HomeMy WebLinkAbout2016-517 OPT - NCDOT FY2017 Public Transportation Section 5339 Capital Program Grant AgreementSTATE OF NORTH CAROLINA
COUNTY OF WAKE
NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
and
ORANGE COUNTY
PUBLIC TRANSPORTATION
SECTION 5339 CAPITAL PROGRAM
GRANTAGREEMENT
C00T. NUMBER: M115A(c
PROJECT NUMBER: 17- 39 -056U
WBS ELEMENT: 44637.15.1.3
AGREEMENT: QCCCCO 5 -145
THIS AGREEMENT made this the I £F day of /, 20_�, by and
between the DEPARTMENT OF TRANSPORTATION (hereinafter referred to as "THE
Department"), an agency of the State of North Carolina, and ORANGE COUNTY (hereafter
referred to as the "Contractor ").
WHEREAS, Chapter 53 of Title 49 U.S.C. 5339 makes federal resources available to
states and direct recipients to replace, rehabilitate and purchase buses and related equipment
and to construct bus - related facilities including technological changes or innovations to modify
low or no emission vehicles or facilities and incorporates provisions of the Fixing America's
Surface Transportation Act (FAST or FAST Act) programs and the Moving Ahead for Progress
in the 21st Century Act (MAP -21) programs; and
WHEREAS, the purposes of Chapter 53 of Title 49 U.S.C. 5339 are to support state of
good repair, bus livability, veterans' transportation and community living, and clean fuels
initiatives. In addition, SAFETEA -LU allocated funds will be administered under this program for
fuel cell buses and the bus testing program; and
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 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
administer properly the public transportation programs within the State of North Carolina; and
WHEREAS, the Department and the Contractor desire to secure and utilize grant funds for
planning local public transportation services in North Carolina and /or for the purchase of capital
for the provision of transit services:
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the
Department and the Contractor agree as follows:
Section 1. Purpose of Agreement. The purpose of Agreement is to provide for the
undertaking of the planning study and /or capital improvements (hereinafter referred to as
"Project ") by the Contractor 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. Project Implementation. The Contractor agrees to carry out the Project as follows:
a. Scope of Proiect. Orange County (operating as Orange County Public
Transportation -OPT will use capital funds to replace (2) two radio units
and two vehicles that have met useful life with two lift equipped 28' light
transit vehicles. The Contractor shall undertake and complete the Project
as described in its Application, herewith incorporated by reference, filed with
and approved by the Department. The Contractor shall undertake and
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complete the Project in accordance with the procedures and guidelines set
forth in this Agreement and in the following documents:
(1) Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards," 2 CFR part 200
(2) FTA Master Agreement, document number FTA MA (21),
dated October 1, 2014, at (www Ha dot eov /documents/21- Mastecdoc)•
(3) The Section 5339 grant application for financial assistance
The aforementioned documents, and any subsequent amendments or revisions
thereto, are herewith incorporated by reference, and are on file with and approved
by the Department in accordance with the terms and conditions of this Agreement.
Nothing shall be construed under the terms of this Agreement by the Department or
the Contractor that shall cause any conflict with Department, State, or Federal
statutes, rules, or regulations:
b. Cost of Project. The total cost of the Project approved by the Department is
TWO HUNDRED ELEVEN THOUSAND ONE HUNDRED EIGHTY -EIGHT
DOLLARS ($211,188) as set forth in the Project Description and Budget,
incorporated into this Agreement as Attachment A.
(1) Federal Share. The Department shall provide, from Federal funds,
FIFTY -SIX POINT EIGHT PERCENT (56.8 %) of the actual net cost of
the Project, not in excess of ONE HUNDRED NINETEEN THOUSAND
NINE HUNDRED FIFTY -FOUR DOLLARS ($119,954).
(2) State Share. The Department shall provide, from State funds, THIRTY -
THREE POINT TWENTY PERCENT (33.20 %) of the actual net cost of
the Project, not in excess of SEVENTY THOUSAND ONE HUNDRED
FOURTEEN DOLLARS ($70,114).
(3) Local Share. The Contractor hereby agrees that it will provide Ten
PERCENT (10 %) of the actual net cost of the Project and any amounts in
excess of the Department's maximum. The net cost is the price paid minus
any refunds, rebates, or other items of value received by the Contractor
which have the effect of reducing the actual cost. The Contractor shall initiate
and prosecute to completion all actions necessary to enable it to provide its
share of the Project costs at the time directed.
C. 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, 2016 to JUNE 30, 2017 unless written authorization to the contrary is provided by
the Department. Any requests to change the Period of Performance must be
submitted 60 days before the end of the current Performance Period and in
accordance with the policies and procedures established 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.
d. Contractors Capacity. The Contractor agrees to maintain sufficient legal,
financial, technical, and managerial capability to:
(1) Plan, manage, and complete the Project;
(2) Carry out the safety and security aspects of the Project; and
(4) Comply with the terms of this agreement, the Master Agreement
between the FTA and the Department, the Approved Project Budget,
the Project schedules, and applicable Federal and State laws,
regulations, and directives.
e. Administrative Requirements. The Contractor agrees to comply with the
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following Federal and State administrative requirements:
(1) U.S. DOT regulations, "Uniform Administrative Requirements, Cost
Principles, and Audit requirements for Federal Awards,' 2 CFR part
200 (http: / /www, access. gpo. gov /nara /dr /cfr- table- search.html #pagel).
(2) Title 19A North Carolina Administrative Code (N.C.A.C.) Subchapter
5B at (http: // reports .oah.state.nc.us /ncac.asp).
f. Application of Federal, State. and Local Laws. Regulations, and Directives.
To achieve compliance with changing federal requirements, the Contractor makes
note that federal, state and local requirements may change and the changed
requirements will apply to this Agreement as required.
g. 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, 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.
(3) Significant Participation by a Lessee of a Contractor. Although the
contractor may lease project property and delegate some or many project
responsibilities to one or more lessees, the Contractor agrees that it, rather
than any lessee, is ultimately responsible for compliance with all applicable
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Federal laws, regulations, and directives, except to the extent that FTA
determines otherwise in writing.
h. Contractor's Responsibility to Extend Federal and State Requirements to
Other Entities.
(1) Entities Affected. Only entities that are signatories to this Agreement
for the Project are parties to this agreement. To achieve compliance with
certain Federal and State laws, regulations, or directives, however, other
Project participants, such as subrecipients and third party contractors, will
necessarily be involved. Accordingly, the Contractor agrees to take the
appropriate measures necessary to ensure that all Project participants
comply with applicable Federal and State laws, regulations, and directives
affecting their performance, except to the extent the Department determines
otherwise in writing.
(2) Documents Affected. The applicability provisions of Federal and State
laws, regulations, and directives determine the extent to which their
provisions affect a Project participant. Thus, the Contractor agrees to include
adequate provisions to ensure that each Project participant complies with
those Federal and State laws, regulations, and directives, except to the
extent that the Department determines otherwise in writing. In addition, the
Contractor also agrees to require its third party contractors, subrecipients,
and lessees to include adequate provisions to ensure compliance with
applicable Federal and State laws, regulations, and directives in each lower
tier subcontract and subagreement for the Project, except to the extent that
the Department determines otherwise in writing. Additional requirements
include the following:
(a) Third Party Contracts. Because Project activities performed by a
third party contractor must comply with all applicable Federal and State
laws, regulations, and directives, except to the extent the Department
determines otherwise in writing, the Contractor agrees to include
appropriate clauses in each third party contract stating the third party
contractor's responsibilities under Federal and State laws, regulations,
and directives, including any provisions directing the third party
contractor to extend applicable requirements to its subcontractors at
the lowest tier necessary. When the third party contract requires the
third party contractor to undertake responsibilities for the Project
usually performed by the Contractor, the Contractor agrees to include
in that third party contract those requirements applicable to the
Contractor imposed by the Grant Agreement for the Project 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) Subagreements. Because Project activities performed by a
subcontractor /subrecipient 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:
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1. Written Subagreement. The Contractor agrees to enter into
a written agreement with each subrecipient (subagreement)
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 subagreement appropriate clauses directing the
subrecipient to comply with those requirements applicable to the
Contractor imposed by this Agreement for the Project or the FTA
Master Agreement and extend those requirements as necessary
to any lower level subagreement or any third party contractor at
each tier, except as the Department determines otherwise in
writing.
I. 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 subrecipient,
third party contractor, lessee or other person or entity that is not a party to this
Agreement for the Project. Notwithstanding that the Federal /State Government
may have concurred in or approved any solicitation, subagreement, third party
contract or lease, the Federal /State Government has no obligations or liabilities to
such entity, including any subrecipient, third party contractor or lessee.
j. Changes in Project Performance (i.e., Disputes. Breaches. Defaults. or
Litigation). 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;
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.
k. Limitations of Agreement. This Agreement shall be subject to the availability of
State funds, and contingent upon the terms and conditions of the Master
Agreement between the FTA and the Department.
Section 3. Ethics.
a. Code of Ethics. The Contractor agrees to maintain a written code or
standards of conduct that shall govern the actions of its officers, employees, board
members, or agents engaged in the award or administration of third party contracts,
subagreements, 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 subrecipient at any tier or agent thereof, or any lessee.
Such a conflict would arise when an employee, officer, board member, or agent,
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including any member of his or her immediate family, partner, or organization that
employs, or intends to employ, any of the parties listed herein has a financial
interest in the firm selected for award. The Contractor may set de minimis rules
where the financial interest is not substantial, or the gift is an unsolicited item of
nominal intrinsic value. The Contractor agrees that its code or standards shall also
prohibit the its officers, employees, board members, or agents from using their
respective positions in a manner that presents a real or apparent personal or
organizational conflict of interest or personal gain. As permitted by State or local
law or regulations, the Contractor agrees that its code or standards of conduct shall
include penalties, sanctions, or other disciplinary actions for violations by its
officers, employees, board members, or their agents, its third party contractors or
sub - recipients or their agents. N.C.G.S. § 133 -32 and Executive Order 24, of
October 1, 2009 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 this Agreement, Contractor attests, for its
entire organization and its employees or agents, that it is not aware that any gift in
violation of N.C.G.S. § 133 -32 and Executive Order 24 has been offered, accepted,
or promised by any employees of Contractor.
(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.
b. 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.
C. Bonus or Commission. The Contractor affirms that it has not paid, and
agrees not to pay, any bonus or commission to obtain approval of its Federal /State
assistance application for the Project.
d. Lobbying Restrictions. The Contractor agrees that:
(1) In compliance with 31 U.S.C. 1352(a), it will not use Federal assistance
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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.
e. Employee Political Activity. To the extent applicable, the Contractor agrees
to comply with the provisions of the Hatch Act, 5 U.S.C. §§ 1501 through 1508, and
7324 through 7326, and U.S. Office of Personnel Management regulations,
"Political Activity of State or Local Officers or Employees," 5 C.F.R. Part 151. The
Hatch Act limits the political activities of State and local agencies and their officers
and employees, whose principal employment activities are financed in whole or part
with Federal funds including a Federal grant, cooperative agreement, or loan.
Nevertheless, in accordance with 49 U.S.C. § 5307(k)(2)(B) and 23 U.S.C. §
142(g), the Hatch Act does not apply to a non - supervisory employee of a public
transportation system (or of any other agency or entity performing related functions)
receiving FTA assistance to whom the Hatch Act would not otherwise apply.
f. 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 Federal /State Government
concerning the Project, the Federal /State Government reserves the right to
impose on the Contractor the penalties of the Program Fraud Civil Remedies
Act of 1986, as amended, to the extent the Federal /State Government deems
appropriate.
(1) Criminal Fraud. If the Contractor makes a false, fictitious, or fraudulent
claim, statement, submission, certification, assurance, or representation to
the Federal /State Government or includes a false, fictitious, or fraudulent
statement or representation in any agreement with the Federal /State
Government in connection with a Project authorized under 49 U.S.C. chapter
53 or any other Federal law, the Federal /State Government reserves the right
to impose on the Contractor the penalties of 49 U.S.C. § 5323(1)2 18 U.S.C. §
1001 or other applicable Federal /State law to the extent the Federal /State
Government deems appropriate.
Section 4. Project Expenditures.
a. General. The Department shall reimburse the Contractor for allowable costs
for work performed under the terms of this Agreement. 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
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agreed that the work conducted pursuant to this Agreement shall be done on an
actual cost basis by the Contractor. Expenditures submitted for reimbursement
shall include all eligible cost incurred within the Period Covered. The Period
Covered represents the monthly 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
approves 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 3
(three) business days. The amount of reimbursement from the Department shall
not exceed the funds budgeted in the approved Project Budget. 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. Administrative Expenditures. In order to assist the Contractor in financing the
administrative costs of the project, the Department shall reimburse the Contractor
up to the percentage specified in the Approved Project Budget of allowable
administrative costs which shall be determined by available funding.
C. Operating Expenditures. In order to assist in financing the operating costs of
the project, the Department shall reimburse the Contractor for the lesser of the
following when providing Section 5311 operating assistance:
(1) The balance of unrecovered operating expenditures after deducting all
farebox and other operating revenues, or
(2) Up to the percentage specified in the Approved Project Budget of the
allowable total operating expenditures which shall be determined by available
funding.
d. Capital Expenditures. In order to assist the Contractor in financing the capital
costs of the Project, the Department shall reimburse the Contractor up to the
percentage specified in the Approved Project Budget of allowable costs which shall
be determined by available funding.
e. Payment and Reimbursement. The Contractor shall submit itemized invoices
to the Department not more frequently than monthly, nor less frequently than
quarterly, reporting on the Department's Uniform Public Transportation Accounting
System (UPTAS) invoicing forms furnished by the Department for work performed
under this Agreement. Additional forms must be submitted with reimbursement
requests to report on contracting activities with Disadvantaged Business Enterprise
(DBE) firms. Invoices shall be supported by documentation of costs unless
otherwise waived by the Department. Expenditures submitted for
reimbursement shall include all eligible costs incurred within the Period
Covered. All requests for reimbursement must be submitted within (30) days
following the end of the project's reporting period. Failure to request
reimbursement for eligible projects costs incurred within the Period Covered
as outlined may result in non - payment and/or 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.
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f. Excluded Costs. The Contractor understands and agrees that, except to the
extent the Department determines otherwise in writing, ineligible costs will be
treated as follows:
(1) In determining the amount of Federal /State assistance the Department
will provide, the Department will exclude:
(a) Any Project cost incurred by the Contractor before the effective
date of the grant;
(b) Any cost that is not included in the latest Approved Project
Budget;
(c) Any cost for Project property or services received in connection
with a third party contract, sub - agreement, lease, or other
arrangement that is required to be, but has not been, concurred
in or approved in writing by FTA;
(d) Any non - project cost consistent with the prohibitions of 49
U.S.C. § 5323(h); and
(e) Any cost ineligible for FTA/Department participation as provided
by applicable Federal /State laws, regulations, or directives.
(2) The Contractor shall limit reimbursement for meals, lodging and travel to
the rates established by the State of North Carolina Travel Policy. Costs
incurred by the Contractor in excess of these rates shall be borne by the
contractor.
(3) The Contractor understands and agrees that payment 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 the allowability and
eligibility of any cost until an audit of the Project has been completed. If the
Federal /State Government determines that the Contractor is not entitled to
receive any portion of the Federal /State assistance the Contractor has
requested or provided, the Department will notify the Contractor in writing,
stating its reasons. The Contractor agrees that Project closeout will not alter
the Contractor's responsibility to return any funds due the Federal /State
Government as a result of later refunds, corrections, or other transactions;
nor will Project closeout alter the Federal /State Government's right to disallow
costs and recover funds 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.
g. Federal /State Claims, Excess Payments, Disallowed Costs. including
Interest.
(1) Contractor's Resgonsibility to Pay. Upon notification to the Contractor
that specific amounts are owed to the Federal /State Government, whether for
excess payments of Federal /State assistance, disallowed costs, or funds
recovered from third parties or elsewhere, the Contractor agrees to remit to
the Department promptly the amounts owed, including applicable interest and
any penalties and administrative charges.
(2) Amount of Interest. The Contractor agrees to remit to the Department
interest owed as determined in accordance with N.C.G.S. 147 - 86.23. Upon
notification to the Contractor that specific amounts are owed to the Federal
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Government, whether for excess payments of Federal assistance, disallowed
costs, or funds recovered from third parties or elsewhere, the Contractor
agrees to remit to the Federal Government promptly the amounts owed,
including applicable interest, penalties and administrative charges.
(3) Payment to FTA. Upon receipt of repayment from the Contractor, the
Department shall be responsible to remit amounts owed to FTA.
h. De- obligation of Funds. The Contractor agrees that the Department may de-
obligate unexpended Federal and State funds before Project closeout.
Section 5. 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 Annual
Budget and shall be reported to the Department in accordance with UPTAS.
b. Documentation of Pro set 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 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; and
(8) In compliance with U.S. DOT regulations pertaining to allowable costs
at 49 C.F.R. § 18.22(b) or 49 C.F.R. § 19.27, which regulations specify
the applicability of U.S. Office of Management and Budget (U.S. OMB)
circulars and Federal Acquisition Regulation (FAR) provisions are
follows:
(a1) U.S. OMB Guidance for Grants and Agreements, "Cost
Principles for State, Local, and Indian Tribal Governments
(OMB Circular A -87) ", 2 C.F.R. Part 225, applies to Project
costs incurred by a Contractor that is a State, local, or
Indian tribal government.
(b1) U.S. OMB Guidance for Grants and Agreements, "Cost
Principles for Educational Institutions
(OMB Circular A -21), "2 C.F.R. Part 220,
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applies to Project costs incurred by a Contractor
that is an institution of higher education.
(c1) U.S. OMB Guidance for Grants and Agreements "Cost
Principles for Non - profit Organizations (OMB Circular
A -122); 2 C.F.R. Part 230, applies to Project costs
incurred by a Contractor that is a private nonprofit
organization.
(d1) FAR, at 48 C.F.R., Subpart 31.2, "Contracts with
Commercial Organizations" applies to Project costs
incurred by a Contractor that is a for - profit organization.
Section 6. Reporting, Record Retention, and Access.
a. Reports. The Contractor shall advise the Department regarding the progress
of the Project at a minimum quarterly and at such time and in such a manner
as the Department may require. Such reporting and documentation may
include, but not limited to meetings and progress reports. The Contractor shall
collect and submit to the Department at such time as it may require, 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.
The Contractor will be responsible for having an adequate cost accounting
system, and the ongoing burden of proof of adequacy for such system shall be
upon the Contractor. The Department will determine whether or not the Contractor
has an adequate cost accounting system. Such determination shall be documented
initially prior to payment of any invoices pursuant to the Agreement, and from time
to time as deemed necessary by the Department. In the event of a negative finding
during such determining proceedings, the Department may suspend, revoke, or
place conditions upon its determination, and /or may recommend or require remedial
actions as appropriate.
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
(hftp://www.ah.dcr.state.nc.us/recordsAocalO.
C. Access to Records of Contractor and Subcontractors. The Contractor shall
permit and shall require its third party contractors to permit the Department, the
Comptroller General of the United States, and the Secretary of the United States
Department of Transportation, or their authorized representatives, to inspect all
work, materials, payrolls, and other data and records with regard to the Project, and
to audit the books, records, and accounts of the Contractor pertaining to the
Project.
d. Pro act Closeout. The Contractor agrees that Project closeout does not alter
the reporting and record retention requirements of this Section 6 of this Agreement.
Section 7. Proiect Completion. Audit. Settlement. and Closeout
a. Proiect 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.
Updated 04/15/16 11
b. Financial Reportino 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 Title 2 CFR 200 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 therein 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 8. Civil Rights. The Contractor agrees to comply with all applicable civil rights laws
and implementing regulations including, but not limited to, the following:
a. Nondiscrimination in Federal Public Transportation Programs. The
Contractor agrees to comply, and assures the compliance of each third party
contractor at any tier and each subrecipient at any tier of the Project, with the
provisions of 49 U.S.C. § 5332, which prohibit discrimination on the basis of race,
color, creed, national origin, sex, or age, and prohibits discrimination in employment
or business opportunity.
b. Nondiscrimination — Title VI of the Civil Rights Act. The Contractor agrees to
comply, and assures the compliance of each third party contractor at any tier and
each subrecipient at any tier of the Project, with all provisions prohibiting
discrimination on the basis of race, color, or national origin of Title VI of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d at seq., and with U.S. DOT
regulations, "Nondiscrimination in Federally - Assisted Programs of the Department
of Transportation — Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part
21.
C. Equal Employment Opportunity. The Contractor agrees to comply, and
assures the compliance of each third party contractor at any tier of the Project and
each subrecipient at any tier of the Project, with all equal employment opportunity
(EEO) provisions of 49 U.S.C. § 5332, with Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e, and implementing Federal regulations and any
subsequent amendments thereto. Accordingly:
(1) General. The Contractor agrees that it will not discriminate against any
employee or applicant for employment because of race, color, creed, sex,
disability, age, or national origin. The Contractor agrees to take affirmative
action to ensure that applicants are employed and that employees are treated
during employment 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
Updated 04/15/16 12
advertising, layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship.
(2) Equal Employment Opportunity Requirements for Construction
Activities. For activities determined by the U.S. Department of Labor (U.S.
DOL) to qualify as "construction," the Contractor agrees to comply and
assures the compliance of each third party contractor at any tier or
subrecipient at any tier of the Project, with all applicable equal employment
opportunity requirements of U.S. DOL regulations, "Office of Federal Contract
Compliance Programs, Equal Employment Opportunity, Department of
Labor," 41 C.F.R. Parts 60 at seq., which implement Executive Order No.
11246, "Equal Employment Opportunity," as amended by Executive Order
No. 11375, "Amending Executive Order No. 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000(e) note, and also with any
Federal laws, regulations, and directives affecting construction undertaken as
part of the Project.
d. Minority and Women Business Enterprises ( MBENVBE).
(1) Policy. It is the policy of the North Carolina Department of
Transportation that Minority Business Enterprises and Women
Business Enterprises (MBENVBEs) 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 the State Funds.
The Contractor is also encouraged to give every opportunity to allow
MBENVBE participation in Supplemental Agreements.
(2) Obligation. The Contractor, subconsultant, and subcontractor 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 Contractor shall comply with applicable requirements of GS 136-
28.4 in the award and administration of federally assisted contracts.
Failure by the Contractor to comply with these requirements is a
material breach of this contract, which will result in the termination of
this contract or such other remedy, as the Department deems
necessary.
(3) Goals. Even though specific MBENVBE goals are not established for
this project, the Department encourages the Contractor to have
participation from MBE/WBE contractors and /or suppliers.
(4) Listings of MBENVBE Subcontractors. The contractor, at the time the
Letter of Interest is submitted, shall submit a listing of all known
MBENVBE contractors that will participate in the performance of the
identified work. The participation shall be submitted on the
Department's Form RS -2. In the event the firm has no MBENVBE
participation, the contractor shall indicate this on the Form RS -2 by
entering the word'None' or the number'zero' and the form shall be
signed. Form RS -2 may be accessed on the website at
hftps://apps.dot.state.nc.us/guickfind/forms/Default.asl)x.
(5) Certified Transportation Firms Directory. Real -time information about
firms doing business with the Department and contractors that are
certified through North Carolina's Unified Certification Program is
available in the Directory of Transportation Firms. The Directory can
be accessed by the link on the Department's homepage or by entering
https: // apps. dot.state.nc.us /vendor /directory / in the address bar of your
Updated 04/15/16 13
web browser. Only firms identified as MBE/WBE certified in the
Directory shall be listed in the proposal.
The listing of an individual contractor in the Department's directory shall
not be construed as an endorsement of the contractor's capability to
perform certain work
(6) Reporting MBENVBE Enterprise Participation. When payments are
made to MBE/WBE contractors, including material suppliers,
contractors at all levels (Contractor, subconsultant or subcontractor)
shall provide the Contract Administrator with an accounting of said
payments. The accounting shall be listed on the Department's
Subcontractor Payment Information Form (Form DBE -IS). In the event
the firm has no MBE/WBE participation, the contractor shall indicate
this on the Form DBE -IS by entering the word 'None' or the number
'zero' and the form shall be signed. Form DBE -IS may be accessed on
the website at httos: Happs.dot.state.nc.us/guickfiind /forms /Defauft.asox.
A responsible fiscal officer of the payee Contractor, subconsultant or
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 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 at 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 at
seq., which requires that buildings and public accommodations be accessible to
individuals with disabilities. In addition, the Contractor agrees to comply with
applicable Federal regulations and directives and any subsequent amendments
thereto, except to the extent the Department determines otherwise in writing, as
follows:
(1) U.S. DOT regulations, "Transportation Services for Individuals with
Disabilities (ADA)," 49 C.F.R. Part 37;
(2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in
Programs and Activities Receiving or Benefiting from Federal Financial
Assistance," 49 C.F.R. Part 27;
(3) Joint U.S. Architectural and Transportation Barriers Compliance Board
(U.S. ATBCB) /U.S. DOT regulations, "Americans With Disabilities
(ADA) Accessibility Specifications for Transportation Vehicles," 36
C.F.R. Part 1192 and 49 C.F.R, Part 38;
(4) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in
State and Local Government Services," 28 C.F.R. Part 35;
Updated 04/15/16 14
(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;
(10) FTA regulations, 'Transportation for Elderly and Handicapped
Persons," 49 C.F.R. Part 609; and
(11) Federal civil rights and nondiscrimination directives implementing the
foregoing regulations.
f. Drug or Alcohol Abuse - Confidentiality and Other Civil Rights Protections. To
the extent applicable, the Contractor agrees to comply with the confidentiality and
other civil rights protections of the Drug Abuse Office and Treatment Act of 1972, as
amended, 21 U.S.C. §§ 1101 at seq., with the Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 19702 as amended, 42
U.S.C. §§ 4541 at seq., and with the Public Health Service Act of 1912, as
amended, 42 U.S.C. §§ 201 at seq, and any subsequent amendments to these
acts.
g. Access to Services for Persons with Limited English Proficiency. To the
extent applicable and except to the extent that the Department determines
otherwise in writing, the Contractor agrees to comply with the policies of Executive
Order No. 13166, 'Improving Access to Services for Persons with Limited English
Proficiency," 42 U.S.C. § 2000d -1 note, and with the provisions of U.S. DOT Notice,
"DOT Guidance to Recipients on Special Language Services to Limited English
Proficient (LEP) Beneficiaries," 66 Fed. Reg. 6733 at seq., January 22, 2001.
h. Environmental Justice. The Contractor agrees to comply with the policies of
Executive Order No. 12898, "Federal Actions to Address Environmental Justice in
Minority Populations and Low - Income Populations," 42 U.S.C. § 4321 note, except
to the extent that the Department determines otherwise in writing.
I. Other Nondiscrimination Laws. The Contractor agrees to comply with all
applicable provisions of other Federal laws, regulations, and directives pertaining to
and prohibiting discrimination that are applicable, except to the extent the
Department determines otherwise in writing.
Section 9. 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) Federal Transit law, specifically, 49 U.S.C. §§ 5303, 5304, 5306,
and 5323(a)(1);
(2) Joint Federal Highway Administration (FHWA) /FTA document,
Updated 04/15/16 15
'Interim Guidance for Implementing Key SAFETEA -LU Provisions on
Planning, Environment, and Air Quality for Joint FHWA/FTA
Authorities,' dated September 2, 2005, as amended by joint
FHWA/FTA guidance, "SAFETEA -LU Deadline for New Planning
Requirements (July 1, 2007)," dated May 2, 2006 [clarifying Guidance
on Implementation of SAFETEA -LU Planning Provisions], and
subsequent Federal directives implementing SAFETEA -LU, except to
the extent FTA determines otherwise in writing;
(3) Joint FHWA/FTA regulations, "Planning Assistance and
Standards," 23 C.F.R. Part 450 and 49 C.F.R. Part 613 to the extent
that those regulations are consistent with the SAFETEA -LU
amendments to public transportation planning and private enterprise
laws, and subsequent amendments to those regulations that may be
promulgated; and
(4) FTA regulations, "Major Capital Investment Projects," 49 C.F.R.
Part 611, to the extent that those regulations are consistent with the
SAFETEA -LU amendments to the public transportation planning and
private enterprise laws, and any subsequent amendments to those
regulations that may be subsequently promulgated.
b. Governmental and Private Nonprofit Providers of Nonernamencv
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 organizations that receive Federal assistance
for nonemergency transportation from Federal Government sources (other than
U.S. DOT) an opportunity to be included in the design, coordination, and planning
of transportation services.
C. Infrastructure Investment. During the implementation of the Project, the
Contractor agrees to take into consideration the recommendations of Executive
Order No. 12803, "Infrastructure Privatization," 31 U.S.C. § 501 note, and Executive
Order No. 12893, 'Principles for Federal Infrastructure Investments," 31 U.S.C.
§ 501 note.
Section 10. Preference for United States Products and Services. To the extent
applicable, the Contractor agrees to comply with U.S. domestic preference requirements.
Section 11. 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 4220.1E,
"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
Updated 04/15/16 16
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 specification.
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 the Department.
e. 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/suboontract under this Agreement for any of the following:
(1) Any "brand name" product or sole source purchase equal to or
greater than $2,500;
(2) Any contract/subcontract to other than the apparent lowest bidder
equal to or greater than $2,500;
(3) Any procurement equal to or greater than $90,000;
(4) 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.
f. 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 State assistance for the Project does not, by itself, constitute
pre - approval of any non - competitive third party contract associated with the Project.
g. 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.
h. . Competitive Proposal /Request for Proposal (RFP). The competitive proposal/
request for proposal (RFP) method of procurement is normally conducted with more
than one source submitting an offer, i.e., proposal. Either a fixed price or cost
reimbursement type contract is awarded. This method of procurement is generally
used when conditions are not appropriate for the use of sealed bids. The
Contractor acknowledges that certain restrictions apply under North Carolina law for
use of the RFP method and these restrictions and exceptions are discussed below.
(1) The Contractor agrees that the RFP Method may not be used in
lieu of an invitation for bids (IFB) for:
(a) Construction /repair work; or
(b) Purchase of apparatus, supplies, materials or equipment.
See next Subsection, this Agreement, regarding
information technology goods as services.
Updated 04/15/16 17
(2) The Contractor agrees that the RFP method of solicitation may
be used (in addition to or instead of any other procedure available
under North Carolina law) for the procurement of information
technology goods and services [as defined in N.C.G.S. 147 - 33.81(2)].
This applies to electronic data processing goods and services,
telecommunications goods and services, security goods and services,
microprocessors, software, information processing, office systems, any
services related to the foregoing, and consulting or other services for
design or redesign of information technology supporting business
processes. The Contractor will comply with the following minimum
requirements [N.C.G.S. 143 - 129.8]:
(a) Notice of the request for proposals shall be given
In accordance with N.C.G.S. 143- 129(b).
(b) Contracts shall be awarded to the person or entity
that submits the best overall proposal as determined by the
awarding authority. Factors to be considered in awarding
contracts shall be identified in the request for proposals.
(c) The Contractor may use procurement methods set
forth in N.C.G.S. 143 -135.9 in developing and evaluating
requests for proposals.
(d) The Contractor may negotiate with any proposer in
order to obtain a final contract that best meets the needs of
the Contractor.
(e) Any negotiations shall not alter the contract beyond the
scope of the original request for proposals in a manner that
deprives the proposers or potential proposers of a fair
opportunity to compete for the contract; and would have
resulted in the award of the contract to a different person
or entity if the alterations had been included in the request
for proposals.
(f) Proposals submitted shall not be subject to public
inspection until a contract is awarded.
(3) The Contractor agrees that the RFP method, in accordance with FTA
Circular 4220.1E, 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 Subsection 111. of 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;
(d) All evaluation factors will be identified along with their relative
importance;
Updated 04/15/16 18
(e) Proposals will be solicited from an adequate number (3 is
recommended) of qualified sources;
(f) A standard method must be in place for conducting technical
evaluations of the proposals received and for selecting awardees;
(g) 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.
I. Award to Other than the Lowest Bidder. In accordance with 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.
j. Award to Responsible Contractors. The Contractor agrees to award third
party contracts only to responsible contractors who possess potential ability to
successfully perform under the terms and conditions of the proposed procurement.
Consideration will be given to such matters as contractor integrity, compliance with
public policy, record of past performance, and financial and technical resources.
Contracts will not be awarded to parties that are debarred, suspended, or otherwise
excluded from or ineligible for participation in Federal assistance programs or
activities in accordance with the Federal debarment and suspension rule, 49 C.F.R.
29. For procurements over $25,000, the Contractor shall comply, and assure the
compliance of each third party contractor and subrecipient at any tier, with the
debarment and suspension rule. FTA and the Department recommend that
grantees use a certification form for projects over $25,000, which are funded in part
with Federal funds. A sample certification form can be obtained from the
Department. The Contractor also agrees to check a potential contractor's
debarment/suspension status at the following Web site: http: / /epis.arnet.gov /.
k. Contract Administration System. The Contractor shall maintain a contract
administration system that ensures that contractors /subcontractors perform in
accordance with the terms, conditions, and specifications of their contracts or
purchase orders.
I. Access to Third Party Contract Records. The Contractor agrees, and agrees
to require its third party contractors and third party subcontractors, at as many tiers
of the Project as required, to provide to the Federal and State awarding agencies or
their duly authorized representatives, access to all third party contract records to
the extent required by 49 U.S.C. § 5325(g), and retain such documents for at least
five (5) years after project completion.
Section 12. Leases.
a. Capital Leases. To the extent applicable, the Contractor agrees to comply
with FTA regulations, "Capital Leases," 49 C.F.R. Part 639, and any revision
thereto.
Updated 04/15/16 19
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 13. Hold Harmless. Except as prohibited or otherwise limited by State law or
except to the extent that 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
State employees or agents.
Section 14. Use of Real Property. Equipment. and Supplies. The Contractor understands
and agrees that the State Government retains a State interest in any real property,
equipment, and supplies financed with State assistance (Project property) until, and to the
extent, that the State Government relinquishes its State interest in that Project property.
With respect to any Project property financed with State assistance under this Agreement,
the Contractor agrees to comply with the following provisions of this Agreement, except to
the extent the Department determines otherwise in writing:
a. Use of Project Property. 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 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 State
assistance expended on that property. The Contractor further agrees to notify the
Department immediately when any Project property is withdrawn from Project use
or when any Project property is used in a manner substantially different from the
representations the Contractor has made in its Application or in the Project
Description for this Agreement for the Project.
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 Department in writing.
C. 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 Agreement.
d. 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, subagreement, 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 State interest in that Project property.
Updated 04/15/16 20
(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 State interest in or impair the Contractor's continuing
control of the use of Project property.
e. 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
State interest in the damaged or destroyed Project property.
f. Misused or Damaged Project Property. If any damage to Project property
results from abuse or misuse occurring with the Contractor's knowledge and
consent, the Contractor agrees to restore the Project property to its original
condition or refund the value of the State interest in that property, as the
Department may require.
g. Responsibilities after Project Closeout. The Contractor agrees that Project
closeout by the Department will not change the Contractor's Project property
management responsibilities as stated in Section 14 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 15. Insurance. The Contractor shall be responsible for protecting the State
financial interests in all items purchased under this Agreement throughout the useful life
of the Project property.
Section 16. Patent Rights. If any invention, improvement, or discovery of the Contractor
or any third party contractor or any subrecipient 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 subrecipient 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.
Section 17. Rights in Data and Copvriahts.
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,
Updated 04/15/16 21
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 a royalty -
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
subagreementtsubcontract; and
(2) Any rights of copyright to which the Contractor or its subrecipients/
subcontractors purchase ownership with funds awarded for this
Project.
Section 18. 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 through7671q and scattered sections of Title 29, United
States Code; the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901 through
6992k; the Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, 42 U.S.C. §§ 9601 through 9675, as well as environmental provisions within
Title 23, United States Code, and 49 U.S.C. chapter 53. The Contractor also recognizes
that U.S. EPA, FHWA and other Federal agencies have issued, and in the future are
expected to issue, Federal regulations and directives that may affect the Project. Thus,
the Contractor agrees to comply, and assures the compliance of each third party
contractor, with any applicable Federal laws, regulations and directives as the Federal
Government are in effect now or become effective in the future, except to the extent the
Federal Government determines otherwise in writing. Listed below are environmental
provisions of particular concern to FTA and the Department. The Contractor understands
and agrees that those laws, regulations, and directives may not constitute the
Contractor's entire obligation to meet all Federal environmental and resource
conservation requirements.
a. National Environmental Policy. Federal assistance is contingent upon the
Contractor's facilitating FTA's compliance with all applicable requirements and
implementing regulations of the National Environmental Policy Act of 1969, as
amended, (NEPA) 42 U.S.C. §§ 4321 through 4335 (as restricted by 42 U.S.C. §
5159, if applicable); Executive Order No. 11514, as amended, "Protection and
Enhancement of Environmental Quality," 42 U.S,C. § 4321 note; FTA statutory
requirements at 49 U.S.C. § 5324(b); U.S. Council on Environmental Quality
regulations pertaining to compliance with NEPA, 40 C.F.R. Parts 1500 through
1508; and joint FHWAIFTA regulations, "Environmental Impact and Related
Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622, and subsequent Federal
environmental protection regulations that may be promulgated. As a result of
enactment of 23 U.S.C. §§ 139 and 326 as well as to amendments to 23 U.S.C. §
138, environmental decision making requirements imposed on FTA projects to be
implemented consistent with the joint FHWA/FTA document, "Interim Guidance for
Implementing Key SAFETEA -LU Provisions on Planning, Environment, and Air
Quality for Joint FHWA /FTA Authorities," dated September 2, 2005, and any
subsequent applicable Federal directives that may be issued, except to the extent
that FTA determines otherwise in writing.
Updated 04 /15/16 22
b. Air Quality. Except to the extent the Federal Government determines
otherwise in writing, the Contractor agrees to comply with all applicable Federal
laws, regulations, and directives implementing the Clean Air Act, as amended, 42
U.S.C. §§ 7401 through 7671q, and:
(1) The Contractor agrees to comply with the applicable requirements of
Section 176(c) of the Clean Air Act, 42 U.S.C. § 7506(c), consistent with the
joint FHWA/FTA document, "Interim Guidance for Implementing Key
SAFETEA -LU Provisions on Planning, Environment, and Air Quality for Joint
FHWA/FTA Authorities,' dated September 2, 2005, and any subsequent
applicable Federal directives that may be issued; with U.S. EPA regulations,
"Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects Developed, Funded or Approved Under Title
23 US.C. or the Federal Transit Act," 40 C.F.R. Part 51, Subpart T; and
"Determining Conformity of Federal Actions to State or Federal
Implementation Plans," 40 C.F.R. Part 93, and any subsequent Federal
conformity regulations that may be promulgated. To support the requisite air
quality conformity finding for the Project, the Contractor agrees to implement
each air quality mitigation or control measure incorporated in the Project.
The Contractor further agrees that any Project identified in an applicable
State Implementation Plan (SIP) as a Transportation Control Measure will be
wholly consistent with the design concept and scope of the Project described
in the SIP.
(2) U.S. EPA also imposes requirements implementing the Clean Air Act,
as amended, which may apply to public transportation operators, particularly
operators of large public transportation bus fleets. Accordingly, the
Contractor agrees to comply with the following U.S. EPA regulations to the
extent they apply to the Project: "Control of Air Pollution from Mobile
Sources," 40 C.F.R. Part 85; "Control of Air Pollution from New and In -Use
Motor Vehicles and New and In -Use Motor Vehicle Engines," 40 C.F.R. Part
86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600.
(3) The Contractor agrees to comply with notice of violating facility
provisions of Executive Order No. 11738, "Administration of the Clean Air Act
and the Federal Water Pollution Control Act with Respect to Federal
Contracts, Grants, or Loans," 42 U.S.C. § 7606 note.
C. Clean Water. Except to the extent the Federal Government determines
otherwise in writing, the Contractor agrees to comply with all applicable Federal
regulations and directives issued pursuant to the Clean Water Act, as amended, 33
U.S.C. §§ 1251 through 1377. In addition:
. (1) The Contractor agrees to protect underground sources of drinking water
consistent with the provisions of the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. §§ 300f through 300j -6.
(2) The Contractor agrees to comply with notice of violating facility provisions
of Executive Order No. 11738, "Administration of the Clean Air Act and the
Federal Water Pollution Control Act with Respect to Federal Contracts,
Grants, or Loans," 42 U.S.C. § 7606 note.
d. Use of Public Lands. The Contractor agrees that in implementing its Project,
it will not use any publicly owned land from a park, recreation area, or wildlife or
waterfowl refuge of national, State, or local significance as determined by the
Federal, State, or local officials having jurisdiction thereof, and it will not use any
land from a 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
Updated 04/15/16 23
Contractor also agrees to comply with joint FHWA/FTA regulations, 'Parks,
Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites,' 23 C.F.R.
Parts 771 and 774, and 49 C.F.R. Part 622, when promulgated.
e. Wild and Scenic Rivers. The Contractor agrees to comply with applicable
provisions of the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C. §§
1271 through 1287, relating to protecting components of the national wild and
scenic rivers system; and to the extent applicable, to comply with U.S. Forest
Service regulations, "Wild and Scenic Rivers," 36 C.F.R. Part 297, and with U.S.
Bureau of Land Management regulations, "Management Areas," 43 C.F.R. Part
8350.
f. Coastal Zone Management. The Contractor agrees to assure Project
consistency with the approved State management program developed under the
Coastal Zone Management Act of 1972, as amended, 16 U.S.C. §§ 1451 through
1465.
g. Wetlands. The Contractor agrees to facilitate compliance with the
protections for wetlands in accordance with Executive Order No. 11990, as
amended, 'Protection of Wetlands," at 42 U.S.C. § 4321 note.
h. Floodplains. The Contractor agrees to comply with the flood hazards
protections in floodplains in accordance with Executive Order No. 11988, as
amended, "Floodplain Management," 42 U.S.C. § 4321 note.
i. Endangered Species and Fisheries Conservation. The Contractor agrees to
comply with protections for endangered species set forth in the Endangered
Species Act of 1973, as amended, 16 U.S.C. §§ 1531 through 1544, and the
Magnuson Stevens Fisheries Conservation Act, as amended, 16 U.S.C. §§ 1801 et
seq.
j. Historic Preservation. The Contractor agrees to encourage compliance with
the Federal historic and archaeological preservation requirements of Section 106 of
the National Historic Preservation Act, as amended, 16 U.S.C. § 470f; with
Executive Order No. 11593, 'Protection and Enhancement of the Cultural
Environment" 16 U.S.C. § 470 note; and with the Archaeological and Historic
Preservation Act of 1974, as amended, 16 U.S.C. §§ 469a through 469c, as
follows:
(1) In accordance with U.S. Advisory Council on Historic Preservation
regulations, "Protection of Historic and Cultural Properties," 36 C.F.R. Part
800, the Contractor agrees to consult with the State Historic Preservation
Officer concerning investigations to identify properties and resources included
in or eligible for inclusion in the National Register of Historic Places that may
be affected by the Project, and agrees to notify FTA of those properties that
are affected.
(2) The Contractor agrees to comply with all applicable Federal regulations
and directives to avoid or mitigate adverse effects on those historic
properties, except to the extent the Federal Government determines
otherwise in writing.
k. Indian Sacred Sites. The Contractor agrees to facilitate compliance with the
preservation of places and objects of religious importance to American Indians,
Eskimos, Aleuts, and Native Hawaiians, in compliance with the American Indian
Religious Freedom Act, 42 U.S.C. § 1996, and with Executive Order No. 13007,
"Indian Sacred Sites," 42 U.S.C. § 1996 note, except to the extent the Federal
Government determines otherwise in writing.
I. Mitigation of Adverse Environmental Effects. Should the proposed Project
Updated 04/15/16 24
cause or result in adverse environmental effects, the Contractor agrees to take all
reasonable measures to minimize the impact of those adverse effects, as required
by 49 U.S.C. § 5324(b), and other applicable Federal laws and regulations,
including 23 C.F.R. Part 771 and 49 C.F.R. Part 622. The Contractor agrees to
comply with all environmental mitigation measures that may be identified as
commitments in applicable environmental 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 19. Enemy Conservation. The Contractor agrees to comply with the North
Carolina Energy Policy Act of 1975 (N.C.G.S. 1138) issued in accordance with the
Energy Policy and Conservation Act, as amended, 42 U.S.C. §§ 6321 at 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 20. Charter Service Operations. FTA defines charter service under (49 CFR
Part 604.3 (c-h) as Transportation provided by a recipient at the request of a third party
for the exclusive use of a bus or van for a negotiated price.
Charter service does not include any form of demand - response transportation. The
Contractor acknowledges that Federal and State rules and regulations prohibit the
provision of charter service using FTA funded equipment and facilities if a registered
private charter operator expresses interest in providing the service.
Contractors are allowed to operate community based charter services and some irregular
or limited duration services under the exempted and exception provisions. Beginning July
30, 2008, all grantees providing charter service under the exceptions shall post the
required records on the FTA charter website quarterly using TEAM within 30 days of the
end of each calendar quarter.
NCDOT requires that any sub - recipient wishing to provide charter service must comply
with the procedures in the Final Rule on Charter Service. NCDOT must be notified via
email or postal service that a request for charter service exception is being submitted to
FTA, including all supporting documentation.
The Contractor agrees that neither it nor any public transportation operator performing
work in connection with a Project financed under 49 U.S. C. chapter 53 will engage in
charter service operations, except as authorized by 49 U.S. C. 53 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.
Updated 04/15/16 25
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 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 21. 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(9 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 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. Motor Carrier Safety. To the extent applicable, the Contractor agrees to
comply with, and assures the compliance of its subrecipients, lessees, and third party
contractors with, applicable provisions of the following regulations promulgated by the
U.S. Federal Motor Carrier Safety Administration (U.S. FMCSA):
a. Financial Responsibility. The Contractor agrees as follows:
(1) To the extent that the Contractor is engaged in interstate
commerce and not within a defined commercial zone, the Contractor
agrees to comply with U.S. FMCSA regulations, "Minimum Levels of
Financial Responsibility for Motor Carriers," 49 U.S.C. Part 387, dealing
with economic registration and insurance requirements. For recipients
of Federal assistance under 49 U.S.C. §§ 53072 5310, or 5311, 49
C.F.R. Part 387 is modified by 49 U.S.C. § 31138(e)(4) which reduces
the amount of insurance required of such recipients to the highest
amount of any state in which the transit provider operates.
(2) To the extent that the Contractor is engaged in interstate
commerce and not within a defined commercial zone and is not a unit
of government (defined as Federal Government, a state, any political
subdivision of a state or any agency established under a compact
between states), the Contractor agrees to comply with U.S. FMCSA
regulations, Subpart B, "Federal Motor Carrier Safety Regulations," at
49 CFR Parts 390 through 396.
b. Driver Qualifications. The Contractor agrees to comply with U.S. FMCSA's
regulations, "Commercial Driver's License Standards, Requirements, and
Penalties," 49 C.F.R. Part 383.
Updated 04/15/16 26
C. Substance Abuse Rules for Motor Carriers. The Contractor agrees to comply
with U.S. FMCSA's regulations, "Drug and Alcohol Use and Testing Requirements,"
49 C.F.R. Part 382, which apply to transit providers that operate a commercial
motor vehicle that has a gross weight rating over 26,000 pounds or is designed to
transport sixteen (16) or more passengers, including the driver.
Section 24. 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, "Governmentwide
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 at 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 25. Seat Belt Use. In accordance with Executive Order No. 13043, "Increasing
Seat Belt Use in the United States," April 16, 1997, 23 U. S. C. § 402 note, the Contractor
is encouraged to adopt and promote on-the-job seat belt use policies and programs for its
employees and other personnel that operate company- owned, rented, or personally
operated vehicles, and to include this provision in any third party contracts, third party
subcontracts, or subagreements involving the Project.
Section 26 Text Messaging While Driving. In accordance with Executive Order No.
13513, Federal Leadership on Reducing Text Messaging While Driving October 1, 2009,
23 U.S.C.A. § 402 note, and DOT Order 3902.10, Text Messaging While Driving
December 30, 2009, the Grantee is encouraged to comply with the terms of the following
Special Provision.
a. Definitions. As used in this Special Provision:
(1) "Driving" means operating a motor vehicle on a roadway, including while temporarily
stationary because of traffic, a traffic light, stop sign, or otherwise. "Driving does not
include being in your vehicle (with or without the motor running) in a location off the
roadway where it is safe and legal to remain stationary.
(2) "Text Messaging" means reading from or entering data into any handheld or other
electric device, including the purpose of short message service texting, e- mailing, instant
messaging, obtaining navigating information, or engaging in any other form of electronic
data retrieval or electronic data communication. The term does not include the use of a
cell phone or other electronic device for the limited purpose of entering a telephone
number to make an outgoing call or answer an incoming call, unless the practice is
prohibited by State or local law.
b. Safety. The Grantee is encouraged to:
(1) Adopt and enforce workplace safety policies to decrease crashes caused by distracted
drivers including policies to ban text messaging while driving —
(a) Grantee -owned or Grantee- rented vehicles or Government - owned, leased or rented
vehicles;
(b) Privately -owned vehicles when on official Project related business or when performing
any work for or on behalf of the Project; or
(c) Any vehicle, on or off duty, and using an employer supplied electronic device.
(2) Conduct workplace safety initiatives in a manner commensurate with the Grantee's
size, such as:
(a) Establishment of new rules and programs or re- evaluation of existing programs to
prohibit text messaging while driving; and
Updated 04/15/16 27
(b) Education, awareness, and other outreach to employees about the safety risks
associated with texting while driving.
(3) Include this Special Provision in its subagreements with its subrecipients and third
party contracts and also encourage its subrecipients, lessees, and third party contractors
to comply with the terms of this Special Provision, and include this Special Condition in
each subagreement, lease, and third party contract at each tier financed with Federal
assistance provided by the Federal Government.
Section 27. 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 28. 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 on the percentage of the Federal /State
share awarded for the Project, of proceeds derived from any third party recovery,
except that the Contractor may return any liquidated damages recovered to its
Project Account in lieu of returning the Federal /State share to the Department.
C. Enforcement. The Contractor agrees to pursue all legal rights provided within
any third party contract.
d. FTA and Department Concurrence. The FTA and the Department 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 29. Amendments /Revisions to the Project. The Contractor agrees that a
change in Project circumstances causing an inconsistency with the terms of this
Agreement for the Project will require an amendment or revision to this Agreement for
the Project signed by the original signatories or their authorized designees or successors.
The Contractor agrees that a change in the fundamental information submitted in its
Application will also require an Amendment to its Application or this Agreement for the
Project. The Contractor agrees that the project will not incur any costs associated
with the amendment or revision before receiving notification of approval from the
division. The Contractor agrees that any requests for amendments and or
revisions will be submitted in accordance with the policies and procedures
established by FTA and the Department.
Updated 04/15/16 28
Section 33. 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 Department:
IF DELIVERED BY US POSTAL SERVICE
IF DELIVERED BY ANY OTHER MEANS
Name:
MS. MYRA FREEMAN
Name:
MS. MYRA FREEMAN
Title:
FINANCIAL MANAGER
Title:
FINANCIAL MANAGER
Agency:
NCDOT /PTD
Agency:
NCDOT /PTD
MSC:
1550 MSC
Street
TRANSPORTATION BLDG
Orange Public ltansportation
Address:
Address:
1 S WILMINGTON ST RM 524
City /Zip:
RALEIGH NC 27699 -1550
City:
RALEIGH NC
Phone:
919 - 733 -4672
Hillsborough, NC 27278
Fax:
919 - 733 -1391
919 - a 45 -,71008
Email:
MSFREEMAN @NCDOT.GOV
91 4 - 7-TA - 2.131
For the Contractor:
IF DELIVERED
BY US
POSTAL SERVICE
IF DELIVERED BY ANY OTHER MEANS.
Name:
PerR MvRPHY -
Name:
rereR MvRPJY
Title:
TRRrrs ?oRr9nodAnHIW13f &niOR
Title: TR�✓sPoRTATioyv AUHMest�tRinR
Agency:
Agency:
Postal
Orange Public Transportation
Street
Orange Public ltansportation
Address:
P.O. Box 8181
Addres s:
City /Zip:
City:
60M
Hwy
Hillsborough, NC 27278
Hillsborough, NC 27278
Phone:
919 - a 45 -,71008
Fax:
91 4 - 7-TA - 2.131
Email:
rNvRPMY 9 4RAN0rc6vdtYPNCA0V
Updated 04/15/16 30
Section 30. Information Obtained Through Internet Links. This Agreement may include
electronic IinksNVeb 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 31. Severability. If any provision of the FTA Master Agreement or this Agreement
for the Project is determined invalid, the remainder of that Agreement shall not be affected
if that remainder would continue to conform to the requirements of applicable
Federal /State laws or regulations.
Section 32. Termination of Agreement.
a. The Department of Transportation. In the event of the Contractors
noncompliance with any of the provisions of this Agreement, the Department may
suspend or terminate the Agreement by giving the Contractor thirty (30) days
advance notice. Any failure to make reasonable progress on the Project or violation
of this Agreement for the Project that endangers substantial performance of the
Project shall provide sufficient grounds for the Department to terminate the
Agreement for the Project. In general, termination of Federal and State assistance
for the Project will not invalidate obligations properly incurred by the Contractor
before the termination date to the extent those obligations cannot be canceled. If,
however, the Department determines that the Contractor has willfully misused
Federal/State assistance by failing to make adequate progress, failing to make
reasonable and appropriate use of Project property, or failing to comply with the
terms of this Agreement for the Project, the Department reserves the right to require
the Contractor to refund the entire amount of Federal and State assistance provided
for the Project or any lesser amount as the Department may determine. Expiration
of any Project time period established for the Project does not, by itself, constitute
an expiration or termination of the Agreement for the Project. 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 (Section 8) 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
Departments rights of termination described above, the Department may
termignate 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
by notifying and receiving the concurrence of the Department sixty (60) days in
advance of the termination.
Updated 04/15/16 29
NORTH CAROLINA DEPARTMENT OF PUBLIC TRANSPORTATION understands that your
capital application was for 5311 funds. In order to maximize the use of federal capital funds, we
have funded your application using 5339. By signing this agreement, you acknowledge and
understand this funding source change and agree with the terms of this agreement.
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:
r
7
r
N
6
0003C2�L
CONTRACTOR'S FISCAL YEAR END:
JUNE 30, 2017
BY: di.1
TITLE:
1,) ,4
DEPARTMENT OF TRANSPORTATION
TITLE: DEPUTY SECRETARY FOR TRANSIT
ATTEST:
TITLE: SECRETARY
Updated 04115/16 32
Section 34 Federal Certification Regarding Lobbying. The Contractor certifies, by signing
this Agreement, its compliance with Subsection 3d of this Agreement. -
Section 35. Federal Certification Regarding Debarment. The Contractor certifies, by
signing this Agreement, its compliance with Subsection 3b of this Agreement.
Section 36. Federal Certification Regarding Alcohol Misuse and Prohibited Drug Use. As
required by FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in
Transit Operations," at 49 CFR part 655, subpart 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 21 of this Agreement.
Updated 04/15/16 31
COMMUNITY TRANSPORTATION PROGRAM RESOLUTION
Section 5311
FY 2017 RESOLUTION
Applicant seeking permission to apply for Community Transportation Proaram funding, enter into agreement with the
North Carolina Department of Transportation/,' provide the necessary assurances and the required local match.
A motionrwwas made by (Bator bars Name 'n seconded by (Board Member's Name orwA, snot
mquirey (AIA/VN /ee,. • • A f1 far the adoption of the ool owing resolution, and upon being put to a vote was duly
adopted.
WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes and the Governor of North Carolina
have designated the North Carolina Department of Transportation (NCDOT) as the agency responsible for
administering federal and state public transportation funds; and
WHEREAS, the North Carolina Department of Transportation will apply for a grant from the US Department of
Transportation, Federal Transit Administration and receives funds from the North Carolina General Assembly to
provide assistance for rural public transportation projects; and
WHEREAS, the purpose of these transportation funds Is to provide grant monies to local agencies for the
provision of rural public transportation services consistent with the policy requirements for planning, community
and agency involvement, service design, service alternatives, training and conference participation, reporting and
other requirements (drug and alcohol testing policy and program, disadvantaged business enterprise program,
and fully allocated costs analysis); and
WHEREAS, (Legal Name ofappllcenl) Orange County hereby assures and certifies that (twill provide the required
local matching funds; that Its staff has the technical capacity to implement and manage the project, prepare
required reports, obtain required training, attend meetings and conferences; and agrees to comply with the federal
and state statutes, regulations, executive orders, Section 5333 (b) Warranty, and all administrative requirements
related to the applications made to and grants received from the Federal Transit Administration, as well as the
provisions of Section 1001 of Title 18, U. S. C.
NOW, THEREFORE, be it resolved that the (Earl MCI Chair of (Name ofapppcente Gowm/ng Body) the Orange
County Board of Commissioners is hereby authorized to submit a grant application for federal and state funding,
make the necessary assurances and certifications and be empowered to enter into an agreement with the
NCDOT to provide rural public transportation services.
I, Donna S. Baker Clerk to the Board do hereby certify that the above Is a true and correct copy of a excerpts from the
minutes of meetings of the Orange County Board of Commissioners duly opened on the 20 day of October. 2015 and
closed on the 5th day of November. 2015.
Slgnelum o' I Codifying Offinieff
'Note and the aWhorizedofflclal, certifying og/clal, andnuterypubllc should be three separate individuals.
............................................................... ...............................
Seal Subscribed and swG tome (< te) S _ Affix Notary Seal ffere
I
Notary PUBIC'
Dn`j - OFFICIALSFAL
NQwryr 1W NwNM Nlne
Z.00 S CpMCfbn • ORANGE COUNTY
PIPrIfed Name and Accrues Z %Z.� DAVID HUNT . I
lAyCOmmissgn Exytras
My commission expires (date) �k,� %, ZO I
Attachment
Certification Regarding Lobbying
(for bids and/or awards)
The Contractor certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The Contractor shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
Contractor's Autborized Representative: C as ^ op )&k
Title:
Updated 04/15/16 33
Orange County
Vendor Number 15788 Contract #17- 39 -56U
CERTIFICATION OF ELIGIBILITY
Under the Iran Divestment Act
Pursuant to G.S. 147 - 86.59, any person identified as engaging in investment activities in
Iran, determined by appearing on the Final Divestment List created by the State Treasurer
pursuant to G.S. 147- 86.58, is ineligible to contract with the State of North Carolina or
any political subdivision of the State. The Iran Divestment Act of 2015, G.S. 147 -55 et
seq.* requires that each vendor, prior to contracting with the State certify, and the
undersigned on behalf of the Vendor does hereby certify, to the following:
1. that the vendor is not
on
Divestment List of entities that the State Treasurer has determined engages in
investment activities in han;
2. that the vendor shall not utilize on any contract with the State agency any
subcontractor that is identified on the Final Divestment List; and
3. that the undersigned is authorized by the Vendor to make this Certification.
Vendor: Orange County
By: Gcwr /W p`- = lea`- I- Ag -11a
Signature Date
)raf \ WVCee-
Printed Name
Title
G, A: v
The State Treasurer's Final Divestment List can be found on the State
Treasurer's website at the address www.nctreasurer.com/Iran and will be
updated every 180 days. For questions about the Department of State
Treasurer's Iran Divestment Policy, please contact Meryl Murtagh at
Meryl.Murtagh @ncireasurer.com or (919) 814 -3852.
* Note: Enacted by Session Law 2015 -118 as G.S. 143C -55 et seq., but has been
renumbered for codification at the direction of the Revisor of Statutes.
APPENDIX A
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION
PUBLIC TRANSPORTATION DIVISION
PROJECT NUMBER: 17- 39 -056U
APPROVED BUDGET SUMMARY
EFFECTIVE DATE JULY 1, 2016
PROJECTSPONSOR: ORANGE COUNTY
PROJECT DESCRIPTION: FY17 SMALL URBAN CAPITAL PROGRAM
I. TOTAL PROJECT EXPENDITURES
DEPARTMENT - 4523 - CAPITAL 44637.15.1.3 $208,800
PERIOD OF PERFORMANCE JULY 1, 2016 THRU JUNE 30, 2017
DEPARTMENT - 4523 - CAPITAL 44637.15.1.3 $1,100
PERIOD OF PERFORMANCE JULY 1, 2016 THRU JUNE 30, 2017
DEPARTMENT -4523- CAPITAL 44637.15.1.3 $1,288
PERIOD OF PERFORMANCE JULY 1, 2016 THRU JUNE 30, 2017
II. TOTAL PROJECT FUNDING
CAPITAL
TOTAL
FEDERAL
STATE
LOCAL
100%
56.80%
33.20%
10%
ROLLING STOCK
44637.15.1.3
$208,800
$118,598
$69,321
$20,881
AGREEMENT#
Abuxc)sgr}5
BUS EQUIP & FACILITES
44637.15.1.4
$1,100
$624
$366
$110
AGREEMENT#
A=oo5 qq%
COMMUNICATION EQUIP.
44637.15.1.5
$1,288
$731
$428
$129
TOTAL
$211,188
$119,953
$70,115
$21,120
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION
PUBLIC TRANSPORTATION DIVISION
APPROVED PROJECT BUDGET
PROJECT: 17- 39 -056U
SPONSOR: ORANGE COUNTY
W BS: 44637.15.1.3
'L--- '
' "------ -"-- --"-__"'---"--- _----"'--""'
__ DEPARTMENT 4523 _CAPITAL _BUS ROLLING STOCK APPROV____
ED
OBJECT TITLE BUDGET
G575 28ftLtTrnsVeh (Rep /Exp) 208,800
TOTAL CAPITAL - BUS ROLLING STOCK $ 208,800
W BS: 44637.15.1.4
DEPARTMENT 4523 - CAPITAL- BUS EQUIP &FACILITIES
APPROVED
OBJECT TITLE BUDGET
G591 Veh Lettering /Logos 1,100
TOTAL CAPITAL - BUS EQUIP & FACILITIES $ 1,100
WBS: 44637.15.1.5
DEPARTMENT 4-5-- 2 m 3 - CAPITAL - COMMUNICATION EQUIPMENT
OBJECT TITLE
G555 Mobile Radio Unit
TOTAL CAPITAL - COMMUNICATION EQUIPMENT
TOTAL CAPITAL BUDGET
APPROVED
BUDGET
1,288
$ 1,288
211,188
Approved Capital Budget
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