REGIONAL TRANSPORTATION COMMISSION OF SOUTHERN NEVADA. JARC and NEW FREEDOM PROJECTS SUBRECIPIENT AGREEMENT #, 2013

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1 REGIONAL TRANSPORTATION COMMISSION OF SOUTHERN NEVADA JARC and NEW FREEDOM PROJECTS SUBRECIPIENT AGREEMENT #, 2013 FINAL DRAFT 05/20/2013

2 TABLE OF CONTENTS Page SECTION 1 SECTION 2 PARTIES...1 PROJECT...1 SECTION 3 GENERAL OBLIGATIONS OF SUBRECIPIENT... 2 SECTION 4 PROJECT COSTS... 3 SECTION 5 SUBCONTRACTORS... 7 SECTION 6 ACCOUNTING RECORDS...8 SECTION 7 SECTION 8 REPORTING, RECORD RETENTION, AND ACCESS...9 PROJECT COMPLETION, AUDIT, SETTLEMENT, AND CLOSEOUT...9 SECTION 9 TERM...10 SECTION 10 REPORTS AND REVIEWS...11 SECTION 11 SUCCESSORS AND ASSIGNMENT...11 SECTION 12 SECTION 13 AMENDMENTS TO AGREEMENT...12 DISCLAIMER OF LIABILITY...12 SECTION 14 INDEMNITY...12 SECTION 15 TERMINATION...12 SECTION 16 TERMINATION FOR CONVENIENCE...14 SECTION 17 INSPECTION OF WORK...15 SECTION 18 FORCE MAJEURE...15 SECTION 19 INSURANCE...15 SECTION 20 FEDERAL REQUIREMENTS...17 SECTION 21 DISPUTES...18 i

3 SECTION 22 GOVERNING LAW SECTION 23 LACK OF FUNDS...21 Exhibits Exhibit A Scope of Work Exhibit B FTA Master Agreement Exhibit C Debarment and Suspension Certification Exhibit D Lobbying Certification Exhibit E Certifications and Assurances for FTA Assistance Programs Exhibit F Federal Conditions Appendix 1 Quarterly Reporting Form Appendix 2 Service Reporting Matrix ii

4 NEW FREEDOM and JARC PROJECTS SUBRECIPIENT AGREEMENT This Subrecipient Agreement (Agreement) contains the terms and conditions governing the administration of Section 5307 and Section 5310 funds provided by the Federal Transit Administration (FTA) to the Regional Transportation Commission of Southern Nevada (RTC) and provided by the RTC to, as a Subrecipient, to implement New Freedom and Job Access and Reverse Commute (JARC) projects. WHEREAS, the RTC conducted a competitive solicitation for applications for New Freedom funds in May 2013, (Solicitation No ); WHEREAS, submitted an application for such funds and was selected by the RTC to undertake the Project; WHEREAS, has agreed to provide the required local match for the New Freedom funds; and WHEREAS, the RTC and desire to enter into this Agreement to authorize the RTC to transfer Federal funds to, as a subrecipient, under the terms and conditions contained herein. NOW THEREFORE, the Parties agree as follows: SECTION 1 PARTIES This Agreement is entered into by the RTC, the Designated Recipient of Section 5307 and Section 5310 funds from FTA, and, a subrecipient of those funds (Subrecipient). SECTION 2 PROJECT (a) In General The Subrecipient shall use the Federal funds to undertake and complete the Project as described in the scope of work in Exhibit A. The funds to be provided under this Agreement shall only be used by the Subrecipient for the completion of this Project and agreed on scope of work. 1

5 (b) Description of Project The Project s scope of work as described in Exhibit A includes a description of the Project s location, a detailed Project description, specific description of the Project line item budget, and a schedule. (c) Subrecipient Status (1) As a Subrecipient of Section 5307 /Section 5310 funds, the Subrecipient understands and agrees that it must comply with all applicable Federal laws, regulations and requirements, as set forth in this Agreement and FTA s Master Agreement, and with any subsequent modifications or amendments to Federal laws, regulations and requirements. FTA s Master Agreement is attached as Exhibit B to this Agreement. Any violation of a Federal requirement by the Recipient can result in an enforcement action undertaken by FTA and termination of this Agreement by the RTC and FTA. (2) The Subrecipient shall not represent itself as an agent or employee of the RTC, and has no authority to bind the RTC in contract or otherwise. (d) Required Certifications The Subrecipient has executed the required Federal Certifications which are attached to this Agreement as Exhibit C (Debarment and Suspension Certification) and Exhibit D (Lobbying Certification). SECTION 3 GENERAL OBLIGATIONS OF SUBRECIPIENT (a) Capacity The Subrecipient agrees to maintain sufficient legal, financial, technical and managerial capacity to: (1) plan, manage and complete the Project and provide for the use of the Project services; (2) comply with the terms of this Agreement, the Approved Project Budget, and the Project schedule; and (3) comply with all applicable Federal laws, regulations and requirements, FTA s Master Agreement, and the annual Certifications and Assurances to FTA. (b) Schedule The Subrecipient has submitted a detailed schedule to the RTC for the Project as described in the Scope of Work in Exhibit A. The Subrecipient shall update the schedule every month and show the progress of major milestones. The Recipient shall begin the provision of Project services by, 2013 and shall complete such Project by, If the Subrecipient cannot maintain the schedule as established, the Subrecipient shall notify the RTC immediately. (c) Notification The Subrecipient shall notify the RTC immediately of any change in conditions (including its legal, technical, financial or managerial capacity), any change in local 2

6 law, or any other event that may significantly affect the Subrecipient s ability to perform the Project in accordance with the terms of this Agreement. The Subrecipient shall provide immediate written notification to the RTC of any current or prospective major dispute, breach, default or litigation that may affect the RTC s or Federal Government s interest in the Project or the Federal Government s administration or enforcement of Federal laws or regulations, and shall also inform the RTC and FTA in writing before naming the Federal Government as a party to litigation. The FTA retains a right to concur in any compromise or settlement of any claim involving the Project. SECTION 4 PROJECT COSTS (a) Federal Funds To the extent that the RTC receives Section 5307/5310 funds for the Project, the RTC shall reimburse the Subrecipient for its eligible expenses up to a maximum of $ for this Project, subject to the terms and conditions of this Agreement. The RTC shall transfer the FTA funds for the Project to the Subrecipient on a reimbursement basis only. The RTC assumes no responsibility for funding any portion of the Project. (b) Nature of Commitment The Subrecipient understands that the Federal funds to be provided under this Agreement are contingent on FTA s approval of the grant application and are subject to the Federal lapsing requirements. The RTC is not responsible for providing any funding to substitute for the Federal funds in the event the grant is withdrawn or not provided for any reason. In the event the grant is closed, the Subrecipient shall reimburse the RTC for any funds paid that were no longer available in the FTA grant award. (c) Limited Grant This is a one time grant of Federal funds by the RTC to the Subrecipient and does not imply or obligate the RTC to any future funding commitment. (d) Subrecipient Match The Subrecipient shall provide a total of $ toward the Project as local match for the Federal funds being provided in subsection (a). The Subrecipient agrees to provide sufficient funds, together with the Federal assistance, that will assure payment of the actual cost of each Project activity covered by the FTA Grant Agreement. No local match funds provided shall be derived from receipts from use of Project facilities or equipment or other Federal funds. The Subrecipient agrees to complete all proceedings necessary to provide the local share of the Project costs at or before the time the local share is needed for 3

7 Project costs. The Subrecipient also agrees to provide the proportionate amount of the local share promptly as it incurs Project costs or as Project costs become due. No refund or reduction of the local share may be made unless, at the same time, a refund of the proportional amount of the Federal funds is made to the Federal Government. (e) Project Budget The Subrecipient shall prepare a Project Budget which shall be subject to the RTC s approval. The budget shall include the total Project cost and the Subrecipient s funding commitment. The Subrecipient shall incur obligations and make disbursements of Project funds only in accordance with and as authorized in the approved Project Budget, which is incorporated by reference in this Agreement. If the Subrecipient estimates that it will have unobligated funds remaining after the end of the performance period of the Project, the Subrecipient shall report this to the RTC at the earliest possible time. (f) Eligible Costs The Subrecipient shall expend Federal funds only for eligible Project costs, as set forth in FTA s Master Agreement. To be eligible for Federal participation the costs must comply with all of the following requirements: (1) be in conformance with the Project Description, the approved Project Budget and all other terms of this Agreement; (2) be necessary in order to accomplish the Project; (3) be reasonable for the goods or services purchased; (4) be the actual net costs to the Subrecipient; (5) be incurred for work performed after the effective date of this Agreement; (6) be satisfactorily documented; (7) be eligible for Federal participation under Federal laws, regulations or directives; (8) be treated consistently in accordance with accounting principles and procedures approved by the RTC; and 4

8 (9) be in compliance with Department of Transportation regulations pertaining to allowable costs (49 C.F.R (b) or 19.27) which specify the applicability of Office of Management and Budget (OMB) Circulars. (g) Transfer of Funds Federal Funds will be transferred to the Subrecipient by the RTC on a monthly basis upon the Subrecipient s submittal of a request for reimbursement for actual and eligible Project costs incurred and paid by the Subrecipient consistent with the Project scope of work. All payments made by the RTC are subject to audit. (h) Request for Reimbursement (1) The request for reimbursement shall include supporting documentation identifying work completed, the overall work status and progress on the Project, and the amount expended by the Subrecipient during the preceding 30 day period covered by the request. Requests for reimbursement must be consistent with the approved Project Budget, must be for eligible costs (as described in subsection (d) of this Section), and must indicate the actual Project costs incurred. Each request for reimbursement shall report the total of Project expenditures and specify the amount of funds to be reimbursed. (2) Requests for reimbursement and required accompanying information shall be addressed to: Glen Leavitt Specialized Services Administrator 600 S. Grand Central Parkway, Suite 350 Las Vegas, NV leavittg@rtcsnv.com (3) The effective date and start date for reimbursable activities is the effective date of this Subrecipient Agreement.. Actual reimbursement of eligible work cannot occur until the RTC and the Subrecipient execute this Agreement and the RTC has entered into the Grant Agreement with FTA. (4) The RTC may withhold monthly payments until all reports required by this Agreement are submitted by the Subrecipient in accordance with the time period specified. 5

9 (i) Overruns The Subrecipient is responsible for all cost overruns incurred as a result of this Project. Under no circumstance shall the total amount of funds that the RTC reimburses the Subrecipient exceed the amount of Federal funds available as specified in Section 4 of this Agreement. (j) Excluded Costs The Subrecipient understands and agrees that ineligible costs shall be treated as follows: (1) In determining the amount of Federal assistance FTA will provide for the Project, FTA will exclude: (A) (B) (C) any Project cost incurred before the effective date of this Agreement, unless otherwise permitted; any cost that is not included in the approved Project Budget; any cost for Project property or services received in connection with a subagreement, lease, third party contract or other arrangement that is required to be, but has not been, concurred in or approved by FTA; (D) any ordinary governmental or non project operating cost, consistent with the provisions of 49 U.S.C. 5323(h); and (E) any cost ineligible for FTA participation as provided by applicable Federal laws, regulations and directives, except to the extent the Federal Government determines otherwise in writing. (2) The Subrecipient understands and agrees that payment for any Project cost does not constitute the Federal Government s final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation by the Subrecipient of the terms of this Agreement. The Subrecipient acknowledges that the Federal Government will not make a final determination about the allowability and eligibility of any cost until an audit of the Project has been completed. If the Federal Government determines that the RTC or Subrecipient is not entitled to receive any portion of the Federal assistance requested or paid, the Federal Government will notify the RTC in writing, stating its reasons. The Subrecipient agrees that Project 6

10 closeout will not alter the Subrecipient s responsibility to return any funds due the Federal Government as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the Federal Government s right to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. Unless prohibited by Federal law or regulation, the Federal Government may recover any Federal financial assistance made available for the Project as necessary to satisfy any outstanding monetary claims that the Federal Government may have. (3) The Subrecipient understands that the Federal Government may deobligate unexpended Federal funds before Project closeout. (k) Reimbursement The Subrecipient shall reimburse the RTC for any expenditures not in compliance with this Agreement or any FTA requirement, or otherwise disallowed by FTA. SECTION 5 SUBCONTRACTORS (a) Responsibility For Performance The Subrecipient shall be solely responsible for the performance of all subcontractors and the fulfillment of all requirements of this Agreement and other requirements. The RTC has privity of contract with, and will recognize only the Subrecipient. (b) Required Provisions The Subrecipient shall assure that each of its subcontractors fully and properly perform their work under the subcontract. The Subrecipient shall require subcontractors to comply with all applicable Federal requirements. (c) Subrecipient s Duties The Subrecipient agrees that this section does not operate to relieve it of any duty or liability under this Agreement, nor does it create any duty or liability on the part of the RTC to any subcontractor. The Subrecipient shall have sole responsibility for promptly settling any disputes between subcontractors and between the Subrecipient and any subcontractor. Upon request of the RTC, the Subrecipient shall provide the RTC with information regarding the status of any disputes involving any of its subcontractors. (d) Payment to Subcontractors The Subrecipient shall pay its subcontractors on a timely basis, for and on account of work performed by such subcontractors, in accordance with the terms of the respective subcontracts and in accordance with applicable State and Federal law. 7

11 Upon request of the RTC, the Subrecipient shall provide the RTC with information regarding the current status of payments to subcontractors, including the reasons for any non payment. SECTION 6 ACCOUNTING RECORDS In compliance with applicable Federal laws, regulations, and directives, and except to the extent that FTA determines otherwise in writing, the Subrecipient agrees as follows: (a) Project Accounts The Subrecipient agrees to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the Project. The Subrecipient also agrees to maintain all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents related in whole or in part to the Project so that they may be clearly identified, readily accessible, and available to the RTC and FTA upon request and, to the extent feasible, kept separate from documents not related to the Project. (b) Funds Received or Made Available for the Project The Subrecipient agrees to deposit in a financial institution and to record in the Project Account all amounts provided by the Federal Government for the Project and all other funds provided for, accruing to, or otherwise received on account of the Project (Project funds) in compliance with applicable Federal laws, regulations, and directives, except to the extent that FTA determines otherwise in writing. FTA encourages the use of financial institutions owned at least fifty (50) percent by minority group members. (c) Documentation of Project Costs and Program Income Except to the extent that FTA determines otherwise in writing, the Subrecipient agrees to support all costs charged to the Project, including any approved services or property contributed by the Subrecipient or others, with properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges. The Subrecipient also agrees to maintain accurate records of all program income derived from Project implementation, except certain income FTA determines to be exempt from Federal program income requirements. (d) Reports to RTC The Subrecipient shall provide for control and accountability for all Federal and Project funds consistent with Federal requirements. The Subrecipient shall report 8

12 its cash disbursements and balances to the RTC on a monthly basis and in compliance with Federal requirements. (e) Accounting The Subrecipient shall establish and maintain proper accounting procedures and cash management records and documents in accordance with general accepted accounting principles. SECTION 7 REPORTING, RECORD RETENTION, AND ACCESS (a) Reports The Subrecipient agrees to submit to the RTC all reports required by Federal laws, regulations, and directives, this Agreement, and any other reports the RTC or FTA may specify. (b) Report Formats The Subrecipient agrees that all reports and other documents or information intended for public availability developed in the course of the Project and required to be submitted to the RTC or FTA must be prepared and submitted in electronic and or typewritten hard copy formats as the RTC or FTA may specify. (c) Record Retention During the course of the Project and for three years thereafter from the date of transmission of the final expenditure report, the Subrecipient agrees to maintain intact and readily accessible all data, documents, reports, records, contracts, and supporting materials relating to the Project as the Federal Government may require. (d) Access to Records The Subrecipient agrees to permit the U.S. Secretary of Transportation, the Comptroller General of the United States, and, to the extent appropriate, the State of Nevada, or their authorized representatives, upon their request to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Subrecipient pertaining to the Project, as required by 49 U.S.C. 5325(g). (e) Project Closeout The Subrecipient agrees that Project closeout does not alter the reporting and record retention requirements of this Section. SECTION 8 PROJECT COMPLETION, AUDIT, SETTLEMENT, AND CLOSEOUT (a) Project Completion Within ninety (90) calendar days after all funds have been extended and all work activities for the Project are completed or terminated by the Federal Government, the Subrecipient agrees to provide the RTC a final Financial Status Report (either 9

13 electronically or on Standard Form 269A), a certificate of Project expenses, and third party audit reports, as applicable. (b) Audits (1) The Subrecipient agrees to have performed financial and compliance audits required by the Single Audit Act Amendments of 1996, 31 U.S.C These financial and compliance audits must comply with the provisions of OMB Circular A 133, Revised, Audits of States, Local Governments, and Non Profit Organizations, the latest OMB A 133 Compliance Supplement for U.S. DOT, and any further revision or supplement thereto. The Subrecipient also agrees to obtain any other audits required by the Federal Government. The Subrecipient agrees that these audits will be conducted in accordance with U.S. Government Accountability Office (U.S. GAO), Government Auditing Standards. The Subrecipient agrees that Project closeout will not alter these audit responsibilities. (2) The Subrecipient shall provide a copy of the audit to the RTC within thirty (30) days of its completion. (c) Funds Owed to the Federal Government The Subrecipient agrees to remit to the Federal Government any excess payments made to the Subrecipient, any costs disallowed by the Federal Government, and any amounts recovered by the Subrecipient from third parties or from other sources, as well as any penalties and any interest required. (d) Project Closeout Project closeout occurs when FTA notifies the RTC that FTA has closed the Project, and either forwards the final Federal assistance payment or acknowledges that the Subrecipient has remitted the proper refund. The Subrecipient agrees that Project closeout by FTA does not invalidate any continuing requirements imposed by any other agreement, or any unmet requirements set forth in the Federal Government s final notification or acknowledgement. SECTION 9 TERM This Agreement shall commence on the date of execution below and shall terminate upon termination of the Federal grant, unless terminated earlier as provided herein. The last expenditure date under this Agreement is three (3) years after the FTA award date. 10

14 SECTION 10 REPORTS AND REVIEWS Solicitation No (a) Reports The Subrecipient shall submit the following reports to the RTC for the duration of the Project: (1) Monthly status reports on Project progress; (2) Monthly and quarterly financial status reports; (3) Annual FTA compliance self certification; (4) The Subrecipient s annual financial report; and (5) Any other reports or documents that may be requested by the RTC or FTA. (b) Report Deadlines Monthly reports shall be submitted to the RTC within fifteen (15) days of the end of a month as supporting documentation to the request for reimbursement, quarterly reports shall be submitted to the RTC within twenty (20) days of the end of a quarter, and annual reports shall be submitted within thirty (30) days of the end of the calendar year. (c) Submittal Reports required to be submitted to the RTC shall be addressed to: Glenn Leavitt Specialized Services Administrator 600 S. Grand Central Parkway, Suite 350 Las Vegas, NV leavittg@rtcsnv.com (d) Reviews The Subrecipient shall cooperate in and comply with any and all management reviews, triennial reviews, financial audits, and compliance reviews that the RTC or FTA may undertake with regard to the Project. SECTION 11 (a) of the Parties. SUCCESSORS AND ASSIGNMENT The terms of this Agreement shall be binding on the successors and assigns of each (b) The Subrecipient shall not assign this Agreement, or any part thereof, without the prior written consent of the RTC, and any assignment without such consent shall be void and unenforceable. 11

15 SECTION 12 AMENDMENTS TO AGREEMENT Solicitation No This Agreement, together with the Exhibits and any referenced documents, constitute the entire understanding between the Parties with respect to the subject matter addressed herein. Any change or modification to this Agreement shall only be effective if made in writing and signed by both of the Parties. SECTION 13 DISCLAIMER OF LIABILITY The RTC will not hold harmless or indemnify the Subrecipient for any liability whatsoever. SECTION 14 INDEMNITY (a) No Liability Neither the RTC nor any of its officers, employees, agents, or contractors shall be responsible for any damage or liability occurring as a result of work performed by or service provided by the Subrecipient, or its officers, employees, agents or subcontractors under this Agreement or for the Project. (b) Indemnity The Subrecipient shall fully indemnify, defend and hold the RTC, and its officers, agents, employees, and contractors harmless from and for any liability, damages, losses, claims, suits, assessments, judgments, costs, and expenses, including without limitation, any defense costs, any costs or liability on account of bodily injury, death or personal injury of any person, damage to or loss of property, any environmental obligation, any legal fees and any claims for damages of any nature whatsoever, as a result of or arising out of the performance of this Project or this Agreement, which are in any way related to this Agreement or Project, including without limitation, the misuse of funds by the Subrecipient (or by its officers, employees, agents or subcontractors), breach of this Agreement by the Subrecipient, or any act or omission of the Subrecipient (or its officers, employees, agents or subcontractors) in the performance of the work or the provision of the services for the Project or under this Agreement. SECTION 15 TERMINATION (a) In General The RTC reserves the right, with fifteen (15) days advance written notice of default to the Subrecipient, to terminate this Agreement and withhold all payments of funds in the event of any of the following circumstances: 12

16 (1) the Subrecipient has breached or failed to perform any term or condition of this Agreement; (2) the Subrecipient has violated the terms of FTA s Master Agreement or other Federal requirement; or (3) the Subrecipient fails to make progress in the performance of the project so as to endanger its performance. Termination of any financial assistance for the Project will not invalidate obligations properly incurred by the Subrecipient by the termination date, to the extent such obligations cannot be cancelled. If however, the RTC determines that the Subrecipient has willfully misused funds by failing to make adequate progress, failing to make appropriate use of the funds, or failing to comply with the terms of this Agreement, the RTC reserves the right to require the Subrecipient to refund the entire amount of Federal funds provided for the Project. (b) Opportunity to Cure In the discretion of the RTC, the Subrecipient may be given the opportunity to cure a default within a period of fifteen (15) days (or such long period as the RTC may authorize in writing) after receipt of notice from the RTC specifying the occurrence of such default. (c) Claims Except as otherwise provided, settlement of claims under this termination clause shall be in accordance with the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. (d) Conversion to Termination for Convenience If a determination is made, either pursuant to the dispute resolution process under Section 21 or by a court of competent jurisdiction, that the RTC s termination of this Agreement for default was improper or otherwise contrary to this Agreement, then that termination will automatically convert to a Termination by Convenience under Section 16, unless the parties otherwise agree. (e) Other Rights and Remedies The rights and remedies of the RTC under this section are not exclusive and are in addition to any other rights and remedies the RTC may have under this Agreement or applicable law. 13

17 (f) Mutual Agreement This Agreement may be terminated by mutual agreement of the parties. Such termination shall be effective in accordance with a written agreement by the parties. SECTION 16 TERMINATION FOR CONVENIENCE (a) In General This Agreement may be terminated by the RTC in accordance with this Section in whole, or from time to time in part, whenever the RTC determines that such termination is in the best interest of the RTC. Any such termination shall be effected by delivery to the Subrecipient of a written notice of termination, provided not less than thirty (30) days prior to the termination date, specifying the extent to which performance of work under the Agreement is terminated and the date upon which such termination becomes effective. (b) Actions Following Notice Upon receipt of a notice of termination, and except as otherwise directed by the RTC, the Subrecipient shall: (1) stop work under the Agreement on the date and to the extent specified in the notice of termination; (2) place no further orders or subcontracts for materials, services, or facilities, except as may be necessary for completion of such portion of the work under the Agreement as is not terminated; (3) terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the notice of termination; (4) assign to the RTC in the manner, at the times, and to the extent directed by the RTC General Manager, all of the right, title and interest of the Subrecipient under the orders and subcontracts so terminated; (5) settle all outstanding liabilities an all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the RTC, to the extent the RTC may require, which approval or ratification shall be final for all the purposes of this Section; (6) transfer title to the RTC and deliver in the manner, at the times, and to the extent, if any, directed by the RTC, supplies, equipment, and other material produced as a part of or acquired in connection with the performance of the work terminated, and any information and other property which, if the Agreement had been completed, would have been required to be furnished to the RTC; (7) complete any such part of the work as shall not have been terminated by the notice of termination; and (8) take such action as may be necessary, or as the RTC General Manager may direct, for the protection and preservation of the property related to the Agreement which is in the possession of the Subrecipient and in which the RTC has or may acquire an interest. Except as otherwise provided, settlement of claims by the Contractor under this Section 14

18 shall be in accordance with the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. SECTION 17 INSPECTION OF WORK (a) In General All Project work, including services performed, material furnished or utilized in the performance of services, and workmanship in the performance of services, shall be subject to inspection and test by the RTC to the extent practicable at all times and places during the term of the Agreement. All inspections by RTC shall be made in such a manner as to not unduly delay the work. RTC shall have the right to enter the premises used by the Subrecipient for the purpose of inspecting and auditing all data and records, which pertain to the Subrecipient s performance under the Agreement. (b) Failure to Properly Perform If any work performed is not in conformity with the requirements of this Agreement, the RTC shall have the right to require the Subrecipient to perform the work again in conformity with such requirements. In the event the Subrecipient fails to promptly to perform the work again, the RTC shall have the right, either by contract or otherwise, to have the work performed and charge to the Subrecipient any costs to the RTC that are directly related to the performance of such work, or terminate the Agreement in accordance with the provisions of this Agreement. SECTION 18 FORCE MAJEURE The Subrecipient shall not be liable for any failure to perform if in the judgment of the RTC acceptable evidence has been submitted to the RTC demonstrating that the Subrecipient s failure to perform under the terms of this Agreement was due to causes beyond the control and without the fault or negligence of the Subrecipient. Examples of such causes include acts of God, civil disturbances, fire, war, or floods, but does not include labor related incidents, such as strikes or work stoppages. SECTION 19 INSURANCE (a) Obligations of the Subrecipient The Subrecipient shall procure, and maintain in effect during the term of this Agreement, the insurance coverages and amounts prescribed in this Section. The Subrecipient is required to furnish to the RTC certificates of insurance evidencing 15

19 that the required insurance has been obtained within fifteen (15) days of approval of this Agreement by the RTC. (b) Types of Insurance Required The Subrecipient shall, during the entire term of this Agreement, procure and maintain at its own cost and expense the following types of insurance: (1) Workman s Compensation and Employers Liability A policy (or approved self insurance plan) complying with all applicable statutes. Employers liability coverage shall be at least $1 million per occurrence. (2) Comprehensive General Liability Insurance Comprehensive General Liability coverage covering the liability of the Subrecipient for all work and services under or in connection with this Agreement and all obligations assumed by the Subrecipient under this Agreement. The coverage under such policy shall provide at least the following limits: (A) (B) Bodily Injury or Property Damage Liability $5 million combined limit per occurrence. Contractual Liability $5 million combined limit per occurrence. (3) Automobile Liability Insurance An insurance policy covering the use of all owned, non owned, hired, leased, or rented vehicles used in connection with this Agreement. The coverage under such policy shall provide at least $1 million combined limit per occurrence in bodily injury and property damage liability. (4) Owner s/contractor s Protective Liability Insurance A protective liability insurance policy covering the liability of the RTC with respect to all services and work under this Agreement by the Subrecipient or any of its subcontractors. The coverage under such protective liability policy shall have at least $5 million combined limited per occurrence in bodily injury and property damage liability. An alternative to Contractor s Protective Liability Insurance is to name the RTC as an additional insured on the Subrecipient s Comprehensive General Liability Policy. 16

20 (c) Endorsement Where applicable, required insurance coverages shall contain an endorsement naming the RTC as additional insured. The endorsement shall contain a provision that the RTC shall be notified by the insurer(s), in writing thirty (30) days prior to any cancellations, non renewal, or material change adversely affecting the interest of the RTC. SECTION 20 FEDERAL REQUIREMENTS (a) The Subrecipient understands that the funds it will receive from the RTC are Federal funds from FTA s Section 5307/ Section 5310 programs, and that FTA requirements apply to the use of these funds. All FTA requirements are specified in FTA s Master Agreement, attached to this Agreement as Exhibit B, and the Federal Conditions, attached to this Agreement as Exhibit F, and incorporated by reference in this Agreement. To the extent applicable to the Project and scope of work, the following are among the Federal requirements that the Subrecipient must comply with: (1) Section 2(f), No Federal Government Obligations to Third Parties; (2) Section 3, Ethics; (3) Section 12, Civil Rights; (4) Section 13, Planning and Private Enterprise; (5) Section 15, Procurement; (6) Section 19, Use of Real Property, Equipment and Supplies (?); (7) Section 20, Insurance; (8) Section 24(b) and (c), Employee Protections; (9) Section 25, Environmental Protections; (10) Section 26, Energy Conservation; (11) Section 28, Charter Service Operations; (12) Section 29, School Transportation Operations; (13) Section 32, Substance Abuse; (14) Section 33, Motor Carrier Safety; 17

21 (15) Section 36, Seat Belt Use; Solicitation No (16) Section 37, Protection of Sensitive Security Information; (17) Section 41, Special Provisions for the New Freedom Program; and (18) Section 48, Special Provisions for Job Access and Reverse Commute Formula Grant Program. (b) The Subrecipient agrees to comply with the Federal administrative requirements that apply to the category in which it belongs: (1) U.S. DOT regulations, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, 49 C.F.R. Part 18, apply to a Subrecipient that is a State, local, or Indian tribal government. (2) U.S. DOT regulations, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non Profit Organizations, 49 C.F.R. Part 19, apply to a Subrecipient that is an institution of higher education or a non profit organization. (c) Section 13(c) Labor Protection Section 5307 and Section 5310 funds are subject to Section 13(c) labor protection requirements (49 U.S.C. 5333(b)). The Subrecipient agrees that it is bound by and will comply with the terms of the RTC s (c) Arrangement or other 13(c) protections the Department of Labor applies to the certification of these funds, and the terms of the Department of Labor s certification letter. (d) Subcontracts To the extent that the Subrecipient uses subcontractors for the Project, the Subrecipient shall include all applicable Federal requirements in those contract terms, including any necessary provisions requiring such subcontractor to extend applicable requirements to its subcontractors to the lowest tier necessary. SECTION 21 DISPUTES (a) General Requirement Any dispute arising under or related to this Agreement which is not disposed of by agreement between the RTC and the Subrecipient shall be decided in accordance with the provisions of this Section, provided that by mutual agreement the matter 18

22 may be taken immediately to any higher step in the dispute resolution process or to litigation. Pending final resolution of a dispute, the Subrecipient shall proceed diligently with the performance of the Agreement in accordance with the decision or determination of the RTC, provided that the action of the Subrecipient in proceeding with such performance shall not prejudice its position in the dispute resolution process. (b) Notice of Dispute All disputes shall be initiated through a written dispute notice submitted by either party to the other party within ten (10) days after the date the dispute first arises. Within fifteen (15) days after delivery of the dispute notice, the receiving party shall submit a written response to the other party. The dispute notice and written response shall include: (1) a statement of the party s position and a summary of the arguments supporting that position; (2) any evidence supporting the party s position; and (3) the name of the person who will represent that party and any other person who will participate in negotiations and/or dispute resolution. (c) Negotiation Following a dispute notice and response under subsection (b), the parties shall first attempt in good faith to promptly resolve the dispute by discussion and negotiation between persons who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. The parties shall meet at a mutually acceptable time and place within fifteen (15) days after delivery of the dispute response, and thereafter as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information by one party to the other shall be honored. (d) Second Level Review (1) If the dispute is not resolved within forty five (45) days after delivery of the dispute notice, either party may submit the dispute (together with the dispute notice, the response, and any minutes from the subsection (c) process) to a two person panel consisting of the General Manager of the RTC and an individual in a comparable executive position with the Subrecipient. These two individuals shall meet within thirty (30) days after the date of the submittal and shall attempt to reach a fair and equitable resolution of the dispute. (2) If the two person panel resolves the dispute, they shall issue a written decision that shall be administratively final and conclusive. If the panel is unable to resolve the dispute, either party may proceed to arbitration under subsection (e). 19

23 (e) Arbitration (1) Any dispute which is not resolved by the parties through the operation of the preceding provisions of this Section may be submitted by either party to arbitration in accordance with the commercial rules and procedures of the American Arbitration Association (AAA). The neutral arbitrator shall be selected in accordance with AAA procedures, and the arbitration hearing shall be held in Las Vegas, Nevada. The result of the arbitration shall be final and binding upon both parties, subject to judicial enforcement or review in the Eighth Judicial District Court in the State of Nevada, in accordance with the State law of Nevada. (f) Actions During Dispute Resolution Pending final resolution of a dispute under this Section, the Subrecipient shall proceed diligently with the performance of its obligations under the Agreement (including those matters giving rise to the dispute) in accordance with the direction of the RTC; provided that the action of the Subrecipient in proceeding with such performance shall not prejudice its position in the dispute resolution process. (g) Alternative Dispute Resolution If agreed to by both parties, disputes may be resolved by a mutually agreed to alternative dispute resolution process which may include structured negotiations different from that specified in this Section, mediation, arbitration, or fact finding. SECTION 22 (a) GOVERNING LAW State Law This Agreement shall be governed by the laws of the State of Nevada. (b) Severability If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect without being impaired or invalidated in any way. (c) Subrecipient Affirmation The Subrecipient affirms that it has familiarized itself with the requirements of all applicable Federal, State and local laws and regulations prior to entering into this Agreement. The Subrecipient shall be responsible for complying with all such requirements at its sole cost. (d) Jurisdiction The Subrecipient consents and submits to the jurisdiction of the courts of the State of Nevada and of the United States over any action at law, suit in equity or other proceeding arising out of or relating to this Agreement. 20

24 SECTION 23 LACK OF FUNDS Solicitation No The entering into of this Agreement by the RTC is subject to the RTC s receipt of Federal funds adequate to carry out the provisions of this Agreement. The RTC may cancel the Project and associated work if the RTC determines that there will be a lack of adequate funding available for the Project. In such event, the RTC shall notify the Subrecipient in writing within thirty (30) days in advance of the date that such cancellation is effective and the cancellation shall be treated as a termination for convenience under Section 16 of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives on, Regional Transportation Commission of Southern Nevada By: By: Lawrence L. Brown III Chairman Approved: By: Attest: By: Shavonne Jones Executive Secretary Approved as to Form: By: Greg Gilbert Outside General Counsel, RTC 21

25 EXHIBIT A SCOPE OF WORK (APPLICATION) Solicitation No A

26 EXHIBIT B FTA MASTER AGREEMENT Solicitation No B

27 EXHIBIT C DEBARMENT AND SUSPENSION CERTIFICATE C

28 EXHIBIT D LOBBYING CERTIFICATION Solicitation No D

29 EXHIBIT E CERTIFICATIONS AND ASSURANCES FTA ASSISTANCE PROGRAMS Solicitation No E

30 EXHIBIT F FEDERAL CONDITIONS Solicitation No F

31 APPENDIX 1 QUARTERLY REPORTING FORM Solicitation No

32 APPENDIX 2 SERVICE REPORTING MATRIX Solicitation No