RFQ NO.20121026006 REQUEST FOR QUALIFICATIONS (RFQ) LYNX Blue Line

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RFQ NO.20121026006

REQUEST FOR

QUALIFICATIONS (RFQ)

LYNX Blue Line Extension Northeast Corridor Light Rail Project

November 2011

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PUBLIC NOTICE

CHARLOTTE – The City of Charlotte, NC, USA (City), through its department the Charlotte Area

Transit System (CATS), is soliciting responses to a Request for Qualification (RFQ) from consulting

firms to provide Final Design Services for the City’s LYNX Blue Line Extension (BLE) Northeast

Corridor Light Rail Project (Project). This RFQ defines the proposed Scope of Services and its

requirements.

Information related to this solicitation may be requested electronically. Electronic requests must be

submitted to: Chief Procurement Officer Tom Livingston ([email protected]) or Contracting

Officer Edward Pullan ([email protected]).

The deadline for submittal of inquiries or questions related to this RFQ is December 1, 2011. All inquiries

must be submitted in writing, preferably as electronic communication. All responses to inquiries shall be

in written form. The City will not be bound by any informal or verbal explanation, clarification or request

for information. The deadline for submission of Statements of Qualifications (offer) is December 8,

2011 at the address given below. Submittals received after the due date and time will be returned

unopened to Respondent.

PROJECT DESCRIPTION

The Project is a component of a multi-disciplinary corridor growth strategy which integrates land use,

transit, and transportation. This concept supports the ―Centers, Corridors and Wedges‖ vision where

dense, mixed use, land uses would be focused into the transit corridors.

The BLE, which is an extension of the existing light rail line (South Corridor), will consist of an

approximately 9.4 mile double track light rail roadbed along the entire length of the Project. Most of the

alignment will be at-grade, however there will be certain locations where there will be grade separations

of major streets, environmental features or railroad tracks. All remaining roadway crossings of the

alignment will be at-grade with appropriate crossing protection provided by the Project. The Project

includes 11 proposed stations; 4 with parking and 7 without parking. Approximately, 3,000 parking spots

will be provided at the 4 park & ride lots, including parking decks at the University City Boulevard

Station and the JW Clay Boulevard Station. All platforms will be approximately 300 feet long to

accommodate a 3-car train set. Stations will use either a center or side platform configuration.

The BLE begins at the existing LYNX Blue Line terminus which is Seventh Street in Center City

Charlotte. The first ½ mile of the Project is within right-of-way (ROW) acquired by the City from

Norfolk-Southern Railway (NSR) and North Carolina Railroad (NCRR) in 1999.

The next 1.5 miles of the BLE are within NCRR ROW and then transitions into and through a portion of

the NSR Intermodal Yard. The alignment transitions from the NSR Intermodal Yard, into a small piece

of City property, and then back into NCRR ROW, just north of the Matheson Street bridge, and remains

within the NCRR ROW for over 2 miles. The NCRR ROW contains an active double track freight line,

which the BLE alignment parallels. Near Old Concord Road, the alignment transitions into the median of

North Tryon Street, which is NC-DOT ROW, where it remains for the next 4 miles. The median running

section will not be within a travel lane, but will be within a designated light rail guideway, where vehicle/

pedestrian access will be limited to prescribed intersections or crossings. Just north of Institute Circle, the

alignment crosses under the northbound lanes of North Tryon Street to enter the campus of the University

of North Carolina at Charlotte (UNC Charlotte), where it terminates at the UNC Charlotte Station.

mailto:[email protected]


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The BLE is planned to operate 7 days a week from approximately 5:00 am to 1:00 am daily. Initially, the

BLE will operate 2-car trains with 7.5 minute headways. In the long-term (beginning in approximately

2025), CATS plans to operate 10 minute 3-car train operations. The Project includes the procurement of

18 Light Rail Vehicles (LRVs). The South Boulevard Light Rail Facility (SBLRF) is the existing light

rail maintenance and storage yard. A storage yard to accommodate the additional LRVs will be

constructed with the Project. The proposed site to accommodate such storage is at the existing NSR

Intermodal Yard along Brevard Street. Currently NSR is working with the Charlotte-Douglas

International Airport (Airport) to relocate NSR’s existing Intermodal Yard from Brevard Street to the

Airport. The current SBLRF includes areas for routine and major maintenance activities, parts, storage,

maintenance, administration, and training. The building also includes operating personnel, management,

and the central control center for CATS operations. The Project will include expansion of the central

control center at the SBLRF, and the construction of a Central Communications House along the BLE.

The Project also includes 7 traction power substations, and 7 signal houses.

The Project is in the Federal Transit Administration’s (FTA) New Start program. The Project was

approved into Preliminary Engineering (PE) in November 2007. The Draft Environmental Impact

Statement (EIS) was published in August 2010, and the Final EIS was published in August 2011. The

Project is scheduled to complete 65% design in December 2011, and FTA is expected to issue a Record of

Decision (ROD) in December 2011. FTA approval to enter Final Design is expected in May 2012.

This solicitation and eventual contract will allow for completion of design, including design during

construction and construction through completion and start up operation of the system (Work). This

Work will build upon Work developed under previous phases of study and design and will also include a

Final Engineer’s cost estimate, based on input from the City, the public and other agencies as well as a

projection of cost based on market conditions for materials and labor. The Project will be a joint

collaboration between various City agencies to ensure the multi-disciplined goals described above. The

anticipated Scope of Services is described in Attachment A.

RFQ INFORMATION

Proposed Schedule of Events

Advertisement November 2011

Receive Proposals December 2011

Evaluate Proposals December 2011

Selection December 2011

Conduct Interviews January 2012

Final Selection January 2012

Receive Cost Proposal January 2012

Negotiation and Conclusion January 2012

Seek Approval February 2012

Award February2012

Commence Work (NTP) May 2012

Start construction September 2013

Start revenue service Late 2016

The City proposes to award a multi-task, cost plus fixed fee agreement to cover all aspects of Work.

Award of each task is subject to approval. This solicitation does not create an obligation on the City to

award.

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Delivery

Deliver RFQ submittal to: Tom Livingston

Chief Procurement Officer

Charlotte Area Transit System

600 East Fourth Street, 9th Floor

Charlotte, North Carolina 28202

Due Date

RFQ submittal must be received on or before:

Date: December 8, 2011 before 3:00 pm EST

Submittals received after the due date and time will be returned unopened to Respondent.

Submittal Term

All submittals shall be valid for a minimum of 180 days from the above Due Date. Submittals may be

withdrawn by written notice received at the address above at any time prior to Due Date. See CATS’

Procedures Manual for Procurement (link) for further details.

RFQ PREPARATION INSTRUCTIONS

Submission Requirements

Respondents shall submit a response that is clear, concise and complete. The Response shall demonstrate

the Respondent’s qualifications and experience to undertake the Project.

The Response shall conform to the requirements of the RFQ. Failure to submit information required by

this RFQ or in the format specified in this RFQ may be cause for disqualification. The Respondent is

responsible for being familiar with all sections of this RFQ and fully informed of all Project requirements

in preparing their Response.

Only a Response that provides all of the required services and meets all of the requirements of this RFQ

will be considered responsive.

Format & Content

Responses shall be prepared in accordance with the format specified in this section.

1. Copies – One original plus five copies (six in total) shall be submitted.

2. Pages – Submittal shall be limited to a single-sided, 8 ½‖ x 11‖ pages with 12 point type and 1‖

margins. Total number of pages to be submitted shall not exceed 40.

3. Package – Responses shall be submitted in a sealed package, clearly marked in the lower left

hand corner as:

RFQ No. 20121026006

STATEMENT OF QUALIFICATIONS

Consultant Services

for the LYNX Blue Line Extension Northeast Corridor Light Rail Project

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The Response shall be organized as follows:

1. Cover Page

2. Introductory Letter

3. Proposed Team & Experience

4. Proposed Staff & Experience

5. Project Approach for Management, Scope, Schedule & Cost Control

6. Project Approach for Design

7. Supportive Information

8. Required Inclusions

Introductory Letter

The introductory letter should be addressed to:

Mr. Tom Livingston



600 East Fourth Street


The introductory letter shall be limited to 2 pages and must contain:

1. Signature by an official authorized to bind the Respondent.

2. Summary of team organization including all proposed primary sub-consultants.

3. Summary of staff including Project Manager and key participants.

Proposed Team & Experience

This section of the RFQ shall present the Respondent’s team for the Project. The primary focus of this

section should be on the firms involved and their experience/qualifications for their proposed

assignments. It shall identify the Consultant, including any joint venture partners. If the awarded

Consultant is a partnership or a joint venture each member thereof shall be jointly and severally

responsible to the City for all obligations under the Contract.

All firms responding to this solicitation must furnish names, addresses, age of firm, annual gross receipts

as well as status as a certified DBE or non-DBE to meet federal reporting requirements as well as the

same information for all proposed sub-consultants. All participating firms whether as Consultant or sub-

consultant shall be listed (DBE program requirements, specifications, forms and certifications). A DBE

participation percentage goal for this Project is 15.8%.

Proposed Staff & Experience

This section of the Response shall present the Respondent’s staffing for the Project. The primary focus of

this section will be on the people to be assigned and their individual experience and qualifications for

their proposed assignments. This section shall identify the Project Manager, key management and

technical staff. An organization chart shall be included showing staff to be assigned to the Project. The

organization chart shall show the employing firms (sub-consultants, if applicable) and which staff

members will be assigned to the Project full time. A matrix shall be included that provides the following

for all proposed key staff:

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1. Current assignment and location.

2. Proposed assignment and location.

3. Percent commitment to Project.

4. Date available for assignment to Project.

5. Professional registration.

Capsule resumes highlighting relevant experience shall be included for the Project Manager and key

management staff.

Project Approach for Management, Scope, Schedule & Cost Control

This section of the Response shall present the Respondent’s approach to providing support to City and its

staff. It shall address the Respondent’s approach to working relationships with the City BLE Project

Team, other agencies and participating organizations. It shall include the Respondent’s proposed

schedule approach to managing the schedule for their Work and all services identified in this scope and

cost control. It should include any other information helpful to the Selection Committee in determining

the Respondent’s ability to support the timely completion of the Project.

Project Approach for Design

This section of the Response shall address the Respondent’s specific approach to completing the Scope of

Services to support the City and work toward completion of this Project. The locations where various

support services will be required shall be identified along with the approach to managing the Work at

diverse locations. It shall present Respondent’s approach to Quality Control of its Work. It should

include any other information helpful to the Selection Committee in determining the Respondent’s ability

to support the City and its staff in the completion of this Project.

Supportive Information

Supportive information includes resumes, project descriptions, and similar information that the

Respondent wishes to include in support of its’ position. The Selection Committee is not required to

consider any information included in this section. Respondents may be requested to provide name and

contact information for previous work performed as a matter of reference.

Addenda

In the event that it becomes necessary to revise any part of this RFQ, a written addendum will be provided

to each RFQ Holder of Record. The City will not be responsible for any oral instructions nor any written

materials provided by any person other than the person named in this section. Each Respondent shall

acknowledge receipt of all addenda issued under this RFQ by number and date, to be included in their

response. Respondent is not required to include copies of the addenda with the RFQ.

Duty to Inquire

Should a Respondent have questions, observations or comments related to any section of this RFQ, the

Respondent shall notify the City in writing (written form or electronically). The City will review each

question/comment and formulate a response. All questions/comments and responses will be sent to each

RFQ Holder of Record. If necessary, a written Addendum will be issued. Written inquiries (electronic is

preferred) must be received no later than December 1, 2011 at the following address:

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Mr. Tom Livingston


[email protected]


600 East Fourth Street, 9th Floor


Communications

All communications, of any nature with respect to this RFQ, shall be to the Contracting Officer. Under

no circumstances shall any Respondent be permitted to discuss this solicitation or their anticipated

Response with any member of the Selection Committee.

Signature

All documents requiring signature shall be signed by an individual or individuals authorized to execute

legal documents on behalf of the Respondent(s) represented.

Evaluation of responses

Written responses submitted by each Respondent shall be evaluated in accordance with the following,

with 5 being the highest level of consideration:

Evaluation category Weighted Criteria

Project Approach 5

Project Personnel 4

Schedule and Cost Control 3

Firm/Team Capabilities 2

Knowledge of regulations 1

(local, state, federal)

Evaluation & Selection

An Evaluation and Selection Committee will be appointed and may include, but is not limited to,

representatives of the City including CATS. Contact with any of these representatives regarding this

RFQ or the selection process is prohibited.

Review for Compliance

After the date for receiving submittals has passed, all submittals shall be recorded and reviewed to

determine compliance with the requirements of the RFQ. Responses not in compliance with RFQ

requirements will be declared non-responsive and Respondents will be notified.

Evaluation of RFQs

The Selection Committee will be given all submittals that meet the requirements of the RFQ. The

Selection Committee will evaluate the Responses using the Weighted Criteria methodology shown above

and will identify and prepare a short-list of the top-rated Respondents for possible interview.

Evaluation Interviews


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Selected Respondents will be contacted and given instructions as to the date, time and location of an

interview.

Each interview will begin with an oral presentation by Respondent’s describing their Response. At the

completion of the presentation, each Respondent should be prepared to discuss their Response and answer

questions posed by the Selection Committee. Some questions may be provided in advance. At the

completion of the interview process, the Selection Committee will conduct an evaluation and prepare a

final ranking and the designation of one Respondent as the most qualified respondent.

Upon request, Respondents will be provided with a summary of the evaluation after the Selection

Committee has identified the most qualified Respondent and award of contract has been approved by the

appropriate governing bodies.

Cost Proposals

The most qualified Respondent will be requested to submit a Cost Proposal for commencement of the

negotiation process. A cost analysis and evaluation and/or audit of the cost shall be performed to

determine if the cost is fair and reasonable. The Respondent must be prepared to provide, upon request,

specific detail of estimated costs (direct labor, fee, profit, overhead, other direct costs, etc. and

compliance with FAR Part 31, see sample contract language) and documentation supporting all cost

elements. In the event agreement cannot be reached with the Respondent within a reasonable amount of

time as determined by the City, negotiations will be terminated and the next most qualified Respondent

will be contacted.

Single Respondent Response

In the event there is a single Response to this RFQ and said Respondent meets all of the requirements of

the Selection Process, a detailed cost proposal shall be requested from the single Respondent. A cost

analysis and evaluation and/or audit of the cost shall be performed to determine if the cost is fair and

reasonable. The Respondent is to provide, upon request, specific detail of estimated costs (direct labor,

fee, profit, overhead, other direct costs, etc.) and documentation supporting all cost elements. In the event

an agreement cannot be negotiated with the single Respondent in a satisfactory manner, the City will

terminate the negotiations and may re-solicit responses.

Confidentiality of Information

Subject to applicable laws and City policy, financial information required to be submitted with Cost

Proposals to establish financial responsibility and other financial data, such as wages, overhead rates,

shall be handled as confidential and utilized only as a basis for proposal evaluation. Reasonable efforts

will be made to avoid disclosure except as necessary for evaluation. All information provided by

Respondents and considered to be confidential or proprietary must be so labeled at time of submittal. See

NC Gen Stat §132.

Period of Performance

Performance under a contract awarded pursuant to this RFQ (Contract) is estimated to commence 2012

and shall remain in full force and effect until completion of the Project.

Notice to Proceed

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If City has not received FTA approval at the time of award of a contract pursuant to this RFQ, an interim

Notice to Proceed may be issued for specific tasks as approved by the FTA in accordance with the Scope

of Services. A second Notice to Proceed or Letter(s) of Notification may be issued for subsequent tasks

identified in this RFQ.

State & Federal Provisions

All contracts, subcontracts and purchase orders resulting from this RFQ shall contain all State and Federal

contract provisions required by applicable law at the time of contract execution (Refer to Attachment B).

Financial Data

Respondents agree to permit access to financial records for a Pre-Award Audit to verify the accuracy of

financial data, should the City determine that such an audit is required prior to negotiations or award of

contract.

Cost of RFQ Preparation

The City shall not be liable for any expenses incurred by any Respondent. Respondent shall not include

any expenses as part of the price proposed in response to the RFQ. Each Respondent shall hold the City

harmless and free from any and all liability, claims, or expenses incurred by, or on behalf of, any person

or organization responding to this RFQ.

RFQ Inclusion in Contract Documents

This RFQ, its addenda, along with all documents provided by the successful Respondent will become part

of the awarded contract and subject to the terms and conditions of the contract.

Reserved Rights & Limitation on Funding

The City makes no representations that a contract will be awarded as a result of this solicitation. The City

reserves the right to waive any minor irregularities that may be contained in this RFQ. The City reserves

the right to reject all responses and re-solicit or cancel this procurement if deemed by the City to be in its

best interest, without indicating any reasons for such action(s).

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RFQ NO.20121026006

REQUEST FOR


Attachment A

LYNX Blue Line Extension (Northeast Corridor) Light Rail Project

SCOPE OF SERVICES

General

The Consultant shall perform Project Management and Architectural and Engineering Services for the

City’s Project. The Work includes, but is not limited to submittals of Engineering drawings, calculations,

reports, schedules, and cost estimate to a level as to complete the Project

The Consultant will work under the direction of the BLE Project Director or proxy (as approved by the

BLE Project Director). The Consultant will be responsible for the communication and coordination

throughout the entire Consultant team, and the production, approval, and finalization of all customary

products necessary to complete the Project.

The Scope of Services also includes coordinating with all other Project consultants under contract with

the City. The Consultant will also be responsible for coordinating its analysis, design, and construction

management with the Work of the City, NC-DOT, UNC Charlotte, Railroads, and other third parties.

TASK 1: PROJECT MANAGEMENT & COORDINATION MEETINGS

1.1 Consultant Project Management Plan

The Consultant will produce a Consultant Project Management Plan (C-PMP) to serve as a

project management resource document for the Consultant team working on the Project. The

document provides a basic structure for implementation of the most critical elements of project

management including record keeping, documentation, communications, quality control and

assurance, and delineates the Consultant organizational structure, including sub consultants, for

the Project.

1.2 Monthly Reporting and Invoices

By the last business day of the month following the reporting period, the Consultant is required to

submit comprehensive, up to date, monthly progress reports covering the Work of the Consultant

and all sub-consultants, which contain the following elements:

A. Written Progress Report

A report describing Work accomplished in the prior month and Work planned for the

upcoming month on a task basis consistent with the Summary of Hours by Task

spreadsheet. This report will also include a narrative of deliverables; accomplishments;

important meetings, current issues relating to the Work including interfaces, budgets and

schedules, proposed resolutions to mitigate the issues, and other project management

issues

B. Project Control Reports

Project control reports will be submitted with the monthly progress report and will

contain the following items:

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I. Summary of Hours by Task

The Consultant shall prepare and maintain a Task and Drawing Control Log

covering significant tasks, specifications, reports and drawings in a WBS format.

This spreadsheet will be converted to the Summary of Hours by Task spreadsheet

for monthly reporting.

II. Schedule

The Consultant will submit the project master schedule monthly, and highlight

changes made to the schedule for approval by the BLE Project Director.

III. Invoice

An Invoice for Payment will be submitted with the monthly progress reports on

the last business day of the month and will contain up to date information,

including all sub-consultants, for the following items:

A graph showing planned cash flow projection and actual cash flow vs.

time.

A graph showing "as-planned hours", "actual hours", and "earned hours"

vs. time.

A table of budgeted average labor rates and current average labor rates

per each firm, cumulative and for the month.

A change control log of proposed, pending, and executed changes to the

Work.

Summary of Dollars by Task. Dollar amounts may be adjusted by

transferring budgeted amounts between tasks, with the approval of the

BLE Project Director, without any adjustment to the Contract Price.

Otherwise, task dollar amounts shall not be exceeded during the course

of the Work. If task amounts are exceeded, the Consultant bears full

responsibility and risk for such expenditures. Task dollar amounts may

be subject to modification through the change order process, but the

change order must be approved prior to billing any amount that exceeds

the original task amount.

Summary of Dollars by Firm, including a table of the percentage of

amounts paid to DBE firms.

Employee name and rate for which reimbursement is being requested.

Time sheets, certified to be true and accurate reporting of actual time

earned by the employee, and employees of any sub-consultants,

identified and actually paid to the employee, for each employee who

worked on tasks for which a payment is requested.

Receipts, logs and invoices for other direct costs for which

reimbursement is being requested.

Establish activity definitions, duration, relationships, key milestones and

contract interfaces.

1.3 Project Management Team

The Consultant will attend bi-weekly Project Management Team meetings, the primary purpose

being to interface the Work between Consultant teams, outside agencies and ongoing City

activities. Each progress meeting will result in an Action Item Log that identifies required actions,

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due dates, and responsible parties. Action items should be tied to a scheduled item where

possible.

The Consultant will prepare meeting minutes and the action logs for all meetings with the City,

CATS, E&PM, City Stakeholders and other Consultants under contract with the City. These will

be tracked to monitor progress and interfaces. Other, less formal meetings will be held on an as

needed basis to coordinate the Work or disseminate new information or direction.

1.4 Other Project Meetings

The Consultant shall attend other project meetings in a support or lead role under the direction of

the BLE Project Director. These meetings shall include but are not limited to Growth Strategy

Steering Team Meetings, Policy Steering Team Meetings, Metropolitan Transit Commission

(MTC) meetings, Charlotte City Council meetings, NC-DOT meetings, construction related

meetings, and FTA sponsored meetings. The Consultant may be responsible for providing

materials, minutes, agendas, etc.

1.5 Project Coordination

The Consultant shall coordinate with internal and external stakeholders, agencies, and

organizations under the guidance of the BLE Project Director. These shall include but are not

limited to the UNC Charlotte, NC-DOT, Railroads, private developers, Mecklenburg County and

the City.

1.6 Quality Assurance Plan

The Consultant will produce a QA/QC Plan that meets the requirements of CATS Project Quality

Plan and identifies the interfaces between different design groups and design disciplines and

identifies the responsibilities for both design performance and for Quality Assurance. Quality-

related design activity will be controlled in accordance with the QA/QC Plan. Applicable criteria,

codes, standards and regulatory requirements will be identified. Prior to preparation and submittal

of a QA/QC Plan, the Consultant shall comply with CATS Quality Assurance program

requirements and submittal processes. All reference material, building codes and standards

required by the Consultant shall become the property of the City upon completion of the Project.

1.7 Project Master Schedule

The Consultant shall develop and maintain a project master schedule using Primavera scheduling

software based on the following goals:

Accurate tracking of progress

Identify Critical Path

Resource allocation

Task based per the Consultants Scope of Services

Provide accurate information on Project tasks, phases and milestones

Establish activity definitions, duration, relationships, key milestones and contract

interfaces.

TASK 2: PUBLIC & AGENCY INVOLVEMENT

The Consultant shall participate in and support public involvement activities, as needed, under the

direction of the BLE Project Team, and in accordance with the CATS Public Involvement Plan. This task

will be closely coordinated with the BLE Project Team. This shall include, but not be limited to,

preparation of graphics, presentations, meeting minutes, newsletter articles, and participation as

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facilitators, scribes or other roles as required by BLE Project Team. The program shall be consistent with

the CATS Public Involvement Plan, as concurred with by the FTA.

TASK 3: ARCHITECTURAL & ENGINEERING SERVICES

The Consultant shall perform services customary with the design development and construction of a Light

Rail Transit Project of this nature. This shall include designs for Guideway/Track, Stations, Facilities,

Sitework, Systems, Real Estate and any other pertinent Project elements. The Consultant shall work

closely with all City consultants that will be working in parallel with the Project, including Real Estate

consultants that will work for the City to purchase ROW for the Project.

The Consultant shall use and build upon PE work products, provided by the City and others, in the

formulation of their Work. All Work shall be fully coordinated between all disciplines and all Contract

Documents to avoid conflicts. The complete designs should include, but not be limited to:

Horizontal & Vertical Alignment Design (plan, profile, cross sections)

Demolition

Station Design (platform geometry, amenities, surface/structural parking and site planning)

Roadway Design (plan and cross-section of North Tryon Street and other roadway/intersection

improvements)

Utility Design & Relocation (existing utility plans and relocation plans)

Bridge & Structural Design (bridge, retaining wall, culvert and other miscellaneous structures,

plans, profiles, details)

Drainage Design (grading, drainage area maps, station, guideway, and street drainage design)

System Design (traction power, communication, train control, VMF modification, fare collection,

corrosion control)

SBLRF modification and storage yard design (VMF yard expansion)

North Yard and dispatch facility design

All submittals will be in accordance with City CADD drawing standards and accompanied by the

appropriate and customary calculations, reports, and cost estimates commensurate with the level of design

of the particular milestone. Modifications to the PE design may need to be reviewed against the

appropriate NEPA documents and adjustments to either may be necessary. The Consultant shall

incorporate all required mitigation as defined in the Final EIS and ROD into Construction Contract

Documents. Documents will be submitted to CATS QA as required by the approved QA/QC Plan.

3.1 Design Criteria

The Consultant shall review and recommend revisions to the BLE Design Criteria. Revisions to

the Design Criteria will be under the supervision and approval of the BLE Project Director to

ensure consistency and appropriateness across multiple project types. The BLE Project Team

will oversee the assembly, compilation submittal and continuity of information provided by the

Consultant. An accompanying technical report shall be included with this submittal. The Design

Criteria will comply with all state, federal, and local codes and requirements, including

Americans with Disabilities Act (ADA), Buy America, and the National Fire Protection

Association (NFPA) 130: Standard for Fixed Guideway Transit and Passenger Rail Systems and

others. The Consultant shall be required to complete the Design Criteria Conformance Checklist,

in accordance with FTA requirements.

3.2 Survey & Mapping

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The Consultant shall provide topographic, planimetric, surveys, and mapping as required for

design development of the Project.

3.3 Geotechnical Analysis

The Consultant shall review all existing subsurface investigation report(s), drawings, and other

materials. Any additional geotechnical investigation of the subsurface conditions for either design

or construction shall be identified as an update or a new report and submitted to the BLE Project

Team for review and approval.

Continued engineering analyses shall be performed to evaluate suitable aerial structure

foundations types, allowable bearing resistance preliminary design values, estimated lateral

response of foundations, and estimated foundation settlement. The aerial structure abutments

shall be evaluated for global stability, bearing resistance, and settlement.

3.4 Milestone Submittals

The Consultant shall develop milestone submittals which will include engineering drawings, cost

estimates, calculations, reports and other customary products, in support of the particular

milestone submittal. The Consultant shall build-on existing work done during PE, to develop

drawings to a 95% and a 100% milestone submittal. The Consultant shall follow all City

processes for managing the disposition of comments at milestone submittals.

The final submittal shall be of an appropriate level to support the development of a reliable

Construction Cost Estimate prior to entrance into the Construction Phase. All cost estimates shall

be formatted in the FTA Standard Cost Category (SCC) and by Construction contracts.

3.5 Project Reviews

The Consultant will also conduct and/or participate in FTA and CATS suggested reviews, such as

a Constructability Review, and other reviews as directed by the BLE Project Director. These

reviews will take place during Final Design and will comply with all FTA guidance.

3.6 Private Development Response Team

The Consultant may be required to participate with City KBUs to review and provide technical

expertise in response to private development initiatives that may occur within station areas or

Project limits.

3.7 Safety & Security

The Consultant shall participate in the effort to verify the Project meets all required Safety and

Security issues i.e. complete a Safety & Security Certifiable Items List in compliance with and in

reference to NFPA 130, ADA, OSHA, and any other applicable safety and security standard or

regulation, in the Safety and Security Certifiable Items List (CIL), as required by FTA.

3.8 Noise and Vibration Analysis

The Consultant shall complete noise and vibration engineering analysis and design to meet the

requirements of the Final EIS and ROD.

3.9 Right-of-Way

The Consultant may:

Determine ROW requirements, delineating temporary and permanent ROW and utility

easements

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Perform ROW surveys, and prepare parcel maps, boundary descriptions and certifications

as required to support ROW acquisition process for all defined properties

Perform all surveying to complete Preliminary and Final ROW Plats in accordance with

the requirements of the local jurisdictions.

Assist the City in any other Real Estate activities, i.e. public meetings, as requested by

the BLE Project Director.

3.10 Art-in-Transit

The Art-in-Transit (AiT) Program adheres to FTA guidelines (Circular 9400.1A and 4220.1F)

and is managed by the AiT Program Manager. Art project oversight is provided by an Advisory

Committee appointed by CATS KBU. In the early stages of Project design, artists were selected

to integrate art into the Project. Some artists are slated to integrate art into the station elements,

others will impact walls, bridges or add art to the landscape and some will replace functional

elements with functional art. Artists work with the AiT Program Manager, the BLE Project Team

and Consultants in a manner outlined in the artists’ contracts during each phase of the Project,

including construction.

During Final Design, the artists will work cooperatively and collaboratively with the Consultant

along with the BLE Project Team to ensure integration of the artists’ designs and art into the

Project. Three art projects require a greater involvement by the Consultant: the 9th Street Station,

the UNC Charlotte Station, and the art components for the priority bridges and walls.

The Consultant is expected to provide the artists with technical information and technical reviews

of the artists’ work as it evolves with regard to the Project design and incorporation of art into the

Project. The Consultant will review the proposed art for design criteria compliance and assist in

the resolution of known issues of security, maintenance, operation, or safety.

The Consultant will work with the artists in a manner consistent with City’s desire to successfully

incorporate art into the Project, with the understanding that the artists will require access to the

Consultant’s technical expertise, knowledge of the Project design and compliance with all

applicable laws, statutes, ordinances, codes, orders, rules and regulations that impact the Project

design and the art.

3.11 Operations Analysis

The Consultant shall prepare any necessary operations analysis / simulation studies to confirm the

system’s operational capacity.

TASK 4: CONSTRUCTION CONTRACT DOCUMENTS

4.1 Construction Contract Documents Based on the approved Final Design Documents and any further adjustment in the scope of the

Project or in the Project Budget authorized by the City, the Consultant shall prepare and submit,

for approval by the City, Construction Contract Documents which shall include drawings and

specifications setting forth in detail the requirements for the construction of the Project. The

Construction Contract Documents shall establish in detail the quality levels of materials and

systems required for construction of the Project. The Construction Contract Documents shall

comply with all applicable laws, statutes, ordinances, codes, orders, rules and regulations.

The Consultant shall prepare Construction Contract Documents sufficient for bidding and

construction of the Project. Approval of the Construction Contract Documents by CATS shall in

no way relieve the Consultant of this responsibility.

16

4.2 Cost Estimate & Schedule The Consultant shall update the construction cost estimate and the Project schedule and submit

this information to the City for approval prior to the scheduled bid opening date for all

construction projects.

4.3 Permits & Approvals All required permits and approvals shall be obtained by the Consultant from all necessary

authorities and agencies prior to the City advertising the Project for bids. Such authorities and

agencies may include, but are not limited to: U.S. Army Corps of Engineers, NC Department of

Environment and Natural Resources, Mecklenburg County Code Enforcement, North Carolina

Department of Insurance, the Land Use and Environmental Services Agency, the City

Engineering & Property Management Departments, including Land Development, and the

Charlotte Mecklenburg Police Department.

4.4 Special Inspections The Consultant, as the registered design professional in responsible charge, shall prepare and

submit a statement of special inspections as required by the Land Use and Environmental

Services Agency for issuance of a building permit.

4.5 Local, State & Federal Requirements The Consultant shall incorporate into the Construction Contract Documents any local, state, or

federal requirements applicable to the Project.

TASK 5: BIDDING OR NEGOTIATION

The Consultant, following the BLE Project Team approval of the Construction Contract Documents and

of the latest construction cost estimate, shall assist the BLE Project Team in obtaining either bids or

negotiated proposals, and shall assist in awarding the contract(s) for construction.

5.1 Requirements The BLE Project Team shall assemble the project manual, advertise for bids for construction of

the Project, and award the construction contract in accordance with the requirements of the State

of North Carolina and the FTA.

5.2 Bid Phase The Consultant’s assistance during the bidding phase shall consist of:

A. Consideration of Requests for Substitutions, if permitted by the Construction Contract

Documents, and preparation of Addenda identifying approved substitutions to

prospective bidders;

B. Participating in or, at CATS direction, organizing and conducting a pre-bid conference

for prospective bidders;

C. Preparation of responses to questions from prospective bidders providing clarifications

and interpretations of the Construction Contract Documents to all prospective bidders in

the form of Addenda;

D. Evaluation of bids and investigation of bidders’ qualifications; and

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E. Recommendation for award of contracts.

5.3 If the fixed limit of construction cost is exceeded by the lowest bona fide bid or negotiated

proposal, CATS shall either: (1) give written approval of an increase in such fixed limit, (2)

authorize rebidding or renegotiating of the Project within a reasonable time as specified in writing

by CATS; (3) terminate this Contract in accordance with provisions of the Contract, or (4)

cooperate in revising the Project scope and quality as required to reduce the construction cost.

TASK 6: DESIGN SERVICES DURING CONSTRUCTION

Perform the review of shop drawings and submittals; prepare design changes and change requests;

respond to Requests for Information (RFI’s); attend coordination meetings as required; provide field

support and evaluate test plans and test procedures as required; provide technical reviews and support

during testing and acceptance of systems contracts; evaluate value engineering proposals; prepare cost

estimates; oversee the preparation of record drawings by the construction contractors; update record

drawings electronic/CADD files as necessary and other services as required by CATS.

TASK 7: CONSTRUCTION ADMINISTRATION

The City reserves the right to include Construction Administration as part of this procurement, the

Consultant may be required to provide all of the necessary and required construction management

services specific to Project work for:

SBLRF Modifications

North Yard and dispatch facility construction

Parking Garages

Park and Ride Lots

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RFQ NO.20121026006

REQUEST FOR


Attachment B


FEDERAL CONTRACTING REQUIREMENTS

This Attachment is incorporated into the Services Contract # ________ (the Contract) between the City of

Charlotte (the City) and _____________________ (the Consultant). Capitalized terms not defined in this

Attachment shall have the meanings assigned to such terms in the Contract.

1. Federal Applicability

The Work to be performed under this Contract will be financed in whole or in part with Federal funding.

As such, Federal laws, regulations, policies, and related administrative practices apply to this Contract.

The most recent of such Federal requirements, including any amendments made after the execution of this

Contract, shall govern this Contract, unless the Federal Government determines otherwise. This Article

identifies the Federal requirements that are applicable to this Contract. The Consultant is responsible for

complying with all applicable provisions.

To the extent applicable, the Federal requirements contained in the most recent version of the FTA Master

Contract, including any certifications and contractual provisions required by any Federal statutes or

regulations referenced therein to be included in this Contract, are deemed incorporated into this Contract

by reference and shall be incorporated into any subcontract or subcontract executed by the Company

pursuant to its obligations under this Contract. The Consultant and its sub-consultants, if any, hereby

represent and covenant that they have complied and shall comply in the future with the applicable

provisions of the Master Contract then in effect and with all applicable Federal, State and local laws,

regulations, and rules and local policies and procedures, as amended from time to time, relating to the

Work to be performed under this Contract. Anything to the contrary herein notwithstanding, all FTA-

mandated terms shall be deemed to control in the event of a conflict with other provisions contained in

this Contract. The Consultant shall not perform any act, fail to perform any act, or refuse to comply with

any City requests, which would cause the City to be in violation of the FTA terms and conditions.

2. Reserved

3. Buy America

The Consultant shall design the Project to ensure that the plans and specifications produced by the

Consultant under this Agreement permit compliance with Section 165 of the Surface Transportation

Assistance Act of 1982 (P.L. 97-424) as amended. All iron, steel and manufactured products specified by

the Consultant shall be of domestic manufacture or origin, except as otherwise approved by the City.

Whenever the Consultant lists a product by make, manufacturer or model number in the specifications,

the Consultant shall first ensure that the product is of domestic manufacture or origin. Should the

Consultant find it necessary to specify iron, steel, or manufactured products, which are not produced in

the United States in sufficient and reasonably available quantities, then the Consultant shall submit a

written justification to the Contracting Officer describing in detail the product, its estimated cost, the

rationale for its use in the Project and the basis for the Consultant’s belief that the product is of limited

domestic availability. The City, in its sole discretion, will determine whether to seek a waiver of the Buy

19

America requirements from the U.S. Secretary of Transportation. Should the City determine that there is

insufficient basis for seeking a waiver or if a waiver request is denied by USDOT, the Consultant shall

redesign the Project to conform with Buy America requirements at no additional cost to the City.

This requirement extends to all third party contractors and their contracts at every tier and this clause shall

be included in all such subcontracts.

4. Reserved

5. Reserved

6. Seismic Safety Requirements

The Consultant agrees that any new building or addition to an existing building will be designed and

constructed in accordance with the standards for Seismic Safety required in USDOT Seismic Safety

Regulations, 49 CFR Part 41, and will certify compliance to the extent required by the regulation. The

Consultant also agrees to ensure that all Work performed under this Contract, including Work performed

by a sub-Consultant, is in compliance with the standards required by the Seismic Safety Regulations and

the certification of compliance issued on the Project.

7. Energy Conservation

The Consultant agrees to comply with the mandatory standards and policies relating to energy efficiency

which are contained in the state energy conservation plan issued in compliance with the Energy Policy

and Conservation Act, 42 U.S.C. §§ 6321, et seq.



8. Clean Water

The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to

the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§1251, et seq. The Consultant agrees to

report each violation to the City and understands and agrees that the City will, in turn, report each

violation as required to assure notification to FTA and the appropriate EPA Regional Office.

The Consultant also agrees to include these requirements in each subcontract exceeding one hundred

thousand dollars ($100,000.00) financed in whole or in part with Federal assistance provided by FTA.

9. Reserved

10. Reserved

11. Lobbying

The Consultant agrees to comply with the provisions of Title 31, U.S.C. 1352, The Byrd Anti-Lobbying

Amendment, as in force or as it may hereafter be amended. The Consultant and all sub-consultant tiers

shall file the certification required by 49 CFR Part 20, ―New Restrictions on Lobbying.‖ Each tier

certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or

organization for influencing or attempting to influence an officer or employee of any agency, a member

of Congress, officer or employee of Congress, or an employee of a member of Congress in connection

with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. 1352. Each tier shall

also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made

lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant, or

award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the City. The

Consultant shall make such disclosure on the disclosure form included in the Project Manual. See Exhibit

1 for certification.

20

The Consultant further agrees to secure like undertakings from all sub-consultant tiers whose subcontracts

are expected to be of a value of one hundred thousand dollars ($100,000.00) or more.

Sample Certification Form

Certification for Contracts, Grants, Loans, and Cooperative Agreements

The undersigned certifies, to the best of his or her knowledge and belief, that:

(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to

any person for influencing or attempting to influence an officer or employee of an agency, a Member

of Congress, an officer or employee of Congress, or an employee of a Member of Congress in

connection with the awarding of any Federal contract, the making of any Federal grant, the making of

any Federal loan, the entering into of any cooperative agreement, and the extension, continuation,

renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for

making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer

or employee of Congress, or an employee of a Member of Congress in connection with this Federal

contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard

Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended

by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96).

Note: Language in paragraph (2) herein has been modified in accordance with §10 of the Lobbying

Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)]

(3) The undersigned shall require that the language of this certification be included in the award

documents for all sub-awards at all tiers (including subcontracts, sub grants, and contracts under

grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose

accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction

was made or entered into. Submission of this certification is a prerequisite for making or entering into

this transaction imposed by 31, U.S.C. §1352 (as amended by the Lobbying Disclosure Act of 1995).

Pursuant to 31 U.S.C. §1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file

or amend the required certification or disclosure form shall be subject to a civil penalty of not less than

ten thousand dollars ($10,000.00) and not more than one hundred thousand dollars ($100,000.00) for each

such failure.

The Consultant certifies or affirms the truthfulness and accuracy of each statement of its certification and

disclosure, if any. In addition, the Consultant understands and agrees that the provisions of 31 U.S.C. A

3801, et seq., apply to this certification and disclosure, if any.

__________________________ Signature of Authorized Official

__________________________ Name and Title of Authorized Official

__________________________ Date

12. Access to Records & Reports

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The City is not a State but a local government, and is the FTA Recipient or a sub grantee of the FTA

Recipient, in accordance with 49 C. F. R. 18.36(i), the Consultant agrees to provide the City, the FTA

Administrator, the Comptroller General of the United States or any of their authorized representatives

access to any books, documents, papers and records of the Consultant which are directly pertinent to this

Contract for the purposes of making audits, examinations, excerpts and transcriptions. Consultant also

agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives

including any PMO Consultant access to Consultant's records and construction sites pertaining to a major

capital project, defined at 49 U.S.C. 5302(a)(1), which is receiving federal financial assistance through

the programs described at 49 U.S.C. 5307, 5309 or 5311.

The Consultant shall also make available records related to the contract to the City, the Secretary of

Transportation and the Comptroller General or any authorized officer or employee of any of them for the

purposes of conducting an audit and inspection.

The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to

copy excerpts and transcriptions as reasonably needed.

The Consultant agrees to maintain all books, records, accounts and reports required under this Contract

for a period of not less than three years after the date of termination or expiration of this Contract, except

in the event of litigation or settlement of claims arising from the performance of this Contract, in which

case Consultant agrees to maintain same until the City, the FTA Administrator, the Comptroller General,

or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or

exceptions related thereto. Reference 49 CFR 18.39(i)(11).

This requirement extends to all third party contractors and their contracts; this clause shall be included in

all subcontracts of any tier executed in furtherance of this Contract.

13. Federal Changes

The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and

directives, including without limitation those listed directly or by reference in the Master Agreement

between the City and FTA, as they may be amended or promulgated from time to time during the term of

this Contract. The Consultant’s failure to so comply shall constitute a material breach of this Contract.



14. Reserved

15. Clean Air

The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to

the Clean Air Act, as amended, 42 U.S.C. §§ 7401, et seq. The Consultant agrees to report each violation

to the City and understands and agrees that the City will, in turn, report each violation as required to

assure notification to FTA and the appropriate EPA Regional Office.

The Consultant also agrees to include these requirements in each subcontract exceeding one hundred

thousand dollars ($100,000.00) financed in whole or in part with Federal assistance provided by FTA.

16. Recycled Products

The Consultant agrees to comply with all requirements of §6002 of the Resource Conservation and

Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory

22

provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items

designated in Part B of 40 CFR Part 247.


all subcontracts of any tier executed in furtherance of this contract.

17. Davis-Bacon & Copeland Anti-Kickback Acts

Minimum Wages

a. All laborers and mechanics employed or working upon the site of the work (or under the United

States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of

the project), will be paid unconditionally and not less often than once a week, and without subsequent

deduction or rebate on any account (except such payroll deductions as are permitted by regulations

issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages

and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates

not less than those contained in the wage determination of the Secretary of Labor which is attached

hereto and made a part hereof, regardless of any contractual relationship which may be alleged to

exist between the Consultant and such laborers and mechanics. Contributions made or costs

reasonably anticipated for bona fide fringe benefits under §1(b)(2) of the Davis-Bacon Act on behalf

of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the

provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for

more than a weekly period (but not less often than quarterly) under plans, funds, or programs which

cover the particular weekly period, are deemed to be constructively made or incurred during such

weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe

benefits on the wage determination for the classification of work actually performed, without regard

to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more

than one classification may be compensated at the rate specified for each classification for the time

actually worked therein, provided that the employer's payroll records accurately set forth the time

spent in each classification in which work is performed. The wage determination (including any

additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the

Davis-Bacon poster (WH-1321) shall be posted at all times by the Consultant and its sub-Consultants

at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

b. The Contracting Officer shall require that any class of laborers or mechanics, including helpers,

which is not listed in the wage determination and which is to be employed under the contract shall be

classified in conformance with the wage determination. The Contracting Officer shall approve an

additional classification and wage rate and fringe benefits therefore only when the following criteria

have been met:

i. Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by

the classification requested is not performed by a classification in the wage determination;

and

ii. The classification is utilized in the area by the construction industry; and

iii. The proposed wage rate, including any bona fide fringe benefits, bears a reasonable

relationship to the wage rates contained in the wage determination; and

iv. With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the

area in which the work is performed.

23

c. If the Consultant and the laborers and mechanics to be employed in the classification (if known), or

their representatives, and the Contracting Officer agree on the classification and wage rate (including

the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent

by the Contracting Officer to the Administrator of the Wage and Hour Division, Employment

Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or

an authorized representative, will approve, modify, or disapprove every additional classification

action within thirty (30) days of receipt and so advise the Contracting Officer or will notify the

Contracting Officer within the thirty (30) day period that additional time is necessary.

d. In the event the Consultant, the laborers or mechanics to be employed in the classification or their

representatives, and the Contracting Officer do not agree on the proposed classification and wage rate

(including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall

refer the questions, including the views of all interested parties and the recommendation of the

Contracting Officer, to the Administrator for determination. The Administrator, or an authorized

representative, will issue a determination within thirty (30) days of receipt and so advise the

Contracting Officer or will notify the Contracting Officer within the thirty (30) day period that

additional time is necessary.

e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs

(a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification

under this contract from the first day on which work is performed in the classification.

f. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics

includes a fringe benefit which is not expressed as an hourly rate, the Consultant shall either pay the

benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly

cash equivalent thereof.

g. If the Consultant does not make payments to a trustee or other third person, the Consultant may

consider as part of the wages of any laborer or mechanic the amount of any costs reasonably

anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the

Secretary of Labor has, upon the written request of the Consultant, determined that the applicable

standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Consultant

to set aside in a separate account assets for the meeting of obligations under the plan or program.

h. The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the

wage determination and which is to be employed under the contract shall be classified in

conformance with the wage determination. The Contracting Officer shall approve an additional

classification and wage rate and fringe benefits only when the following criteria have been met:

i. The Work to be performed by the classification requested is not performed by a classification

in the wage determination; and

ii. The classification is utilized in the area by the construction industry; and

iii. The proposed wage rate, including any bona fide fringe benefits, bears a reasonable

relationship to the wage rates contained in the wage determination.

Withholding

The City of Charlotte shall, upon its own action or upon written request of an authorized representative of

the Department of Labor, withhold or cause to be withheld from the Consultant under this contract or any

other Federal contract with the same prime Consultant, or any other federally assisted contract subject to

24

Davis-Bacon prevailing wage requirements, which is held by the same prime Consultant, so much of the

accrued payments or advances as may be considered necessary to pay laborers and mechanics, including

apprentices, trainees, and helpers, employed by the Consultant or any sub-Consultants the full amount of

wages required by the contract. In the event of failure to pay any laborer or mechanic, including any

apprentice, trainee, or helper, employed or working on the site of the work (or under the United States

Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project),

all or part of the wages required by the contract, the City of Charlotte may, after written notice to the

Consultant, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of

any further payment, advance, or guarantee of funds until such violations have ceased.

Payrolls and Basic Records

a. Payrolls and basic records relating thereto shall be maintained by the Consultant during the course of

the work and preserved for a period of three years thereafter for all laborers and mechanics working at

the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of

1949, in the construction or development of the project). Such records shall contain the name,

address, and social security number of each such worker, his or her correct classification, hourly rates

of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or

cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily

and weekly number of hours worked, deductions made and actual wages paid. Whenever the

Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic

include the amount of any costs reasonably anticipated in providing benefits under a plan or program

described in section 1(b)(2)(B) of the Davis-Bacon Act, the Consultant shall maintain records which

show that the commitment to provide such benefits is enforceable, that the plan or program is

financially responsible, and that the plan or program has been communicated in writing to the

laborers or mechanics affected, and records which show the costs anticipated or the actual cost

incurred in providing such benefits. Consultant s employing apprentices or trainees under approved

programs shall maintain written evidence of the registration of apprenticeship programs and

certification of trainee programs, the registration of the apprentices and trainees, and the ratios and

wage rates prescribed in the applicable programs.

b. The Consultant shall submit weekly for each week in which any contract work is performed a copy of

all payrolls to the City of Charlotte for transmission to the Federal Transit Administration. The

payrolls submitted shall set out accurately and completely all of the information required to be

maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5. This information may be

submitted in any form desired. Optional Form WH-347 is available for this purpose and may be

purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S.

Government Printing Office, Washington, DC 20402. The prime Consultant is responsible for the

submission of copies of payrolls by all sub-Consultants.

c. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the

Consultant or sub-Consultants or his or her agent who pays or supervises the payment of the persons

employed under the contract and shall certify the following:

i. That the payroll for the payroll period contains the information required to be maintained

under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such information is correct

and complete;

ii. That each laborer or mechanic (including each helper, apprentice, and trainee) employed on

the contract during the payroll period has been paid the full weekly wages earned, without

rebate, either directly or indirectly, and that no deductions have been made either directly or

25

indirectly from the full wages earned, other than permissible deductions as set forth in

Regulations, 29 CFR part 3;

iii. That each laborer or mechanic has been paid not less than the applicable wage rates and

fringe benefits or cash equivalents for the classification of work performed, as specified in the

applicable wage determination incorporated into the contract.

d. The weekly submission of a properly executed certification set forth on the reverse side of Optional

Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance"

required by paragraph (a)(3)(ii)(B) of this section.

e. The falsification of any of the above certifications may subject the Consultant or sub-Consultants to

civil or criminal prosecution under section 1001 of Title 18 and Section 231 of Title 31 of the United

States Code.

f. The Consultant or sub-Consultants shall make the records required under paragraph (a)(3)(i) of this

section available for inspection, copying, or transcription by authorized representatives of the Federal

Transit Administration or the Department of Labor, and shall permit such representatives to interview

employees during working hours on the job. If the Consultant or sub-Consultants fails to submit the

required records or to make them available, the Federal agency may, after written notice to the

Consultant, sponsor, applicant, or owner, take such action as may be necessary to cause the

suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the

required records upon request or to make such records available may be grounds for debarment action

pursuant to 29 CFR 5.12.

Apprentices and Trainees

a. Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work

they performed when they are employed pursuant to and individually registered in a bona fide

apprenticeship program registered with the U.S. Department of Labor, Employment and Training

Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency

recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary

employment as an apprentice in such an apprenticeship program, who is not individually registered in

the program, but who has been certified by the Bureau of Apprenticeship and Training or a State

Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an

apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification

shall not be greater than the ratio permitted to the Consultant as to the entire work force under the

registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered

or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the

wage determination for the classification of work actually performed. In addition, any apprentice

performing work on the job site in excess of the ratio permitted under the registered program shall be

paid not less than the applicable wage rate on the wage determination for the work actually

performed. Where a Consultant is performing construction on a project in a locality other than that in

which its program is registered, the ratios and wage rates (expressed in percentages of the

journeyman's hourly rate) specified in the Consultant’s or sub-Consultants registered program shall be

observed. Every apprentice must be paid at not less than the rate specified in the registered program

for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate

specified in the applicable wage determination. Apprentices shall be paid fringe benefits in

accordance with the provisions of the apprenticeship program. If the apprenticeship program does not

specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage

determination for the applicable classification. If the Administrator of the Wage and Hour Division of

the U.S. Department of Labor determines that a different practice prevails for the applicable

26

apprentice classification, fringes shall be paid in accordance with that determination. In the event the

Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau,

withdraws approval of an apprenticeship program, the Consultant will no longer be permitted to

utilize apprentices at less than the applicable predetermined rate for the work performed until an

acceptable program is approved.

b. Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the

predetermined rate for the work performed unless they are employed pursuant to and individually

registered in a program which has received prior approval, evidenced by formal certification by the

U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to

journeymen on the job site shall not be greater than permitted under the plan approved by the

Employment and Training Administration. Every trainee must be paid at not less than the rate

specified in the approved program for the trainee's level of progress, expressed as a percentage of the

journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe

benefits in accordance with the provisions of the trainee program. If the trainee program does not

mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage

determination unless the Administrator of the Wage and Hour Division determines that there is an

apprenticeship program associated with the corresponding journeyman wage rate on the wage

determination which provides for less than full fringe benefits for apprentices. Any employee listed

on the payroll at a trainee rate, who is not registered and participating in a training plan approved by

the Employment and Training Administration, shall be paid not less than the applicable wage rate on

the wage determination for the classification of work actually performed. In addition, any trainee

performing work on the job site in excess of the ratio permitted under the registered program shall be

paid not less than the applicable wage rate on the wage determination for the work actually

performed. In the event the Employment and Training Administration withdraws approval of a

training program, the Consultant will no longer be permitted to utilize trainees at less than the

applicable predetermined rate for the work performed until an acceptable program is approved.

c. Equal Employment Opportunity - The utilization of apprentices, trainees and journeymen under this

part shall be in conformity with the equal employment opportunity requirements of Executive Order

11246, as amended and 29 CFR Part 30.

Compliance with Copeland Act Requirements

The Consultant shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference

in this Contract.

Subcontracts

The Consultant or sub-Consultants shall insert the clauses contained in 29 CFR §§ 5.5(a)(1) through (10)

and any other FTA-required clauses in any subcontracts. In addition, Consultant s and sub-Consultants

shall insert a clause requiring the sub-Consultants to include these clauses in any lower tier subcontracts.

The prime Consultant shall be responsible for the compliance by any sub-Consultants or lower tier sub-

Consultants with all the contract clauses in 29 CFR § 5.5.

Contract Termination: Debarment

A breach of the contract clauses in 29 CFR § 5.5 may be grounds for termination of the contract and for

debarment as a Consultant and a sub-Consultants as provided in 29 CFR § 5.12.

Compliance with Davis-Bacon and Related Act Requirements

All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5

are herein incorporated by reference in this contract.

27

Disputes Concerning Labor Standards

Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general

disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the

Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause

include disputes between the Consultant (or any of its sub-Consultants) and the contracting agency, the

U.S. Department of Labor, or the employees or their representatives.

Certification of Eligibility

By entering into this Contract, the Consultant certifies that neither it nor any person or firm who has an

interest in the Consultant 's firm is a person or firm ineligible to be awarded Government contracts by

virtue of §3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government

contract by virtue of §3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

18. Contract Work Hours & Safety Standards Act

Overtime Requirements

No Consultant or sub-Consultants contracting for any part of the contract Work which may require or

involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic to

work more than forty (40) hours in any workweek in which he or she is employed on such Work unless

such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic

rate of pay for all hours worked in excess of forty (40) hours in such workweek.

Violation; Liability for Unpaid Wages; Liquidated Damages

In the event of any violation of the clause set forth in the above paragraph of this section the Consultant

and any sub-Consultants responsible for the violation shall be liable for the unpaid wages. In addition,

such Consultant and sub-Consultants shall be liable to the United States for liquidated damages. Such

liquidated damages shall be computed with respect to each individual laborer or mechanic, including

watchmen and guards, employed in violation of the clause set forth above in this section, in the sum of ten

dollars ($10.00) for each calendar day on which such individual was required or permitted to Work in

excess of the standard workweek of forty (40) hours without payment of the overtime wages required by

the clause set forth in the paragraph above in this section.

Withholding for Unpaid Wages & Liquidated Damages

The City of Charlotte shall, upon its own action or upon written request of an authorized representative of

the Department of Labor, withhold or cause to be withheld, from any moneys payable on account of

Work performed by the Consultant or sub-Consultants under any such contract or any other Federal

contract with the same prime Consultant, or any other federally assisted contract subject to the Contract

Work Hours and Safety Standards Act, which is held by the same prime Consultant, such sums as may be

determined to be necessary to satisfy any liabilities of such Consultant or sub-Consultants for unpaid

wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

Subcontracts

The Consultant or sub-Consultants shall insert in any subcontracts the clauses set forth in the paragraphs

of this section and also a clause requiring the sub-Consultants to include these clauses in any lower tier

subcontracts. The prime Consultant shall be responsible for compliance by any sub-Consultants or lower

tier sub-Consultants with the clauses set forth in the paragraphs of this section.

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19. No Government Obligation to Third Parties

The City and the Consultant acknowledge and agree that, notwithstanding any concurrence by the Federal

Government in or approval of the solicitation or award of the underlying Contract, absent the express

written consent by the Federal Government, the Federal Government is not a Party to this Contract and

shall not be subject to any obligations or liabilities to the City, the Consultant, or any other Party (whether

or not a Party to that contract) pertaining to any matter resulting from the underlying Contract.

The Consultant agrees to include the above clause in each subcontract financed in whole or in part with

Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to

identify the sub-consultants who will be subject to its provisions.

20. Program Fraud & False or Fraudulent Statements & Related Acts

The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as

amended, 31 U.S.C. §§3801, et seq. and US-DOT regulations, ―Program Fraud Civil Remedies,‖ 49

C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying Contract,

the Consultant certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it

may make, or causes to be made, pertaining to the underlying Contract or the FTA-assisted project for

which this Contract Work is being performed. In addition to other penalties that may be applicable, the

Consultant further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent

claim, statement, submission, or certification, the Federal Government reserves the right to impose the

penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the extent the Federal

Government deems appropriate.

The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent

claim, statement, submission, or certification to the Federal Government under a contract connected with

a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the

authority of 49 U.S.C. §5307, the Government reserves the right to impose the penalties of 18 U.S.C.

§1001 and 49 U.S.C. §5307(n)(1) on the Consultant, to the extent the Federal Government deems

appropriate.

The Consultant agrees to include the above two clauses in each subcontract financed in whole or in part

with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified,

except to identify the sub-consultant who will be subject to the provisions.

21. Reserved

22. Government-Wide Debarment & Suspension

This Contract is a covered transaction for purposes of 49 CFR Part 29. As such, the Consultant is

required to verify that neither it, nor its principals (as defined at 49 CFR 29.995) or affiliates (as defined

at 49 CFR 29.905) is excluded or disqualified as defined at 49 CFR 29.940 and 29.945.

The Consultant is required to comply with 49 CFR 29, Subpart C and must include the requirement to

comply with 49 CFR 29, Subpart C in any lower-tier covered transaction into which it enters. By signing

and submitting its bid or proposal, the bidder or proposer certifies as follows:

The certification in this clause is a material representation of fact relied upon by the City.

If it is later determined that the bidder or proposer knowingly rendered an erroneous

certification, in addition to remedies available to the City, the Federal Government may

pursue available remedies, including but not limited to suspension and/or debarment.

The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C

while this offer is valid and throughout the period of any contract that may arise from this

29

offer. The bidder or proposer further agrees to include a provision requiring such

compliance in its lower tier covered transactions.

23. Privacy Act

The following requirements apply to the Consultant and its employees that administer any system of

records on behalf of the Federal Government under any contract:

The Consultant agrees to comply with, and assures the compliance of its employees with, the information

restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552(a). The

Consultant agrees to obtain the express consent of the Federal Government before the Consultant or its

employees operate a system of records on behalf of the Federal Government. The Consultant understands

that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that

Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may

result in termination of the underlying Contract.


all subcontracts of any tier executed in furtherance of this Contract.

24. Civil Rights Requirements

In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §2000d, §303 of the Age

Discrimination Act of 1975, as amended, 42 U.S.C. §6102, §202 of the Americans with Disabilities Act

of 1990, 42 U.S.C. §12132, and Federal transit law at 49 U.S.C. §5332, the Consultant agrees that it will

not discriminate against any employee or applicant for employment because of race, color, creed, national

origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable Federal

implementing regulations and other implementing requirements FTA may issue.

Equal Employment Opportunity: The following equal employment opportunity requirements apply to this

Contract:

Race, Color, Creed, National Origin, Sex

In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. §2000e, and Federal transit

laws at 49 U.S.C. §5332, the Consultant agrees to comply with all applicable equal employment

opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal

Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts

60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended

by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment

Opportunity," 42 U.S.C. §2000e note), and with any applicable Federal statutes, executive orders,

regulations, and Federal policies that may in the future affect construction activities undertaken in the

course of the Project. The Consultant 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,

national origin, sex, or age. Such action shall include, but not be limited to, the following: 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. In addition, the

Consultant agrees to comply with any implementing requirements FTA may issue.

Age

In accordance with §4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.

§623 and Federal transit law at 49 U.S.C. §5332, the Consultant agrees to refrain from discrimination

against present and prospective employees for reason of age. In addition, the Consultant agrees to comply

with any implementing requirements FTA may issue.

30

Disabilities

In accordance with §102 of the Americans with Disabilities Act, as amended, 42 U.S.C. §12112, the

Consultant agrees that it will comply with the requirements of U.S. Equal Employment Opportunity

Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with

Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition,

the Consultant agrees to comply with any implementing requirements FTA may issue.

The Consultant also agrees to include the requirements of this Article in each subcontract financed in

whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the

affected Parties.

25. Reserved

26. Patent & Rights in Data

This section is applicable to Contracts involving experimental, developmental, or research work.

Rights in Data

The following requirements apply to each contract involving experimental, developmental or research

work:

1. The term "subject data" used in this clause means recorded information, whether or not

copyrighted, that is delivered or specified to be delivered under the contract. The term includes

graphic or pictorial delineation in media such as drawings or photographs; text in specifications

or related performance or design-type documents; machine forms such as punched cards,

magnetic tape, or computer memory printouts; and information retained in computer memory.

Examples include, but are not limited to: computer software, engineering drawings and associated

lists, specifications, standards, process sheets, manuals, technical reports, catalog item

identifications, and related information. The term "subject data" does not include financial

reports, cost analyses, and similar information incidental to contract administration.

2. The following restrictions apply to all subject data first produced in the performance of the

contract to which this Attachment has been added:

a. Except for its own internal use, the City or Consultant may not publish or reproduce

subject data in whole or in part, or in any manner or form, nor may the City or Consultant

authorize others to do so, without the written consent of the Federal Government, until

such time as the Federal Government may have either released or approved the release of

such data to the public; this restriction on publication, however, does not apply to any

contract with an academic institution.

b. In accordance with 49 C.F.R. §18.34 and 49 C.F.R. §19.36, the Federal Government

reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or

otherwise use, and to authorize others to use, for "Federal Government purposes," any

subject data or copyright described in subsections (2)(b)(i) and (2)(b)(ii) of this clause

below. As used in the previous sentence, "for Federal Government purposes," means use

only for the direct purposes of the Federal Government. Without the copyright owner's

consent, the Federal Government may not extend its Federal license to any other party.

31

i. Any subject data developed under that contract, whether or not a copyright has

been obtained; and

ii. Any rights of copyright purchased by the City or Consultant using Federal

assistance in whole or in part provided by FTA.

c. When FTA awards Federal assistance for experimental, developmental, or research work,

it is FTA's general intention to increase transportation knowledge available to the public

rather than to restrict the benefits resulting from the work to participants in that work.

Therefore, unless FTA determines otherwise, the City and the Consultant performing

experimental, developmental, or research work required by the underlying contract to

which this Attachment is added agree to permit FTA to make available to the public,

either FTA's license in the copyright to any subject data developed in the course of that

contract or a copy of the subject data first produced under the contract for which a

copyright has not been obtained. If the experimental, developmental, or research work,

which is the subject of the underlying contract, is not completed for any reason

whatsoever, all data developed under that contract shall become subject data as defined in

subsection (a) of this clause and shall be delivered as the Federal Government may direct.

This subsection (c), however, does not apply to adaptations of automatic data processing

equipment or programs for the City or Consultant's use whose costs are financed in whole

or in part with Federal assistance provided by FTA for transportation capital projects.

d. Unless prohibited by state law, upon request by the Federal Government, the City and the

Consultant agree to indemnify, save, and hold harmless the Federal Government, its

officers, agents, and employees acting within the scope of their official duties against any

liability, including costs and expenses, resulting from any willful or intentional violation

by the City or Consultant of proprietary rights, copyrights, or right of privacy, arising out

of the publication, translation, reproduction, delivery, use, or disposition of any data

furnished under that contract. Neither the City nor the Consultant shall be required to

indemnify the Federal Government for any such liability arising out of the wrongful act

of any employee, official, or agents of the Federal Government.

e. Nothing contained in this clause regarding rights in data shall imply a license to the

Federal Government under any patent or be construed as affecting the scope of any

license or other right otherwise granted to the Federal Government under any patent.

f. Data developed by the City or Consultant and financed entirely without the use of Federal

assistance that has been incorporated into work required by the underlying contract to

which this Attachment has been added is exempt from the requirements of subsections

(b), (c), and (d) of this clause, provided that the City or Consultant identifies that data in

writing at the time of delivery of the contract work.

g. Unless FTA determines otherwise, the Consultant agrees to include these requirements in

each subcontract for experimental, developmental, or research work financed in whole or

in part with Federal assistance provided by FTA.

3. Unless the Federal Government later makes a contrary determination in writing, irrespective of

the Consultant 's status (i.e., a large business, small business, state government or state

instrumentality, local government, nonprofit organization, institution of higher education,

individual, etc.), the City and the Consultant agree to take the necessary actions to provide,

through FTA, those rights in that invention due the Federal Government as described in U.S.

Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations

32

and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,"

37 C.F.R. Part 401.

The Consultant also agrees to include these requirements in each subcontract for experimental,

developmental, or research work financed in whole or in part with Federal assistance provided by

FTA.

Patent Rights

The following requirements apply to each contract involving experimental, developmental, or research

work:

1. General - If any invention, improvement, or discovery is conceived or first actually reduced to

practice in the course of or under the contract to which this Attachment has been added, and that

invention, improvement, or discovery is patentable under the laws of the United States of

America or any foreign country, the City and Consultant agree to take actions necessary to

provide immediate notice and a detailed report to the party at a higher tier until FTA is ultimately

notified.

2. Unless the Federal Government later makes a contrary determination in writing, irrespective of

the Consultant 's status (a large business, small business, state government or state

instrumentality, local government, nonprofit organization, institution of higher education,

individual), the City and the Consultant agree to take the necessary actions to provide, through

FTA, those rights in that invention due the Federal Government as described in U.S. Department

of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small

Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R.

Part 401.

3. The Consultant also agrees to include the requirements of this clause in each subcontract for

experimental, developmental, or research work financed in whole or in part with Federal

assistance provided by FTA.

27. Reserved

28. Disadvantaged Business Enterprises (DBE)

This Contract is subject to the requirements of 49 C.F.R., Part 26, and participation by Disadvantaged

Business Enterprises in Department of Transportation Financial Assistance Programs. The goal for

participation of Disadvantaged Business Enterprises (DBE) is 15.8%.

The Consultant shall not discriminate on the basis of race, color, national origin, or sex in the

performance of this Contract. The Consultant shall carry out applicable requirements of 49 C.F.R., Part 26

in the award and administration of this DOT-assisted Contract. Failure by the Consultant 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 City deems appropriate. Each subcontract the Consultant signs with

a sub-Consultants must include the assurance in this paragraph (see 49 C.F.R. 26.13(b)).

Bidders are required to document sufficient DBE participation to meet these goals or, alternatively,

document adequate good faith efforts to do so, as provided for in 49 C.F.R. 26.55. Award of this Contract

is conditioned upon the submission of the following, concurrent with and accompanying an initial

proposal prior to award: (i) the names and addresses of DBE firms that will participate in this Contract;

(ii) a description of the Work each DBE will perform; (iii) the dollar amount of the participation of each

33

DBE firm participating; (iv) written documentation of the Consultant’s commitment to use a DBE sub-

Consultants whose participation it submits to meet the Contract goal; (v) written confirmation from the

DBE that it is participating in the Contract as provided in the prime Consultant’s commitment; and (vi) if

the Contract goal is not met, evidence of good faith efforts to do so must be provided; Bidders must have

present the information required above as a matter of responsiveness (see 49 C.F.R. 26.53 (3).

The successful bidder will be required to report its DBE participation obtained through race-neutral

means throughout the period of performance.

The Consultant is required to pay its sub-Consultants performing work related to this Contract for

satisfactory performance of that work no later than seven (7) days after the Consultant’s receipt of

payment for that work from the City. In addition, the Consultant is required to return any retainage

payments to those sub-Consultants within thirty (30) days after incremental acceptance of the sub-

Consultants work by the City.

The Consultant must promptly notify the City whenever a DBE sub-consultants performing work related

to this contract is terminated or fails to complete its work, and must make good faith efforts to engage

another DBE sub-Consultant to perform at least the same amount of work. The Consultant may not

terminate any DBE sub-Consultants and perform that work through its own forces or those of an affiliate

without prior written consent of the City.

29. Incorporation of FTA Terms

The provisions of this Contract include, in part, certain standard terms and conditions required by the US-

DOT, whether or not expressly set forth in the Contract provisions. All applicable contractual provisions

required by US-DOT, as set forth in FTA Circular 4220.1F or Federal law, are hereby incorporated by

reference. Anything to the contrary herein notwithstanding, all FTA-mandated terms shall be deemed to

control in the event of a conflict with other provisions contained in this Contract. The Consultant shall

not perform any act, fail to perform any act, or refuse to comply with any City requests, which would

cause the City to be in violation of the FTA terms and conditions.

The Consultant also agrees to include the requirements of this Article in each subcontract financed in

whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the

affected Parties.

30. Reserved

31. F.A.R. Compliance

Any adjustment to the Consultant's compensation under the Contract shall include only costs and other

compensation that are allowable, allocable and reasonable as provided elsewhere herein, or otherwise by

law, and that are allowable, allocable and reasonable under the Contract Cost Principles of the Federal

Acquisition Regulations (F.A.R.) System, 48 C.F.R., Ch.1, Pt.31, and any implementing guidelines or

regulations issued by the said Administration.

34

RFQ NO.20121026006

REQUEST FOR


Attachment C


CONTRACT TERMS & CONDITIONS

The City will enter into a Contract with the successful Consultant that contains the terms and conditions

substantially similar to those set forth in this Section. Each Respondent must state specifically in its

Response to this RFQ any exceptions to the terms and conditions included in this section, and any

proposed additional terms or conditions deemed important by the Respondent. The City will take any

such exceptions and proposed additions into account during the evaluation process. Any terms and

conditions that the Respondent does not specifically object to may be incorporated into the resultant

Contract. Notwithstanding the foregoing, the City reserves the right to change the proposed contractual

terms and conditions prior to or during Contract negotiations if it is in the City’s best interest to do so.

The terms and conditions set forth in this section are not all inclusive. The City will propose additional

terms and conditions based on the responses to this RFQ and the City’s analysis of the successful

Consultant’s Response.

As used in this section of the RFQ, the term ―Contract‖ shall refer to the contract entered into between the

City and the successful Consultant, and the term ―Consultant‖ shall refer to the successful Consultant.

SAMPLE CONTRACT

STATE OF NORTH CAROLINA REVISED PROFESSIONAL SERVICES CONTRACT

COUNTY OF MECKLENBURG

THIS REVISED PROFESSIONAL SERVICES CONTRACT (the Contract) is made and entered into and

shall be effective as of _____________(the Effective Date), by and between, _______________a

corporation doing business in North Carolina (the Consultant), and the City of Charlotte, a North Carolina

municipal corporation (the City).

RECITALS

A. The City sent out a Request for Qualifications for design services for the City’s Blue Line

Extension (BLE) Light Rail Project (Project) of the existing LYNX Blue Line, RFQ#

________requesting qualifications from consulting firms. This Request for Qualifications,

together with all Exhibits and amendments, is referred to herein as the ―RFQ.‖

B. In response to the RFQ, the Consultant submitted to the City a Statement of Qualifications

dated________. This Response, together with all Exhibits and separately sealed confidential trade

secrets, is referred to herein as the ―Statement of Qualifications.‖

35

C. In order to provide Final Design Services for the City’s BLE Project, the City and the Consultant

recognize the need for clarification and expansion of the Scope of Services, Work Schedule and

other vital terms and conditions contained in the Original Contract.

D. The Charlotte City Council has authorized the City to enter into this Contract as an incrementally

funded Contract for Final Design Services for the City’s BLE Project.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is

hereby acknowledged, and in further consideration of the covenants and representations contained in this

Contract, the Parties agree as follows:

GENERAL CONDITIONS

ARTICLE 1 – DEFINITIONS

The following words and phrases, when used in these General Conditions or elsewhere in the Contract

shall have the following meanings:

Additional Work means work not provided for in the Contract.

Approval means the endorsement, sanction or authorization by the City of a proposal, plan,

procedure, action, document, report, specification, design, drawing, deliverable or any part thereof,

undertaken, promulgated or developed by the Consultant in accordance with the indicated

requirements of the Contract.

Approved means written approval from the City or its designated representative.

Business days mean the days that the City’s offices are open for the public to transact business.

Calendar Day means each and every day shown on the calendar.

CATS means the Charlotte Area Transit System and shall be synonymous with the ―City‖ for the

purposes of this Contract.

Change Notice means a notice issued by the City to the Consultant specifying a change to the Scope

of Services to be performed by the Consultant.

Change Order means a written order issued by the City, pursuant to Article 3.2, to the Consultant

delineating changes in the Scope of Services of the Contract and establishing the basis of payment

and time adjustments for the Work affected by the changes.

City means the City of Charlotte, the North Carolina municipal corporation that is the public owner

of the Project embodied by these Contract Documents.

Consultant means the individual, firm, partnership, corporation, joint venture or any combination

thereof, who, as an independent Consultant has entered into this Contract with the City, as set forth in

the Recitals, and who is referred to throughout the Contract Documents by singular number and

neutral or masculine gender.

Contract means the reciprocal undertakings, obligations, and rights of the City and the Consultant.

The Contract represents the entire and integrated agreement between the Parties and supersedes all

36

prior negotiations, representations or agreements either written or oral. When referring to this

document, the terms ‖Contract‖, ― Contract‖, ―Agreement‖ and ‖ Agreement‖ are synonymous.

Contract Documents means the several writings that evidence the Contract. They consist of these

General Conditions and all Exhibits referenced herein, which are hereby incorporated by reference

and Exhibit to this Contract.

Contract Modification means a change to the Contract that is signed by the Consultant and the City,

which provides for a change in the Contract provisions, including Additional Work outside the scope

of the original Contract.

Contract Term means the number of calendar days or specified date set forth in the Contract for

completion of the Work, including authorized amendments or modifications thereto; also referred to

as Time of Completion.

Contracting Officer means the KBE for CATS, or his designated representative, authorized and

empowered to execute contracts and agreements on behalf of the City.

Council means the Charlotte City Council.

Day or Days means calendar day or days unless otherwise designated.

Delay means any circumstance which has the effect of preventing the Consultant from performing the

Work, or a portion thereof, which at the time of the delay was on the Project Schedule and which

prevents the Consultant from achieving Substantial Completion before the expiration of the Contract

Term.

Deliverable means any document, item, service, or Work product that the Consultant is responsible

for providing to the City under this Contract and which becomes property of the City upon delivery.

Department means the Charlotte Area Transit System (CATS).

DBE means Disadvantaged Business Enterprise as defined by federal law.

Environmental Law means any federal, state or local law, statute, ordinance, code, rule, regulation,

license, authorization, decision, order, injunction, decree, or rule of common law, and any judicial

interpretation of any of the foregoing, which pertains to health, safety, any Hazardous Material, or the

environment (including but not limited to ground or air or water or noise pollution or contamination,

and underground or above-ground tanks) and shall include without limitation, the Resource,

Conservation and Recovery Act (RCRA), 42 U.S.C. §6901 et seq.; the Comprehensive

Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601 et. seq.

(CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA);

the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq.; the Federal Water Pollution

Control Act, 33 U.S.C. §1251 et seq.; the Toxic Substances Control Act (TSCA), 15 U.S.C. §2601 et

seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Occupational Safety and Health Act

(OSHA), as amended; the Clean Air Act, as amended; the North Carolina Oil Pollution and

Hazardous Substances Control Act (OPHSCA), N.C. Gen. Stat. §143-215.77; the Inactive Hazardous

Sites Act, N.C. Gen. Stat. §130A-310; and any other state, federal or local environmental statutes,

rules, regulations, ordinances, orders and/or decrees now or hereafter promulgated under any of the

foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the

future.

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Environmental Permit means any permit, license, approval, consent, or authorization issued by a

federal, state or local government entity concerning, covering or relating to any Environmental Law.

Execution of the Contract means the signing of the Contract by the authorized representative of the

City and the authorized representative of the Consultant.

Final Acceptance of the Project means written acceptance by the City of all the Work, including

plans, schedules, procedures, reports, drawings, forms, manuals, modifications including those

deemed necessary during the warranty period, and certification as required by Contract. Final

Acceptance of the Project shall not take place until expiration of all warranty periods.

Funding Phase Limit means the amount approved and appropriated by Council for the City to spend

under the Contract.

Government means any and all governmental bodies, agencies, authorities and courts having

jurisdiction over the Contract or the Project.

Hazardous Materials means (a) any ―hazardous waste‖ as defined by the Resource Conservation and

Recovery Act of 1976 (42 U.S.C. §6901 et. seq.), as amended from time to time, and regulations

promulgated thereunder; (b) any ―hazardous substance‖ as defined by the Comprehensive

Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et. seq.), as

amended from time to time, and regulations promulgated thereunder.

Holidays means specific days on which the City is not open for business.

Joint means involving mutually the Consultant and the City.

Key Personnel shall be defined as set forth by Article 6 of the General Conditions of this Contract.

Laws and Regulations means the applicable laws, rules, regulations, ordinances, codes and orders of

any and all governmental bodies, agencies, authorities and courts having jurisdiction over or

providing funding for the Contract or the Project.

Project Data means any illustrations, drawings, schedules, plans, performance charts, instructions,

brochures, diagrams, performance and test data, test procedures, existing drawings, operational

manuals, maintenance manuals, lists and data, descriptive literature, catalogs, catalog cuts, and other

information that is identified as a Deliverable in the Scope of Services.

Project means the design services required to be performed by the Consultant for the City’s Blue

Line Extension Light Rail Project, which extends the existing LYNX Blue Line, which is required to

be performed by the Consultant as described in the Contract Documents.

Project Manager means the employee of the City designated by the City as the primary person with

oversight of the Project and as the primary point of contact for the Project.

Railroads shall collectively mean CSX Transportation (CSX), North Carolina Railroad (NCRR),

Norfolk Southern (NSR), Norfolk Southern Intermodal, Aberdeen Carolina & Western (AC&W),

North Carolina Dept. of Transportation—Rail Division, and Amtrak.

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Reliability means the probability that equipment or a system will perform its intended functions

without failure and within design parameters under specified operating conditions for which designed

and for a specific period of time.

State means the State of North Carolina.

Sub-consultant means any person or entity who, with the prior approval of the City, has entered into

a contract with the Consultant or another sub-consultant, to perform a portion of the Work; , or who

performs other services for the Consultant as required to fulfill the terms of this Contract by virtue of

an agreement with the Consultant or another sub-consultant.

Task means any specific Work item designated by this Contract or the Project Manager.

Technical Data means written, typed, or printed material prepared by the Consultant whether or not

copyrighted, and submitted by the Consultant as part of a Deliverable. Technical Data includes, but is

not limited to: product data, drawings, pictorial representations, reports, schedules, studies, and

assessments.

Technical Specifications means the Technical Specifications that are specific requirements setting

forth the materials and methods required to accomplish the Work.

Upgrade means to raise and improve the quality, classification, and usefulness.

Work means the furnishing of labor, materials, equipment, and other incidentals necessary or

convenient to the successful completion of the Project and the carrying out of the duties and

obligations imposed by the Contract, including alterations, amendments, or extensions thereto made

by Change Order.

ARTICLE 2 – INTERPRETATION

2.1 Incorporation of Supplementary Conditions & Exhibits

The following Supplementary Conditions and Exhibits are attached to this Contract and are

incorporated into and made a part of this Contract by reference:

Supplementary Condition A: Scope of Services

Supplementary Condition B: Project Schedule

Supplementary Condition C: Federal Contracting Requirements

Supplementary Condition D: DBE Program and Certification

Exhibit 1: Federal Certifications

Exhibit 2: Compensation

Exhibit 3: Key Personnel Commitment Matrix

Exhibit 4: Table of Acronyms

Each reference to this Contract shall be deemed to include all Exhibits. Any conflict between any

provisions of this Contract shall be resolved as follows:

The Federal Contracting Requirements section of this Contract and any clause required

by Federal law shall control over all Contract provisions;

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The General Conditions shall control over all other Contract provisions not required by

Federal law.

Any reference to ____________ in the Supplementary Conditions and/or Exhibits or

Appendices shall be deemed to mean the Consultant.

ARTICLE 3 – DESCRIPTION OF WORK

The Consultant shall perform the services described in Supplementary Conditions A attached to this

Contract and incorporated herein by reference (the ―Work‖). The Consultant shall perform the Work

onsite at the City’s facility in Charlotte, North Carolina, except to the extent the City specifically agrees

in writing to the contrary. Unless otherwise provided in Supplementary Conditions A, the Consultant

shall obtain and provide all labor, materials, equipment, transportation, facilities, services, permits, and

licenses necessary to perform the Work.

3.1 Contract Modification

In the event that the City desires to alter the terms of this Contract, or desires a reduction,

expansion, or modification of the Work that includes an alteration of the terms of this Contract or

a global settlement of multiple contractual claims, the City shall issue to the Consultant a written

notification, which specifies such reduction, expansion, or modification. Within fifteen (15) Days

after receipt of the written notification, the Consultant shall provide the City with a detailed cost

or cost reduction and schedule proposal for the Work to be performed or to be reduced. This

proposal shall be accepted by the City or modified by negotiations between the Consultant and

the City and, thereafter, both Parties shall execute a written Contract Modification.

3.2 Change Orders

The City may at any time, by written order, make changes within the general Scope of Services or

Project Schedule to be performed by the Consultant. If any such change causes an increase or

decrease in the estimated cost of, or the time required for, the performance of any part of the

Work under this Contract, whether or not changed by the order, the City shall make such

adjustments as are appropriate and equitable and shall modify the Contract in writing accordingly.

Any claim by the Consultant for adjustment under this clause must be asserted within thirty (30)

Days from the date of the Consultant’s receipt of the Change Order; provided, however, that the

City, if it decides that the facts justify such action, may receive and act upon such claim asserted

at any time prior to final payment under this Contract.

3.3 Additional Work

In the event the City desires for the Consultant to perform any work not covered by this Contract

(―Additional Work‖), the Consultant will provide such Additional Work at the accepted hourly

and unit prices set forth in this Contract and Federal Acquisition Regulations (FAR) Part 31. The

Consultant shall not perform any Additional Work without the prior express written authorization

of the City. Any Additional Work provided by the Consultant without prior authorization and

accepted by the City shall be reimbursed to the Consultant as determined by the City. The City’s

calculation of cost for unauthorized, accepted Work shall be final and binding upon the

Consultant. The City shall not be required to pay for hours worked that are not reasonable in

relation to the Work provided, nor shall the City be required to pay for out-of-pocket expenses

that are not reasonable. In no event shall the City be liable for any costs not allowable pursuant to

any governmental regulation including but not limited to FAR Part 31. Each invoice for

Additional Work shall detail all services performed and shall itemize in detail and provide

documentation for all out-of-pocket expenses for which the Consultant seeks reimbursement.

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Unless specified in a written Contract Modification, no change, reduction, modification or

expansion of the Work within or beyond the scope of this Contract shall serve to modify the

terms and conditions of this Contract.

The Consultant will comply with the schedule set forth in Supplementary Conditions B, as

amended from time to time during the Contract term, in performing the Work. The Parties agree

that time is of the essence to this Contract specifically including, but not limited to, the

Consultant meeting each completion date specified in this Contract including, without limitation,

Supplementary Conditions B; provided, however, the Consultant shall not be responsible for

delays caused by the City or third Parties other than its sub-consultants. All references to days in

this Contract (including the Supplementary Conditions and/or Exhibits) shall refer to calendar

days rather than business days, unless a provision specifically uses the term ―business days.‖

ARTICLE 4 – COMPENSATION

4.1 Total Fees & Charges The City agrees to pay the Consultant on a cost-plus-fixed-fee basis for the Work, provided that

the total amount payable under this Contract shall not exceed $__________, subject to the

limitations of Article 4.2. This amount constitutes the maximum fees and charges payable to the

Consultant, including expenses, in the aggregate under this Contract and will not be increased

except by a written amendment duly executed by both Parties.

4.2 Limitation of Cost The Parties understand that this is an incrementally-funded Contract subject to approval of the

Charlotte City Council (Council). The Consultant agrees to perform, or have performed, Work

on the Contract up to the point at which the total amount paid and payable by the City under the

Contract approximates but does not exceed the Current Funding Phase Limit approved by the

Council cumulatively (all approved phases added together). The Consultant shall make every

effort to perform the Work and any other obligations under this Contract within the estimated

cost.

The Consultant shall begin Work under this Contract immediately following a written Notice to

Proceed from the City. The Notice to Proceed will include the Current Funding Phase Limit

approved by the Council. The Consultant shall not perform any Work (nor incur any related

costs) that exceeds the Current Funding Phase Limit unless it receives a written Notice to Proceed

from the City. Except as required by other provisions of this Contract, specifically citing and

stated to be an exception to this clause, the City shall not be liable for any Work performed or

costs incurred in violation of this subsection.

4.3 Invoices & Expenses Each month, the Consultant shall submit an invoice, in acceptable form, to the City detailing all

direct and indirect charges incurred pursuant to this Contract, as further detailed in

Supplementary Conditions A (Scope of Services) to this Contract.

The Consultant shall not charge the City at overtime rates (as defined by the Fair Labor Standards

Act), regardless of the number of hours worked in a given day or week.

The Consultant may invoice the City for expenses incurred by, but not yet paid by, the

Consultant.

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All reimbursable expenses submitted by the Consultant must comply with the City’s requirements

and Part 31 of the FAR. Per FAR and General Services Administration (GSA) guidelines, charges

for meals and incidental expenses (M&IE) for the first and last day of travel shall be calculated at

seventy-five percent (75%) of the current maximum GSA rate. Exceptions shall be allowed for

departures prior to 6:00 AM on the first day of travel, and departures later than 8:00 PM on the

last day of travel. M&IE costs are allowable only when preceded or followed by an overnight

stay. Employees are considered to be in ―travel status‖ when, in the performance of business-

related activities, they are required to stay overnight at a location more than forty-five (45) miles

from their assigned duty location and personal residence. The current GSA M&IE rate prevails

and is intended to cover the cost of meals and incidental expenses, including meal tips, as well as

tips for porters, hotel maids, etc., unless the Consultant has an existing per diem rate for the

specific local that is less than the maximum GSA rate.

The Consultant shall submit a copy of its current travel reimbursement procedures and allowable

daily rates. Claimed expenses must be submitted on a form listing: (1) the date and place of

expenses, (2) purpose of the trip, and (3) name of the person on the trip. Additionally, the City

requires the Consultant to maintain detailed source documentation that can be verified through

the audit process. The means of cost reimbursement shall be daily per diem rates approved by the

City or by submission and approval of receipts. When utilizing daily per diem, receipts are not

required. Summary credit card receipts, which contain only the cost and tip are not considered to

be detailed receipts. Only food purchased for the benefit of employees in travel status shall be

allowed. Actual costs for alcohol and tobacco must be clearly segregated and removed from meal

costs; the use of estimates is unacceptable. When reporting overhead, if alcohol and tobacco are

commingled into an account that includes other allowable costs, then the entire balance must be

disallowed.

A. Labor Rates

Direct labor rates shall be the wages or salaries actually paid to employees, principals or

partners directly charging time to the Project.

B. Indirect Costs

Provisional indirect cost rates (e.g., fringes, overhead, G&A, etc.) shall be submitted by

the Consultant and are subject to review and acceptance by the City. All proposed rates

are subject to audit by the City. The City must approve any adjustments to the indirect

costs rates in writing. Current approved overhead rates and corresponding multipliers for

the Consultant, and some sub-consultants, are set forth in Exhibit 2.

C. Direct Costs

Direct costs shall be only those costs necessary for the accomplishment the Work, and

not otherwise compensated under the Consultant's direct labor and indirect cost rates. All

direct cost purchases of goods, materials and services made by the Consultant on behalf

of the City shall be made competitively wherever practicable. Reimbursement for direct

costs is further described in Exhibit 2. Some sub-consultant services will be billed at

hourly unit billing rates as further described in Exhibit 2.

D. City Determination Final

The City's determination on the allowability, allocability and reasonableness of incurred

costs shall be final and conclusive. Approval of incurred costs shall not be unreasonably

withheld, conditioned, or delayed.

The Consultant shall mail an original invoice to:

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LYNX Blue Line Extension Project

Attn: BLE Project Director

City of Charlotte


Charlotte, NC 28202

And shall mail a second original invoice to:

City of Charlotte

Attn: Budget Officer

City of Charlotte


Charlotte, NC 28202

E. Payment & Interest

The City will pay properly submitted invoices within sixty (60) days after the receipt of

the Consultant’s invoice (the "Due Date"), provided that the invoice has been submitted

at the appropriate time. Each invoice shall comply with Article ___ of __________,

including the specific task from Supplementary Condition A, a description of Work

performed, a percentage of completion of each task, the time period covered by the

invoice and the amount of payment requested. Failure to provide this information on

each and every invoice may result in a delay in payment. There shall be no interest

penalties assessed against the City for late or partial payments. The City shall pay the

Consultant only for Work that is actually performed by the Consultant and approved by

the City.

F. Late Billings

As a condition of payment, the Consultant must invoice the City for Work within one

hundred twenty (120) days after such Work is performed. THE COMPANY WAIVES

THE RIGHT TO CHARGE THE CITY FOR ANY SERVICES OR EXPENSES THAT

HAVE NOT BEEN INVOICED TO THE CITY WITHIN ONE HUNDRED TWENTY

(120) DAYS AFTER SUCH SERVICES WERE RENDERED OR EXPENSES

INCURRED. This waiver shall not apply to changes in the Scope of Services or

Additional Work that is under negotiation between the City and the Consultant as

described in Articles 3.2 and 3.3 herein.

4.4 Time Records

The Consultant shall be responsible for keeping documentation sufficient to verify the time billed

to the City. The City shall have the right to audit the Consultant’s time cards, invoices, reports

and other documents relating to the Work performed under this Contract, and shall not be

required to pay for (a) any time billed that was excessive in light of the result achieved, or (b) any

Work that did not meet the standards and requirements referenced in this Contract. The

Consultant shall make such documents available for inspection and copying by the City in

Charlotte, North Carolina between the hours of 9:00 am to 5:00 pm Monday through Friday,

whenever requested by the City.

4.5 Employment Taxes & Employee Benefits

The Consultant acknowledges and agrees that its employees and sub-consultants are not

employees of the City. The Consultant represents, warrants and covenants that it will pay all

withholding tax, social security, Medicare, unemployment tax, worker’s compensation and other

payments and deductions which are required by law in connection with provision of the Work.

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4.6 Audit The Consultant shall maintain complete and accurate records, using Generally Accepted

Accounting Principles, of all costs related to this Contract. During the term of this Contract and

for a period of three (3) years after expiration/termination of this Contract, the City shall have the

right to audit, either itself or through an independent auditor, all books and records and facilities

of the Consultant necessary to evaluate Consultant’s compliance with the terms and conditions of

this Contract or the City’s payment obligations. The City shall pay its own expenses, relating to

such audits, but shall not have to pay any expenses or additional costs of the Consultant.

However, if non-compliance is found that would have cost the City in excess of ten thousand

dollars ($10,000.00) but for the audit, then the Consultant shall be required to reimburse the City

for the cost of the audit, in addition to reimbursing the City for any non-compliance.

4.7 Cost Overruns

The Consultant estimates that performance of this Contract will not exceed the amount specified

in this Contract and shall make every effort to perform the Work specified in the Scope of

Services and any other obligations under this Contract within the estimated cost. The Consultant

shall notify the City in writing whenever it has reason to believe that within the next sixty (60)

days, the costs it expects to incur, together with all expenses previously incurred for that task, will

exceed the total task amount allotted by the City. The notice shall state the estimated amount of

additional funds required to continue performance for the task, as specified in Supplementary

Conditions A, beyond the total estimated allotted task amount. Additionally, if during the course

of the Work, it appears that any fee or allowance may be exceeded, the Consultant shall timely

notify the City in writing. The Consultant shall not continue performance under this Contract

(excluding actions under Article 10, Termination for Convenience) or to otherwise incur costs in

excess of the amount allocated unless authorized by the City. Any Work not preapproved by the

City that that exceeds any fee, allowance or rate in this Contract shall be at the Consultant’s

expense and the City will not be required to pay Consultant for such Work.

A. The Consultant shall notify the Contracting Officer in writing whenever it has reason to

believe that:

The expected costs within the applicable Current Funding Phase Limit under this

Contract will, within the next sixty (60) days, when added to all costs previously

incurred, exceed seventy-five (75%) of the total amount appropriated for the

Contract by the Council ; or

The total cost for the performance of this Contract, exclusive of any fee, will be

either greater or substantially less than what has been previously contemplated in the

agreed upon costs specified in Article 4.2.

B. As part of the notification required by this Article 4.7, the Consultant shall provide the

Contracting Officer a revised estimate of the total cost of completing the Work under this

Contract within thirty (30) days of the initial notification.

C. Following the notification required by Article 4.7.A, the City and the Consultant shall

confer to determine the Work to be completed under the Current Funding Phase Limit.

The Consultant agrees to attend any and all meetings, including Council presentations

that may be required in order for City officials to evaluate the Work performed within

that Current Funding Phase Limit.

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4.8 Withholding of Payment

The City may withhold up to five percent (5%) retainage of all amounts invoiced pursuant to this

Contract until the Consultant completes and delivers all documentation and deliverables,

including all claim releases, required under this Contract. Final costs may be audited prior to the

City making final payment to the Consultant. Along with the Consultant’s submission of its final

invoice to the City, the Consultant shall assert any and all claims for payment it has against the

City in connection with this Contract, along with a signed release, in a form provided by or

approved by the City in writing, from any future claims for payment arising out of the Contract.

The failure to assert all claims against the City with the final invoice will act as a waiver of

claims not asserted.

In the event payment is withheld under this Article 4.8, the Consultant waives any right to interest

on such payment. Nothing in this Article shall relieve the Consultant from any obligations it has

under N.C. Gen. Stat §143-134.1 or federal regulation regarding the payment of sub-consultant.

Change Orders shall not authorize the Consultant to exceed the amount previously approved by

the City unless such Change Order contains a statement increasing the amount allocated.

4.9 Refunds, Rebates, or Credits

The Consultant shall assign to the City any refunds, rebates, or credits accruing to the Consultant

that are allocable to costs for which the Consultant has been paid.

4.10 Prompt Payment to Sub-consultants

It is the policy of the City that prompt payment for all purchases and services satisfactorily

rendered are to be made to all sub-consultants. The Consultant is required to pay sub-consultants

for satisfactory performance of their contracts within seven (7) days after the City has paid the

Consultant for such Work. Additionally, the Consultant shall include a routine monthly invoicing

schedule for sub-consultant billings, with the undisputed portions of sub-consultant’s invoices

due for payment by the Consultant within thirty (30) days of the date of the invoice, independent

of any payment by the City to the Consultant. If the Consultant withholds any retainage pending

final completion of any sub-consultant’s Work, the Consultant is required to pay the retainage so

withheld within seven (7) days after such sub-consultant completes his Work satisfactorily,

regardless of any payment of retainage by the City to the Consultant. Upon proper proof of the

payment of amounts so withheld, the City will release to the Consultant an equivalent amount of

the sums it withholds for payment under Article 4.8 of these General Conditions. The

Consultant’s failure to pay sub-consultants as provided herein shall be a material breach for

which the City may cancel the Contract.

4.11 Payment Affidavits

To determine whether disparities exist in City contracting based on race, gender, small business

status, and other factors, and also to measure the effectiveness of the City’s Small Business

Opportunity Program, the City tracks the utilization of first-tier sub-consultants and suppliers on

certain City contracts based on race, gender, small business status, and other factors. For analysis

purposes, it is important that the City obtain this data not only for minority, female and small

business suppliers and sub-consultants, but also for other sub-consultants and suppliers. The

Consultant agrees to provide to the City with each invoice for payment submitted under this

Contract, a written payment affidavit detailing the amounts paid for previous invoices by the

Consultant to first-tier sub-consultants and suppliers in connection with this Contract (―Payment

Affidavits‖). Payment Affidavits shall be in a form as specified by the City from time to time,

and shall include all payments made to first-tier sub-consultants and suppliers under this Contract

that are not included on a prior Payment Affidavit.

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Failure to provide a properly completed version of each Payment Affidavit required by this

Article 4.11 shall constitute a default under this Contract and shall entitle the City to: (1) withhold

payment of any amounts due the Consultant (whether under this Contract or otherwise); (2)

exercise any other remedies legally available for breach of this Contract; or (3) impose any other

sanctions permitted under the City’s Small Business Opportunity Program.

In order to have a properly completed Payment Affidavit, each prime consultant and first-tier sub-

consultant identified must be registered in the City’s Vendor Registration System. The City may

request, on a case-by-case basis, that the Consultant require certain suppliers to be registered in

the City’s Vendor Registration System, and may withhold payment of any amounts due the

Consultant in the event the Consultant fails to comply with such request.

ARTICLE 5 – DUTY OF CONSULTANT TO IDENTITY & REQUEST INFORMATION,

PERSONNEL, & FACILITIES

5.1 The Consultant shall identify and request in writing from the City in a timely manner: (i) all

information reasonably required by the Consultant to perform the Work, (ii) a list of the City’s

personnel whose presence or assistance reasonably may be required by the Consultant to perform

the Work, and (iii) any other equipment, facility or resource reasonably required by the

Consultant to perform the Work. Notwithstanding the foregoing, the Consultant shall not be

entitled to request that the City provide information, personnel or facilities other than those which

Supplementary Condition A specifically requires the City to provide, unless the City can do so at

no significant cost. The Consultant shall not be relieved of any failure to perform under this

Contract by virtue of the City’s failure to provide any information, personnel, equipment,

facilities or resources: (i) that the Consultant failed to identify and request in writing from the

City pursuant to this Article; or (ii) which the City is not required to provide pursuant to this

Contract. In the event the City fails to provide any information, personnel, facility or resource that

it is required to provide under this Article, the Consultant shall notify the City in writing

immediately in accordance with the notice provision of this Contract. Failure to do so shall

constitute a waiver by Consultant of any claim or defense it may otherwise have based on the

City’s failure to provide such information, personnel, facility or resource.

ARTICLE 6 – REMOVAL, REPLACEMENT, & PROMOTION OF CONSULTANT

PERSONNEL

6.1 The City shall have the right to require the removal and replacement of any personnel of the

Consultant or the Consultant’s sub-consultants who are assigned to perform Work on behalf of

the City. The City shall be entitled to exercise such right in its sole discretion by providing

written notice to the Consultant. The City must approve in writing any hires or transfers of

personnel to ―Key Personnel‖ positions on the Project, and the City shall have the right to

interview all personnel that the Consultant proposes to hire or transfer to such positions. As used

in this Contract, the term ―Key Personnel‖ shall mean all personnel of the Consultant or its sub-

consultants who are identified in the Key Personnel Commitment Matrix, listed in Exhibit 3, or

whom the City from time to time designates in writing to the Consultant as fulfilling a key role in

the Project. Unless approved by the City in writing, the Consultant will not: (i) remove the

Consultant’s Key Personnel from the Project or permit its sub-consultants to remove Key

Personnel from the Project; or (ii) materially reduce the involvement of the Consultant’s Key

Personnel in the Project or allow its sub-consultants to materially reduce the involvement of Key

Personnel in the Project.

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6.2 The Consultant will replace any personnel who leave the Project with equivalently qualified

persons. The Consultant will replace such personnel as soon as reasonably possible, and in any

event within thirty (30) days after the Consultant first receives notice that the person will be

leaving the Project. If the Consultant gets more than seven (7) days behind in completing any

Deliverable required by this Contract or the Project Schedule, the Consultant will devote all

personnel assigned to the Project to working on the Project on a first-priority basis. As used in

this Contract, the term ―personnel‖ includes all staff provided by the Consultant or its sub-

consultants, including but not limited to Key Personnel.

ARTICLE 7 – REPRESENTATIONS & WARRANTIES OF CONSULTANT

7.1 The Consultant represents, warrants, and covenants that:

A. The Consultant has the qualifications, skills and experience necessary to perform the

Work described or referenced in the Supplementary Conditions A.

B. The Work shall be performed in accordance with all requirements set forth in this

Contract, including without limitation Supplementary Conditions A. Additionally, all

Work performed by the Consultant pursuant to this Contract shall meet industry

standards, and shall be performed in a professional and workmanlike manner by

personnel with the necessary skills, experience and knowledge.

C. Neither the Work, nor any Deliverables provided by the Consultant under this Contract

will infringe or misappropriate any patent, copyright, trademark, trade secret or other

intellectual property rights of any third Party. The Consultant shall not violate any non-

compete agreement or any other agreement with any third Party by entering into or

performing this Contract.

D. It has not retained any party other than a bona fide employee working for the Consultant

to solicit this Contract, and that it has not paid or agreed to pay any outside Party

consideration in any form contingent upon securing this Contract. For breach of this

warranty, the City shall have the right to terminate this Contract for cause.

E. In connection with its obligations under this Contract, the Consultant shall comply with

all applicable federal, state and local laws and regulations and shall obtain all applicable

permits and licenses. The Consultant shall assign an engineer or architect duly licensed

to practice in North Carolina to supervise the Work. The design and engineering services

for this Project shall be performed and/or approved by a Professional Engineer or

Registered Architect licensed to practice in North Carolina.

F. The Consultant is a corporation duly organized, validly existing and in good standing

under the laws of the state of North Carolina. The Consultant has all the requisite power

and authority to execute, deliver and perform its obligations under this Contract, and the

execution, delivery, and performance of this Contract have been duly authorized by the

Consultant.

ARTICLE 8 – OTHER OBLIGATIONS OF THE CONSULTANT

8.1 Work on City’s Premises

The Consultant will, whenever on the City's premises, obey all instructions and City policies that

the Consultant is made aware of with respect to performing Work on the City’s premises.

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8.2 Regeneration of Lost or Damaged Data

If the Consultant loses or damages any data in the City’s possession, the Consultant shall, at its

own expense, promptly replace or regenerate such data from the City's machine-readable

supporting material, or obtain, at the Consultant's own expense, a new machine-readable copy of

lost or damaged data from the City’s data sources.

8.3 Repair or Replacement of Damaged Equipment or Facilities

In the event that the Consultant causes damage to the City’s equipment or facilities, the

Consultant shall to the extent that such damages were caused by the negligence of Consultant

and, at its own expense, promptly repair or replace such damaged items to restore them to the

same level of functionality that they possessed prior to the Consultant’s action.

8.4 Project Supervision

The Consultant shall be liable to the City for any reasonable costs incurred by the City to correct,

modify or redesign any drawings submitted by the Consultant that are not in accordance with the

provisions of this Contract, as well as any reasonable costs to correct or modify the design work

performed by the Consultant’s sub-consultants based on drawings submitted by the Consultant

that are not in accordance with the provisions of this Contract. The Consultant shall, in the first

instance and before the City incurs any such costs, be given reasonable opportunity to correct,

modify or redesign the drawings at no additional cost to the City. In the event the Contract is

terminated for convenience or cause by the City, the Consultant’s right to cure under this Article

8.4 shall not apply to any defects that do not become reasonably known to the City within sixty

(60) days after such termination by the City

8.5 Liquidated Damages

A. Delays

Timely performance is of the essence of the Contract. If the Work, or any part thereof for

which a separate completion date is stipulated, is not completed within the time or times

stipulated in the Project Schedule (Supplementary Conditions B), the City will sustain

damages the amount or extent of which will be impracticable or impossible to ascertain.

If the Consultant fails to complete the Work or any part thereof within the time so

stipulated, the Consultant shall pay to the City as Liquidated Damages the amount of

$______or each Day's delay, or fraction thereof, in completion of the Work, or of any

part thereof for which a separate completion date is stipulated. For this purpose, the

Work shall be considered complete when the City notifies the Consultant that the Work is

substantially complete. The City may deduct the amount of Liquidated Damages from

any monies otherwise due, or that may otherwise become due to the Consultant,

including retainage. If such monies are insufficient, the City may recover the balance

from the Consultant.

i. The City’s right to Liquidated Damages for late completion of the Work or of

any part thereof is in addition to, and not in lieu of, all other rights and remedies

that the City has under the Contract or otherwise according to law, for such late

completion. Any such Liquidated Damages assessed and collected shall

compensate the City only for its damages resulting from such late completion,

and the City shall be entitled to recover, in addition, all other damages resulting

from the Consultant's default from which such late completion results, and from

any and all other defaults by the Consultant, and to pursue all other rights and

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remedies the City has, under the Contract or otherwise according to law, for all

such defaults.

ii. In the event the time or times for completion are extended by a Contract

Modification or Change Order, the Consultant shall be responsible for late

completion only if he fails to complete the Work within the additional time or

times.

B. Violation of Federal Contracting Requirements

A violation, or failure to avoid a violation, of any of the Federal contracting

requirements, FTA terms, or any term of Federal law or regulations applicable to this

Project and Contract, specifically including but not limited to all certification of

compliance and reporting requirements of any nature, as well as a violation of Article 4.8

of this Contract, shall constitute a material breach of this Contract and shall entitle the

City to:

i. Exercise all rights and remedies that it may have at law or at equity for violation

of the Contract;

ii. Terminate the Contract for default (as set forth in Article 10);

iii. Suspend the Contract for default;

iv. Withhold all payments due to the Consultant under the Contract until such

violation has been fully cured or the City and the Consultant have reached a

mutually agreeable resolution;

v. Assess Liquidated Damages as provided in this Article; and/or

vi. Offset any Liquidated Damages and/or any amounts necessary to cure any such

violation from any retainage being held by the City on the Contract, or from any

other amounts due to the Consultant under the Contract.

The remedies set forth herein shall be deemed cumulative and not exclusive, and may be

exercised successively or concurrently, in addition to any other available remedy.

The City and the Consultant acknowledge and agree that the City will incur damages if

the Consultant or any sub-consultant of any tier to the Consultant, violates the Federal

contracting requirements, FTA terms, or any term of Federal law or regulations

applicable to this Project and Contract as set forth above and in this contract as a whole in

one or more of the ways set forth below, including but not limited to loss of goodwill

popularly and specifically with Federal agencies including the FTA, detrimental impact

on economic development and diversion of internal staff resources. The Parties further

acknowledge and agree that the damages the City might reasonably be anticipated to

accrue as a result of such failures are difficult to ascertain due to their indefiniteness and

uncertainty. Accordingly, the Consultant agrees to pay the Liquidated Damages assessed

by the City at the rates set forth below for each specified violation of the DBE Program.

The Consultant further agrees that for each specified violation the agreed upon

Liquidated Damages are reasonably proximate to the loss the City will incur as a result of

such violation:

i. Failure to Meet DBE Goal

If the City determines upon completion or termination of a Contract that the

Consultant did not meet the committed DBE Goal and that such failure is not

otherwise excusable, the City may assess the lesser of: (a) thirty thousand dollars

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($30,000.00) or (b) the dollar difference between the committed DBE Goal and

the Consultant’s actual DBE utilization;

ii. Using DBE as a Conduit

If the Consultant lists a DBE to receive credit toward a committed DBE Goal

with knowledge that the DBE will be acting as a conduit or will not be

performing a commercially useful function reasonably commensurate with the

payment amount for which the Consultant will be seeking credit, the City may

assess the lesser of: (a) twenty thousand dollars ($20,000.00) or (b) the dollar

amount the Consultant indicated that it would pay such DBE in the DBE’s

contract (or if no contract has been signed, the DBE’s letter of intent);

iii. Wrongful Termination or Replacement of DBE Services

If the Consultant terminates or replaces a DBE in violation of the DBE

regulations and program applicable to this Contract, the City may assess the

lesser of: (1) twenty thousand dollars ($20,000.00) or (2) the dollar amount of the

Work remaining to be performed by the terminated DBE at the time it was

terminated (or if the DBE was not terminated because it was never retained, then,

the dollar amount that the Consultant indicated it would pay the DBE in the

DBE’s letter of intent);

iv. False Statements and Misrepresentations

If the Consultant makes a false statement, material misrepresentation or material

misleading omission regarding any matter relevant to the DBE regulations and

program applicable to this Contract, the City may assess the lesser of: (1) twenty-

five thousand dollars ($25,000.00); or (2) if the misrepresentation relates to

payment, the dollar difference between what the Consultant represented and the

truth;

v. Failure to Respond to Request for Information

If the Consultant fails to provide any report, documentation, affidavit,

certification or written submission required under the DBE regulations and

program, within the time period set forth therein, the City may assess twenty-five

dollars ($25.00) per Day for each Day that such report, documentation or written

submission is overdue.

vi. All Other Violations

If the Consultant causes or fails to avoid any other violation of any of the Federal

contracting requirements, FTA terms, or any term of Federal law or regulations

applicable to this Project and Contract, specifically including but not limited to

all certification of compliance and reporting requirements of any nature, as well

as violations of Article 4.8 of this Contract the City may assess the lesser of: (a)

twenty-five thousand dollars ($25,000.00); or (b) the remaining retainage due the

Consultant. This amount shall increase by ten percent (10%) for each subsequent

violation.

ARTICLE 9 – SUBSTITUTE PERFORMANCE

9.1 If the Consultant fails to comply with the schedule set forth in Supplementary Conditions B, the

City may, in its discretion, perform or cause to be performed some or all of the Work, and doing

so shall not waive any of the City’s rights or remedies under this Contract, at law or in equity.

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The Consultant shall reimburse the City for reasonable, direct costs incurred by the City in

exercising its rights to perform or cause to be performed some or all of the Work pursuant to this

Article.

ARTICLE 10 – TERMINATION

10.1 Term

This Contract shall commence on the Effective Date and shall continue in effect until the Work

has been completed and accepted by the City. The City shall terminate by delivering to the

Consultant a Notice of Termination specifying the nature, extent, and effective date of the

termination. Upon receipt of the notice, the Consultant shall: (i) immediately discontinue all

Work (unless the notice directs otherwise); and (ii) deliver to the Contracting Officer all data,

drawings, specifications, reports, estimates, summaries, and all other information and materials

accumulated in performing this Contract, whether completed or in process.

10.2 Termination for Convenience

The City may terminate this Contract, in whole or in part, at any time without cause by giving

thirty (30) days written notice to the Consultant. As soon as practicable after receipt of a written

notice of termination without cause, Consultant shall submit a statement to the City showing in

detail the Work performed under this Contract through the date of termination. In the event the

City terminates this Contract, the Consultant shall continue performing the Work until the

termination date designated by the City in its termination notice. If the City terminates this

Contract without cause, the City shall pay the Consultant for Work rendered through the date of

termination at the rates set forth in Exhibit 2. The City’s obligation to make the payments

required by this Article is conditioned upon the Consultant providing to the City prior to the date

of termination all materials referenced in Article 10. Nothing in this Article shall be construed as

limiting any right of the City in the event of a breach.

10.3 Termination for Funding Withdrawal

The City may terminate this Contract immediately on written notice to the Consultant if at any

time the Charlotte City Council for any reason does not appropriate further funding for an

additional Funding Phase as described in Article 4.2.

10.4 Termination for Cause

By giving written notice to the other Party, either Party may terminate this Contract upon the

occurrence of one or more of the following events:

A. The other Party violates or fails to perform any material covenant, provision, obligation,

term or condition contained in this Contract, provided that, unless otherwise stated in this

Contract, such failure or violation shall not be cause for termination if both of the

following conditions are satisfied: (i) such default is reasonably susceptible to cure; and

(ii) the other Party cures such default within thirty (30) days of receipt of written notice

of default from the non-defaulting Party; or

B. The other Party ceases to do business as a going concern, makes an assignment for the

benefit of creditors, admits in writing its inability to pay debts as they become due, files a

petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in

connection with a reorganization under which the business of such Party is continued and

performance of all its obligations under this Contract shall continue), or if a receiver,

trustee or liquidator is appointed for it or any substantial part of other Party’s assets or

properties.

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C. Any notice of default pursuant to this Article 10 shall identify this Article of this Contract

and shall state the Party’s intent to terminate this Contract if the default is not cured

within the specified period

10.5 Opportunity to Cure

In such case, the notice of termination will state the time period in which cure is permitted and

other appropriate conditions. If the Consultant fails to remedy the breach or default to the City's

satisfaction within thirty (30) days after receipt by Consultant of the City’s written notice, the

City shall have the right to terminate the Contract without any further obligation to Consultant.

Any such termination for default shall not in any way operate to preclude the City from also

pursuing all available remedies against Consultant and its sureties for said breach or default. The

Consultant’s right to cure under this subsection shall not apply to any defects that do not become

reasonably known to the City within sixty (60) days after a termination by the City for

convenience or cause.

10.6 Waiver of Remedies

In the event that the City elects to waive its remedies for any breach by Consultant of any

covenant, term or condition of this Contract, such waiver by the City shall not limit its remedies

for any succeeding breach of that or of any other term, covenant, or condition of this Contract.

10.7 Obligations upon Expiration or Termination

Upon expiration or termination of this Contract, the Consultant shall promptly return to the City

(i) all computer programs, files, documentation, media, related material and any other material

and equipment that is owned by the City provided that Consultant shall be entitled to retain one

archival copy of all material; (ii) all Deliverables that have been completed or that are in process

as of the date of termination provided Consultant has been paid for the Deliverables; and (iii) a

written statement describing in detail all Work performed with respect to Deliverables which are

in process as of the date of termination. The expiration or termination of this Contract shall not

relieve either Party of its obligations regarding ―Confidential Information,‖ as defined in this

Contract.

10.8 No Effect on Taxes, Fees, Charges, or Reports

Termination of this Contract shall not relieve the Consultant of the obligation to pay any fees,

taxes or other charges then due to the City, nor relieve the Consultant of the obligation to file any

daily, monthly, quarterly or annual reports nor relieve the Consultant from any claim for damages

previously accrued or then accruing against the Consultant.

10.9 Other Remedies

The remedies set forth in this Article and Article 8 shall be deemed cumulative and not exclusive,

and may be exercised successively or concurrently, in addition to any other remedies available

under this Contract or at law or in equity.

10.10 Authority to Terminate

The following persons are authorized to terminate this Contract on behalf of the City: (a) the City

Manager, any Assistant City Manager or any designee of the City Manager; (b) the Key Business

Executive of the City Key Business Unit responsible for administering this Contract.

10.11 Federal Requirements

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The Consultant agrees to include these termination requirements into any and all subcontracts in

excess of ten thousand dollars ($10,000.00), with the exception of contracts with nonprofit

organizations and institutions of higher learning.

ARTICLE 11 – DISPUTE RESOLUTION

11.1 First Meeting in Good Faith

For all disputes, the Parties shall first meet in good faith to resolve the dispute. If the Parties are

unsuccessful in settling the dispute, such meeting shall be followed by mediation conducted

pursuant to the conditions set forth in this Article. Full compliance with this Article is a

precondition to any Party to a dispute initiating litigation of any type concerning the dispute.

11.2 Parties in Interest

Any Party to this Project that is a Party to an issue or claim in which the amount in controversy is

at least fifteen thousand dollars ($15,000.00) may require other Parties that are Party to the issue

or claim and this Project to participate in the mediation process as set forth in this Article. The

process set forth by this Article may be foregone upon the mutual written agreement of all Parties

in interest to the individual matters. Otherwise, full compliance with this Article is a precondition

for any Party to initiating any form of litigation concerning the matters.

11.3 Subcontract Inclusion

The Consultant shall and hereby agrees to include this Article in every subcontract or any other

agreement it enters into with any Party that will be involved in this Project.

11.4 Parties at Issue & Required Notice

If the City is not a Party to the issue or claim, the Party requesting mediation must notify the City,

in writing, of the requested mediation and must include a brief summary of the issue including the

alleged monetary value of the issue. The written notice must be sent to the City prior to the

service of the request for resolution upon the Parties to the issue.

A. If the Party requesting dispute resolution is a sub-consultant, it must first submit its claim

to the Consultant. If the dispute is not resolved through the Consultant’s informal

involvement, then the dispute becomes ripe for the Mediation Process under this Article,

and the Party may submit its written notice of mediation to the City.

B. The City is under no obligation to secure or enforce compliance with this Article for

disputes in which the City is not a Party. The City is entitled to notice of the dispute as

required by this Article, but has no obligation to administer, mediate, negotiate, or defray

any costs of disputes in which the City is not a Party, but for the selection of a mediator

as set forth below.

C. If the City is a Party to the issue, the Party requesting mediation must submit a written

request to the City for mediation.

D. Upon receipt of a written request for mediation that fully complies with the requirements

of this Article, the Parties to the dispute shall follow the process as set forth in this Article

in good-faith. The costs of the process shall be divided equally among the Parties, with

the City paying at least one-third (1/3) of the costs if the City is a Party to the dispute.

11.5 Good Faith Meeting

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As required by Article 11.1, representatives of each Party shall meet as soon as reasonable to

attempt in good-faith to resolve the dispute. If the City is a Party to the dispute, all other Parties

must be represented by a person with the authority to settle the dispute on behalf of their

respective Parties. The Parties may by agreement and in good-faith conduct further meetings as

necessary to resolve the dispute. If resolution is not achieved, the Parties shall initiate mediation

as set forth below.

A. Mediation

The Parties to a dispute that is ripe for mediation under this Article shall proceed in the

following manner:

i. Selection of Mediator

The Parties shall in good-faith select a mediator certified in accordance with the

rules of mediator certification in Superior Court in North Carolina. If the Parties

desire a mediator not so certified, the City’s consent to such a mediator must first

be obtained in writing. If the Parties cannot agree to a mediator within a

reasonable time, the City shall have the right to unilaterally select a certified

mediator if the City is a Party to the dispute, or if the City is not a Party to the

dispute, but is requested to do so by a Party to the dispute.

ii. Mediation Agreement

Upon selection of a mediator, the Parties to the dispute shall in good-faith enter

into a mediation agreement that shall include terms governing the time, place,

scope, and procedural rules of the mediation including those set forth in Article

11.5.A.iii below. The agreement shall also include terms governing the

compensation, disqualification, and removal of the mediator. All terms of the

mediation agreement must be consistent with the terms of this Article and Contract,

as well as all applicable laws. If the Parties fail to agree to the procedural rules to

be used, then the American Arbitration Association Construction Industry

Mediation Rules shall be used to the extent such rules are consistent with this

Contract and applicable law.

iii. Stalemate

If after all reasonable good-faith attempts to resolve the dispute have been made, it

appears to the mediator that the Parties are at a stalemate with no significant

likelihood of reaching resolution, the mediator shall so inform the Parties and shall

issue a written notice of stalemate, which shall conclude the dispute resolution

process, unless the Parties agree otherwise.

ARTICLE 12 – INSURANCE

12.1 General Requirements

Throughout the term of this Contract, the Consultant shall comply with the insurance

requirements described in this Article. In the event the Consultant fails to procure and maintain

each type of insurance required by this Contract, or in the event the Consultant fails to provide the

City with the required certificates of insurance, the City shall be entitled to terminate this

Contract immediately upon written notice to the Consultant.

A. The Consultant shall not commence any Work in connection with this Contract until it

has obtained all of the types of insurance set forth in this Article 12, and the City has

approved such insurance. The Consultant shall not allow any sub-consultant to

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commence Work on its subcontract until all insurance required of the sub-consultant has

been obtained and approved.

B. All insurance policies required by Article 12.2 shall be with insurers qualified and doing

business in North Carolina recognized by the Secretary of State and the Insurance

Commissioner’s Office. The Consultant shall name the City as an additional insured

under the commercial general liability policy required by Article 12.2.

C. The Consultant’s insurance, shall be primary of any self funding and/or insurance

otherwise carried by the City for all loss or damages arising from the Consultant’s

operations under this Contract. The Consultant and each of its sub-consultants shall and

does waive all rights of subrogation against the City and each of the Indemnitees (as

defined in Article 13).

D. The City shall be exempt from, and in no way liable for any sums of money that may

represent a deductible in any insurance policy. The payment of such deductible shall be

the sole responsibility of the Consultant and/or sub-consultant providing such insurance.

E. Within five (5) days after execution of this Contract, the Consultant shall provide the City

with Certificates of Insurance documenting that the insurance requirements set forth in

this Article 12 have been met. The Contractor shall not commence any Work in

connection with the resulting Contract until it has obtained all of the types of insurance

set forth in this section and furnished the Manager of Construction with proof of

insurance coverage by certificates of insurance accompanying the contract. The

Contractor shall be responsible for notifying the City of any material changes (including

renewals) to or cancellation of the insurance coverages required above. Notice to the

City must be completed in writing within forty-eight (48) hours of the changes.

F. Should any or all of the required insurance coverage be self-funded/self-insured, the

Consultant shall furnish to the City a copy of the Certificate of Self-Insurance or other

documentation from the North Carolina Department of Insurance.

G. If any part of the Work under this contract is sublet, the sub-consultant shall be required

to meet all insurance requirements set forth in this Article 12, provided that the amounts

of the various types of insurance shall be such amounts as are approved by the City in

writing. However, this will in no way relieve the Consultant from meeting all insurance

requirements or otherwise being responsible for the sub-consultant.

12.2 Types of Insurance

The Consultant agrees to purchase and maintain during the life of this Contract with an insurance

company acceptable to the City and authorized to do business in the State of North Carolina the

following insurance:

A. Automobile Liability

Bodily injury and property damage liability covering all owned, non-owned and hired

automobiles for limits of not less than two million dollars ($2,000,000.00) bodily injury

each person, each accident and two million dollars ($2,000,000.00) property damage, or

two million dollars ($2,000,000.00) combined single limit - bodily injury and property

damage.

B. Commercial General Liability

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Bodily injury and property damage liability as shall protect the Consultant performing

Work under this Contract, from claims of bodily injury or property damage which arise

from operation of this Contract, whether such operations are performed by the

Consultant, any sub-consultant or anyone directly or indirectly employed by either. The

amounts of such insurance shall not be less than five million dollars ($5,000,000.00)

bodily injury each occurrence/aggregate and five million dollars ($5,000,000.00) property

damage each occurrence/aggregate, or five million dollars ($5,000,000.00) bodily injury

and property damage combined single limits each occurrence/aggregate. This insurance

shall include coverage for products, operations, personal injury liability and contractual

liability.

C. Workers’ Compensation Insurance The Consultant shall meet the statutory requirements of the State of North Carolina, five

hundred thousand ($500,000.00) per accident limit, five hundred thousand ($500,000.00)

disease per policy limit, five hundred thousand ($500,000.00) disease each employee

limit.

D. Professional Liability/Errors & Omissions Protecting the Consultant and its employees for negligent acts, errors or omissions in

performing professional services under this Contract. The amount of such insurance shall

not be less than five million dollars ($5,000,000.00) each occurrence/aggregate.

ARTICLE 13 – INDEMNIFICATION

13.1 The Consultant shall indemnify and hold harmless each of the ―Indemnitees‖ (as defined below)

from and against ―Charges‖ (as defined below) paid or incurred any of them as a result of any

claims, demands, lawsuits, actions, or proceedings: (i) alleging violation, misappropriation or

infringement of any copyright, trademark, patent, trade secret or other proprietary rights with

respect to the Work or any products or deliverables provided to the City pursuant to this Contract

(―Infringement Claims‖); (ii) seeking payment for labor or materials purchased or supplied by the

Consultant or its sub-consultants in connection with this Contract provided Consultant has been

paid in accordance with this Contract; (iii) to the extent caused by the negligence or willful

misconduct by the Consultant or any of its agents, employees or sub-consultants relating to this

Contract, including but not limited to any liability caused by an accident or other occurrence

resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to

any property, real or personal, tangible or intangible; or (iv) arising from any claim that the

Consultant or an employee or sub-consultant of the Consultant is an employee of the City,

including claims relating to worker’s compensation, failure to withhold taxes and the like. For

purposes of this Article: (a) the term ―Indemnitees‖ means the City, the State of North Carolina,

and the United States Department of Transportation (U.S. DOT), and the officers, officials, and

employees, of the City, the State, or the U.S. DOT; and (b) the term ―Charges‖ means losses,

damages, costs, expenses (including reasonable attorneys’ fees), obligations, duties, royalties,

interest charges and other liabilities (including settlement amounts).

13.2 If an Infringement Claim occurs, the Consultant shall either: (i) procure for the City the right to

continue using the affected product or service; or (ii) repair or replace the infringing product or

service so that it becomes non-infringing, provided that the performance of the overall product(s)

and service(s) provided to the City shall not be adversely affected by such replacement or

modification. If the Consultant is unable to comply with the preceding sentence within thirty (30)

days after the City is directed to cease use of a product or service, the Consultant shall promptly

refund to the City all amounts paid under this Contract.

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13.3 This Article 13 shall remain in force despite termination of this Contract (whether by expiration

of the term or otherwise).

ARTICLE 14 – CONFIDENTIALITY

14.1 Definitions

As used in this Contract, The term ―Confidential Information‖ shall mean any information, in any

medium, whether written, oral or electronic, not generally known in the relevant trade or industry

that is obtained from the City or any of its suppliers, contractors or licensors which falls within

any of the following general categories:

A. Trade Secrets. For purposes of this Contract, trade secrets consist of information of the

City or any of its suppliers, contractors or licensors: (a) that derives value from being

secret; and (b) that the owner has taken reasonable steps to keep confidential. Examples

of trade secrets include information relating to proprietary software, new technology, new

products or services, flow charts or diagrams that show how things work, manuals that

tell how things work and business processes and procedures.

B. Information of the City or its suppliers, contractors or licensors marked ―Confidential‖ or

―Proprietary.‖

C. Information relating to criminal investigations conducted by the City, and records of

criminal intelligence information compiled by the City.

D. Information contained in the City’s personnel files, as defined by N.C. Gen. Stat. §160A-

168. This consists all information gathered by the City about employees, except for that

information which is a matter of public record under North Carolina law.

E. Citizen or employee social security numbers collected by the City.

F. Computer security information of the City, including all security features of electronic

data processing, or information technology systems, telecommunications networks and

electronic security systems. This encompasses but is not limited to passwords and

security standards, procedures, processes, configurations, software and codes.

G. Local tax records of the City that contain information about a taxpayer’s income or

receipts.

H. Any attorney / client privileged information disclosed by either Party.

I. Any data collected from a person applying for financial or other types of assistance,

including but not limited to their income, bank accounts, savings accounts, etc.

J. The name or address of individual homeowners who, based on their income, have

received a rehabilitation grant to repair their home.

K. Building plans of city-owned buildings or structures, as well as any detailed security

plans.

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L. Billing information of customers compiled and maintained in connection with the City

providing utility services

M. Other information that is exempt from disclosure under the North Carolina public records

laws. Categories 14.1.A through 14.1.L above constitute ―Highly Restricted

Information,‖ as well as Confidential Information. The Consultant acknowledges that

certain Highly Restricted Information is subject to legal restrictions beyond those

imposed by this Contract, and agrees that: (a) all provisions in this Contract applicable to

Confidential Information shall apply to Highly Restricted Information; and (b) the

Consultant will also comply with any more restrictive instructions or written policies that

may be provided by the City from time to time to protect the confidentiality of Highly

Restricted Information. The Parties acknowledge that in addition to information disclosed

or revealed after the date of this Contract, the Confidential Information shall include

information disclosed or revealed within one year prior to the date of this Contract.

14.2 Restrictions

Consultant shall keep the Confidential Information in the strictest confidence, in the manner set

forth below:

A. Consultant shall not copy, modify, enhance, compile or assemble (or reverse compile or

disassemble), or reverse engineer Confidential Information, except as authorized by the

City in writing.

B. Consultant shall not, directly or indirectly, disclose, divulge, reveal, report or transfer

Confidential Information to any third Party, other than an agent, sub-consultant or vendor

of the City or Consultant having a need to know such Confidential Information for

purpose of performing Work contemplated by written agreements between the City and

the Consultant, and who has executed a confidentiality agreement incorporating

substantially the form of this the Contract. Consultant shall not directly or indirectly,

disclose, divulge, reveal, report or transfer Highly Restricted to any third Party without

the City’s prior written consent.

C. Consultant shall not use any Confidential Information for its own benefit or for the

benefit of a third Party, except to the extent such use is authorized by this Contract or

other written agreements between the Parties hereto, or is for the purpose for which such

Confidential Information is being disclosed.

D. Consultant shall not remove any proprietary legends or notices, including copyright

notices, appearing on or in the Confidential Information.

E. Consultant shall use reasonable efforts (including but not limited to seeking injunctive

relief where reasonably necessary) to prohibit its employees, vendors, agents and sub-

consultants from using or disclosing the Confidential Information in a manner not

permitted by this Contract.

F. In the event that any demand is made in litigation, arbitration or any other proceeding for

disclosure of Confidential Information, Consultant shall assert this Contract as a ground

for refusing the demand and, if necessary, shall seek a protective order or other

appropriate relief to prevent or restrict and protect any disclosure of Confidential

Information.

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G. All materials which constitute, reveal or derive from Confidential Information shall be

kept confidential to the extent disclosure of such materials would reveal Confidential

Information, and unless otherwise agreed, all such materials shall be returned to the City

or destroyed upon satisfaction of the purpose of the disclosure of such information.

H. Consultant shall restrict employee access to the Confidential Information to those

employees having a need to know for purposes of their jobs.

I. Consultant shall take reasonable measures to prevent the use or disclosure of Confidential

Information by its employees in a manner not permitted by this Contract. The Consultant

shall have each of its employees who will have access to the Confidential Information

sign a confidentiality agreement which provides the City and its vendors, licensors, sub-

consultants, employees and taxpayers the same level of protection as provided by this

Contract.

14.3 Exceptions

The City agrees that Consultant shall have no obligation with respect to any Confidential

Information that the Consultant can establish:

A. Was already known to Consultant prior to being disclosed by the City;

B. Was or becomes publicly known through no wrongful act of Consultant;

C. Was rightfully obtained by Consultant from a third Party without similar restriction and

without breach hereof;

D. Was used or disclosed by Consultant with the prior written authorization of the City;

E. Was disclosed pursuant to the requirement or request of a governmental agency, which

disclosure cannot be made in confidence, provided that, in such instance, Consultant shall

first give to the City notice of such requirement or request; or

F. Was disclosed pursuant to the order of a court of competent jurisdiction or a lawfully

issued subpoena, provided that the Consultant shall take reasonable steps to obtain an

agreement or protective order providing that this Contract will be applicable to all

disclosures under the court order or subpoena.

ARTICLE 15 – MISCELLANEOUS

15.1 Relationship of the Parties

The relationship of the Parties established by this Contract is solely that of independent

contractors. Nothing contained in this Contract shall be construed to (i) give any Party the power

to direct or control the day-to-day administrative activities of the other; or (ii) constitute such

Parties as partners, co-owners or otherwise as participants in a joint venture. Neither Party nor its

agents or employees is the representative of the other for any purpose, and neither Party has

power or authority to act for, bind, or otherwise create or assume any obligation on behalf of the

other.

15.2 Assignment, Subcontract & Disposition Approval

This Contract shall bind the Parties and their successors and permitted assigns. The Consultant

shall not sell, transfer, assign, subcontract or otherwise dispose of this Contract or its interest

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therein to any other Parties without the prior written consent of the City. Further, any approved

sub-consultants shall not further sell, transfer, assign, subcontract or otherwise dispose of this

Contract without the prior written approval of the City. In the event the City does consent in

writing to a subcontracting arrangement, the Consultant shall be the prime consultant and shall

remain fully responsible for performance of all obligations which it is required to perform under

this Contract. Any subcontract entered into by the Consultant shall name the City as a third-Party

beneficiary. Prior to award of any subcontract, the Consultant shall provide the following

information to the City: (1) A description of the supplies or services to be subcontracted, which

shall include the actual subcontract specifications and/or statement of Work; (2) The actual

subcontract document itself; (3) An explanation of how and why the proposed sub-consultant was

selected, including an identification of the competitive proposals obtained, and their relative

strengths and weaknesses; (4) The sub-consultant's cost or price proposal, together with the

Consultant's cost or price analysis of the sub-consultant's proposal; (5) Evidence from a

competent auditor that the sub-consultant's accounting system is adequate for cost-type

subcontracts (if the subcontract is cost-type) and that the proposed labor and indirect expense

rates are reasonable in light of recent actual rates incurred and the best available business

projections for the company; (6) The Consultant's explanation of how the subcontract price was

determined; and (7) The Consultant's assessment of the sub-consultant's "responsibility,"

including the sub-consultant's performance record on prior jobs of a similar magnitude. This

requirement shall also apply to subcontracts entered into between sub-consultants of any tier. All

subcontracts of any tier shall include all required federal flow down clauses. Any assignment or

subcontract of Work, of any subcontracting tier, to be performed under this Contract, entered into

without prior written approval by the City, shall be void and unenforceable unless the City

subsequently gives written approval or consent.

15.3 Entire Contract

This Contract is the entire agreement between the Parties with respect to its subject matter, and

there are no other representations, understandings, or agreements between the Parties with respect

to such subject matter. This Contract supersedes all prior agreements, negotiations,

representations and proposals, written or oral.

15.4 Amendment

No amendment or change to this Contract shall be valid unless in writing and signed by both

Parties to this Contract.

15.5 Governing Law, Jurisdiction & Venue

North Carolina law shall govern interpretation and enforcement of this Contract and any other

matters relating to this Contract (all without regard to North Carolina conflicts of law principles).

Any and all legal actions or proceedings relating to this Contract shall be brought in a state or

federal court sitting in Mecklenburg County, North Carolina. By the execution of this Contract,

the Parties submit to the jurisdiction of said courts and hereby irrevocably waive any and all

objections that they may have with respect to venue in any court sitting in Mecklenburg County,

North Carolina. This Article shall not apply to subsequent actions to enforce a judgment entered

in actions heard pursuant to this Article.

15.6 Liability for Special or Consequential Damages

Neither Party shall be liable to the other, their agents or representatives or any sub-consultant for

any special, incidental, indirect or consequential damages.

15.7 No Publicity

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No advertising, sales promotion or other materials of the Consultant or its agents or

representations may identify or reference this Contract or the City in any manner absent the

written consent of the City. Notwithstanding the forgoing, the Parties agree that the Consultant

may list the City as a reference in responses to requests for proposals, and may identify the City

as a customer in presentations to potential customers.

15.8 Approvals

All approvals or consents required under this Contract must be in writing..

15.9 Drug-Free Workplace

The Consultant shall provide a drug-free workplace during the performance of this Contract.

This obligation is met by:

A. Notifying employees that the unlawful manufacture, distribution, dispensation,

possession, or use of a controlled substance is prohibited in the Consultant’s workplace

and specifying the actions that will be taken against employees for violations of such

prohibition;

B. Establishing a drug-free awareness program to inform employees about (i) the dangers of

drug abuse in the workplace, (ii) the Consultant’s policy of maintaining a drug-free

workplace, (iii) any available drug counseling, rehabilitation, and employee assistance

programs and (iv) the penalties that may be imposed upon employees for drug abuse

violations;

C. Notifying each employee that as a condition of employment, the employee will (i) abide

by the terms of the prohibition outlined in this Article and (ii) notify the Consultant of

any criminal drug statute conviction for a violation occurring in the workplace not later

than five (5) days after such conviction;

D. Notifying the City within ten (10) days after receiving from an employee a notice of a

criminal drug statute conviction or after otherwise receiving actual notice of such

conviction, unless otherwise forbidden to communicate such information to third Parties

under the Consultant’s drug-free awareness program or other restrictions;

E. Imposing a sanction on, or requiring the satisfactory participation in a drug counseling,

rehabilitation or abuse program by an employee convicted of drug crime;

F. Making a good faith effort to continue to maintain a drug-free workplace for employees;

and

G. Requiring any Party to which it subcontracts any portion of the Work under the Contract

to comply with the provisions above.

If the Consultant is an individual, the requirement is met by not engaging in the unlawful

manufacture, distribution, dispensation, possession, or use of a controlled substance in the

performance of this Contract.

Failure to comply with the above drug-free workplace requirements during the performance of

the Contract shall be grounds for suspension, termination or debarment.

15.10 Commercial Non-Discrimination

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As a condition of entering into this Contract, the Consultant represents and warrants that it will

fully comply with the City’s Commercial Non-Discrimination Policy as described in Part II,

Chapter 2, Article V of the City Code Book of Ordinances, and consents to be bound by the

award of any arbitration conducted thereunder. As part of such compliance, the Consultant shall

not discriminate on the basis of race, gender, religion, national origin, ethnicity, age, or disability

in the solicitation, selection, hiring, or treatment of sub-consultants, vendors, suppliers, or

commercial customers in connection with a City contract or contract solicitation process, nor

shall the Consultant retaliate against any person or entity for reporting instances of such

discrimination.

The Consultant shall provide equal opportunity for sub-consultants, vendors and suppliers to

participate in all of its subcontracting and supply opportunities on City contracts, provided that

nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the

effects of marketplace discrimination that has occurred or is occurring in the marketplace. The

Consultant understands and agrees that a violation of this clause shall be considered a material

breach of this Contract and may result in termination of this Contract, disqualification of the

Consultant from participating in City contracts or other sanctions.

As a condition of entering into this Contract, the Consultant agrees to: (1) promptly provide to the

City all information and documentation that may be requested by the City from time to time

regarding the solicitation, selection, treatment and payment of sub-consultants in connection with

this Contract; and (2) if requested, provide to the City within sixty (60) days after the request a

truthful and complete list of the names of all sub-consultants, vendors, and suppliers that the

Consultants has used on City contracts in the past five (5) years, including the total dollar amount

paid by the Consultant or on each subcontract or supply contract.

The Consultant further agrees to fully cooperate in any investigation conducted by the City

pursuant to the City’s Commercial Non-Discrimination Policy as set forth in Part II, Chapter 2,

Article V of the City Code Book of Ordinances, to provide any documents relevant to such

investigation that are requested by the City, and to be bound by the award of any arbitration

conducted under such Policy. The Consultant understands and agrees that violation of this clause

shall be considered a material breach of this Contract and may result in contract termination,

disqualification of the Consultant from participating in City contracts and other sanctions.

15.11 Waiver

No waiver of any provision of this Contract shall be effective unless in writing and signed by the

party waiving the rights. No delay or omission by either party to exercise any right or remedy it

has under this Contract shall impair or be construed as a waiver of such right or remedy. A waiver

by either party of any covenant or breach of this Contract shall not be constitute or operate as a

waiver of any succeeding breach of that covenant or of any other covenant.

15.12 Survival of Provisions

All provisions of this Contract which by their nature and effect are required to be observed, kept

or performed after termination of this Contract shall survive the termination of this Contract and

remain binding thereafter, including but not limited to:.

Article 4.3 ―Employment Taxes & Employee Benefits‖

Article 7 ―Representations & Warranties of Company‖

Article 10 ―Termination of Contract‖

Article 13 ―Indemnification‖

Article 14 ―Confidentiality‖

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Article 15 ―Miscellaneous‖

15.13 Severability

The invalidity of one or more of the phrases, sentences, clauses or sections contained in this

Contract shall not affect the validity of the remaining portion of the Contract so long as the

material purposes of the Contract can be determined and effectuated. If any provision of this

Contract is held to be unenforceable, then both Parties shall be relieved of all obligations arising

under such provision, but only to the extent that such provision is unenforceable, and this

Contract shall be deemed amended by modifying such provision to the extent necessary to make

it enforceable while preserving its intent.

15.14 Set Off

The City shall be entitled to set off and deduct from any amounts owed to the Consultant pursuant

to this Contract all damages and expenses incurred or reasonably anticipated as a result of the

Consultant’s breach of this Contract.

15.15 Familiarity & Compliance with Laws & Ordinances

The Consultant agrees to make itself aware of and comply with all local, state and federal

ordinances, statutes, laws, rules and regulations applicable to the Work. The Consultant further

agrees that it will at all times during the term of this Contract be in compliance with all applicable

federal, state and/or local laws regarding employment practices. Such laws will include, but shall

not be limited to workers' compensation, the Fair Labor Standards Act (FLSA), the Americans

with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and all OSHA

regulations applicable to the Work.

15.16 Conflict of Interest & Code of Conduct

The Consultant shall notify the City immediately if it has a real or apparent conflict of interest

with regard to this Contract. The Consultant shall not use its position for personal or

organizational gain. The Consultant shall not engage in any transaction that presents a real or

apparent conflict of interest. The Consultant shall not engage in any transaction incompatible with

the proper discharge of its duties in the public interest or that would tend to impair independent

judgment or action in performance of its contractual obligations. The Consultant shall not give

gifts or favors to City staff in violation of N.C. Gen. Stat. §133-32 or City Policy HR 12.3

regarding gifts and favors.

15.17 Taxes

The Consultant shall pay all applicable federal, state and local taxes that may be chargeable

against the performance of the Work.

15.18 Construction of Terms

Each of the Parties has agreed to the use of the particular language of the provisions of this

Contract and any questions of doubtful interpretation shall not be resolved by any rule or

interpretation against the drafters, but rather in accordance with the fair meaning thereof, having

due regard to the benefits and rights intended to be conferred upon the Parties hereto and the

limitations and restrictions upon such rights and benefits intended to be provided.

15.19 Out of State Corporations

In the event the Consultant is a corporation organized under laws of a jurisdiction other than

North Carolina, the Consultant shall maintain a registered agent having a business office in North

Carolina and shall file with the City the name of said agent and address of said office.

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15.20 City Ownership of Work Product

The Parties agree that the City shall have exclusive ownership, and right of possession upon

request, of all reports, documents, designs, ideas, materials, concepts, plans, creative works,

software, data, programming code and other work product developed for or provided to the City

in connection with this Contract, and all patent rights, copyrights, trade secret rights and other

intellectual property rights relating thereto (collectively ―the Intellectual Property‖). The

Consultant hereby assigns and transfers all rights in the Intellectual Property to the City. The

Consultant further agrees to execute and deliver such assignments and other documents as the

City may later require to perfect, maintain, and enforce the City’s rights as sole owner of the

Intellectual Property, including all rights under patent and copyright law. Reuse of Consultant’s

work product by the City on any extension of the project or on any other project without

authorization of Consultant shall be at City’s sole risk. The Consultant hereby appoints the City

as attorney in fact to execute all such assignments and instruments and agree that its appointment

of the City as an attorney in fact is coupled with an interest and is irrevocable.

The City grants the Consultant a royalty-free, non-exclusive license to use and copy the

Intellectual Property to the extent necessary to perform this Contract. The Consultant shall not be

entitled to use the Intellectual Property for other purposes without the City’s prior written

consent, and shall treat the Intellectual Property as ―Confidential Information‖ under the

Confidentiality Contract.

The Consultant will treat as Confidential Information under Article 14 of this Contract all data

provided by or processed for the City in connection with this Contract. Such data shall remain the

exclusive property of the City. The Consultant will not reproduce, copy, duplicate, disclose, or in

any way treat the data supplied by the City in any manner except that contemplated by this

Contract.

15.21 Force Majeure

An event of ―Force Majeure‖ occurs when an event beyond the control of the party claiming

Force Majeure prevents such party from fulfilling its obligations. An event of Force Majeure

includes, without limitation, acts of God (including floods, hurricanes and other adverse weather),

war, riot, civil disorder, acts of terrorism, disease, epidemic, strikes and labor disputes, actions or

inactions of government or other authorities, law enforcement actions, curfews, closure of

transportation systems or other unusual travel difficulties, or inability to provide a safe working

environment for employees. In the event of Force Majeure, the obligations of the Consultant to

perform the Work shall be suspended for the duration of the event of Force Majeure. In such

event, the schedule shall be extended by a like number of days as the event of Force Majeure.

15.22 Notices

Any notice, consent or other communication required or contemplated by this Contract shall be in

writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic mail or

by telefax to the intended recipient at the address set forth below. Notice shall be effective upon

the date of receipt by the intended recipient; provided that any notice which is sent by telefax or

electronic mail shall also be simultaneously sent by mail deposited with the U.S. Postal Service or

by overnight courier. Each Party may change its address for notification purposes by giving the

other Party written notice of the new address and the date upon which it shall become effective.

For The Company: For The City: _________________ ________________ [Company name] Charlotte Area Transit System

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[Address] [Address] [Address] [Address] Phone: Phone: Fax: Fax:

E-mail: E-mail:

Communications that relate to any breach, default, termination, delay in performance, prevention

of performance, modification extension, amendment, or waiver of any provision of this Contract

shall further be copied to the following (in addition to being sent to the individuals specified

above):

For the City:

BLE Project Director CATS Attorney

BLE Light Rail Project City Attorney’s Office

600 East Fourth Street 600 East Fourth Street

Charlotte NC 28202 Charlotte, NC 28202

Phone: ___________________________ Phone: 704-432-1271

Fax: ___________________________ Fax: 704-632-8317

E-mail: ___________________________ E-Mail: [email protected]

For the Consultant:

______________________________

______________________________

______________________________

______________________________

Phone: ___________________________

Fax: ___________________________

E-mail: ___________________________

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IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood

each and every provision hereof, the parties have caused this Revised Contract to be executed on the date

first written above.

BY: _______________________ BY: ________________________________

TITLE: ______________________ TITLE: _____________________________

CITY OF CHARLOTTE:

BY: _____________________________

BY: _________________________

CITY CLERK

This instrument has been pre-audited in the manner required by the Local Government Budget

and Fiscal Control Act.

___________________________ ______________

Deputy Finance Officer Date