1

1. Regular Consent Agenda (any regular consent agenda item pulled for discussion will be discussed at the end of the old/new business portion of the agenda, which is item H on this agenda)

a. Consideration of approval of the minutes of the regular town council meeting held on March 22, 2007 and the minutes of the 2007 council/staff retreat. (Town Council)

ACTION: Mr. Roseland moved to approve the consent agenda with the exception of item 3.m., 1/64 landscaping plan. Mrs. Robinson provided the second, and council granted unanimous approval. (Mayor Pro Tem Smith was absent for this vote.)

_________________________

b. Consideration of approval of the March 2007 tax report. (Mr. Bill Coleman)

The Wake County Board of Commissioners, in regular session on March 14, 2007 approved and accepted the enclosed tax report for the Town of Cary.

Refunds of taxes, interest and penalties	$2502.84
Relief of late list penalty	1
Relief of late filed application	0
Non-cash rebates	298

_________________________

c. Consideration of adoption of an amended resolution and budget adjustment to recognize a NCDOT SAFETEA-LU Cost Reimbursement award and Chatham County Use Agreement for the construction of a segment of the American Tobacco Trail. (Mrs. Mary Henderson)

STAFF REPORT

Council, April 12, 2007

Budget adjustment for NCDOT funding and Chatham County Use Agreement to construct a segment of the American Tobacco Trail (PR07-23a)
Consideration of a budget adjustment to recognize an NCDOT SAFETEA-LU cost reimbursement award and Chatham County Use Agreement for the construction of a segment of the American Tobacco Trail
Speaker: Ms. Mary Henderson

From: Mary Henderson, PRCR Director
Prepared by: Doug McRainey, Parks Planning Manager
Approved by: William B. Coleman, Jr., Town Manager
Approved by: Benjamin T. Shivar, Assistant Town Manager

At the March 8, 2007 Town Council meeting, a budget adjustment was approved to recognize $2,191,960 from the North Carolina Department of Transportation (Bicycle Transportation Improvement Program) for the construction of a 4.67 mile segment of the American Tobacco Trail. Between the dates of the approval for the grant and the completion of the grant documents, DOT completed additional cost estimates and decided to increase the grant by $200,000. The new amount of the grant will be $2,391,960. Approval by Council will be necessary for this new funding amount. Since this funding from DOT is tied to a SAFETEA-LU Agreement, re-authorization will also be necessary for the adoption of a resolution approving the Municipal Agreement between the Town of Cary and the Department of Transportation. The Municipal Agreement and the corresponding resolution have been attached for Council’s review.

Staff Recommendation: Staff recommends that the Town manage the construction of the American Tobacco Trail through Chatham County with reimbursement funding provided by the NC Department of Transportation which requires the following:

a. Approval of the attached NCDOT /SAFETEA-LU agreement.

b. Recognition of $2,391,960 in reimbursement funding to be placed for expenditure in a new capital project account.

NORTH CAROLINA

WAKE COUNTY

3/21/07

NORTH CAROLINA DEPARTMENT OF

TRANSPORTATION

SAFETEA-LU AGREEMENT

AND

PROJECT: E-2921 F

TOWN OF CARY WBS: (CONST)

(PE) 33906.1.1

CFDA NO: 20.205

HR-2863

THIS SAFETEA-LU AGREEMENT is made and entered into on the last date executed below, by and between the North Carolina Department of Transportation, an agency of the State of North Carolina, hereinafter referred to as the “Department” and the Town of Cary, hereinafter referred to as the “Municipality”.

W I T N E S S E T H:

WHEREAS, the Federal Highway Administration, in accordance with Section 117 of the Consolidated Appropriations Act - 2006, requires that federal funds be available for certain specified transportation and pedestrian activities; and,

WHEREAS, the Municipality has requested federal funding assistance for Phase F of the American Tobacco Trail Project in Chatham County; and,

WHEREAS, subject to the availability of federal funds, the Consolidated Appropriations Act – 2006, in accordance with Section 117, has designated the American Tobacco Trail in Chatham County to receive one hundred percent (100%) of the funds allocated to the Department by FHWA up to and not to exceed the maximum Section 117 federal award amount of $491,960.00; and,

WHEREAS, the Department’s Transportation Improvement Program 2007-2013 has been amended to include an amount of $1,900,000 in STP- E funds for a combined total amount of $2,391,960 the American Tobacco Trail Project under the current TIP No. E-2921 F; and,

WHEREAS, the Department has agreed to administer the disbursement of said funds on behalf of FHWA to the Municipality for the American Tobacco Trail Project in accordance with the project scope of work and in accordance with the provisions set out in this Agreement; and,

WHEREAS, the Municipality has approved the construction of said project in accordance with the plans and specifications to be prepared by the NCDOT Bicycle and Pedestrian Division and has agreed to participate in certain costs thereof in the manner and to the extent as hereinafter set out and has further agreed to the establishment and maintenance of certain traffic operating controls as hereinafter set out.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual agreements set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. This Project consists of the construction of a 4.68-mile long multi-use trail with two typical sections as follows: beginning at the Wake-Chatham County line and continuing to the south side of New Hope Church Road, the first section of the trail shall consist of a 12-foot wide granite screenings surface; the second section of the trail shall consist of a 10-foot wide asphalt surface and an adjacent 6-foot wide crushed stone surface from the north side of New Hope Church Road to the terminus of the project at the Chatham-Durham County line.

2. Upon execution of this Agreement by the Department, the Department will notify the Municipality, in writing, that project funds have been authorized and can be expended. The Municipality shall not contract for any work prior to receipt of written authorization from the Department to proceed. Any work performed, or contracts executed, prior to receipt of written authorization to proceed will be deemed ineligible for reimbursement.

3. If the Municipality causes professional engineering services required by this Agreement to be performed by contracting with a private engineering firm and seeks reimbursement for said services under this Agreement, it is agreed as follows:

(A) The Municipality shall ensure that an engineering firm is obtained through an equitable selection process and that prescribed work is properly accomplished in a timely manner, at a just and reasonable cost.

(B) The Municipality, when procuring professional engineering

services, must adhere to Title 23 of the Code of Federal Regulations (CFR), Part 172. The Municipality shall comply with the policies and standards for negotiated contracts as contained in the Federal-Aid Policy Guide, Part 172; said policies and standards being incorporated in this Agreement by reference, and currently available at http://www.fhwa.dot.gov/legsregs/directives/fapgtoc.htm.

(C) The Municipality shall submit all professional services contract proposals to the Department’s Bicycle and Pedestrian Division for review and approval prior to execution of the professional services contract by the Municipality. In the event that the professional services contract proposal (engineering) exceeds $30,000, a pre-negotiation audit must be requested from the Department’s External Audit Branch.

(D) Reimbursement for construction administration costs cannot exceed

fifteen percent (15%) of the actual construction contract cost of the Project. This applies to private engineering firms and/or work performed by the Municipality and/or the Department. The Municipality, and/or its agent, shall perform project administration in compliance with applicable City, State and Federal regulations, including the American Association of State Highway and Transportation Officials' Guide for Development of New Bicycle Facilities, August 1999 and the North Carolina Bicycle Facilities Planning and Design Guidelines, January 1994.

4. The Bicycle and Pedestrian Division shall be responsible for conducting any needed public hearing meetings to collect public comments from all interested parties and securing an encroachment agreement, if necessary, from the Division for any project work adjacent or intersecting the State Highway System prior to finalizing design plans.

5. The Municipality shall be responsible for obtaining any erosion control plans needed to construct the project .

6. The Municipality shall be responsible for certifying, in writing, to the Department that all work was accomplished in compliance with applicable City, State and Federal regulations, including the American Association of State Highway and Transportation Officials' Guide for Development of New Bicycle Facilities, August 1999 and the North Carolina Bicycle Facilities Planning and Design Guidelines, January 1994 prior to any payment being made to the Municipality. Changes in the approved plans and specifications are subject to the review and approval by the Bicycle and Pedestrian Division prior to the Municipality proceeding with the proposed changed work.

7. If necessary, the Municipality shall submit a letter of request to the Department’s Bicycle and Pedestrian Division to authorize and set up utility adjustment funding. The Department will notify the Municipality, in writing, once project funds have been authorized and can be expended for utilities. If necessary, the Municipality, and/or its agent, shall relocate, adjust, relay, change or repair all utilities in conflict with the project. Said work shall be performed in a manner satisfactory to and in compliance with applicable City, State and Federal regulations, including the American Association of State Highway and Transportation Officials' Guide for Development of New Bicycle Facilities, August 1999 and the North Carolina Bicycle Facilities Planning and Design Guidelines, January 1994. The Municipality shall make all necessary adjustments to services lying within the construction limits of the project.

8. The Municipality shall be responsible for all utility and clearance verification, sign distance confirmation and responding to the Department's field inspection review comments.

9. The Department shall acquire any needed right of way and/or construction easements required for the project and shall remove from said rights of way all encroachments of any kind with the exception that the Department shall secure an encroachment agreement for any utilities which shall remain or are to be installed within the right of way.

10. The Municipality shall follow all State and Federal Highway Administration regulations pertaining to bid procedures in the award of the contract. Said Federal Highway Administration regulations are contained in Federal-Aid Policy Guide, 23 CFR Part 633, Subpart A and 23 CFR Part 635, Subpart A; said policy being incorporated in this Agreement by reference as fully as if herein set out, and currently available at http://www.fhwa.dot.gov/legsregs/directives/fapgtoc.htm.

11. The Department’s Bicycle and Pedestrian Division will request construction authorization from the Federal Highway Administration. Upon receipt of written construction authorization from the Department, the Municipality may advertise the project. The Municipality shall review the bids and recommend, through resolution of the City Council, a qualified low bidder. Any contract for which bids are received in excess of two million two hundred thousand dollars ($2,200,000) will be reviewed by the Department’s State Contract Officer and must be approved by the Board of Transportation. Bids received, along with documentation of the City Council’s recommendation of the qualified low bidder, shall be submitted to the Department’s Bicycle and Pedestrian Division prior to the contract being awarded by the Municipality. The Department will review all bids and the City Council’s recommendation of the qualified low bidder, and the Board of Transportation may approve or reject the City Council’s recommendation. After approval of a qualified low bidder by the Board of Transportation, the Municipality may award the contract. All work shall be performed in accordance with Departmental standards and specifications. Letting of contracts for construction and purchases shall be in accordance with Federal Aid Policy Guide, 23 CFR Part 635 and the North Carolina General Statute 143-129.

12. The Municipality shall construct, or cause to be constructed, the project in accordance with the plans and specifications of the project as provided by the Department and in compliance with applicable City, State and Federal regulations. The Municipality shall enter into and shall administer the construction contract for said project and the procedures set out herein below shall be followed:

(A) The Municipality, and/or its agent, shall cause to be performed, or will perform, all work required with its own forces or a qualified contractor.

(B) Construction shall include, but not be limited to, mobilization, erosion control, site preparation, clearing, grading, paving, signing, concrete work, and finish carpentry.

(C) The Municipality shall be responsible for ensuring that all site layout, construction work, and project documentation are in compliance with applicable City, State and Federal regulations.

(D) The Municipality shall perform or cause to be performed the necessary construction engineering, sampling and testing, and supervision required during construction of the Project.

(E) The Municipality shall sample and test all materials in reasonable close conformity with the Department's Guide for Process Control and Acceptance Sampling and Testing. The Municipality shall certify to the Department that said compliance was accomplished in compliance with applicable City, State and Federal regulations.

(F) The Department and/or a representative of the Federal Highway Administration shall have the right to inspect, sample or test, and approve or reject, any portion of the Project during construction.

(G) The Department, at its discretion, may assign a district and/or resident engineer to the project who shall have the right to inspect any portion of the work being performed by the Municipality or the Municipality's contractor to ensure compliance with the provisions of this Agreement. The district and/or resident engineer will be the Department's representative on the project. The district and/or resident engineer will furnish the Municipality with any forms that may be needed in order to follow standard Department practices and procedures in the administration of the contract.

(H) During construction of the project, if any changes in the plans exceed the amount of $10,000, such changes must be approved by the Department prior to the work being performed.

(I) Upon completion of any portion of the project for which application for reimbursement is being made, the Municipality shall notify the Department so that an inspection can be made. Any deficiencies found during the inspection must be corrected prior to payment being made by the Department to the Municipality. Prior to final approval and payment by the Department, the Department and/or a representative of the Federal Highway Administration will be given the opportunity to make a final inspection of the completed work.

(J) The Municipality will be responsible for ensuring that the contractor complies with all of the terms of the contract and any instructions issued by the Department and/or the Federal Highway Administration as a result of any review or inspection.

(K) Upon completion of the Project, the Municipality will furnish or cause to be furnished to the Department, a certification that contract administration has been accomplished in compliance with applicable City, State and Federal regulations. The Municipality shall also furnish certification that materials used in the construction meet the requirements as set forth in this Agreement.

(L) Upon completion of the project, the Municipality will furnish the Department with two (2) complete sets of "Plan of Record" plans.

(M) The Municipality shall maintain records to document quantities for which the contractor is paid during any monthly estimate period.

(N) The Municipality shall maintain all records that establish final documentation of quantities incorporated into the Project in accordance with established federal procedures.

(O) All Project records developed by the Municipality that are not submitted to the Department shall be retained by the Municipality for a period of five (5) years after the final voucher is paid by the Federal Highway Administration.

(P) During construction of the Project, the Municipality shall provide and maintain adequate barricades, signs, signal lights, flagmen, and other warning devices for the protection of traffic in conformance with the traffic control plan for the Project and with the current edition of the Manual on Uniform Traffic Control Devices for Streets an Highways, or any subsequent revision of the same, published by the Federal Highway Administration.

(Q) Failure on the part of the Municipality to comply with any of these provisions will be grounds for the Department to withdraw participation on any or all of the items of work involved.

13. The Municipality shall complete said work by two years from the date of execution of this Agreement. The Municipality is responsible for submitting to the Department’s Bicycle and Pedestrian Division, quarterly project evaluation reports that assess the progress and potential benefits realized for the project.

14. If in the opinion of the Department and/or FHWA, satisfactory progress has not been made to complete the project per the terms of this Agreement, the Department and/or FHWA reserves the right to de-obligate said funding.

15. The Municipality shall install bicycle route and related bicycle warning signs on and near the bicycle path as indicated by the project signing plans. The locations of the signs and orientation of directional arrows shall be in accordance with the project plans approved by the Department’s Bicycle and Pedestrian Division.

16. The Municipality shall provide sign installation, labor and materials, including posts, mounting hardware, and any related materials.

17. Activities eligible for funding reimbursement for this project shall include contract administration, construction, testing and inspection. The Department shall reimburse the Municipality for one hundred percent (100%) of the approved eligible costs. The Municipality shall be responsible for funding any ineligible project costs not reimbursed by the FHWA. Reimbursement to the Municipality shall be subject to the policies and procedures contained in Federal-Aid Policy Guide, 23 CFR Part 140, which is being incorporated into this Agreement by reference, and is currently available at (http://www.fhwa.dot.gov/legsregs/directives/fapgtoc.htm).

TOTAL FUNDING AVAILABLE $2,391,960.00

The Municipality may bill the Department for actual costs as herein stated by submitting an invoice along with proper supporting documentation to the Department’s Bicycle and Pedestrian Division. The Department’s Bicycle and Pedestrian Division and the Financial Management Division will reimburse the Municipality upon approval of said invoice. The project must progress in a satisfactory manner in the opinion of the Department and the Municipality must invoice the Department for work accomplished at least once every six (6) months to keep the project funds active and available. If the project does not remain active, the Department and/or FHWA reserves the right to de-obligate said funding.

(A) The Municipality shall be responsible for adhering to applicable

administrative requirements of 49 CFR Part 18; and currently available at http://www.fhwa.dot.gov/legsregs/directives/fapgtoc.htm and Office of Management and Budget (OMB) Circular A-102; and currently available at (www.whitehouse.gov/omb/circulars/a102/a102.html).

(B) Prior approval is required from FHWA if the Municipality desires to perform any work by force account. Force account work is only allowed when there is a finding of cost effectiveness for the work to be performed by some method other than contract awarded by competitive bidding process. Said Federal Highway Administration regulations are contained in Federal-Aid Policy Guide, 23 CFR Part 635.201, Subpart B; said policy being incorporated in this Agreement by reference; and currently available at www.access.gpo.gov/nara/cfr/waisidx_03/23cfr635_03.html as fully as if herein set out. Said invoices for force account work shall show a summary of labor, labor additives, equipment, materials and other qualifying costs in conformance with the standards for allowability of costs set forth in Office of Management and Budget (OMB) Circular A-87. Reimbursement shall be based on actual cost incurred with the exception of equipment owned by the Municipality or its project partners. Reimbursement for rates of equipment owned by the Municipality or its project partners cannot exceed the Department's rates in effect for the time period in which the work is performed. If a contractor performs the work, said invoices shall show the contract cost.

(C) In accordance with OMB Circular A-133, “Audits of States, Local Governments and Non-Profit Organizations”; and currently available at (www.whitehouse.gov/omb/circulars/a133/a133.html) dated June 27, 2003 and the Federal Single Audit Act Amendments of 1996, the Municipality shall arrange for an independent financial and compliance audit of its fiscal operations. The Municipality shall furnish the Department with a copy of the independent audit report within thirty -(30) days of completion of the report, but not later than nine (9) months after the Municipality’s fiscal year ends.

(D) Any costs incurred by the Municipality prior to written notification by the Department of federal authorization to proceed with the work shall not be eligible for reimbursement. Execution of an encroachment agreement when required does not constitute a “Notice to Proceed”.

(E) A final itemized invoice listing all costs shall be submitted to the Department’s Bicycle and Pedestrian Division. Upon completion of the work, the Municipality must submit an invoice that is clearly stamped or marked “Final Invoice” for reimbursement of any remaining costs to be paid under the terms of this Agreement. Upon receipt of the “Final Invoice”, the Department will de-obligate any remaining funds and close the project subject to final review and audit.

(F) The Municipality agrees that it shall bear all costs for which it is unable to substantiate actual costs, or any costs, which have been deemed unallowable by the Federal Highway Administration and/or the Department's Financial Management Division. In the event funding is withdrawn by FHWA, project reimbursement shall be subject to the availability of any remaining federal funds.

(G) Failure on the part of the Municipality to comply with any of these provisions will be grounds for the Department and/or FHWA to terminate participation in the costs of the work.

(H) All invoices must be submitted within six (6) months of completion and acceptance of the work by the Department and FHWA or said invoices will be considered ineligible items for payment.

(I) The Municipality agrees that, if the Federal Highway Administration does not participate in certain costs because of noncompliance with federal regulations by the Municipality, the Municipality will reimburse the Department for such costs. All costs not reimbursed to the Department by the FHWA for noncompliance by the Municipality shall be borne by the Municipality.

(J) The Department reserves the right to deduct monies from the Municipality’s Powell Bill Fund if monies paid to the Municipality from the project funds are determined by the Department and/or FHWA, either by audit and/or inspection of books, documents, papers, accounting records, and such other evidence as may be appropriate to substantiate costs, not to be in compliance with the terms of this agreement.

18. In the event any monies are due to the Department as referenced in this Agreement, said funds shall be submitted within sixty (60) days of invoicing by the Department. The Department shall charge a late payment penalty and interest on any unpaid balance due in accordance with G.S. 147-86.23.

19. In the event the Municipality fails for any reason to pay the Department in accordance with the provisions for payment hereinabove provided, North Carolina General Statute 136-41.3 authorizes the Department to withhold so much of the Municipality’s share of funds allocated to said Municipality by the General Statutes of North Carolina, Section 136-41.1 (Powell Bill Fund), until such time as the Department has received payment in full.

20. The Municipality shall maintain all books, documents, papers, accounting records, and such other evidence as may be appropriate to substantiate costs incurred under this Agreement. Further, the Municipality shall make such materials available at its office at all reasonable times during the contract period, and for five (5) years from the date of final payment under this Agreement, for inspection and audit by the Department’s Financial Management Section.

21. The Municipality, and/or its agent, shall comply with the following federal policies: (a) Conflict of Interest; (b) Equal Employment Opportunity; and (c) Title VI – Civil Rights Act of 1964.

22. The goal for participation by Disadvantaged Business Enterprise (DBE) is established for the construction contract portion of this agreement at seven percent (7%). The Municipality, and/or its agent, shall also comply with the following federal policy: Disadvantaged Business Enterprises (DBE) as defined in 49 CFR Part 26.

DISADVANTAGED BUSINESS ENTERPRISE 09-01-01_R

The Contractor is also encouraged to give every opportunity to allow DBE participation in Supplemental Agreements.

Introduction to Disadvantaged Business Enterprises Special Provision

The following Special Provision is the policy and procedures of the North Carolina Department of Transportation regarding the solicitation and participation of Disadvantaged Business Enterprises (DBE) pursuant to 49 CFR 26. As a recipient of Federal-aid Highway Funds, the Town of Cary (LPA) is committed to carrying out the responsibilities associated with this Special Provision.

In the following DBE Section, certain procedures have been revised to recognize that the Town of Cary (LPA) is advertising and letting the construction contract for the associated project. Although the Town (LPA) has responsibility for ensuring bidders follow correct procedures, the Department has the final authority to concur with the Town's (LPA's) efforts.

DISADVANTAGED BUSINESS ENTERPRISE:

3-20-07

SP1 G61

Policy

It is the policy of the North Carolina Department of Transportation that Disadvantaged Business Enterprises (DBEs) as defined in 49 CFR Part 26 shall have the opportunity to participate in the performance of contracts financed in whole or in part by Federal Funds in order to create a level playing field on which DBEs can compete fairly.

Obligation

The Contractor, subcontractor, and sub-recipient shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of federally assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the Department deems necessary.

Definitions

Commitment - The DBE participation submitted by the prime contractor during the bidding process. Once the Department accepts the commitment, the commitment becomes the contract requirement.

Committed DBE - Any DBE listed on the DBE commitment list at the time of bid submission or any DBE utilized as a replacement for a DBE firm listed on the commitment list.

Department - North Carolina Department of Transportation

Disadvantaged Business Enterprise (DBE) – A firm certified through the North Carolina Unified Certification Program in accordance with 49 CFR Part 26.

Goal - The DBE participation specified herein.

Local Public Agency – the municipal, county, or town government that is advertising and letting the construction contract and is responsible for implementing the procedures of this DBE policy.

Manufacturer - a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the Contractor.

Regular Dealer - A firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are bought, kept in stock, and regularly sold to the public in the usual course of business. A regular dealer engages in, as its principal business and in its own name, the purchase and sale or lease of the products in question. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum products need not keep such products in stock, if it owns or operates distribution equipment. Brokers and packagers are not regarded as manufacturers or regular dealers within the meaning of this section.

North Carolina Unified Certification Program - A program that provides one-stop shopping to applicants for certification, such that an applicant is required to apply only once for a DBE certification that will be honored by all recipients of USDOT funds in the state.

USDOT - United States Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA).

Goal

The following goal for participation by Disadvantaged Business Enterprises is established for this contract:

Disadvantaged Business Enterprises 7%

The Contractor shall exercise all necessary and reasonable steps to ensure that Disadvantaged Business Enterprises participate in at least the percent of the contract as set forth above as the goal.

Listing of DBE Subcontractors

(A) Bidders shall submit a listing of DBE participation on the "Listing of DBE Subcontractors" included in this contract. Only those DBE firms with current certification are considered acceptable for listing in the bidder's submittal of DBE participation. The Contractor shall indicate the following required information:

(1) The names and addresses of DBE firms committed to participate in the contract.

(2) The contract line numbers of work to be performed by each DBE firm.

(3) The total dollar amount to be paid to each DBE based on agreed upon unit prices.

When no figures or firms are entered, the bidder will be considered to have no DBE participation.

(B) If the DBE participation submitted in the bid by the apparent lowest responsive bidder does not meet or exceed the DBE contract goal, the apparent lowest responsive bidder shall submit to the Town of Cary/LPA documentation of its good faith efforts made to reach the contract goal. The bidder shall submit documentation to the Town of Cary/LPA within one week of the bid opening. Where the information submitted includes repetitious solicitation letters it will be acceptable to submit a representative letter along with a distribution list of the firms that were solicited. Documentation of DBE quotations shall be a part of the good faith effort submittal as necessary to demonstrate compliance with the factors listed below which the Town of Cary/LPA considers in judging good faith efforts. This documentation may include written subcontractor quotations, telephone log notations of verbal quotations, or other types of quotation documentation.

The following factors are used to determine if the bidder has made adequate good faith effort:

(1) Whether the bidder attended any pre‑bid meetings that were scheduled by the Town of Cary/LPA to inform DBEs of subcontracting opportunities.

(2) Whether the bidder provided solicitations through all reasonable and available means (e.g. advertising in newspapers owned and targeted to the Disadvantaged) at least 10 days prior to bid opening. Whether the bidder provided written notice to all DBEs listed in the NCDOT Directory of Transportation Firms, within the Divisions and surrounding Divisions where the project is located, that specialize in the areas of work (as noted in the DBE Directory) that the bidder will be subletting.

(3) Whether the bidder followed up initial solicitations of interests by contacting DBEs to determine with certainty whether they were interested. If a reasonable amount of DBEs within the targeted Divisions do not provide an intent to quote or no DBEs specialize in the subcontracted areas, the bidder shall notify DBEs outside of the targeted Divisions that specialize in the subcontracted areas, as well as call the Town of Cary Project Manager to give notification of the bidder's inability to get DBE quotes.

(4) Whether the bidder selected portions of the work to be performed by DBEs in order to increase the likelihood of meeting the contract goals. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the Bidder might otherwise perform these work items with its own forces.

(5) Whether the bidder provided interested DBEs with adequate and timely information about the plans, specifications and requirements of the contract.

(6) Whether the bidder negotiated in good faith with interested DBEs not rejecting them as unqualified without sound reasons based on a thorough investigation of their capabilities. Any rejection should be so noted in writing with a description as to why an agreement could not be reached.

(7) Whether quotations were received from interested DBE firms but rejected as unacceptable without sound reasons why the quotations were considered unacceptable. The fact that the DBE firms quotation for the work is not the lowest quotation received will not in itself be considered as a sound reason for rejecting the quotation as unacceptable. The fact that the bidder has the ability and/or desire to perform the contract work with its own forces will not be considered as sound reason for rejecting a DBE quote. Nothing in this provision shall be construed to require the Bidder to accept unreasonable quotes in order to satisfy contract goals.

(8) Whether the bidder specifically negotiated with subcontractors to assume part of the responsibility to meet the contract DBE goal when the work to be sublet includes potential for DBE participation.

(9) Whether the bidder made any efforts and/or offered assistance to interested DBEs in obtaining the necessary equipment, supplies, materials, insurance, and/or bonding to satisfy the work requirements in the bid proposal.

(10) Any other evidence that the bidder submits which show that the bidder has made reasonable good faith efforts to meet the contract goal.

In the event a bidder is the apparent lowest responsive bidder on more that one project within the same letting located in the same geographic area of the state, as a part of the good faith effort the Department will consider allowing the bidder to combine the DBE participation as long as the overall goal value of the combined projects is achieved.

(C) The bidder will be required to submit written documentation of the bidder/offeror’s commitment to use a DBE subcontractor whose participation it submits to meet a contract goal and written confirmation from each DBE, listed in the proposal, indicating their participation in the contract. This documentation will be submitted on the Department’s form titled “Letter of Intent to Perform as a Subcontractor” and shall be received in the Town of Cary’s/LPA’s office within one week of the opening of bids.

If the bidder fails to submit written confirmation from each committed DBE, listed in the proposal, indicating their participation in the contract, the bidder shall submit information to satisfy the Town of Cary/LPA that sufficient good faith efforts have been made to meet the contract goals. The following factors are used to determine if the bidder has made adequate good faith effort to obtain written confirmation from committed DBEs indicating their participation in the contract:

(1) Whether the apparent lowest responsive bidder, within 30 hours following bid opening, provided each DBE listed in the proposal written notification that it is participating in the contract and attaching the required forms for execution,

(2) Whether the bidder, within 48 hours following bid opening, followed up initial notification by contacting each DBE to confirm receipt of the written documentation and to confirm the firms intent to execute and return the forms,

(3) Whether the bidder provided each DBE with adequate and timely information about the forms,

(4) Copies of written quotations received from each DBE listed in the proposal for which written confirmation from DBE indicating their participation in the contract is not provided and

(5) Any other evidence that the bidder submits which show that the bidder has made reasonable good faith efforts to obtain written confirmation from DBEs indicating their participation in the contract.

(6) If the participation supported by Letters of Intent to Perform as a Subcontractor does not meet or exceed the contract goal the bidder shall submit the information documenting good faith in accordance with item (B) of this section.

(D) Where the bidder fails to provide the required information in the required timeframe, the Town of Cary/LPA may impose one or more of the following sanctions:

(1) disqualify the Contractor and any affiliated companies from further bidding for a period of time of no more than 90 days from the date of disqualification as established in notification by certified mail,

(2) disqualify the Contractor and any affiliated companies from award of all contracts for which bids have been received and opened,

(3) disqualify the Contractor from the contract in question.

(E) When the apparent lowest responsive bidder fails to submit sufficient participation by DBE firms to meet the contract goal and upon a determination by the Town of Cary’s Procurement & Risk Services Manager and the Town’s Project Manager, based upon the information submitted that the apparent lowest responsive bidder failed to make sufficient reasonable efforts to meet the contract goal, the bidder will be offered the opportunity to meet in person for administrative reconsideration. Members of NCDOT’s Goal Compliance Committee will hear administrative reconsideration. The bidder will have the opportunity to present written documentation or argument concerning the issue of whether it met the goal or made an adequate good faith effort. The bidder will receive a written decision on the reconsideration, including the basis for finding. The result of the reconsideration process will not be administratively appealable to the USDOT.

In the event that the Town of Cary/LPA does not award the contract to the apparent lowest responsive bidder, the Town of Cary/LPA reserves the right to award the contract to the next lowest responsive bidder that submits participation to meet the contract goal or documents that adequate good faith efforts have been made to meet the goal.

Directory of Transportation Firms

Real-time information about firms doing business with the Department and firms that are certified through North Carolina’s Unified Certification Program is available in the Directory of Transportation Firms. The Directory can be accessed by the link on the Department’s homepage or by entering http://apps.d ot.state.nc.us/vendor/directory in the address bar of your web browser.

The Directory allows the display to be customized and the firms listed to be filtered by attributes, including work types, certification type and desired work area. The list can be printed or downloaded as a Microsoft Excel file. Firms identified as DBE certified in the Directory can be utilized to meet the contract goals.

The listing of an individual firm in the Department’s directory shall not be construed as an endorsement of the firm’s capability to perform certain work.

Replacement of DBE

The Contractor shall not terminate a committed DBE subcontractor for convenience or perform the work with its own forces or those of an affiliate. If the Contractor fails to demonstrate reasonable efforts to replace a committed DBE firm that does not perform as intended or completes the work with its own forces without the Project manager’s approval, the Contractor may be disqualified from further bidding for a period of up to 6 months.

The Contractor shall comply with the following for replacement of committed DBE.

(A) Performance Related

When a DBE is terminated or fails to complete its work on the contract for any reason, the Contractor shall take all necessary, reasonable steps to replace the DBE subcontractor with another DBE subcontractor to perform at least the same amount of work as the DBE that was terminated. The Contractor is encouraged to first attempt to find another DBE firm to do the same work as the DBE that was being terminated.

To demonstrate necessary, reasonable good faith efforts, the Contractor shall document the steps he has taken to replace any DBE subcontractor who is unable to perform successfully with another DBE subcontractor. Such documentation shall include but not be limited to the following:

(1) Copies of written notification to DBEs that their interest is solicited in subcontracting the work defaulted by the previous DBE subcontractor or in subcontracting other items of work in the contract.

(2) Efforts to negotiate with DBEs for specific subbids including, at a minimum:

(a) The names, addresses, and telephone numbers of DBEs who were contacted.

(b) A description of the information provided to DBEs regarding the plans and specifications for portions of the work to be performed.

(3) For each DBE contacted but rejected as unqualified, the reasons for the Contractor’s conclusion.

(4) Efforts made to assist the DBEs contacted, if needed, in obtaining bonding or insurance required by the Contractor.

(B) Decertification

(1) When a committed DBE is decertified by the Department after a Request for Subcontract has been received by the Department, the Department will not require the Prime Contractor to solicit replacement DBE participation equal to the remaining work to be performed by the decertified firm. The participation equal to the remaining work performed by the decertified firm will count toward the contract commitment.

(2) When a committed DBE is decertified prior to the Department receiving a Request for Subcontract for the named DBE firm, the Prime Contractor shall take all necessary and reasonable steps to replace the DBE subcontractor with another DBE subcontractor to perform at least the same amount of work to meet the contract goal or demonstrate that it has made a good faith effort to do so.

Changes in the Work

When the Project manager makes changes that result in the reduction or elimination of work to be performed by a committed DBE, the Contractor will not be required to seek additional participation. When the Project manager makes changes that result in additional work to be performed by a DBE based upon the Contractor’s commitment, the DBE shall participate in additional work to the same extent as the DBE participated in the original contract work.

When the Project manager makes changes that result in extra work, which has more than a minimal impact on the contract amount, the Contractor shall seek additional participation by DBEs unless otherwise approved by the Project manager.

When the Project manager makes changes that result in an alteration of plans or details of construction and a portion or all of work had been expected to be performed by a committed DBE; the Contractor shall seek participation by DBEs unless otherwise approved by the Project manager.

When the Contractor requests changes in the work that result in the reduction or elimination of work that the Contractor committed to be performed by a DBE, the Contractor shall seek additional participation by DBEs equal to the reduced DBE participation caused by the changes.

Counting DBE Participation Toward Meeting the DBE Goal

(A) If a firm is determined to be an eligible DBE firm, the total dollar value of the participation by the DBE will be counted toward the contract commitment. The total dollar value of participation by a certified DBE will be based upon the value of work actually performed by the DBE and the actual payments to DBE firms by the Contractor.

(B) When a DBE performs as a participant in a joint venture, the Contractor may count toward its DBE goal a portion of the total value of participation with the DBE in the joint venture, that portion of the total dollar value being a distinct clearly defined portion of work that the DBE performs with its forces.

(C) (1) The Contractor may count toward its DBE goal only expenditures to DBEs that perform a commercially useful function in the work of a contract. A DBE is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing, and supervising the work involved. To determine whether a DBE is performing a commercially useful function, the Department will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its performance of the work, and other relevant factors.

(2) Consistent with normal industry practices, a DBE may enter into subcontracts. Work that a DBE subcontracts to another DBE firm may be counted toward the contract goal. Work that a DBE subcontracts to a non-DBE firm does not count toward the contract goal. If a DBE Contractor or subcontractor subcontracts a significantly greater portion of the work of the contract than would be expected on the basis of normal industry practices, the DBE shall be presumed not to be performing a commercially useful function. The DBE may present evidence to rebut this presumption to the Department for commercially useful functions. The Department's decision on the rebuttal of this presumption is subject to review by the Federal Highway Administration but is not administratively appealable to USDOT.

(3) The following factors will be used to determine if a DBE trucking firm is performing a commercially useful function.

(a) The DBE shall be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals.

(b) The DBE shall itself own and operate at least one fully licensed, insured, and operational truck used on the contract.

(c) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs.

(d) The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract.

(e) The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by DBE-owned trucks on the contract. Additional participation by non-DBE lessees receives credit only for the fee or commission it receives as a result of the lease arrangement.

(f) For purposes of this paragraph, a lease shall indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks shall display the name and identification number of the DBE.

(D) A contractor may count toward its DBE goal 60 percent of its expenditures for materials and supplies required to complete the contract and obtained from DBE regular dealer and 100 percent of such expenditures to a DBE manufacturer.

(E) A contractor may count toward its DBE goal the following expenditures to DBE firms that are not manufacturers or regular dealers:

(1) The fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a DOT-assisted contract, provided the fees or commissions are determined to be reasonable and not excessive as compared with fees and commissions customarily allowed for similar services.

(2) The fees or commissions charged for assistance in the procurement of the materials and supplies, or for transportation charges for the delivery of materials or supplies required on a job site (but not the cost of the materials and supplies themselves), provided the fees are not from a manufacturer or regular dealer and provided the fees are determined to be reasonable and not excessive as compared with fees customarily allowed for similar services.

Reports

All requests for subcontracts involving DBE subcontractors shall be accompanied by a certification executed by both the Prime Contractor and the DBE subcontractor attesting to the agreed upon unit prices and extensions for the affected contract items. This information shall be supplied on the Department Form RS-1-D unless otherwise approved by the Project manager. In any event, the Department reserves the right to require copies of actual subcontract agreements involving DBE subcontractors.

Within 30 days of entering into an agreement with a DBE for materials, supplies or services, not otherwise documented by a Request for Subcontract as specified above, the Contractor shall furnish the Project manager a copy of the agreement. The documentation should also indicate the percentage (60% or 100%) of expenditures claimed for DBE credit.

All certifications will be considered a part of the project records, and consequently will be subject to penalties under Federal Law associated with falsifications of records related to projects.

Reporting Disadvantaged Business Enterprise Participation

The Contractor shall provide the Project manager with an accounting of payments made to Disadvantaged Business Enterprise firms, including material suppliers, contractors at all levels (prime, subcontractor, or second tier subcontractor). This accounting shall be furnished to the Project manager for any given month by the end of the following month. Failure to submit this information accordingly may result in (1) withholding of money due in the next partial pay estimate; or (2) removal of an approved contractor from the prequalified bidders list or the removal of other entities from the approved subcontractors list.

The Contractor shall report the accounting of payments by using the "Subcontractor Payment Report" included in this contract.

Contractors reporting transportation services provided by non-DBE lessees in accordance with item (C)(3)(e) above shall evaluate the value of services provided during the month of the reporting period only.

Prior to payment of the final estimate, the Contractor shall furnish an accounting of total payment to each DBE. A responsible fiscal officer of the payee contractor, subcontractor, or second tier subcontractor who can attest to the date and amounts of the payments shall certify that the accounting is correct

While each contractor (prime, subcontractor, 2^ndtier subcontractor) is responsible for accurate accounting of payments to DBEs, it shall be the prime contractors responsibility to report all monthly and final payment information.

Failure on the part of the Contractor to submit the required information in the time frame specified may result in the disqualification of that contractor and any affiliate companies from further bidding until the required information is submitted.

Failure on the part of any subcontractor to submit the required information in the time frame specified may result in the disqualification of that contractor and any affiliate companies from working on any DOT project until the required information is submitted.

23. It is the policy of the Department not to enter into any agreement with another party that has been debarred by any government agency (Federal or State). The Municipality certifies, by signature of this agreement, that neither it nor its agents or contractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any Federal or State Department or Agency and that it will not enter into agreements with any entity that is debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction.

24. The Municipality shall certify to the Department compliance with all

applicable Federal environmental laws and regulations and ordinances and shall indemnify the Department against any fines, assessments or other penalties resulting from noncompliance by the Municipality or any entity performing work under contract with the Municipality.

25. The Municipality is solely responsible for all agreements, contracts, and work orders entered into or issued by the Municipality for this project. The Department shall not be held liable, by the Municipality, for any expenses or obligations incurred for the project except those specifically eligible for the federal funds and obligations as approved by the Department under the terms of this Agreement. The Department shall not reimburse the Municipality any costs that exceed the total federal funding at any time.

26. The Municipality will indemnify and hold harmless the Department, FHWA and the State of North Carolina, their respective officers, directors, principals, employees, agents, successors, and assigns from and against any and all claims for damage and/or liability in connection with the project activities performed pursuant to this Agreement, including construction of the Project. The Department shall not be responsible for any damages or claims for damages, which may be initiated by third parties.

27. The Municipality, at no expense to the Department, shall be responsible for all costs incurred for any additional construction outside the scope of this project, specifically costs associated with "spur" or "connector" paths not included as part of the main multi-use path alignment.

28. The Municipality will complete the project in accordance with the plans and specifications adopted therefor, or as altered or amended by the Department.

29. Upon completion of the project, the Municipality, at no cost or liability whatsoever to the Department, shall assume maintenance responsibilities for the Phase F of the American Tobacco Trail Project in Chatham County for a period of not less than three years, with renewal of maintenance responsibilities after a period of three years subject to negotiations with the County of Chatham, unless said improvements are within the state maintained highway system.

30. All terms and conditions of this Agreement are dependent upon, and, subject to the allocation of funds for the purpose set forth in the Agreement and the Agreement shall automatically terminate if funds cease to be available.

IT IS UNDERSTOOD AND AGREED that the approval of the Project by the Department is subject to the conditions of this Agreement, and that no expenditures of funds on the part of the Department will be made until the terms of this Agreement have been complied with on the part of the Municipality.

IN WITNESS WHEREOF, this Agreement has been executed, in duplicate, the day and year heretofore set out, on the part of the Department and the Municipality by authority duly given, as evidenced by the attached certified copy of resolution, ordinance or charter provision, as the case may be.

COPY OF A RESOLUTION PASSED BY THE CITY COUNCIL

OF THE TOWN OF CARY, NORTH CAROLINA

The following resolution was introduced, and __________________moved that it be adopted. The motion was seconded by _______________, and, upon being put to a vote, the resolution was _____________________ carried;

WHEREAS, the United States Congress Transportation Reauthorization Bill, Safe Accountable Flexible Efficient Transportation Equity Act: a Legacy for Users, (SAFETEA-LU) requires that federal funds be available for certain specified transportation and pedestrian activities; and,

WHEREAS, the Municipality will receive federal funding assistance for the Phase F of the American Tobacco Trail Project in Chatham County; and,

WHEREAS, funding will be provided in an amount not to exceed $2,391,960 for Phase F of the American Tobacco Trail Project in Chatham County. Said project consists of the construction of a 4.68-mile long multi-use trail with two typical sections as follows: beginning at the Wake-Chatham County line and continuing to the south side of New Hope Church Road, the first section of the trail shall consist of a 12-foot wide granite screenings surface; the second section of the trail shall consist of a 10-foot wide asphalt surface and an adjacent 6-foot wide crushed stone surface from the north side of New Hope Church Road to the terminus of the project at the Chatham-Durham County line.

WHEREAS, the Municipality agrees to construct and administer the project; and,

WHEREAS, the Municipality shall assume maintenance responsibilities for the completed project for a period of not less than three years; and,

WHEREAS, the Municipality proposes to enter into an Agreement, and subject to the Agreement provisions, with the North Carolina Department of Transportation to administer the disbursement of said funds on behalf of FHWA to the Municipality for the Phase F of the American Tobacco Trail Project in accordance with the project scope for the work. The Department shall reimburse the Municipality a total maximum federal amount of $2,391,960 programmed for the American Tobacco Trail Project in Chatham County under Project Agreement E-2921 F; and,

NOW, THEREFORE, BE IT RESOLVED that Project E-2921 F for the Town of Cary in Wake County is hereby formally approved by the Town Council of the Town of Cary and that the Mayor and Clerk of this Municipality are hereby empowered to sign and execute the required Agreement between the Town of Cary and the North Carolina Department of Transportation.

(Resolution is also on file in the town clerk’s office.)

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