reserves the right to de-obligate said funding. 17. Subject to the availability of federal funds, the Department shall reimburse the County the approved eligible costs up to the maximum federal award amount of $408,260 available under CMAQ. The County shall provide matching fuhds in the amount of $324,816 for -12- 13 the CMAQ funding. The total maximum federal award amount provided to the County for the construction of a 125 space park and ride lot is $408,260 with the County providing $324,816 and all costs that exceed the total amount of $733,076. The County shall be responsible for funding any ineligible project costs not reimbursed by the FHWA. Reimbursement to the County shall be subject to the policies and procedures contained in Federal-Aid Policy Guide, 23 CRF Part 140, which is being incorporated into this Agreement by reference, and is currently available at http://www.fhwa.dot.gov/legsregs/directives/fapcttoc.htm. Said reimbursement shall also be subject to the Department being reimbursed by the Federal Highway Administration, which is to participate in the eligible costs of the project up to the maximum amount of $408,260, subject to compliance with all applicable federal policy and procedural rules and regulations. The CMAQ funding for this project is as follows: PART A: (DCHC) Construction (A) FFY '08 - $ 22,242 (CMAQ) Construction (A) FFY '08 - $ 5,561 (Local Match) Construction (A) FFY '09 - $ 41,104 (CMAQ) Construction (A) FFY '09 - $ 41,104 (Local Match) PART B: (TARPO) Construction (B) FFY '08 - $ 89,018 (CMAQ) Construction (B) FFY '08 - $ 22,255 (Local Match) Operations (B) FFY '09 - $ 57,896 (CMAQ) Operations (B) FFY '09 - $ 57,896 (Local) Operations (B) FFY'10 - $ 99,000 (CMAQ) Operations (B) FFY'10 - $ 99,000 (Local) Operations (B) FFY'11 - $ 99,000 (CMAQ) Operations (B) FFY'11 - $ 99,000 (Local) Total Cost $733,076 (CMAQ/Local Match) -13- 14 (A) The County may bill the Department for actual costs on a quarterly basis as herein stated by submitting an invoice along with proper supporting documentation to the Department's Transportation Planning Branch. The Department's Transportation Planning Branch and the Financial Management Division will reimburse the County quarterly upon approval of said invoice. The project must progress in a satisfactory manner in the opinion of the Department and the County must invoice the Department for work accomplished at least once every six (6) months to keep the project funds active and available. If the project does not remain active, the Department and/or FHWA reserves the right to de-obligate said funding. If any work is performed by the Department for review and inspection and/or at the request of the County, the Department's Transportation Planning Branch shall reduce the maximum federal award amount of $408,260 available to the County under this Agreement. (B) The County shall be responsible for adhering to applicable administrative requirements of 49 CFR Part 18, and currently available at http://www.fhwa.dot.gov/legsregs/directives/fapgtoc.htm and Office of Management and Budget (OMB) Circular A-102, and currently available at www.whitehouse.gov/omb/circulars/a102/a102. html. (C) Prior approval is required from FHWA if the County desires to perform any work by force account. Force account work is only allowed when there is a finding of cost effectiveness for the work to be performed by some method other than contract awarded by competitive bidding process. Said Federal Highway Administration regulations are contained in Federal-Aid Policy Guide, 23 CFR Part 635, Subpart B; said policy being incorporated in this Agreement by reference, and currently available at www.access.gpo.gov/nara/cfr/waisidx 03/23cfr635 03.html as fully as if herein set out. Said invoices for force account work shall show a summary of labor, labor additives, equipment, materials and other qualifying costs in conformance with the standards for allowability of costs set forth in Office of Management and Budget (OMB) Circular A-87. Reimbursement shall be based on actual cost incurred with the -14- 15 exception of equipment owned by the County or its project partners. Reimbursement for rates of equipment owned by the County or its project partners cannot exceed the Department's rates in effect for the time period in which the work is performed. If a contractor performs the work, said invoices shall show the contract cost. (D) In accordance with OMB Circular A-133, "Audits of States, local Governments and Non-Profit Organizations", and currently available at (www.whitehouse.gov/omb/circulars/a133/a133.html) dated June 27, 2003 and the Federal Single Audit Act Amendments of 1996, the County shall arrange for an independent financial and .compliance audit of its fiscal operations. The County shall furnish the Department with a copy of the independent audit report within thirty -(30) days of completion of the report, but not later than nine (9) months after the County's fiscal year ends. (E) Any costs incurred by the County prior to written notification by the Department of federal authorization to proceed with the work shall not be eligible for reimbursement. (F) A final itemized invoice listing all costs shall be submitted to the Department's Transportation Planning Branch. Upon completion of the work, the County must submit an invoice that is clearly stamped or marked "Final Invoice" for reimbursement of any remaining costs to be paid under the terms of this Agreement. Upon receipt of the "Final Invoice," the Department will de-obligate any remaining funds and close the project subject to final review and audit. (G) The County agrees that it shall bear all costs for which it is unable to substantiate actual costs, or any costs, which have been deemed unallowable by the Federal Highway Administration and/or the Department's Financial Management Division. In the event funding is withdrawn by FHWA, project reimbursement shall be subject to the availability of any remaining federal funds. -15- 16 (H) Failure on the part of the County to comply with any of these provisions will be grounds for the Department and/or FHWA to terminate participation in the costs of the work. (I) The County shall construct, or cause to be constructed, the project within one (1) year of execution of this Agreement. (J) All invoices must be submitted within six (6) months of completion and acceptance of the work by the Department and FHWA or said invoices will be considered ineligible items for payment. (K) The County agrees that, if the Federal Highway Administration does not participate in certain costs because of noncompliance with Federal and/or State regulations by the County, the County will reimburse the Department for such costs. All costs not reimbursed to the Department by the FHWA for noncompliance by the County shall be borne by the County. (~) In the event any monies are due to the Department as referenced in this Agreement, said funds shall be submitted within sixty (60) days of invoicing by the Department. The Department shall charge a late payment penalty and interest on any unpaid balance due in accordance with G.S. 147-86.23. (M) The Department reserves the right to deduct monies from the County's Powell Bill Fund if monies paid to the County from the project funds are determined by the Department and/or FHWA, either by audit and/or inspection of books, documents, papers, accounting records, and such other evidence as may be appropriate to substantiate costs, not to be in compliance with the terms of this agreement. 18. The County and its agents shall maintain all books, documents, papers, accounting records, and such other evidence as may be appropriate to substantiate costs incurred under this Agreement. Further, the County shall make such materials available at its office and shall require its agent to make such materials available at its office at all reasonable -16- 17 times during the contract period, and for five (5) years from the date of final payment under this Agreement, for inspection and audit by the Department's Financial Management Section 19. The County, and/or its agent, shall comply with the following federal policies: (a) Conflict of Interest; (b) Equal Employment Opportunity; and (c) Title VI -Civil Rights Act of 1964. 20. The County, and/or its agent, including all contractors, sub-contractors, or sub-recipients, shall also comply with the following federal policy: Disadvantaged Business Enterprises (DBE) as defined in 49 CFR Part 26. Appendix e.1 -DISADVANTAGED BUSINESS ENTERPRISES (Long Term Agreement) DISADVANTAGED BUSINESS ENTERPRISE 03-15-07R POLICY It is the policy of the North Carolina Department of Transportation that Disadvantaged Business Enterprises shall have the opportunity to participate in the performance of contracts financed in whole or in part by Federal Funds in order to create a level playing field. The Firm is also encouraged to give every opportunity to allow DBE participation in Supplemental Agreements. OBLIGATION The Firm, subcontractor, and sub-recipient shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The firm shall carry out applicable requirements of 49 CFR 26 in the award and administration of federally assisted contracts. Failure by the firm to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the Department deems necessary. GOALS A. Disadvantaged Business Enterprises (DBE) goals will not be established for the scope of work identified in Provisions 2-9 of this agreement. For those items of work, the Municipality shall report the anticipated utilization of DBE's .during the completion of this work as defined in the LISTING OF DBE SUBCONTRACTORS below. -17- 18 B. Goals for participation by Disadvantaged Business Enterprises (DBE) shall be established for this contract and approved by NCDOT's Contractual Services Unit prior to advertising for construction bids. In accordance with (insert program guide name here) guidelines, a Disadvantaged Business Enterprise special provision will be submitted along with the funding authorization for the construction phase of the project. The Firm shall exercise all necessary and reasonable steps to ensure that Disadvantaged Business Enterprises participate up to the level submitted in the firms Letter of Interest (LOI) or project proposal. LISTING OF DBE SUBCONTRACTORS All firms, at the time the project proposal is submitted, must also submit a listing of DBE participation on the appropriate form (or facsimile thereof) contained elsewhere in this proposal in order for the project proposal to be considered responsive. Firms must indicate the total dollar value of DBE participation for the contract. In the event the firm has no DBE participation, it is still required to indicate this on the forms by entering the word or number zero. Blank forms will not be deemed to represent zero participation. PROJECT PROPOSALS SUBMITTED WHICH DO NOT HAVE DBE PARTICIPATION INDICATED ON THE APPROPRIATE FORM WILL NOT BE READ PUBLICLY DURING THE OPENING OF PROJECT PROPOSALS. The Department will not consider these project proposals for award and they will be returned to the firm. Firms have the option of submitting their DBE participation in an abbreviated format as required in Paragraph A below, or the firm may submit their DBE participation in the additional detail required by Paragraph B below. In the event the firm elects to submit DBE participation in accordance with Paragraph A and is selected, that firm must deliver to the Department no later than 12:00 noon of the sixth day following the opening of project proposals, a detailed DBE submittal as required by Paragraph B below. Only those DBE firms with current certification by the Department will be considered acceptable for listing in the firm submittal of DBE participation. A. The Firm shall indicate on the form for listing of DBE subcontractors contained elsewhere in this proposal the following required information: REQUIRED INFORMATION (1) The names and federal tax ID of DBE firms committed to participate in the contract (2) The description of the Service or Item to be performed and/or provided by each DBE firm; and -18- 19 (3) The anticipated utilization of each DBE based on planned efforts. Failure to indicate the required information on the specified form will cause the LOI or project proposal to be considered nonresponsive and it may be rejected. B. In lieu of submitting the information required by (A) above, the firm may submit the detailed information that required below along with the LOI or project proposal form. REQUIRED INFORMATION (1) The names and federal tax ID of DBE firms committed to participate in the contract (2) The Contract Item Numbers and Contract Item Descriptions and agreed upon unit prices of work to be performed by each DBE firm; and (3) The total dollar amount to be paid to each DBE based on agreed upon unit prices. Failure to indicate the required information on the specified form will cause the LOI or project proposal to be considered nonresponsive and it may be rejected. The firm is required to submit written documentation of the firm's commitment to use a DBE subcontractor and written confirmation from each DBE, listed in the proposal form, indicating their participation in the contract. The. Department will not allow any substitutions, deletions, or other alterations to the listing of firms committed for DBE participation and/or the respective listed contract item numbers after the opening of the LOI or proposal. The Department will not allow adjustments to total dollar amount of DBE participation after the opening of LOI or project proposals that would result in the DBE participation being less than the anticipated utilization. DBE DIRECTORY Firms can access a list of Disadvantaged Business Enterprises (DBE) which have been certified as such by the North Carolina Department of Transportation by clicking on the following http://apps.dot.state.nc.us/vendor/directorLd: Only those DBE firms with current certification may be listed in the proposal form. The listing of an individual firm in the Department's directory shall not be construed as an endorsement of the firms' capability to perform certain work. DEFINITIONS -19- 20 For purposes of this provision the following definitions will apply: (1) Socially and economically disadvantaged individuals means a person who has a net worth of $750,000.00 or less and is a citizen or lawful permanent resident of the United States and who is: (a) A Black American (b) A Hispanic American (c) A Subcontinent Asian American (d) A Native American (e) An Asian-Pacific American (f) A Woman (g) Members of other groups, or other individuals found to be economically and socially disadvantaged by the Small Business Administration under Section 8(d) of the Small Business Act, as amended (15 U.S.C. 637(d)). (h) Members of other groups, or other individuals found to be economically and socially disadvantaged by the N. C. Department of Transportation under the Criteria for Disadvantaged Business Enterprises as published by the Department. (2) Disadvantaged Business Enterprise (DBE) means afor-profit small business concern. (a) That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation in which 51 percent of the stock is owned by one or more such individuals; and (b) Whose management and daily business operation are controlled by one or more of the socially and economically disadvantaged individuals who own it, REPORTING DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION When payments are made to Disadvantaged Business Enterprise firms, including material suppliers, firms at all levels (prime, subcontractor, or second tier subcontractor) shall provide the Engineer or Contract Administrator with an accounting of said payments. This accounting shall be furnished the Engineer or Contract Administrator for any given month by the end of the following month. Failure to submit this -20- 21 information accordingly may result in (1) withholding of money due in the next partial pay estimate; or (2) removal of an approved Firm from the prequalified bidders list or the removal of other entities from the approved subcontractors list. The accounting shall list for each payment made to a Disadvantaged Business Enterprise firm the following: DOT Project Number Payer Firm Name and Federal Taxpayer ID Receiving Subcontractor or Material Supplier and Federal Taxpayer ID Amount of Payment Date of Payment This document shall be on the Department's DBE Subcontractor Payment Information Form. A responsible fiscal officer of the payee firm, subcontractor, or second tier subcontractor 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 Engineer or Contract Administrator. 21. It is the policy of the Department not to enter into any agreement with another party that has been debarred by any government agency (Federal or State). The County certifies, by signature of this agreement, that neither it nor its agents or contractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any Federal or State Department or Agency and that it will not enter into agreements with any entity that is debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction. 22. The County shall certify to the Department compliance with all Applicable Federal environmental laws and regulations and ordinances and shall indemnify the Department against any fines, assessments or other penalties resulting from noncompliance by the County or any entity performing work under contract with the County. 23. The County is solely responsible for all agreements, contracts, and work orders entered into or issued by the County for this project. The Department shall not be held liable, by the County, for any expenses or obligations incurred for the project except those specifically eligible for the federal funds and obligations as approved by the Department under the terms of -21- 22 this Agreement. The Department shall not reimburse the County any costs that exceed the total federal funding at any time. 24. The County will indemnify and hold harmless the Department, FHWA and the State of North Carolina, their respective officers, directors, principals, employees, agents, successors, and assigns from and against any and all claims for damage and/or liability in connection with the project activities. performed pursuant to this Agreement, including construction of the Project. The Department shall not be responsible for any damages or claims for damages, which may be initiated by third parties. 25. Upon completion of the project, the County, at no cost or liability whatsoever to the Department, shall assume all maintenance responsibilities for the .125 space park and ride lot unless said improvements are within the state maintained highway system. 26. All terms and conditions of this Agreement are dependent upon, and, subject to the allocation of funds for the purpose set forth in the Agreement and the Agreement shall automatically terminate if funds cease to be available. IT IS UNDERSTOOD AND AGREED that the approval of the project by the Department is subject to the conditions of this Agreement, and that no expenditures of funds on the part of the Department will be made until the terms of this Agreement have been complied with on the part of the County. -22- 23 IN WITNESS WHEREOF, this Agreement has been executed, in duplicate, the day and year heretofore set out, on the part of the Department and the County by authority duly given, as evidenced by the attached certified copy of Resolution, Ordinance or Charter Provision, as the case may be. ATTEST: BY: TITLE: COUNTY OF ORANGE BY: TITLE: DATE: This Agreement has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. (SEAL) Finance Officer Federal Tax Identification Number County of Orange Remittance Address: APPROVED AS TO EXECUTION: BY: BY: ASSISTANT ATTORNEY GENERAL DATE: -23- DEPARTMENT OF TRANSPORTATION STATE HIGHWAY ADMINISTRATOR 24 by COPY OF A RESOLUTION PASSED BY THE BOARD OF COMMISSIONERS OF THE COUNTY OF ORANGE, NORTH CAROLINA A motion was made by and seconded for the adoption of the following Resolution, and upon being put to a vote was duly adopted: WHEREAS, the County has requested CMAQ funding for the construction of certain improvements to consist of the construction of a 125-space park and ride lot including two transit shelters and four bicycle racks for transit buses in Hillsborough, Orange County, North Carolina; and, WHEREAS, the Department of Transportation has programmed funding in the 2006-2012 Transportation Improvement Program, as revised, for said park and ride lot under Project C-4932, Orange County; and, WHEREAS, the County proposes to enter into an Agreement with the North Carolina Department of Transportation for said park and ride lot as described in said Agreement; and, WHEREAS, under the proposed Agreement and subject to the Agreement provisions, the Department shall reimburse the County to the extent of eighty percent (80%) of the approved eligible costs up to the maximum federal award amount of $408,260. WHEREAS, the County shall provide at least twenty percent (20%) matching funds and all costs that exceed the federal award amount of $324,816; NOW, THEREFORE, BE IT RESOLVED by the Orange County Board of Commissioners that the County accepts all terms and conditions of the CMAQ Agreement and authorizes the County Manager to sign the Agreement with the Department of Transportation. I, ,Clerk of the County of Orange, do hereby certify that the foregoing is a true and correct copy of excerpts from the Minutes of the meeting of the Board of Commissioners duly held on the day of , 20 WITNESS, my hand and the official seal of said County on this the day of 20 (SEAL) CLERK COUNTY OF ORANGE NORTH CAROLINA -24-