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HomeMy WebLinkAbout2015-439 OPT - FY2016 5311 Nonurbanized area public transportation grantSTATE OF NORTH CAROLINA COUNTY OF WAKE NORTH CAROiLINA mm� THAD01011211a 101IM90112MMI THIS AGREEMENT made this the (,2/�' L day of t4 _r Wbe , 20.ifi, (hereinafter referred to as AGREEMENT) by and between the NORTH CAROLINA DEPARTMENT OF TRANSPORTATION (hereinafter referred to as "Department", an agency of the State of North Carolina) and ORANGE COUNTY, (acting in its capacity as the designated Section 5311 recipient hereinafter referred to as the "Contractor"). WHEREAS, Chapter 53 of 49 U.S.C. app 5311 et seq. (formerly Section 18 program) provides federal administrative, operating, and capital assistance for public transportation in rural and small urban areas by way of a formula grant program to be administered by the State; and WHEREAS, the purpose of 49 U.S.C. 53,11 is to enhance access of people in nonurbanized areas for purposes such as health care, shopping, education, recreation, public services, and employment by encouraging the maintenance, development, improvernent, and use Of public passenger transportation systems; and WHEREAS, the Contractor has been designated as the recipient of 49 U.S.C, 5311 funds, and WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes (N.C,G.S.) designated the Department of Transportation as the agency of the State of North Carolina responsible for administering all Federal arid/or State prograrns relating to public transportation, and granted the Department authority to do all things required under applicable Federal and/or State legislation to properly administer the public transportation within the State of North Carolina; and WHEREAS, the Governor of North Carolina, in acc'ord'ance o ' with Section 5311, of the Safe, ACCOUntablie, Flexible, and Efficient Transportation Equity Act - A Legacy for Users (SAFETEA-LU)l, Public Law 109-59, August 10, 2005, and the Transportation Equity Act for the 21't Century (TEA-21), Public Law 105-178, June 1993„ as arnended, has designated the North Carolina Department of Transportation as the agency to receive and administer Federal funds under this program; and WHEREAS, in order to assist in providing transportation services, the Department, under the terns of this Agreement shall make grants of administrative, operating and capital assistance to the Contractor; and I WHEREAS, the Department and the Contractor desire to secure and utilize Section 5311 grant funds and State funds for the above referenced purposes. NOW, THEREFORE, in consideration of the Mutual covenants herein set forth, the Department and the Contractor agree as follows: Section 1. EPMultiRo2osaa o, _2L_AgLq2M21Lt. The purpose of this Agreement is to provide for the undertaking of nonurbanized area public transportation services as described in the project application (hereinafter referred to as "Project") properly prepared, endorsed, approved, and transmitted by the Contractor to the Department, and to state the terms and conditions, as to the manner in which the Project will be undertaken and completed. Section 2. Prolect, ImMernentation. The Contractor shall carry Out the Project as follows: & Scope of Proiect. Orange County (operating as Orange County Public Transportation- APT) will continue providing community transportation services to hurnan service agencies and to the general public and will replace Upclatecl 05/27/2015 one (1) minivan/cros,sover and two (2) 28' Light Transit Vehicles with wheelchair lifts. b. The Contractor Shall undertake and complete the nonUrbanized area public transportation services in accordance with the procedures and guidelines set forth in the following docurnents: (1) Federal Transit Administration (hereinafter referred to as "FTA") Circular 9040. IF, dated April 1, 2007 at: (www.fta.dot.gov/laws/leg2eg_circulars_guidance,html); (2) FT A Master Agreement, FTC MA (21), October 1, 2014 at (wwwww.fta.dot.gov /documents /16- Iaster.pd ) „ (3) The State Management Plan for Federal and State Transportation Programs (hereinafter referred to as "'St�ate Management Pian");and (4) The Section 5311 grant application for financial assistance. The aforementioned docurnents, and, any subsequent amendments or revisions thereto, are herewith incorporated by reference, and are on file with and approved by the Department in accordance w th the terms and conditions of this Agreement, Nothing shall be construed under the terms of this Agreement by the Department or the Contractor that shall cause any conflict with Department, State, or Federal statutes, rules, or regulations. Section 3: Cost of The total cost of the Project approved by the Department is THREE HUNDRED NINETY-NINE THOUSAND FIFTY-ONE DOLLARS ($399,,0161) as set forth in the Project Description and Budget, incorporated into this Agreement as Attachment A. The Department shall provide, from Federal and State funds, the percentages of the actual net cost of the Project as indicated below, not in excess of the identified announts for eligible administrative, operating, and capital expenses. The Contractor hereby agrees that it will provide the percentages of the actual net cost of the Project, as indicated below, and any amounts in excess of the Department's maximum (Federal PIUS State shares). The net cost is the price paid minus any refUnds, rebates, or other iterns, of value received by the Contractor which have the effect of reducing the actual cost. -Ki nis . t . ration Administration Administration - — ­­­ siration Administration WBS --- J . .... .. ........ _3',_8"_0" Total Federal �63%) Stat e 3 T3 .'_l 2"",""l $166,765 $105,061 _,�'3 6, 6 8 8 �$25,016 e4�LWQDQQq Ll ........... ................. Capra Capital Capital Capital apital WBS, Total Federa,l (57%) State (33% Local 362318002.3 $232,286 $131,9138 $77,118 $23,230 .. . .......... ......... ........... ... protect Project Project Project Project Total .............. . ......... . . Total Total Federal Total State Total Local $399,0151 $236,999 ------------ ------ TT� _- $ '806, $48,246 Section 6. Contractors Capacity, a. The Contractor agrees to maintain sufficient legal, financial, technical, and managerial capability to., Updated 9117110 Page 2 of. 35, (1) P,lan, manage, and complete the Project and provide for the use of Project property; (2) Carry out the safety and security aspects of the Project; and (3) Comply with the terms of this agreement, the Master Agreement between the FTA and the Department, the Approved Project Budget, the Project schedules, the Contractor's annual Certifications and Assurances to the Department, and applicable Federal and State laws, regulations, and directives, b, Administrative Reguirements. The Contractor agrees to comply with the following Federal and State administrative requirements: (1) U.S, DOT regulations, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments," 49 C.F.R. Part 18 at (http://www.access.gpo.gov/nara/cfr /cfr-table- search. html#page 1). (2) Title 19A North Carolina Administrative Code (N.C.A,C.) Subchapter 5 B at ( Li(IL L/repgrLs . o a h, sta te , n q,.0 sh L.ac c. lication of Federal State and Local Laws Re ula�tions 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. d. Contractor's Primary Responsibility to Comp! with Federal and State Requirement 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.. IIf 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 Poly Contractor. Although the Contractor may enter into a third party contract, after obtaining approval from the Department, in which the third party contractor agrees to provide property or services in support of the Project, or even carry out Project activities normally performed by the Contractor (such as in a turnkey contract), the Contractor agrees that it, rather than the third party contractor, is ultimately responsible to the Department for compliance with all applicable Federal and State laws, regulations, and directives, except to the extent that the Department determines otherwise in writing, (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 Updated 9117/10 Page 3 ot35 compliance with alll applicable Federal laws, regulations, and directives, except to the extent that FTA determines otherwise in writing. e. Contractor's Responsibility to Extend Federal and State Reguirements 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 subrelcipients 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 cornpHance with applicable Federal and State laws, regulations, and directives in each lower tier subcontract and subagreernent 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 andl 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 caut�ion, 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,) Subagreernents. Because Project activities performed by a subcontractor/ subrecipient must comply with alli applicable Federal and State laws, regulations, and directives except to the extent that the Department determines otherwise in writing, the Contractor agrees as follows; I Written SUbaqreement, The Contractor agrees to enter into a written agreement with each subrecipient (subagreernent) 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 subagreernent appropriate clauses directing the subrecipient to cornp]y 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 s,ubagreement or any third party contractor at each tier, except as the Department determines otherwise in writing. f. No Federal/State Government Obligations to Third Parties, In connection i 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 Updated 9J1 7/10 Page 4 ol'35 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, or third party contract, the Feder@VState Government has no obligations or liabilities to such entity, including any subrecippent, third party contractor, or lessee. g. Changes in Project Performance (i.e., Disputes, Breaches, Defaults or Litigation). The Contractor agrees to notify the Department immedliately, 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, defiault, 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 forurn. lh. Limitations of A_qregiment. This Agreement shall be subject to the availability of Federal and State funds, and contingent upon the terms and conditions of the Master Agreement between the FTA and the Department. Section . 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, subagreement�s, or leases financed with Federal/State assistance. The Contractor agrees that its code or standards of conduct shall specify that its officers, employees, board rnembers, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential third party contractor at any fier, any SUbrecipient at any tier or agent thereof, or any lessee. Such a conflict would arise when an employee, officer, board member, or agent, including any member of his or her immediate family, partner, or organization that employs, or intends to employ, any of the parties listed herein has a financial interest in the firm selected for award. The Contractor may set de, minimis rules where the financial interest is not substantial, or the gift is an unsolicited !tern of norninal intrinsic value, The Contractor agrees that its code or standards shall also prohibit the its officers, employees, board members, or agents frorn using their respective positions in a manner that presents a real or apparent personal or organizational conflict of interest or personal gain. As permitted by State or local law or regulations, the Contractor agrees that its code or standards of conduct shall include penalties, sanctions, or other disciplinary actions for violations by its officers, employees, board members, or their agents, its third party contractors or sub-recipients or their agents. (1) Personal Conflicts of Interest. The Contractor agrees that its code or standards of conduct shall prohibit the Contractor's employees, officers, board members, or agents from participating in the selection, award, or administration of any third party contract, or sub- agreement supported by Federal/State assistance if a real or apparent conflict of interest would be involved'. Such a Conflict Would arise when an employee, officer, board member, or agent, including any member of his or her immediate family, partner, or organization that employs, or intends to employ, any of the parties listed herein has a financial interest in the firm selected for award. (2) 0. rganizational 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-agreernent, 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, "Goverm-nent-wide Debarment and Suspension (Non-procuirement),"' 49 C.F.R. Part 29, Updated 9/17/10 Page 5 of 35 The Contractor agrees to, and assures that its third party contractors, sub-recipients, and lessees wili, review the Excluded Parties Listing System at (http://epls.airnet.gov/) before entering into any contracts. C. Bonus or Commission. ' The Contractor affirms 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: 6i in compliance with 31 U.S.C. 1352(a), it will not use Federal assistance to pay the costs of influencing any officer or employee of a Federal agency, Member of Congress, officer of Congress or employee of a rnernber 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 201, modified as necessary by 31 t1, .C, § 135Z e, Ernioloyee Political Activity. To the extent applicable, the Contractor agrees to comply with the provisions of the Hatch Act, 5 L1. .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.&C, § 5307(k)( 2)(B) and 23 U &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, 311 U &C. §§ 3801 et seq., and U.S. DOT regulations, "Prograrn 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 Conti-actor certifies or affirms the truthfulness and accuracy of each statement it has made, it makes, or it rnay rnake 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, staternent, Submission, certification, assurance, or representation to the Federal/ State Government concerning the Project, time Federal/State Government reserves the right to impose on the Contractor the penafties, of the Program Fraud Civil Remedies Act of 1986, as amended, to the extent the Federal/State Government deems appropriate. (2) Criminal Fraud, If the Contractor makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal /State Government or includes a false, fictitious, or fraudulent statement or representation in any agreement with the Federal/State Government in connection with a Project authorized Under 49 U.S.C, chapter 53 or any other Federal law, the Federal/State Government reserves the right to impose on the Contractor the penalties of 49 'U S.C. § 5323((), 18 U.S.C. § 1001 or other applicable Federal/State law to the extent the Federal /State Government deems appropriate. Section 7. Project Expend itures/P"!avmenit/Reilmbursemient. a. General. The Department shall ) reirnburse the Contractor for allowable costs, for work performed under the terms of this Agreement which shall be financed with Federal Section 5311 funds and State matching 'funds. The Contractor shall) expend funds provided in this Agreement in accordance with the approved Project Budget(s), included as Attachment C to this Agreement, It is understood and agreed that the work conducted pursuant to this Agreement shall be done on an actual Updated 9/17110 Page 6 of 35 cost basis by the Conti-actor. Expenditures submitted for reimbursement shall include all eligible cost incurred witbin the Period Covered. I'he Period Covered represents the monthly or quarterly tiniefrarne in which the project reports expenditures to I-lie 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 aniOUnt 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 frorn 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 financi ngi tile administrative costs of the project, the Department shall reimburse the Contractor up to tile percentage specified in the Approved Project Budget of allowable administrative costs which shall be determined by available funding. C. Operafing_E_xpenditures. 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 d. Payment and Reimbursement. The Contractor shall submit a request for reimbursement to the Department for the Period Covered 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. Expenditures submitted for reimburseirrient shall include all eligible cost incurred within the Period Covered. Failure to request reimbursement for expenses incurred within the Period Covered may result in non-payment.. All requests for reimbursement must be submitted within (30) days follouwingi the end of the project's reporting period. Any contractor that fails to subunit a request for reimbursement for the first two quarters of agreement fiscal year by January 31"t or the last two quarters by July 301"' will forfeit their ability to receive, reimbursement for those periods. Additional forms must be submitted with reimbursement requests to report on contracting activities with Disadvantaged Business Enterprise (DBE) firms. Invoices shall be supported by documentation of costs unless otherwise waived by the Department, All requests must be submitted within thirty (30) days following the end of the quarter. Failure to request reirnbursement for eligible projects costs as outlined may result in termination of the Project. Invoices shall be approved by the Department's Public Transportation Division and reviewed by the Department's External Audit Branch prior to payment, e. 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 Updated 9/17/10 Page 7 of 35 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 FT,„ (d) Any non-project cost consistent with the prohibitions of 49 U,S,C, § 5323(h); and (e) Any profit or fee sought by the recipient for its services under the Grant Agree, except to the extent determined by applicable. (f) Any cost ineligible for FTA participation as provided by applicable Federal/State laws, regulations, or directives, g. Federal/State Claims, Excess Payments Disallowed Costs, including Interest. (1) Contractor 's A 'es onsibihit to F"a , 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. Updated 9/17/10 Page 8 of 5 (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 Government, whether for excess payments of Federal assistance, disallowed costs, or funds recovered frorn 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 FTA. Upon receipt of repayment from the Contractor, the Department shall be responsible to remit amounts owed to FTA, h, De-obficiation of Funds. The Contractor agrees that the Department may de-obligate unexpended Federal and State funds, before Project closeout Section 8. 802MMM AccOUnti Records. . _2 .2 a, Establishment and Maintenance of Accountipg_ 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 prograrn shall be in accordance with most current approved Annual Budget and shall be reported to the Department in accordance with UPTAS. b. Documentation of Protect Cos�ts. All costs charged to the Project, including any approved services performed by the Contractor or others, shall be supported by properly executed payrolls, firne 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 rnUlst 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 and period covered' of this Agreement unless specific authorization frorn 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 CY.R. § 19,27, which regulations specify the applicability of 2 CFR 200, "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as follows: (al) Title 2 CPR 2010, Subpart E — Cost Principles (formerly OMB Circulars A-87, A-21, and A-122) (dl) FAR, at 48 C.F.R., Subpart 31.2, "Contracts with Commercial Organizations" appfies to Project costs incurred by a Contractor that is a for-profit organization. ... ........ .. . . .. ... U I pdated 9/17/1110 Paged of 35 a. Re orts,, 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 Ala cur nentation may include, but not be limited to: operating statistics, equipment Usage, rneetings, progress reports, and monthly performance reports. The Conti-actor shall collect and submit to the Department Such financial staternents, data, records, contracts, and other docurnents related to the Project as may be deemed necessary by the Department, Such reports shall include narrative and financial staternents of sufficient substance to be in conformance with the reporting requirements of the Department. Progress reports throughout the useful life of the project equipment shall be used, in part, to document utilization of the project equipment. Failure to fully utilize the project equipment in the manner directed by the Department shall constitute a breach of contract, and after written notification by the Department, may result in termination of the Agreement or any such remedy as the Department deems 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 unntill all audit exceptions have been resolved, whichever is longer, m accordance with "Records Retention and Disposition Schedule — Public Transportation Systems and Authorities, April 1, 2006," at (http,://www,ah.dcr.st�ate.ric.us/records/local/). 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, The Department shall reserve the right to reject any and all materials and workmanship for defects and incompatibility with Project Description or excessive cost. The Department shall notify the Contractor, in writing, if materials and/or workmanship are found to be unacceptable. The Contractor shall have ninety (90) days from notification to correct defects or to provide acceptable materials and/or workmanship. Failure by the Conti-actor to provide acceptable materials and/or workmanship, or to correct noted defects, shall constitute a breach of contract. cl. Pro '�ect Closeout. The Contractor agrees that Project closeolut does not alter the reporting and record retention requirements of this Section 6 of this Agreement. Section '10.tPrr2iegc2tL!oll�olletioni Audit. Settlement, and Closeout, Project Completion, Within ninety (90) calendar days followingi Project completion, the end of the Project's period of performance, or termination by the Department, the Contractor agrees to submit a final reirnbursement request to the Department for eligible Project expenses. b, Financial Reporting and Audit ReQUirements. lin accordance with 2 CFR 200 Subpart F, " "Audit Requirements" effective December 26, 2014and 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 rnonths after the Contractor's, fiscal year- end. c. Audit Costs. Unless prohibited by law, the costs of audits rnade in accordance with Title 2 CFR 200, Subpart F — Audit ReqUirernents (formerly OMB Circular A-133),are allowable charges to State and Federal awards, The charges may be considered a direct cost or an allocated indirect cost, as determined in accordance with cost principles outlined in Title 2 CFR 2019, Subpart E — Cost Principles (-formerly OMB Circular A-87-rhe cost of any audit not conducted in accordance with Title 2 CFR 200 and N,C.G.S. 159-34 is unallowable and shall not be charged to State or Federal grants. d. Funds Owed to the Deparb-nent. The Contractor agrees to remit to the Department any excess payments rnade to the Contractor, any costs disallowed by the Department, and any Updated 9/17110 Page 10 of 35 amounts recovered by the Contractor from third parties or from other sources, as well! as any penalties and any interest required by Subsection 7g 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 Depailment does not invalidate any continuing requirements imposed by this Agreement. Section 11, 1. Civil ffiq ts. The Contractor agrees to comply with all applicaNe civil rights laws and implementing regulations including, but not limited to, the following: @. Nondiscrimination in Federal Public Transportation ProcLrams. 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 Vl of the Civil Rights Act. The Contractor agrees to comply,, and assures the compliance of each third panty contractor at any tier and each subrecipient at any tier of the Project, with all provisions prohibiting discrimination on the basis of race, color, or national origin of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C, §§ 2000d et seq., and with U.C. 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�, Egual 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.C.C. § 5332, with Title Vll of the Civil Rights Act of 1964, as amended, 42 U. &C. § 2000e of seq., and jmplernenting Federal regulations and any subsequent amendments thereto. Except to the extend FTA determines otherwise in writing, the recipient also agrees to follow all applicable Federal EEO, directives that may be issued. Accordingly: (1) General. The Contractor agrees that it will not discriminate against any employee oir applicant for employment because of race, color, creed, sex, disability, age, or national origin. The Contractor agrees to take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, sex, disability, age, or national origin. Such action shall include, but not be limited to, employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates, of pay or other forms of compensation; and selection for training, including apprenticeship. (2) Egual Emplo ime, \ Lnt Opportunity Reguirements 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.C. IDOL regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C,F,R, Parts 60 of seq., which implement Executive Order No. 11246, "Equal Employment Opportunity," as arnended by Executive Order No. '11375, "Amending Executive Order No. 11246 Relating to Equal Employment Opportunity," 42 U.Q.C. § 2000(e) note, and also with any Federal laws, regulations, and directives affecting construction undertaken as part of the Project. d. Disadvantaged Business Enterprises, (1) Policy. It is the policy of the North Carolina Department of Transportation that Disadvantaged Business Enterprises (DBEs) as defined in 49 OF R Pant 2 6 shall have the equal opportunity to compete fairly for and to participate in the performance of contracts financed in whole or in part by Federal Funds, The Contractor is also encouraged to give every opportunity to allow DBE participation in Supplemental Agreements. Updated 9/17110 Page I 1 ol'35 (2) Obligation The Contractor, subconSUltant, and subcontractor shall not discriminate on the basis, of race, religion, color, national origin, age, disability or sex in the performance of this contract, The Contractor shall comply with applicable requirements of 49 Cu R' 26 in the award and administration of federally assisted contracts. Failure by the Contractor to comply with these requirements, is a material: breach of this contract, which will result in the tenninabon of this contract or such other remedy, as the Department deems necessary, (3) Goals. Even though specific DBE goals are not established for this project, the Department encourages the Contractor to have participation from DBE contractors and/or suppliers. (4) Listing of DBE Subcontractors, The contractor, at the time the Letter of Interest is submitted, shall submit a Iisting of all known DBE contractors that will participate in the performance of the identified work. The participation shall be submitted on the Department's Form 1 S-2. In the event the contractor has no DBE participation, the contractor shall indicate this on the Form RS-2 by entering the word 'None' or the number 'zero' and the form shall be signed. Form RS-2 may be accessed on the website at (5) Certified Transportation Firrns Directory. Real-time information about contractors doing business with the Department and contractors that are certified through North Carolina's Unified Certification Program is available in the Directory of Transportation Firms, The Directory can be accessed by the link on the Deparbnent's hornepage or by entering hitto&I �Ia Dos, dot, state . nc . us/vend or/d i rec!g ry/ in the address bar of your web browser. Only contractors identified as DBE certified in the Directory shall be listed in the proposal. The listing, of an jinclMdlual contractor in the Department's directory shall not be construed as an endorsement of the contractor's capability to perform certain work. (6) Ike porting....Disadvantaged Business Enterprise Participation. When payments are rnade to Disadvantaged Business Enterprise (DBE) contractors, including material suppliers, contractors at all levels (Contractor, subconsuiltant 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 contractor has no DBE participation, the contractor shall indicate this on the Form DBE-IS by entering the word 'None' or the number 'zero' and the form shall be signed. Form DBE-IS, may be accessed on the webs,ite at htto& flaons, dot state, nc , ki sLlcju ickfindffonnu s,/Defa u It. aspx. 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 frorn the Department of Transportation. This information shall be submitted as pail of the requests for payments made to the Department. e. Age Discrimination in Employment Act (AD EA) 29 U.S.C. Section 621 througih 634 and with Implementing U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age Disc rimination in Employment Act," 29 F. R. Part 1625, which prohibits discrimination against individuals on the basis o,f age. f. Access for lndividuals 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 effort's 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 Ul.S.C. § 794, which prohibits discrimination on the basis of disability; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.&Cf 12101 et seq., which requires that accessible facilities and services be made available to individUals, with disabilities; and with the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §§ 4151 et se q., which requires that Updlated 9/17/10 Page 12 ol'35 buildings and pLiblic accommodations be accessible to in6viduals 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," 491 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. Pail 38; (4) U.S. DOJ regulations, "Nondiscrimination on the Basis of Dpsability in State and Local Government Services," 28 C.F.R, Part 35; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Cornmercial 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 Implernent 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 Orectives implementing the foregoing regulations. g. Drug or Alcohol Abuse-Confidentiality and Other 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 of seq,, with the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970„ as amended, 42 U.S.C. §§ 4541 of seq., and with the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 201 dd -290dd-2 et seq, and any subsequent amendments to these acts. h. Access to Services for Persons with Limited English Proficiency. To the extent applicable ands 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 Mth 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," 70Fed, Reg. 74087 etseq., December 14, 2005. i. 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. Updated 9117/10 Page 13 of 35 Section 12, Plannina and Private inter rise. a. General. To the extent applicable, the Contractor agrees to implement the Project in a rnanner consistent with the plans developed in compliance with the Federal planning and private enterprise provisions of the following: (1) 49 U,S,C. §§ 5303, 5304, 53016, and 5323(a)(1); (2) Joint Federal Highway Administration (FHWA)/FTA document, "lnterin,i Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint FHWAIFTA Authorities," dated September 2, 2005, as amended by joint FHWA/FTA guidance, "SA FETEA-LU Deadline for New Planning Requirements (July 1, 2007)," dated May 2, 2006 [clarifying Guidance on Implementation of SAFETEA-LUI Planning Provisions],, and subsequent Federal directives implementing SAFETEA-LU, except to time extent FTA determines otherwise in writing; (3) Joint FHWAIFTA regulations, "Planning Assistance and Standards," 23 C.F.I.. 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," 4.9 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 born pLgft_providers oLNoneme.L gency Tran§portatjop, In addition to providing opportunities to participate in planning as described in Subsection 12a of this Agreement, to the extent feasible the Contractor agrees to comply with the provisions of 49 U.&C, § 5323(k), which afford govertirnentall agencies and nonprofit organizations that receive Federal assistance for nonernergency 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 implernentation 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 13. Preference for United States Products and Services. To the extent applicable, the Contractor agrees to comply with the following U.S. domestic preference requirements: a. tau America. The Contractor agrees to comply with 49 U.&C. § 552 0) and FTA regulations, "Buy America Requirements," 49 C.F.R. Part 661 to the extent those regulations are consistent with SAFETEA-LU provisions, and Subsequent amendments to those regulations that may be promulgated. The Contractor also agrees to comply with FTA directives to the extent those directives are consistent with SAFETEA-LU provisions, except to the extent that FTA or the Department determines otherwise in writing. b. Cargo Preference-Use of United States-Flag Vessels. The Contractor agrees to comply with U.S. Maritime Administration regulations, "Cargo Preference-U.S.-Flag Vessels," 46 C.F.R. Part 38,1, to the extent those regulations apply to the Project. C. Fly America. The Contractor understands and agrees that the Federal/State Government will not participate in the costs of international air transportation of any individuals involved in or property acquired for the Project unless that air transportation is provided by U.S.-flag air carriers to the extent service by U.S.-flag air carriers is available, in accordance with the requirements of the International Air Transportation Fair Competitive Practices Act of 1974„ as amended, 49 U.S,C. Updated 9117/10 Page 14 of 35 § 40118, and with U.S, GSA regulations, "Use of United States Flag Ail, Carriers,"' 4.1 ,F RI §§ 301 - 10.131 through 001 - 10.140. Section 14, 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 req u ireme tits of 49 U,S.C. chapter 53 and other applicable Federal laws in effect now or as Subsequently enacted" with U.S. DOT third party procurement regulations of 49 C.F.R. §§ 18.36 and other applicable Federal regulations pertaining to third party procurements and subsequent amendments thereto, to the extent those regulations are consistent with SAFETEA-LU provisions; and Article 8 of Chapter 143 of the North Carolina General Statutes. The Contractor also agrees to comply with the provisions of FTA Circular 4220.1 F, "Third Party Contracting Requirements,'" to the extent those provisions are consistent with SAFETEA-LU' provisions and with any Subsequent amendments thereto, except to the extent the Department or the FTA determines otherwise in writing. AlthOLIgh the FTA "Best Practices Procurement Manual" provides additional procurement guidance, the Contractor understands that the FTA "Best Practices Procurement Manual" is focused on third party procurement processes and may omit certain Federal requirements applicable to the third party contract work to be performed. The Contractor shall establish written procurement procedures that comply with the required Federal and State standards, b, Fulll and Open Competition, In accordance with 49 U.S.C. § 5325(a), the Contractor ,agrees to conduct aNN procurement transactions in a manner that provides full and open competition as determined by the Department and FTA. C. Exclusionary or Discriminator Specifications. Apart from inconsistent requirements imposed by Federal laws or regulations, the Contractor agrees to comply with the requirements of 49 U.S.C. § 5325(h) by not using any Federal assistance awarded by FTA to support a procurement using exclusionary or discriminatory specifications. d. Geographic Restrictions. The Contractor agrees that it will not use any State or local geographic preference, except State or local geographic preferences expressly mandated or as permitted by FTA. However, for example, in procuring architectural, engineering, or related services, the Contractor's geographic location may be a selection criterion, provided that a Sufficient number of qualified firms are eligible to compete. e. In-State, Bus Dealer Restrictions, The Contractor agrees that in accordance with 49 U'.S.C. § 5325(i), any State law requiring buses to be purchased through in-State dealers will not apply to purchases of vehicles acquired with funding authorized under 49 U.S.C, chapter 53. f, Neutrality in.-Labor Relations. To the extent permitted by law, the Contractor agrees to comply with Executive Order No. 13502, "Use of Project Labor Agreements (PLA) for Federal' Construction Projects," February 6, 2009, 74 Fed. Reg. 6985 et seq. As a result, the Recipient is no longer prohibited from requiring an affiliation with a labor organization, such as a project labor agreement, as a condition for award of any third party contract or subcontract at any tier for construction or construction management services, except to the extent that the Federal Government determines otherwise in writing, g. Federal u r Iy Solneduules. State, local, or nonprofit Recipients may not Use Federal Supply Schedulies to acquire federally assisted property or services except to the extent permitted by U.S. GSA, U.S. DOT, or FTA laws, regulations, directives, or determinations, 11. Force Account. The Contractor agrees that FTA may determine the extent to which Federal assistance may be used to participate in force account costs. N. Deggrtment Tech n icaLReview. The Contractor agrees to permit the Departrnent to review and approve the Contractor 's technical specifications and requirements to the extent the Department believes necessary to ensure proper Project administration. The Contractor agrees to submit the following to the Department for its review and approval prior to solicitation: (1) New specifications for equipment, supplies, apparatuses and new-type rolling stock. This requirement does not apply to equipment, supplies, or apparatuses with cost of less Updated 9/17/10 Page l5 of 35 than $30,000; or to Minivans; Conversion and Lift Vans; Center Aisle Vans and Standard Vans; and Light Transit' Vehicles (Cutaway-type BUS), (2) Drawings, designs, and/or description of work for construction, renovation, or 'facility improvement projects, including the purchase or construction of bus shelters, j. Department Pre-award Approval. The Contractor agrees to submit procurement documents to the Department for its review and approval prior to award of a C0110'aCt/ Subcontract under this Agreement for any of the following: (1) All new-type roiling stock, excluding: Minivans; Conversion and Lift Vans; Center Aisle Vans and Standard Vans; and Light Transit Vehicies. (Cutaway-type Bus), (2) Ail construction projects equal to or greater than $30,000; (3) Any "brand narne" product or sole, Source purchase equal to or greater than $2,500; (4) Any contraGUSUbcontractto other than apparent lowest bidder equal to or greater than $2,500; (5) Any procurement equal to or greater than $90,000; (6) Any contract modification that WOUld change the scope of a contract or increase the contract amount up to or over the forrnal (sealed) bid threshold of $90,000. k. Project ApprovaI/Third Party Contract Except to the extent the Department determines otherwise in writing, the Contractor agrees, that the Department's award of Federal and State assistance for the Project does not, by itself, constitute pre-approval of any non-competitive third party contract associated with the Project. I. Preference for ec sled ProdnuctS. To the extent applicable, the Contractor agrees to comply with U.S. EPA regulations, "Comprehensive Procurement Guidelines for Products Containing Recovered Materials," 40 C.F.R. Part 247, which implements Section 6002 of the Resource Conservation and Recovery, Act, as amended, 42 U.S.C. § 6962, and with subsequent Federal regulations that may be promulgated, Accordingly, the, Contractor agrees to provide a competitive preference for products and services that conserve natural resources, protect the environment, and are energy efficient. m. Clean Air and Clean Water, The Contractor agrees to include in each third party contract and subagreement exceeding $100,000 adequate provisions to enSLJre that each Project participant will agree to report the use of facilities placed on or likely to be placed on the U.S. Environmental Protection Agency (U.S. EPA) "List of "Violating Facilities," to not use any violating facilities, to report violations, to the Department and the Regional U.S. EPA Office, and to comply with the inspection and other applicable requireiments of. (1) Section 306 of the Clean Air Act, as amended, 42 U &C, § 7606, and other applicable provisions of the Clean Air Act, as amended, 42 U.S.C, §§ 7401 through 7671q; and (2) Section 508 of the Clean Water Act, as amended, 33 U,S,C. § 1368, and other applicable requirements of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377. 11. National Intelligent Transportation Sy stems Architecture and Standards, To the extent applicable, the Contractor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and comply with FTA Notice, '"ETA National ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8, 2001, and any Subsequent further implementing directives, except to the extent FTA or the Department determines otherwise in writing. 01 Rolling Stock, In acquiring rolling stock, the Contractor agrees as follows: (1) Method of ACgUiSiti0n, The Department's, Public Transportation Division, through the North Carolina Department of Administration, Purchase and Contract Division, awards vehicle contracts for its grant recipients to purchase public transit vehicles. These vehicle contracts comply with FTA and State requirements, The Contractor will utilize these vehicle contracts to purchase public transit vehicles included in the Approved Budget for this Project. For public transit Updated 0117110 Page 16 of35 vehicles not included in these contracts, the Contractor shall conduct a competitive procurement process in accordance with this Agreement. (2) Multizye , In accordance with 49 U.S.C. § 5325(e)(1), the Contractor may not enter into a mUld-year contract with options, exceeding five (5) years after the date of the original contract, to purchase additional rolling stock and replacement parts. (3) Pre-Award and Post - deliver y Re uirements. The Contractor agrees to comply with the requirements of 49 U.S.C. § 5323(m) and FTA regulations, "Pre-Award and Post-Delivery Audits of Rolling Stock Purchases," 49 C.F.R. Part 663 and, when promulgated, any amendments to those regulations, The Contractor understands and agrees that to the extent the provisions of 491 U.S.C. § 5323(m), as amended by SAFETEA-LU conflict with FTA's implementing regulations, as currently promulgated, the provisions of 49 U.S.C. § 5323(m), as amended, prevail. (4) Bus Testing. To the extent applicable, the Contractor agrees to comply with the requirements of 49 U.S.C. § 5318(e) and FTA regulations, "Bus Testing," 49 C. .q Part 665, and any amendments to those regulations that may be promulgated, p, EpDdinq. For construction projects, the Contractor agrees to provide bid guarantee bond (5% of bid price) and performance and payment bonds (100% of contract price) and comply with any other construction bonding provisions as the Department may determine. q. Architectural, Engineering, Design, or Related Services, For all architectural, engineering, design, or related services the Contractor shall use qualifications -based competitive proposal [Request for Qualifications (RFQ) in accordance with the Brooks Act] procedures. The Contractor shall follow applicable Statutes, N.C.G.S. 143-64,31-34 and requirements set forth in FTA Circular 4220,1 F, to retain a qualified, registered architect or professional engineer. (1) The Conti-actor agrees to comply with q Lial ificatio ns- based competitive proposal procedures, which require: (a) An offeror's qualifications be evaluated'; (b) Good faith effort to use rninority-owned businesses, (c) Price be excluded as an evaluation factor; (d) Negotiations be conducted with only the most qualified offeror; and (e) Failing agreement on price, negotiations with the next most qualified offeror be conducted until a contract award can be made to the most qualified offeror whose price is fair and reasonable. (2) Geographic location may be a selection criterion in procurements for architectural and engineering (A&E) services provided its application leaves an appropdate number of qualified firms, given the nature and size of the project, to compete for time contract. (3) The Contractor acknowledges and agrees that qualifications -based competitive proposal procedures can only be used for procurement of the following services-, (a) Program management; (b) Construction management; (c) Feasibility studies; and (d) Preliminary engineering, design, architectural, engineering, Surveying, mapping, and related services. (4) The Contractor also agrees to: (a) Include applicable Federal requirements and certifications in the solicitation; (b) Submit procurement documents to the Department for its review and approval prior to the award of any contract for A&E services for the Project; and (c) Maintain written documentation to support each step of the procurement process. r. Qjesign-Bid-Build ELQjg�a. The Design-Bid-Build method of construction is where there are separate contracts and procurement processes for the design and construction. Typically the Updated 9/17110 Page 117 o`:35 designer coordinates the numerous prime contractors that are involved in the construction process. The Contractor may use design-bid-build procurements to implement its projects after it has complied with applicable Federal and State requirements and obtains approval from the Department prior to solicitation and award of the contract. s. Desiqn-Build Projects, The (Design -Build method of construction is where a single contractor is given responsibility for both design and construction, thus eliminating an intermediate procurement step with possible firne saving, and more effective coordination and opportunities for cost savings. Currently, this procurement method is not an allowable method of procurement by the State of North Carolina, The Contractor may request to use the design-build rnethod as an "alternate" method. Submission of justification must be presented to the State Building Commission for a 213-majority vote of approval. One of the drawbacks of design-build is that the owner does not have an independent source (the A/E in traditional construction) overseeing design implementation and verifying conformance with the drawings and specifications. t. Competitive Pro posal/Regnest for Proposal (RFP). The competitive proposal/ request for proposal (RFP) method of procurement is normally conducted with more than one source submitting an offer, i.e., proposal. Either a fixed price or cost reimbursement type contract is awarded. This method Of procurement is generally used when conditions are not appropriate for the use of sealed bids. The Contractor acknowledges that certain restrictions apply under North Carolina law for use of the RFP method and these restrictions and exceptions are discussed below, (1) The Contractor agrees that the RFP Method may not be used in lieu of an invitation for bids (iFB) for: (a) Construction/repair work; or (b) Purchase of apparatus, supplies, materials or equipment, See, Subsection 14t(2), this Agreement, regarding information technology goods as services. (2), The Contractor agrees that the RFP method of solicitation may be used (in addition to or instead of any other procedure available Linder 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, telecoms-nunications, 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 infort-nation 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. (() Proposals submitted shall not be subject to public inspection Until a contract is awarded. Updated 9/17110 Page, 18 of 35 (3) The Contractor agrees that the RFP method, in accordance with FTA Circular 4220.I F, under the guidelines of FTA "Best Practices Procurement Manual," should: be used for proCUrernents of professional services, such as consultants for planning activities and for transit system operations /management. The Contractor acknowledges that certain restrictions apply under North Carolina law for use of the RFP method and these restrictions and exceptions are discussed in Subsections 14t(1) and '14t(2) of this Agreement. For all architectural, engineering, design, or related services, the Contractor agrees that the qualifications- based competitive proposal process shall be used (see Subsection, 14q, this Agreement). (4) When the RFP method is used for procurement of professional services, the Contractor agrees to abide by the following rninimurn reqUirernents: (a) Normally conducted with more than one source submitting ail offer (proposal); (b) Either fixed price or cost reimbursement type contract will be used; (c) Generally used when conditions are not appropriate for use of sealed bids-, (d) Requests for proposals will be publicized,' (e) All evaluation factors will be identified along with their relative importance; (f) Proposals will be solicited from an adequate number (3 is recommended) Of qualified sources; (g) A standard method must be in place for conducting technical evaluations of the proposals received and for selecting awardees; (h) Awards will be made to the responsible firm whose proposal is most advantageous to the Contractor's program with price and other factors considered; and (i), In determining which proposal) is most advantageous, the Contractor may award to the proposer whose proposal offers the greatest business value (best value) to the agency. "Best value" is based oil determination of which proposal offers the best tradeoff between price and performance, where quality is considered an integral performance factor. U. Award to Other than the Lowest Bidder. In accordance with Federal and St,ate 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 willl be considered in determining which bid is lowest. Prior to the award of any contract equal to or greater than $2,500 to other than apparent lowest bidder, the Contractor shall Submit its recommendation along with basis/reason for selection to the Department for pre-award approval. V, Award to Responsible Contractors, The Contractor agrees to award third party contracts only to responsible contractors who possess potential ability to Successfully perform under the terms and conditions of the proposed procurement. Consideration will be given to such matters as contractor integrity, cornpliance 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.I. 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 sarnple certification form can be obtained frorn the Department, The Contractor also agrees to Updated 91 17/10 Page 4 9 of 35 check a potential contractor's debarment/suspension status at the following Web site: http://epts,ariiet.gov/. W Procurement Notification Reguirements. With respect to any procurement for goods and services (including construction services) having an aggregate value of $500,00O or more (in Federal funds), the Contractor agrees to: (1) Specify the amount of Federal and State funds that will be used to finance the acquisition in any announcement of the contract award for such goods or services; and (2) Express the said amount as a percentage of the total costs of the planned acquisition. X Contract Administration System, The Contractor shall maintain a contract administration system that ensures that contractors/subcontractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders, y. Access to Third Part 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 15. 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. b, Leases InvoMn-g-Certificates of Participation. The Contractor agrees to obtain the Department's concurrence before entering into any leasing arrangernent involving the issuance of certificates of participation in connection with the acquisition of any capital asset. Section 16. Hold Harmless, Except as prohibited or otherwise limited by State law or except to the extent that FTA or the Deplarbiient determines otherwise in writing, upon request by the Federal or State Government the Contractor agrees to indemnify, save, aind hold harmless the Federal and State Government and its officers, agents, and employees acting within the scope of their official duties against any liability, Including costs and expenses, resulting from any wifl-ful 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 indernnify the Federal or State Government for any such liability caused by the wrongful acts of Federal or State employees or agents. Section 17'. Use of eall Proper!yEgu,i,piii.e.iitand Sup lies. The Contractor understands and agrees that the Federal/State Government retains a Federal/State interest in any real property, equipment, and supplies financed with Federal/State assistance (Project property) until, and to the extent, that the Federal /State Government relinquishes its Federal /State interest in that Project property. With, respect to any Project property financed with Federal/State assistance under this Agreement, the Contractor agrees to comply with the following provisions, except to the extent FTA or the Department determines, otherwise in writing: a. Use orf,-Pro`ect Property, The Contractor agrees 'to maintain continuing control of the use of Project property to the extent satisfactory to FTA. The Contractor agrees to use Project property for appropriate Project purposes (which may include joint development purposes that generate program incorne, both during and after the award period and used to support public transportation activities) for the duration of the useful life of that property, as required by FTA or the Department. Should the Contractor unreasonably delay or fail to use Project property during the useful life of that property, the Contractor agrees that it may be required to return the entire amount of the Federal and State assistance expended on that property. The Contractor further agrees, to notify the Department immediately when any Project property is withdrawn from Project use or when any Project property is used in a manner Substantially different from the representations the Contractor has made in its Updated 9/17/10 Page 20 of'35 Application or in the Project Description for this Agreement for the Project. In turn, the Department shall be responsible for notifying FTA. b. General, The Contractor agrees to comply with the property management standards of 49 C,F,R, §§ 18,31 through 18.33, including any amendments thereto, and with other applicable Federal and State regulations and directives. Any exception to the requirements of 49 C.F.R. §§ 18.31 through 18.33 requires the express approval of the Federal Government in writing. The Contractor also consents to the Department's reimbursement requirements for premature dispositions of certain Project equipment, as set forth in Subsection 17i of this Agreement, c. Maintenance and Insnection of Vehicles, Facilities and Other Project Equipment . The Contractor shall maintain all project equipment at a high level of cleanliness, safety, and mechanical soundness ill accordance with the minimum maintenance requirements recommended by the manufacturer. The Contractor shall register all vehicle maintenance activities in a Comprehensive Maintenance Record or an electronic version of same. The Department shall conduct frequent inspections to confirm proper maintenance pursuant to this Subsection 17c of this Agreement and the State Management Plan. The Contractor shall collect and Submit to the Department at such time and in such manner as it may require information for the purpose of the Department's Public Transportation Management System (PTMS). The Contractor shall maintain the facility, including any and all equipment installed into or added on to the facility as part of the Project, in good operating order and at a high level of cleanliness, safety and mechanical soundness in accordance with good facility maintenance and Upkeep practices and in accordance with the minimum maintenance requirements recommended by the manufacturer for all equipment installed in or added to the facility as part of the Project. Such maintenance shall be in compliance with applicable Federal and state regulations or directives that may be issued, except to the extent that the Department determines otherwise in writing, The Department shall conduct inspections as it deems necessary to confirm proper maintenance on the part of the Contractor pursuant to Subsection 17c of the Agreement and the State Management Plan, Such inspections may or may not be scheduled ahead of time, but will be conducted such that they shall not significantly interfere with the ongoing and necessary functions for which the Project was designed. The Contractor shall make every effort to accommodate such inspections by the Department in accordance with the Department's desired schedule for such inspections, The Contractor shall collect and submit to the Department at such time and in such manner as the Department may require information for the purpose of the Department's Public Transportation Management System (PTIMS) and any and all other reports the Department deems necessary, The Contractor shall also maintain and make available to the Department upon its demand all documents, policies, procedLiFeS, purchase orders, bills of sale, internal work orders and similar items that dernonstrate the Contractor's maintenance of the facility in good operating order and at a high level of cleanliness, safety and mechanical Soundness, cl. Records. The Contractor agrees to keep satisfactory records pertaining to the use of Project property, and submit to the Department upon request Such information as may be required to assure compliance with this Section 14 of this Agreement. e, Incidental Use. The Contractor agrees that: (1) General. Any incidental use of Project property will not exceed that permitted under applicable Federal and State laws, regulations, and directives. (2) Alternative Fueling-Facilities, As authorized by 49 U.S.Ca § 5323(p), any Incidental use of its federally financed alternative fueling facilities and equipment by non-transit public entities and private entities will be permitted, only if the: (a) Incidental use does not interfere with the Contractor's Project or public transportaflon operations; Updated 9/17/10 Page 2 1 or 35 (b) Contractor fully recaptures all costs related to the incidental use from the non-transit public entity or private entity; (c) Contractor uses revenues received from the incidental use in excess of costs for planning, capital, and operating expenses that are incurred in providing public transportation; and (d) Private entities pay all applicable excise taxes on fuel. f. Title to Vehicles. The Certificate of Title to all vehicles purchased under the Approved Budget for this Project shall be in the narne of the Contractor. The If Public Transportation DMsion shall be recorded on the Certificate of Title as first lien-holder. In the event of project termination or breach of contract provisions, the Contractor shall, Upon written notification by the Department, surrender Project equipment and/or transfer the Certificate(s) of Title for Project equipment to the Department or the Department's designee. 9. Encurnbrance-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, rnortgage, encumbrance, third party contract, subagreernent, grant anticipation note, alienation, innovative finance arrangement (such as a cross border lease, leveraged lease, or otherwise), or any other obligation pertaining to Project property, that in any way would affect the continuing Federal and State interest in that Project property, (2) Oral Transactions. The Contractor agrees that rt will not obligate itself in any manner to any third party with respect to Project property. (3) Other Actions. The Contractor agrees that it will not take any action adversely affecting the Federal and State interest in or impair the Contractor's continuing corntrol of the use of Project property. h. Transfer of Project Property. The Contractor understands and agrees as follows: (1) Contractor Regues , The Conti-actor may transfer any Project property financed with Federal assistance authorized under 49 U.S,C. chapter 53 to a local governmental authority to be used for any public purpose with no further obligation to the Federal Government, provided the transfer is approved by the Federal Transit Administrator and conforms with the requirements of 49 U&C, §§ 5334(h)(1) through 5334(h)(3). (2) Federal/State Government Direction, The Contractor agrees that the FederMall or State Government may direct the disposition of, and even require the Contractor to transfer title to any Project property financed with Federal/ estate assistance under this Agreement. (3) Leasing P,roiect Property to Another Party, (a) General. Prior to entering: into any third party contract for leasing Project property to another party, the Contractor agrees to obtain approval from the Department, If the Conti-actor leases any Project property to another party, the Contractor agrees to retain ownership of the leased Project property, and assure that the lessee will use the Project property appropriately, through a written lease between the Contractor and lessee. The Contractor agrees to use the standard lease agreement form provided by the Department and to provide a copy of the signed, executed lease agreement to the Department. In Updated 9/17/10 Page 22 of 35 accordance with Subsection 5g of this Agreement, regardless of assignment of work to be completed Linder this Project or lease of Project assets to a third party, it is the Contractor's primary responsibility to comply with Federal and State requirements of this Agreement and assure the compliance of any third party contractors. (b) Lease of Vehicles. The lease of vehicles acquired with financial assistance authorized for 49, U.S.C. 5311 to any third party is contingent upon approval of the Department. It is allowable to lease vehicles to another Community Transportation System providing general public service in the State of North Carolina, upon approval of the Department. It is also allowable for vehicles to be leased to a third party operator or transportation management company that operates the transit service within a county/region Linder contract to the Contractor, upon approval of the Department, The Contractor agrees to use the vehicle lease agreement provided by the Department when vehicles are leased, even if on a short-term basis, to another Community Transportation Systern or a management company, The Contractor agrees to obtain written approval frorn the Department before the lease is executed and forward a copy of the signed, executed lease agreement to the Department. The Contractor, as a Community Transportation, System, shall not lease vehicles to human service agencies, County agencies/government, community agencies or school systems. The Contractor agrees not to loan vehicle(s) to other agencies /individuals for short-term use, even during hours that the transportation systern Is not providing service, as the vehicle(s) will generally be used to provide service that is "closed-door," i.e., not open -to the general public, i. Disposition of Project PTopert , With prior Department approval, the Contractor may sefl, transfer, or lease Project property and use the proceeds to reduce the gross project cost of other eligible capital public transportation projects to the extent permitted by 49 U.S.C, § 5334(h)(4), The Contractor also agrees that the Department shall determine "useful life" for all Project property and that the Contractor wifl use Project property continuously and appropriately throughout the useful life of that property. Upon the end of the period of useful life, the Contractor may dispose of Project property after notifying and receiving disposition instructions frorn the Department. Proect Proqgjy_'u hose Useful Life leas Pxoired, When the useful Iffe of Project property has expired, the Contractor agrees to comply with the Department's disposition req u ireme tits, (2) Project Property Preimturelv Withdrawn from Use. For Project property withdrawn frorni appropriate Use before its useful life has expired, the Contractor agrees as follows, (a) Notification Requirement, The Contractor agrees to notify the Department immediately when any Project property is prematurely withdrawn from appropriate use, whether by planned withdrawal, misuse, or casualty loss. (b) Calculating the Fair Market Value of Prematurely Withdrawn .......Project . Property. The Contractor agrees that the Federal/State, Government retains a Federal/State interest in the fait, market value of Project property prematurely withdrawn from appropriate use. The amount of the Fecleral/State interest in the Project property shall be determined by the ratio of the Federal /State assistance awarded for the property to the actual cost of the property. The Contractor agrees, that the fair market Value of Project property prematurely withdrawn from use will be calculated as followers: 1. Equipment and Supplies, The Contractor agrees that the -fair market value of Project equipment and supplies shall be calculated by straight-line depreciation of that property, based on the useful life of the equipment or supplies as established by the Department. The fair rnarket value of Project equipment and Supplies shall be the value immediately before the occurrence prompting the withdrawal of the equipment or supplies frorn appropriate use. In the case of Project equipment or supplies lost or damaged by fire, Updatedi 9117110 Page 23 of 35 casualty„ or natural disaster, the fail, market value shall be calculated oil the basis of the condition of that equipment Or supplies immediately before the fire, casualty, or natural disaster, or the arnount of insurance coverage, whichever is greater. 2. Real Property, The Contractor agrees that the fair market Value of real property financed under the Project shall be determined by FTA either on the basis of competent appraisal based on an appropriate date approved by FTA, as provided by 49 C.F.R. Part 24, by straight line depreciation of improvernents to real property coupled with the value of the land as determined by FTA on the basis of appraisal, or other Federal law or regulations that may be applicable, 2. Exceptional CirCUrnstances. The Contractor agrees that the Department may require the use of another rnethod to determine the fair market value of Project property. In unusual circumstances, the Contractor may request that another reasonable valuation, method be used including, but not limited to, accelerated depreciation, comparable sales, or established market values. In determining whether to approve such a request, the Department may consider any action taken, omission made, or unfortunate occurrence suffered by the Contractor with respect to the preservation of Project property withdrawn from appropriate use. (c) Financial Obligations to the Federal/State Government, The Contractor agrees to remit to the Department the Federal and State interest in the fair market valLfe of any Project property prematurely withdrawn from appropriate use. In turn, the Department shall be responsible to remit the Federal interest to the FTA. In the case of fire, casualty, or natural disaster, the Contractor may fulfill its obligations to remit the Federal and State interest by either: 1. Investing an arnount equal to the remaining Federal and State interest in like -kind property that is eligible for assistance within, the scope of the Project that provided Federal/State assistance for the Project property prematurely withdrawn frorn use; or 2. lRetUrning to the Department an amount equal to the remaining Federal and State interest in the withdrawn Project property, j, Insurance Proceeds, If the Contractor receives insurance proceeds as a result of damage or destruction to the Project property, the Contractor agrees to: (1) Apply those insurance proceeds to the cost of replacing the damaged or destroyed Project property taken Out of service, or (2) Return to the Department all amount equal to the remaining Federal and State interest in the clarnaged or destroyed Project property. k. Transportation - Hazardous Matei1als, The Contractor agrees to comply with applicable requirements of U.S. Pipeline and Hazardous Materials Safety Administration regulations, "'Shippers - General Requirements for Shipments and Packaging," 49 C.F.R. Part 173, in connection with the transportation of any hazardous materials, L Misused or Damage I Pro ect Pro ert , If any darnage to Project property resulls from abuse or misuse Occurring with, the Contractor 's knowledge and consent, the Contractor agrees to restore the Project property to its original condition or refund the value of the Federal and State interest in that property, as the Department may require. M. Responsibilities after Project Closeout The Contractor agrees that Project closeOLlt by the Updated 9/17J1 0 Page 24 of' 3,5 Department will not change the Contractor's Project property management responsibilities as stated in Section 14 of this Agreernent, 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 18. Insurance: The Contractor shall be responsible for protecting the state and/or federal financial Interest in the facility construction/renovation and equipment purchased under this Agreernent throughout the useful life. The Contractor shall provide, as frequently and iin such manner as the Department may require, written docurnentation that the facility and equipment are insured against loss in an amount equal to or greater than the state and/or federal share of the real value of the facility or equipment, Failure of the Contractor to provide adequate insurance shall be considered a breach of contract and, after notification may result in termination of this Agreement, In addition, other insurance requirements may apply, the Contractor agrees as follows. a. Minimurn ReQUirements, At a minimum, the Contractor agrees to cornply with the insurance requirements normally imposed by North Carolina State and local laws, regulations, and ordinances,, except to the extent that the Department determines otherwise in writing, b. Flood Hazards, To the extent applicable, the Contractor agrees to comply with the flood insurance purchase provisions of Section! 102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012a(a),, with respect to any Project activity involving construction or an acquisition having an insurable cost of $10,000 or more. Section 19. Relocation. Whein relocation of individLials or businesses, is required, the Contractor agrees as follows� a. Relocation Protections, The Contractor agrees to comply with 49 U,&C, § 5324(a), which requires compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1,970, as arnended, 42 U.S.C. §§ 4601 et seq.; and U .S. DOT regulations, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,"' 49 C,F.R. Part 24, which provide for fair and equitable treatment of persons, displaced and persons whose property is acquired as a result of Federal and federally assisted prograrns. [See, new U.S. DOT final rule, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24, at 70 Fed. Reg. 590 et seq,, January 4, 2005.] These requirements apply to relocation in connection with all interests in real property acquired for the Project regardless of Federal participation in the costs of that real property. b, Nondiscrimination in Housing. In carrying out its responsibilities to provide housing that may be required for compliance with Federal relocation requirements for individuals, the Contractor agrees to comply with Title VIll of the Civil Rights Act of 1968, as amended, 42 U,S,C. §§ 3601 et seq., and with Executive Order No. 12892, "Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively Furthering Fair Housing," 42 U.S.C, § 3608 note. C. Prohibitioin A ainst Use of Lead-Based Paint. in undertaking COnStrUCtiOn or rehabilitation of residential structures on behalf of individuals affected: by real property acquisition in connection with implernenting the Project, the Contractor agrees that it will not use lead-based paant, consistent with the prohibitions of Section 401(b) of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4831(b), and the provisions of U.S. Housing and Urban Development regulations, " "Lead based Paint Poisoning in Certain Residential Structures," Section 20. ER ea/ Pro 2pEty. For real property acquired with Federal assistance, the Contractor agrees as follows: a. Land, Acquisition. The Contractor agrees to comply with 49 U.S.C. § 5324(a), which requires compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended', 42 U,S.C. §§ 4601 et seq.; and with US. DOT regulations, "Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Prograrns," 49 C.F.R. Part 24. [See, new U.S. DOT final rule, "Uniform Relocation Assistance and Real Property Acquisition for Updated 9117/10 Page 25 of'35 Federal and Federally Assisted Programs,"' 49 C.F.R. Part 24, 70 Fed, Reg, 590 et seq., January 4, 2005] These requirements apply to all interests in real property acquired for Project purposes regardless of Federal participation in the cost of that real property. b. Covenant Assuring Nondiscrimination. The Conti-actor agrees, to include a covenant in the title of the real property acquired for the Project to assure nondiscrimination during the useful life of the Project. C, Recording Title to Real PT �g ert . To the extent required by FTA and the Department, the Contractor agrees to record the Federal and/or State's interest in title to real property Used in connection with the Project and/or execute at the request of the Department any instrument or documents evidencing or related to the State's interest in the Project's property. (1) As a condition of its participation in a Facility Project, the Department will retain a secured interest in the Project for the estimated life of the Project, expected to be forty (40) years, following cornplefion of the Project,* or the prorated share of the original investment or current fair market value (the higher value of the two); whichever conies first. d, Department Approval of Changes in Real Property Ownership, The Contractor agrees that it will not dispose of, modify the use of, or change the terms of the real property title, or other interest in the site and facilities used in the Project without prior written permission and instructions from the Department. e. Disposal of Real Property, (1) if useful life is not attained, upon the sale or disposition of any Project facility, the Department shall be entitled to a refund of the original state and/or federal investment or the state and/or federal prorated share of the current fair market value of the project facility, whichever is greater. (2) For the purpose of this Agreement, the term "any sale or disposition of the Project facility" shall mean any sale or disposition of the facility for a use not consistent with purposes for which the state and/or federal share was originally granted pursuant to the Project Agreement, or for a use consistent with such purposes wherein the transferee in the sale or disposition does not enter into an assignment and assumption agreement with the Contractor with respect to the Contractor's obligation under this Agreement or the Grant Agreement, so that the transferee becomes obligated as if the transferee had been the original pai-ty, Section 21. Emplovee Protections. a. Construction Activities. The Contractor agrees to comply, and assures the compliance of each third party contractor and each subrecipient at any tier of the Project, with the following laws and regullations, providing protections for construction employees: (1) Davis-Bacon Act, as amended', 49 U.&C. § 5333(a), which requires compliance with the Davis-Bacon Act, 40 U,S,C, §§ 3141 et seq., and implementing U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5, (2) Contract Work Hours and Safety Standards Act, as amended, 401 U.S.C. §,§ 3701 et seq., specifically, the wage and hour requirements of Section 102 of that Act at 40 U &C. § 3702, and implementing U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to NonconstrUction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 Updated 9/17/10 Page 26 of 35 C.F.R. Part 5a and the safety requirements of Section 107' of that Act at 40 U.S.C.. § 37004, and implementing U.S. DOL regulations, "Safety and Health Regulations for Construction," 29 C.F.R Part 1926; and (3) Copeland "Anti-Kickback" Act, as amended, 18 U.&C. § 874. and 40 U.S.C. Section 3145 and implementing U.S. DOL regulations, "Contractors, and Subcontractors on Public Building or Publlic Work Financed in Whole or in part by Loans or Grants from the United States," 29 C.F.R.. Part 3, b. Activities Not Involvina Construction. The Contractor agrees to comply, and assures the compliance of each third party contractor and each subrecipient at any tier of the Project, with the employee protection requirements for nonconstruction employees of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. §§ 3701 et seq., in particular the wage and hour requirements of Section '102 of that Act at 40 U.S.C. § 37012, and with U.S. D,OL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to NonconstrUCti0n Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5. C. Activities Involving Commerce, The Contractor agrees that the provisions of the Fair Labor Standards Act, 291 Ul.S.C. §§ 2011 let sec., apply to employees performing Project work involving commerce. cl. Public TransDortation Employee Protective Arranqements for Prop lects in NonUrbanized Areas Authorized by 49 Q,&C, § 5311. The Contractor agrees to comply with the terrns and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, U.S. DOL implernenting procedures, and any revisions thereto. Section 22. 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,&C, 1251 through 1377; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6'901 through 6992k; the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601 through 9675, as well as environmental Iprovisiorns 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 iSSLle, Federal regulations and directives that may affect -the Project. Thus, the Contractor agrees to comply, and assures the compliance of each third party contractor, with any applicable Federal laws, regulations and directives as the Federal Government are in effect now or become effective in the future, except to the extent the Federal Government determines otherwise in writing. Listed below are environmental provisions of particular concern to FTA and the Department. The Contractor understands and agrees that those laws, regulations, and directives may not constitute the Contractor's entire obligation to meet all Federal environmental and resource conservation requirements, a. National Environmental Policy. Federal assistance is contingent upon the Contractor's facilitating FTA's compliance with all applicable requirements and implementing regulations of the National Environmental Policy Act of 1969, as amended, (NEPA) 42 U.S.C, §§ 4321 through 4335 (as restricted by 42 U.S.C. § 5159, if applicable); Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality, "" 42 U.S.C. § 4321 note; FTA statutory requirements at 49 U.S.C. § 5324(b),; U.S. Council on Environmental Quality regUlations, pertaining to compliance with NEPA, 40 C.F.R. Parts 1500 through 1508; and joint FHWA/FTA regulations, "Environmental impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622, and subsequent Federal environmental protection regulations that may be promulgated, Updated 9/17/10 Page 27 o,f`35 The Recipient agrees to cornply with the applicable provisions of 23 U,S,C, Section 139 pertaining to environmental procedures, and 23 U.S.C. Section 326, pertaining to State responsibility for categorical exclusions, in accordance with the provisions of joint FHWA/FTA final guidance, "SAFETA-LU Environmental Review Process (Public Law 109-59)," 71 fed, Reg, 66576 et seq., November 15, 2006 and any applicable Federal directives that may be issued at a later date, except to the extent that FTA determines otherwise in writing. b. Air.Olurality. 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 arnended, wMch 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' j 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,&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 3013(c). The Contractor also agrees to comply with joint FHWA/FTA regulations, "Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites," 23 C.F.R. Parts 771 and 774, and 491 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 Updated 9117/10 Page 2 8 of 35 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. Pail 8350. f. Coastal Zone Mana 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,&C, §§ 1451 through 14-65. 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. Flood loins. 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. Endanaered Sr)ecies 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,&C. §§ 1531 through 1544, and the Magnuson Stevens Fisheries Conservation Act, as amended, 16 U. 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 annended, 16 U.S.C. § 470,f; with ExeCLItive Order No. 11593, "Protection and Enhancement of the Cultural Environment," 16 U. .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 lndians, Eskir nos, Aleuts, and Native Hawaiians, in compliance with the American Indian Religious Freedom Act, 42 U.S.C. § 1996, and with Executive O�rder No. 13007, 'Indian Sacred Sites," 42 U3.C. § 1996 note, except to the extent the Federal Government determines otherwise in writing. 11, Mifiqation of Adverse Environmental . ....Effects. Should the proposed Project cause or result in adverse environmental effects, the Contractor agrees to take all reasonable measures to minimize the impact of those adverse effects, as required by 49 U3.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. .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 pail 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 23. finer Conservation. The Contractor agrees to comply with the North Carolina Energy Policy Act of 1975 (N.C.G.S. 11313) issued in accordance with the Energy Policy and Conservation Act, as amended, 42 U.S.C. §§ 6321 et seq., except to the extent that the Department determines otherwise in writing. To the extent applicable, the Contractor agrees to perform an energy Updated 9/1V10 Page 29 of 35 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 24. Charter Service Qer�afions, The Conti-actor acknowledges that Federal and State requirements prohibit the use of vehicles, facilities and equipment funded by Federal or State grant programs -for the provision of charter services Unless it is determined that there are no willing and able charter operators in the service area. Federal law does not provide exceptions to these regulations for vehicles that are loaned or leased to other agencies or entities. The Contractor agrees that neither it nor any public transportation operator performing work in connection with a Project financed under 49 U.S.C. chapter 53 will engage in charter service operations, except as authorized by 49 U.S.C. § 5323(d) and FTA regulations, "Charter Service," 49 C.F.R. Part 604, and any subsequent Charter Service regulations or FTA directives that may be issued, except to the extent that FTA determines otherwise in writing. Any charter service agreement required by FTA regulations is incorporated by reference and made part of this Agreement for the Project. The Contractor understands and agrees that in addition to any remedy specified in the charter service agreement, if a pattern of viollations, 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 25. 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 US,C. §§ 5323(f) or (g), as applicable, and FTA regulations, "School BUS Operations," 49 C.F.R. Part 605, and any subsequent School Transportation Operations regulations or FTA directives that may be issued. Any school transportation operations agreement required by FTA regulations is incorporated by reference and made part of this Agreement for the Project, The Contractor understands and agrees that if it or an operator violates that school transportation operations agreement the violator will be barred frown receiving Federal transit assistance in an amount to be determined by FTA or U.S, DOT. Section, 2G.GeWraphic Information and R elated _a221igLQjLtR. 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 27. Motor Carrier agf2ty. To the extent applicab,le, 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, FMCS A): a, Financial Respoinsibilfty. The Contractor agrees as follows: (1) To the extent that the Contractor is engaged in interstate commerce and riot 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 econornic registration and insurance reqUirements. For recipients of Federal assistance under 49 U,&C. §§ 53017, 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, Updated 9/17/10 Page 30 of 35 (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 governrnent (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. F1' CSA regulations, Subpart 13, "Federal Motor Carrier Safety, Regulations," at 49 CFR Parts 390 through 396. b. Driver Qualifications, The Contractor agrees to comply with U.S. FMCSA's regulations, "Commercial Driver's, License Standards, Requirements, and Penalties," 49 C.F.R. Part 383, C. Substance Abuse RUIes 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 28. Substance Abuse. To the extent applicable, the Conti-actor agrees to comply with the following Federal substance abuse regulations: a. DrUci-Free Workplace. U.S. OM Guidance, "Goverernmentwide requirements for DrUg-Free Workplace (Financial Assistance)." 2 C,F. R. Part 182, U,& DOT regulations, "Governmentwide Requirements for Drug-Free Workplace (Financial Assistance), 49 C.F.R. Pail 3,2, that implement the Drug-Free Workplace Act of 1988, 41 M.S.C. §§ 701 et seq. b, Alcohol Misuse and Prohibited Drug Use, FT A regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,:" 49 C.F.R. Part 655, that implement 49 U.&C. § 5331. Section 29. Seat Belt' se. In accordance with Executive Order No, 13043, "increasing Seat Belt Use in the United States," April 16, 1d 97, 23 U. C. C. § 402 note, the Contractor is encouraged to adopt and promote on-the-job seat belt use policies and prograrns, 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 subagreernents involving the Project. Section 30. Text Messaaiina While Drivin . 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 December 30, 2009, the Grantee is encouraged to comply with the term of the -following Special Provision. a. Definitions. As used in this Special Provision: (1) "Driving"' rneans operating a motor vehicle on a roadway, including while ternporarily 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 frorn 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 toc (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; Updated 9117/10 Page 3 1 of 35 (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 prograrns to prohibit text messaging while driving° and (b) Education, awareness, and other outreach to employees about the safety risks associated with texting while driving. (3) Include this Special Provision in its subagreernents with its subrec#ents and third party contracts and also encourage its subrecipients, lessees, and third party contractors to comply with the terrns of this Special Provision, and include this Special Condition in each subagreerrent, lease, and third', party contract at each tier financed with Federal assistance provided by the Federal Government. Section 31. Protection of Sensitive Securitv Information. To the extent applicable, the Contractor agrees, to comply with 49 U.S.C. § 40119(b) and irnpIementing US. DOT regulations, "Protection of Sensitive Security Information," 49 C.F.R. Part 15, and with 4-9 U,S,C. § 114(s) and irnplementing US. Department of Homeland Security, Transportation Security Administration regulations, "Protection of Sensitive Security Information," 49 C.F.R. Part '15201. Section 3,2. gM2 2D11§RoMu1t2e§s, reaches Defaults, or Other LifigaLioin, 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 Governments interests in the Project or the Federal/State Government's administration or enforcement of Federal/State laws or regulations. If the Contractor seeks to narne 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 t�urn, the Department shall be responsible for notifying FTA. lb. FederaYState Interest in Recovery. The FelderallState 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. 0, Enforcement. The Contractor agrees to pursue all legal rights provided within any third party contract. cl. FTA and Department Concurrence, The FTA and the Department reserve the right to concur in any compromise or settlement of any claim involving the Project and the Contractor. e. Alternative Dispute Resolution. The Department encourages the Contractor to use alternative dispute resolution procedures, as may be appropriate, Section 33. Amendments /6 evisions 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 submiitted in accordance with the policies andi procedures established by FTA and the Department. Updated 9117/10 Page 32 of 35 Section 34. Information Obtained Tb1211gh_ Internet _LjRkR, This Agreement may include electronic links/Web site addresses to Federal/State laws, regulations, and directives as well as other information. The Department does not guarantee the accuracy of information accessed through such links. Accordingly, the Contractor agrees that information obtained through any electronic Hnk 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 Reg,ister and the Code of Federal Regulations are the offilcial sources for regulatory information pertaining to the Federal Government. Section 35. Severabilit . 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 36. Termination 2LAg122Mgp1, a. Tyre Department of Transportation. In the event of the Contractor's noncompliance with, any of the provisions of this Agreement, the Department may suspend or terminate the Agreement by giving the Contractor thirty (30) days advance notice. Any failure to make reasonable progress on the Project or violation of this Agreement for the Project that endangers substantial performance of the Project shall provide sufficient grounds for the Department to terminate the Agreement for the Project. In general, termination of Federal and State assistance for the Project will not invalidate obligations properly incurred by the Contractor before the termination date to the extent those obligations cannot be canceled. If, however, the Department determines that the Contractor has willfully misused Federal /Mate 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, shalll 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, 113,75, and Such other sanctions may be imposed and remedies invoked as provided in the said Executive Order or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by law. In addition to the Department's rights of termination described above, the Department may terminate its participation in the Project by notifying and receiving the concurrence of the Contractor within sixty (60) days in advance of such termination, b, The Contractor, The Contractor may terminate its participation in the Project by notifying and receiving the concurrence of the Department sixty (60) days in advance of the termination. Updated 911 /1 o Page, 3 3 o 1'3 5 Section 37. Contract Admiinist�rators. All notices permitted or required to be given by one Party to the other and all questions about this Agreement fron-i one Party to the other shall be addressed and delivered to the other Party's Conti-act Administrator. The narne, Ipostal 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 ernail address of its Contract Administrator by giving timely written notice to the other Party. Section 38, Federal Certification Fie g2rd ,an q_Lobbyi_nq. The Contractor certifies, by signing this Agreement, its compliance with Subsection 6d of this Agreement. Section 39. Federal Certification ....Regarding Debarment, The Contractor certifies, by signing this Agreement, its compliance with Subsection 6b of this Agreement. Section 40. ' 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, suib,part 1, the Contractor certifies, by signing this Agreement, that It has established and imp,llemente,d 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 28 of this Agreeinent. Section 41. Ethics Acknowledmirnent Poliicv on Gifts. N.C.G.S. § 133-32 and Executive Order 24 prohibit the offer to, or acceptance by, any State Employee of any gift from anyone with a contract with the State, or from any person seeking, to clo business with the State. By execution of any response in this procurement, you attest, for Your entire organization and its employees or agents, that you are not aware that any such gift has been offered, accepted, or promised by any employees of your organization." 1, "I", Updated 9/17/10 : 'I, `015 Page 34 of' 35 Public -rr,11, lVC Doi 15portation For the aye artment: 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 Address: 1 S WILMINGTON ST RM 524 City/Zip: RALEIGH NC 27699-1550 City: RALEIGH NC Phone: 919-707-4672 Fax: 919-733-2304 For the Contractor: IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS Name; e; Narne: Title: Title: Agency'. Agency: Postal Street Address: Address: City/ Zip: City: Phone: Fax: Email: Section 38, Federal Certification Fie g2rd ,an q_Lobbyi_nq. The Contractor certifies, by signing this Agreement, its compliance with Subsection 6d of this Agreement. Section 39. Federal Certification ....Regarding Debarment, The Contractor certifies, by signing this Agreement, its compliance with Subsection 6b of this Agreement. Section 40. ' 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, suib,part 1, the Contractor certifies, by signing this Agreement, that It has established and imp,llemente,d 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 28 of this Agreeinent. Section 41. Ethics Acknowledmirnent Poliicv on Gifts. N.C.G.S. § 133-32 and Executive Order 24 prohibit the offer to, or acceptance by, any State Employee of any gift from anyone with a contract with the State, or from any person seeking, to clo business with the State. By execution of any response in this procurement, you attest, for Your entire organization and its employees or agents, that you are not aware that any such gift has been offered, accepted, or promised by any employees of your organization." 1, "I", Updated 9/17/10 : 'I, `015 Page 34 of' 35 Public -rr,11, lVC Doi 15portation 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. CONTRACTOR'S FEDERAL TAX ID NUMBER: CONTRACTOR'S FiSCAL YEAR END: JUNE 30, 20,16 BY: ........... . *,j,TPUAf7&T*M '00e11 C 1, C , NOV y .......... TITLE: DEPUTY SECRETARY FOR TRANSIT C7 (for bids and/or awards) I [Or. 111 =I# LI LM 014:4 w.:.. 11 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. Coid:e. Any person who fails to file the required certification shall be subject to a civil'pena�lty of not less than $10,000 and not more than, $100,000 for each such faflure. Contractor's Authorized Representative: "M [Jpdated 4/22/14 (L" Ic r" TRANSPORTATION PROGRAM RES01-UTION Section 5311 FY 2016 RESOLUTION Applicant seeking pertnission to apply for Conninnunity Trains 011 PLUJ-9�11 P-p-rLqtl — , fUnding, enter into agreement with the Nod Carohna Depa[w,ient of Trar*portafioin, provide tine necessary assurances arid the required local rnatch, A fi')ofion was made by (soanj murntia Name) Commissioner Gordon arid seconded by COP'Imissioner Price for the ""'I'doption, of the followirig resolution, and upon being put to a vote'vilas iftily adopted, WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes and (lie Governor of North Carolina have designated the North: Carolina Department of Transportation (NC Do"r) as the agency responsible for administ(;',,nng federal and State fAilblic transportation funds, and WHEREAS, the North Carolina Department of Transportation w0l apply for a grant from the US Department of Fransportation, Federal I ran it Adrininistration arid receives funds frorn the North Carolina Generai Assembly to provide assistance for rural pulbhc transportation projects; and WHEREAS, the purpose of these transportation funds is to provide grant monies to local agencies for the provisjoi of rural pUbfic transportation services consistent with the policy requirements for planning, community and agency 4ivolvernent, service design, service alternatives, training and conference participation, reporting and other reii"10irernents (drug and alcohol testing policy and program, disadvantaged business enterprise- program, and fully allocated costs analysis), and WHEREAS, (Lngai Mrmw of Appficanl)� hereby assures and certifies that it MH provide the required I - 11 -ty i local rnatdiing fronds; that its staff has the technical capacity to implement and rnanage the project, prepare required reports, obtain required training, attend meetings and conferences; and agrees to cornpdy with the federal and state statutes, regUlations, executive orders, Section 5333 (b) Warranty, and all administrative requirernents related to the applications made, to and grants received fron,'r the Federal Transit Adminii'Mration, as well as the provisions of Section 1001 of Title '18, U & C. NOW, -l-f-IEREFORE, be it resolved that the (Barry Jacobsy: QjIgir Of t; omo of Appfiran0,, Governing Birxly) kya ro qf,Q mis�sjoners is hereby authorized to submit a grant application for federal and state hinding, -Qm make the necessary assurances and certifications and be empowered to enter into an agreement with the NCDOT to provide rurad public transportation services. 1, Dorma S, BakerA, Clerk to the Board (do hereby certify that the above is a true and correct copy of an excerpt frorn the n'nirmtes of a meeting of ""I" C' mty Board of Commissioners duly held on the 6 day of November,, .201 4,. ... .. . ....... . Note thal the authafized official, ceilifying official, and notary public shoulcil' be three separale imfividuils. Seal Subscribed arid sworn to one (iriatp) FTioled Name and Adchoss My colmalission expir(,,s oime) PROJECT SPONSOR. ORANGE COUNTY PROJECT DESCRIPTION: FY2016 COMMUNITY TRANSPORTATION PROGRAM I. TOTAL PROJECT EXPENDITURES DEPARTMENT - 4521 ADMINISTRATION - 36233.80.12..1 $166,765 PERIOD OF PERFORMANCE JULY 011, 2015 - JUNE 30, 2016 DEPARTMENT -X4523 CAPITAL I - 3623180.123 $232,286 PERIOD OF PERFORMANCE JULY 01, 2015 - JUNE 30, 2816 II. TOTAL PROJECT FUNDING TOTAL FEDERAL STATE LOCAL ADMINISTRATION - 36233.80.12.1 100% 63% 22% 15% AGREEMENT $166,765 $105,061 $36,68,8 $25,016 TOTAL FEDERAL ,STATE LOCAL CAPITAL I - 36233.80.12.3 100 % 56.8 % 312% 10 % AGREEMENT # Q OCR $232,286 $131,038 $77,118 $23,230 TOTAL $300,051 $236,999 $113,806 $48,246 1OATM (;Ai.Q PUBLIC TRANSPORTATION DIVISION APPROVED PROJECT BUDGET PROJECT' 16-CT-056 WBS: 36233.80.12.1 migwafuslkld d. 015021=011MA TITLE - OBJECT G121 - Salaries and Wages Time G 181 - Social Sec. Contrib. G182 - Retirement Contrib. G183 - Hosp, Ins. Contrib, G I 8i9 - Other Frngi Benefits G212 - Uniforms G261 - Office Sup & Mat. G311 -Travel G312 - Travel Subsis. G321 - Telephone Service G325 - Postage G331 - Electricity G371 - Mrktng. Paid Adv G382 - Comp Supt/Tech Asst G391 - Legal Advertising G3,57 - Rep & Mainit-Commun, G431 - Lease Reprodu!ct Eq G491 - Dues and Subscript ffol 1-11 V.11 _0T, WM I M77__Nq�j BUDGET 109,605 $ 8,385 $ 7,596 $i 12,107 $ 3,133 $ 1,000 $ 1,200 $ 800 $ 3,0001 $ 500 $ 4,000 $ 3,270 $ 7,200 $ 500 $ 315 $ 2,754 $ 600 r. Approved'Admin Budget Page 1 of 1 NORTH CAROLINA DEPARTMENT OF TRAMS PORTATI OR PUBLIC TRANSPORTATION DIVISION APPROVED PROJECT BUDGET TOTAL DEPT. 4521 SALARIES AND s 109,605 Approved 'BIry and Wage Ital1 1 of I FTE BUDGET S N POSITION N4 / RATE AMOUNT DEPT. 4521 OBJECT CODE 121 01 TRANS. ADMINISTRATOR 01 % $69,883 66,389 02 ASST TRANS ADMIN 01 60% $48,996 „395 03 ADMIN ASST 01 40 % $34,546 13,81E TOTAL. - OBJECT CODE 121 1091,605 DEPT. 4521 OBJECT CODE 125 01 01 - a� TOTAL. - OBJECT CODE 125 CREPT. 45'21 OBJECT CODE 126 011 011 100 % _ TOTAL. - OBJECT CODE 125 TOTAL DEPT. 4521 SALARIES AND s 109,605 Approved 'BIry and Wage Ital1 1 of I PROJECT 16-CT-05 SPONSOR: ORANGE�COUNJ U/BS: 36233,80 ,123 — *2 t1 i Q 2' I W A a ".11 1 OBJECT - TITLE G571 - - Van Repl. G555 - Mobile Radio Un,it G591 - Veh Lettering/Logos ffel If 1-1 WO-1 U" I IA BUDGET 29,0411, 199,81111', 1, qRs 1,5111F ,I Approved Capital dg& Page I of 1