JARC/New Freedom Monitoring Manual

Transcription

1 JARC/New Freedom Monitoring Manual October

2 I. Introduction The Regional Transportation District (RTD) was created in 1969 by the Colorado General Assembly to develop, operate, and maintain a mass transportation system for the benefit of 2.6 million people in RTD s District. The 2,329 square mile District includes all or parts of eight counties: the City and County of Denver, most of the City and County of Broomfield, the counties of Boulder and Jefferson, the western portions of Adams and Arapahoe Counties, the northeastern portion of Douglas County, and small portions of Weld County annexed by Longmont and Erie. RTD s governing body is a 15-member directly elected Board of Directors, with each Director elected by district for a four-year term. Each Director District contains approximately 173,000 residents. In 2005, changes were made to the federal transit program with the passage of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Prior to SAFETEA-LU, the Section 5316 program Job Access Reverse Commute (JARC) was a discretionary funding program. Beginning in Fiscal Year 2006, the JARC program became a formula funding program. The JARC program funds transit services that either transport low income people to employment centers or for use in reverse commute situations moving low income people in urban centers to suburban based employment. The Section 5317, or New Freedom program, funds transit services for elderly and disabled that go beyond the requirements of the American with Disabilities Act (ADA). The Denver-Aurora Urbanized Area (UZA) has received approximately $2,374,835 in JARC funding and approximately $1,633,486 in New Freedom funds for FY In October 2007, Pursuant to 49 U.S.C. Sections 5316 and 5317, Governor Bill Ritter designated RTD as the Designated Recipient to receive Section 5316 and 5317 funds for the Denver-Aurora Urbanized Area, (the Colorado Department of Transportation is the Designated Recipient for small urbanized and rural areas in the state). The Federal Transit Administration (FTA), Region VIII has on file the necessary documentation that demonstrates that RTD is an agency that has the legal authority to accept federal funds. As the designated recipient for these funds, RTD is charged with the selection of projects for these funds. Projects must be selected through a competitive process which must be completed annually or at intervals not to exceed three years. The competitive process must include providing notice of available funding, provision of application materials for interested parties, and the review and selection of projects. RTD must then submit a grant application to the Federal Transit Administration (FTA) on behalf of the selected applicant agencies and monitor selected projects. RTD will also be submitting applications for RTD projects. Given the potential conflict of interest in RTD s role as both manager of the competitive grant process and as a potential applicant, RTD has requested that the Denver Regional Council of Governments (DRCOG) manage the competitive process for both the 5316 and 5317 programs. DRCOG will solicit grant applications and select the projects to be funded. FTA The FTA provides overall policy and program guidance. The FTA is responsible for apportioning funds annually to the Denver-Aurora Urbanized Area; developing and implementing financial management procedures; initiating and managing program 2

3 support activities; and conducting national program review and evaluation. The FTA regional offices have day-to-day responsibility for administration of the program. As the designated recipient for 5316 and 5317 funds, RTD is responsible for the following: Forwarding an annual program of projects (POP) and grant application to FTA; Contracting with subrecipients on projects selected through DRCOG s competitive selection process; Ensuring that all subrecipients comply with Federal requirements; Documenting RTD s procedures in this Program Management Plan; Certifying that allocations of grants to subrecipients are distributed on a fair and equitable basis; and Certifying that all projects are derived from a locally developed, coordinated public transit-human services transportation plan developed through a process that includes input from representatives of public, private, and non-profit transportation and human services providers and the opportunity for participation by the public. The DRCOG adopted Transit Element of the 2030 Metro Vision Regional Transportation Plan (Transit Element) serves as the coordinated public transit-human services transportation plan. DRCOG The Denver Regional Council of Governments (DRCOG) is the Metropolitan Planning Organization (MPO) for the area, which includes the Denver-Aurora Urbanized area. All requests for FTA funding from organizations serving the Denver-Aurora Urbanized Area must be submitted to DRCOG for inclusion in the Transportation Improvement Program (TIP). DRCOG staff reviews each application for coordination, conformity and fiscal constraint in relation to the TIP goals and objectives. DRCOG is also responsible for developing and maintaining the Transit Element that identifies the overall public and specialized transit needs in the region and the level of service required to meet these needs. DRCOG also prepares the fiscally-constrained Regional Transportation Plan (RTP), addressing all modes of travel including transit. DRCOG is responsible for the following: Developing project selection criteria; Notifying eligible local entities of funding availability; Conducting the competitive selection process; Determining applicant eligibility; Notifying RTD of projects selected for funding and certifying that the recommended allocations are distributed on a fair and equitable basis; and Including projects recommended for funding in the Transportation Improvement Program. Competitive Selection Process In the initial years of the program, an annual competitive selection process is anticipated because (a) there is a backlog of funds and (b) additional planning work is needed to determine priorities for increasing mobility options for specialized and job access 3

4 transportation. The initial selection process will be for FY 2007, FY 2008, and FY 2009 funds. The competitive selection process must be conducted at least every three years, but federal regulations allow the process to be conducted more frequently if local needs so require. In those years in which the competitive process is to be conducted, DRCOG will notify interested parties of funding availability and make application materials available to interested parties. DRCOG will assure that all applicants are eligible and the projects are appropriate for these particular funding programs and consistent with the Transit Element.. Once applications are received, they will be reviewed and prioritized by a DRCOG review committee. This group will evaluate and score each application based on a common set of selection criteria. Their recommendation will be forwarded to the full DRCOG Board for consideration and approval. TIP, Program of Projects and Grants DRCOG will include pools for Section 5316 and 5317 projects in the Transportation Improvement Program (TIP). DRCOG will prepare administrative amendments to the TIP to include specific projects selected for implementation, as needed. RTD will submit to FTA for approval a Program of Projects (POP) that defines the projects. The FTA will inform RTD of its final approval of the submitted Program of Projects, within 60 days of submittal. Once approval of the POP is received, a grant application will be submitted for the projects by RTD. Contracts with Subrecipients RTD will meet with each applicant to review the requirements applicable to each agency. RTD will then initiate contracts with the subrecipients. A description of the contract procedures are provided in Exhibit C of this Program Management Plan. In general, the contracting process will include the following steps: Meet with applicant to review requirements and contract clauses. At this meeting the status of the recipient and specific clauses that will need to be adhered to will be identified. One example is the Drug and Alcohol requirement applicable to each applicant. The reporting requirements will be reviewed as well, and appropriate language will be identified for the subcontract. This meeting will provide a foundation for project management, clarifying what will be expected of the subrecipient, how the project will be evaluated, and what the subrecipient can expect at the site review for the project. The contract will be prepared and the subrecipient will sign the contract and any remaining certifications or assurances. RTD will then sign the contract and the subrecipient will be provided with notice to proceed. RTD will monitor contract compliance and reporting requirements through the life of the contract. Invoices will be reviewed to assure the project is being carried out as planned and all reporting requirements are met prior to payment. 4

5 C. Agencies Selected for Funding Subrecipients are required to fulfill a series of federal conditions of grantees as further defined later in this document. These requirements include record keeping, financial disclosures, civil rights protections, and monitoring (See Exhibit D). Projects funded through the FTA Section 5316 and 5317 programs must be derived from the Coordination Plan. These requirements will be fully disclosed in the contracts with RTD. II. Coordination DRCOG has completed a Coordination Plan (Transit Element) to address the federal requirement for coordinating service delivery and reducing duplication of services among public transit and specialized human service transportation providers. The Coordination Plan identifies strategies for coordinating services and priorities for both specialized transportation service projects and transportation services oriented to serving low income employment-related trips. The document details a strategic five-year plan for coordinating services that meets the Federal requirements for a Coordination Plan for the region. Eligible Subrecipients Eligible recipients include private nonprofit organizations, state or local governments and operators of public transportation services, including private operators of public transportation services. III. Local Share and Funding A local match is required for both the 5316 and 5317 programs. For both programs, federal funds are available on an 80 percent match basis for capital and planning, and a 50 percent match for operating assistance. All local match funds must be provided from sources other than Federal USDOT funds. Examples include: state or local appropriations, other non-dot Federal funds (e.g. Temporary Assistance to Needy Families (TANF), Older Americans Act, and various employment funds) dedicated tax revenues, private donations, revenue from human service contracts, and net income generated from advertising. Non-cash share such as donations, volunteer services, or in-kind contributions are eligible to be counted as local match as long as the value is documented and represents a cost which would otherwise be eligible under the program and is included in the net project costs in the project budget. Income from contracts to provide human service transportation may be used either to reduce the net project cost (treated as revenue) or to provide local match for operating expenses. However, no FTA program funds can be used as a source of local match for other FTA programs, even when used to contract for service. IV. Method of Distributing Funds All operating and administrative payments made under Section 5316 and 5317 programs are on a cost reimbursement basis, up to the authorized amounts described in the grantee s contract with RTD as described in Exhibit C. Both the JARC and New Freedom programs allow the recipient to utilize up to ten percent of the funds at 100 percent Federal share, for administration, planning and technical assistance. RTD and DRCOG as the agencies sharing the responsibility to administer the U.S. Department of Transportation s Section 5316 and 5317 programs, claim five percent of the annual 5

6 formula allocation of funds to pay for the administration costs of the program as allowed by FTA regulations. This claim will be reviewed on an annual basis. V. Program of Projects (POP) RTD is responsible for the preparation of the annual program of projects (POP), identifying the subrecipients and projects for which funding is requested. The POP lists the subrecipients and indicates whether they are private non-profit agencies, governmental authorities, or private operators of public transportation services. In addition, the program of projects will include a brief description of the projects, total project costs and Federal share for each project, and the amount of funds required for planning and program administration. The total Federal funding level for the program of projects cannot exceed the total amount of the funds available. Upon submission of the annual program of projects and other application requirements, FTA will review, approve, and obligate funds for the total amount of funds requested. The projects within the POP should be implemented within the year of apportionment plus two years. Grants not fully implemented within the year of apportionment plus two years are subject to being terminated and closed out by FTA and the remaining funds de-obligated. RTD will submit a POP to the FTA Regional office. RTD will then submit POP quarterly reports to the FTA for the duration of the funded projects. The report will include an updated program of projects for each approved grant, which contains active projects. The updated POP will reflect project descriptions, changes in projects from one category to another, and adjustments if applicable. If revisions to the POP result in changes to the line item budged for the grant, those changes will be submitted as budget revisions. Significant civil rights compliance issues occurring during the year (Title VI, Equal Employment Opportunity (EEO), or Disadvantaged Business Enterprise (DBE) Program complains against RTD or subrecipients) will be addressed in the annual status report. Also, designated recipients may report notable accomplishments or problems involving subrecipients. VI. Program Measures A. Annual Program of Projects Status Reports Quarterly reports are submitted to the FTA for both the JARC and New Freedom programs. The reports will include an updated Program of Projects (POP) for each approved grant which contains active projects. The updated POP will reflect project descriptions, changes in projects from one category to another, and adjustments if applicable. If revisions to the POP result in changes to the line item budget for the grant, those changes will be submitted as budget revisions. Significant civil rights compliance issues occurring during the year (Title VI, Equal Employment Opportunity (EEO), or Disadvantaged Business Enterprise (DBE) Program complains against RTD or subrecipients) will be addressed in the annual status report. Also, RTD may report notable accomplishment or problems involving subrecipients. RTD will submit both quantitative and qualitative information in the POP. The following program measures will be used for each program: Section 5316: JARC Program 6

7 Actual of estimated number of jobs that can be accessed as a result of geographic or temporal coverage of JARC projects implement in the current reporting year. Actual or estimated number of rides provided as a result of the JARC projects implemented in the current reporting year. Section 5317: New Freedom Program Services provided that impact availability or transportation services for individuals with disabilities as a result of the New Freedom projects implemented in the current reporting year. Additions or changes to environmental structure, technology and vehicles that impact the availability of transportation services as a result of the New Freedom projects implemented in the current reporting year. Actual of estimated number of rides provided for individual with disabilities as a result of the New Freedom projects implemented in the current reporting year. B. Financial Status Report All subrecipients will be required to maintain records which adequately identify the source and application of funds provided for financially assisted activities. An accurate, current, and complete disclosure of the financial results of financially-assisted activities must be submitted to RTD quarterly. Reports will be prepared using the accrual method of accounting. C. Milestone Activity Reports For activity line items for which milestones were required at the time of application, the recipient will enter revised milestone dates as part of the report. If the estimated completing date for the grant has changed, the revised data will be entered, with an explanation as to why the date has changed. D. DBE Report RTD files annual contracting activity reports to FTA. RTD strives to make a good faith effort to award contracts to DBE subcontractors. As such, all subrecipients, even those not meeting the $250,000 threshold, are required to calculate the DBE participation rate and submit these to RTD. RTD also requires subrecipients to obtain certifications from contractors that they are a DBE, if applicable. E. Project Closeout Reports When grant funds are expended by 90 percent, RTD prepares for project closeout by reconciling all expenditures, revising the program of projects, and if necessary, submitting a budget revision. When 100 percent of the grant funds are expended, RTD will initiate project closeout by verifying a zero balance, submitting final milestones, submitting the final Financial Status Report (SF 269A) and requesting close out via TEAM to FTA. VII. Management RTD maintains a current Program Management Plan covering both the FTA 5316 and 5317 programs. This plan is filed with the FTA and all updates are submitted to the FTA. 7

8 The Program Management Plan is updated annually, as needed, around January of each year. The update process includes: Updating the FTA assurances and certifications to reflect any changes which have occurred Updating the application package to reflect changes in requirements Conferring with DRCOG regarding any programmatic changes that may be appropriate based on planning and service delivery activities of the previous year. 8

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10 EXHIBIT A PROJECT SUMMARY 10

11 EXHIBIT B INVOICE FORMAT To: RTD Accounts Payable st Street Denver, CO Attn: Terry Friedrich Invoice Date: 7/2/2008 Contract or IGA number 17-DH-028 Period of Service Jan, Feb & Mar 2008 prepared by Invoice # 5904 REFERENCE Program i.e Jarc 2008 Reimbursement Requested Backup data must be included for reimbursement. service telephone utilities Total Expenses Incurred Less local match 50% Amount Due $ 2, $ $ $ 2, $ (1,200) $ 1, Please remit payment to: Your Company name Your Company address 11

12 EXHIBIT C GENERAL PROVISIONS 1. RTD S OBLIGATIONS TO PAY. Funds made available by RTD to Subrecipient will only be amounts equal to those made available to RTD under an approved grant from FTA, provided that RTD shall take all steps necessary to apply for such funds. In the event that RTD receives less than the amount specified in this Agreement, RTD shall pay to Subrecipient only the amount it is authorized to receive. 2. GENERAL COMPLIANCE WITH LAWS AND REGULATIONS. Subrecipient shall comply with any and all laws, statutes, ordinances, rules, regulations or requirements of the federal, state or local government, and any agency thereof, which relate to or in any manner affect the performance of this Agreement. 49 CFR Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, Circular E of the FTA, New Freedom Program Guidance and Application Instructions, Circular of the FTA, the FTA Master Agreement, and RTD s JARC/New Freedom Monitoring Manual are each incorporated herein by reference as though set forth in full, and shall govern this Agreement except as otherwise provided herein. Those requirements imposed upon RTD as a grantee or recipient are hereby imposed upon Subrecipient, and those rights reserved by DOT, FTA or any other applicable agency are hereby reserved by RTD. 3. PROGRAM MANAGEMENT. A. Annual Program of Projects Status Reports. RTD submits quarterly reports to the FTA for both the JARC and New Freedom programs. The reports will include an updated Program of Projects ( POP ) for each approved grant which contains active projects. The updated POP will reflect project descriptions, changes in projects from one category to another, and adjustments if applicable. If revisions to the POP result in changes to the line item budget for the grant, those changes will be submitted as budget revisions. Significant civil rights compliance issues occurring during the year (Title VI, Equal Employment Opportunity, or Disadvantaged Business Enterprise Program complaints against RTD or subrecipients) will be addressed in the annual status report. Also, the RTD may report notable accomplishments or problems involving Subrecipient. RTD will submit both quantitative and qualitative information in the POP. The following program measures will be used: o Services provided that impact availability or transportation services for individuals with disabilities as a result of the New Freedom projects implemented in the current reporting year. o Additions or changes to environmental structure, technology and vehicles that impact the availability of transportation services as a result of the New Freedom projects implemented in the current reporting year. o Actual or estimated number of rides provided for individual with disabilities as a result of the New Freedom projects implemented in the current reporting year. 4. Actual or estimated number of jobs that can be accessed as a result of geographic or temporal coverage of JARC projects implemented in the current reporting year. 12

13 5. Actual or estimated number of rides provided as a result of the JARC projects implemented in the current reporting year. B. Financial Status Report. Subrecipient shall maintain records which adequately identify the source and application of funds provided for financially assisted activities. An accurate, current, and complete disclosure of the financial results of financially-assisted activities must be submitted to the RTD quarterly. Reports will be prepared using the accrual method of accounting. C. Milestone Activity Reports. For activity line items for which milestones were required at the time of application, Subrecipient shall enter revised milestone dates as part of the report. If the estimated completing date for the grant has changed, the revised data will be entered, with an explanation as to why the date has changed. D. DBE Report. The RTD files annual contracting activity reports to FTA. RTD strives to make a good faith effort to award contracts to DBE subcontractors. As such, Subrecipient must calculate the DBE participation rate and submit these to the RTD. Subrecipient must obtain certifications from contractors that they are a DBE, if applicable. E. Project Closeout Report. When grant funds are expended by 90 percent, RTD prepares for project closeout by reconciling all expenditures, revising the program of projects, and if necessary, submitting a budget revision. When 100 percent of the grant funds are expended, the RTD will initiate project closeout by verifying a zero balance, submitting final milestones, submitting the final Financial Status Report (SF 269A) and requesting close out via TEAM to FTA (See Appendix G: Project Closeout Report). 4. STATUS OF PARTIES. A. Subrecipient shall be solely responsible for hiring, supervising and discharging of its employees or contractors. RTD shall have no responsibility for, nor authority or control with respect to, the supervision and management of the drivers and other employees or contractors who work in connection with the service. B. The Parties agree that the status of each Party shall be that of an independent contractor to the other, and it is not intended, nor shall it be construed that one Party or any officer, employee, agent or contractor of such Party is an employee, officer, agent, or representative of the other Party. Nothing contained in the Agreement or documents incorporated by reference herein or otherwise creates any partnership, joint venture, or other association or relationship between RTD and Subrecipient. Any approval, review, inspection, direction or instruction by RTD or any party on behalf of RTD shall in no way affect either Party s independent contractor status or obligation to perform in accordance with this Agreement. Neither Party has authorization, express or implied, to bind the other to any agreements, liability, or understanding except as expressly set forth in this Agreement. 13

14 C. Subrecipient shall be responsible for all federal and state taxes and contributions for Social Security, unemployment insurance, income withholding tax, and other taxes measured by wages paid to employees, as well as any subcontractor or vendor. Subrecipient acknowledges that it and its employees are not entitled to workers compensation benefits or unemployment insurance benefits from RTD, unless Subrecipient or a third party provides such coverage, and that RTD does not pay for or otherwise provide such coverage. Subrecipient shall provide and keep in force workers compensation (and provide proof of such insurance when requested by RTD) and unemployment compensation insurance in the amounts required by law, and shall be solely responsible for its own actions, its employees and agents. 5. LIABILITY. A. The Parties agree that RTD shall have no liability to third parties arising out of the project funded in part by this Agreement, or any other service provided by Subrecipient, and Subrecipient shall have no liability to third parties arising out of the operations or management of any RTD services. B. Without waiving the privileges and immunities conferred by the Colorado Governmental Immunity Act, C.R.S et seq., each party shall be responsible for its own negligence arising out of this Agreement. It is specifically understood and agreed that nothing contained in this paragraph or elsewhere in this Agreement shall be construed as an express or implied waiver by RTD of its governmental immunity including limitations of amounts or types of liability or the governmental acceptance by RTD of liabilities arising as a result of actions which lie in tort or could lie in tort in excess of the liabilities allowable under the Colorado Governmental Immunity Act, C.R.S et seq. C. Subrecipient shall indemnify, defend, and hold harmless RTD, its employees, and agents against any and all claims, damages, liability and court awards including costs, expenses and reasonable attorneys fees, to the extent such claims are caused by any act or omission of, or breach of this Agreement by Subrecipient, its employees, agents, subcontractors or assignees, but not to the extent such claims are caused by any act or omission of, or breach of contract by RTD, its employees, agents, other contractors or assignees, or other parties not under the control of or responsible to Subrecipient. D. If either Party is given notice of claim or suit against or involving the other arising from this Agreement or the programs funded in part by this Agreement, it agrees to give the other Party prompt written notice of such claim or suit. 6. NO EFFECT ON RTD SERVICE. Nothing in this Agreement shall be construed to limit RTD's right to establish routes or services or to perform any functions authorized by C.R.S , et. seq. 7. ASSIGNMENT. The Parties agree that they will not assign or transfer any of their rights or obligations under this Agreement without first obtaining the written consent of the other Party. 8. NO THIRD-PARTY BENEFICIARY. The Parties expressly agree that enforcement of the terms and conditions of this Agreement, and all rights of action 14

15 relating to such enforcement, shall be strictly reserved to the Parties, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on such Agreements, including but not limited to subcontractors, subconsultants, and suppliers. The Parties expressly intend that any person other than the Parties who receives funding, services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 9. AVAILABLE FUNDING. This Agreement does not contain any multiplefiscal year financial obligations by either Party that extend beyond its current fiscal year. The financial obligations of each Party under this Agreement shall be subject to and limited by the appropriation of sufficient funds therefore by its governing body. Funds for this agreement have been budgeted, authorized and appropriated by the RTD Board of Directors for the 2008 fiscal year. Nothing herein obligates RTD to budget, authorize or appropriate funds for any future fiscal year. 10. LEGAL AUTHORITY. RTD and Subrecipient represent or warrant to each other that they have all necessary legal authority to enter into this Agreement and to perform their obligations hereunder and that this Agreement does not conflict with any other agreement that each party is subject or to which it may be bound. The person signing and executing this Agreement on behalf of either Party represents that he/she has been fully authorized to execute this Agreement and to validly and legally bind a Party to all the terms, performances and provisions herein set forth. The Parties shall have the right, at their option, to either temporarily suspend or permanently terminate this Agreement, if there is a dispute as to the legal authority of either the other Party or the person signing the Agreement to enter into this Agreement. Neither Party shall be obligated to perform any of the provisions of this Agreement after it has suspended or terminated this Agreement as provided in this paragraph. 11. AMENDMENTS. This Agreement may be modified or amended only by a written document duly executed by both Parties. 12. PRIOR AGREEMENTS. The terms and provisions of this Agreement, including but not limited to the Recitals above and the Exhibit(s) incorporated by reference herein, represent the entire understanding of the Parties with respect to the subject matter of this Agreement, and merge, incorporate and supersede all prior communications between Subrecipient and RTD concerning that subject. No representations or warranties are made by Subrecipient or RTD except as herein set forth. 13. CONFLICT OF INTEREST. No officer, member, or employee of either Party and no members of a governing body, and no other public official or employee of the governing body of the locality or localities included within RTD, during his or her tenure or for one year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. 14. WAIVER AND BREACH. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon a subsequent breach. 15. GOVERNING LAW. Each and every term, provision, condition, of this Agreement is subject to the provisions of Colorado law. This Agreement is subject to 15

16 such modifications as may be required by changes in Colorado or federal law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this Agreement on the effective date of such change as if fully set forth herein. 16. SEVERABILITY. The Parties expressly agree that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any state or federal law, rule, or regulation, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid. 17. COUNTERPARTS. This Agreement shall be executed in counterparts each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. 18. LOCAL MATCH. Subrecipient shall make a local match for the project. The amount of the local match is 20 percent for capital and planning, and 50 percent for operating assistance. All local match funds must be provided from sources other than federal DOT funds. Non-cash share such as donations, volunteer services, or in-kind contributions are eligible to be counted as local match as long as the value is documented and represents a cost that would otherwise be eligible under the program and is included in the net project costs for the project budget. No FTA funds can be used as a source of local match for other FTA programs. 19. REVIEW OF INVOICES AND PAYMENT. RTD shall pay all approved invoices within thirty (30) business days after RTD receives the invoice. If RTD does not approve an invoice, RTD shall send a written explanation of disputed items within 10 business days of RTD s receipt of the invoice. 16

17 EXHIBIT D FEDERAL TRANSIT ADMINISTRATION TERMS FTA 1. ENERGY CONSERVATION REQUIREMENTS Subrecipient agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan, if any, issued in compliance with the Energy Policy and Conservation Act. FTA 2. ACCESS TO RECORDS AND REPORTS A. For a period of three years following Contract closing, Subrecipient shall maintain, preserve and make available to RTD, the FTA Administrator, the Comptroller General of the United States, and any of their authorized representatives, access at all reasonable times to any books, documents, papers and records of Subrecipient which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts and transcriptions. Subrecipient also agrees, pursuant to 49 CFR , to provide the FTA Administrator or his or her authorized representatives, including any project management oversight Subrecipient, access to Subrecipient's records and 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 B. The Subrecipient shall maintain and RTD shall have the right to examine and audit all records and other evidence sufficient to reflect properly all prices, costs or rates negotiated and invoiced in performance of this Contract. This right of examination shall include inspection at all reasonable times of the Subrecipient s offices engaged in performing the Contract. C. If this Contract is completely or partially terminated, Subrecipient shall make available the records relating to the work terminated until 3 years after any resulting final termination settlement. Subrecipient shall make available records relating to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to this Contract until such appeals, litigation, or claims are finally resolved. D. Access to Records and Reports applies with equal force and effect to any subcontractors hired by Subrecipient to perform Work under this Contract. Subrecipient shall insert this provision in all subcontracts under this Contract and require subcontractor compliance therewith. FTA 3. FEDERAL CHANGES Subrecipient 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 current Master Agreement between RTD and FTA, as they may be amended or promulgated from time to time during the term of this Contract. Subrecipient's failure to so comply shall constitute a material breach of this Contract. Subrecipient may contact either RTD or FTA for a copy of the current FTA Master Agreement. 17

18 FTA 4. NO GOVERNMENT OBLIGATION TO THIRD PARTIES A. RTD and Subrecipient 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 RTD, Subrecipient, or any other party (whether or not a party to that Contract) pertaining to any matter resulting from the underlying Contract. B. Subrecipient 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 subcontractor who will be subject to its provisions. FTA 5. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS A. Subrecipient acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution or performance of the underlying Contract, Subrecipient 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, Subrecipient 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 Subrecipient to the extent the Federal Government deems appropriate. B. Subrecipient 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 and 49 U.S.C. 5307(n)(1) on Subrecipient, to the extent the Federal Government deems appropriate. C. Subrecipient 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 subcontractor who will be subject to the provisions. FTA 6. CIVIL RIGHTS REQUIREMENTS The following requirements apply to the underlying Contract: A. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C , and Federal transit law at 49 U.S.C. 5332, Subrecipient agrees that it will not discriminate against any employee or applicant for employment 18

19 because of race, color, creed, national origin, sex, age, or disability. In addition, Subrecipient agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. B. Equal Employment Opportunity The following equal employment opportunity requirements apply to the underlying Contract: 1. 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, Subrecipient 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 CFR Parts 60 et seq., (which implement Executive Order No , "Equal Employment Opportunity," as amended by Executive Order No , "Amending Executive Order 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 activities undertaken in the course of this Contract. Subrecipient 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, Subrecipient agrees to comply with any implementing requirements FTA may issue. 2. Age - In accordance with section 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, Subrecipient agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Subrecipient agrees to comply with any implementing requirements FTA may issue. 3. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C , Subrecipient 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 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, Subrecipient agrees to comply with any implementing requirements FTA may issue. C. Subrecipient also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. FTA 7. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION TERMS The provisions of this Contract include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the Contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular E, dated June 19, 2003, as may be amended, are hereby incorporated by 19

20 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 Agreement. Subrecipient shall not perform any act, fail to perform any act, or refuse to comply with any RTD requests which would cause RTD to be in violation of the FTA terms and conditions. The incorporation of FTA terms has unlimited flow down. FTA 8. CLEAN WATER REQUIREMENTS A. Subrecipient 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 et seq. Subrecipient agrees to report each violation to RTD and understands and agrees that RTD will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. B. Subrecipient also agrees to include these requirements in each subcontract exceeding $ 100,000 financed in whole or in part with Federal assistance provided by FTA. FTA 9. CLEAN AIR A. Subrecipient agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C et seq. Subrecipient agrees to report each violation to RTD and understands and agrees that RTD will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. B. Subrecipient also agrees to include these requirements in each subcontract exceeding $ 100,000 financed in whole or in part with Federal assistance provided by FTA. FTA 10. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION A. If this Contract is valued at $ 25,000 or greater, it is a covered transaction for purposes of 49 CFR Part 29. As such, Subrecipient is required to verify that none of Subrecipient, its principals, as defined at 49 CFR , or affiliates, as defined at 49 CFR , are excluded or disqualified as defined at 49 CFR and B. Subrecipient 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 it enters into. C. By accepting this Contract, Subrecipient is certifying as follows: 1. The certification in this clause is a material representation of fact relied upon by RTD. If it is later determined that Subrecipient knowingly rendered an erroneous certification, in addition to remedies available to RTD, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Subrecipient agrees to comply with the requirements of 49 CFR 29, Subpart C throughout the period of this Contract. 20

21 2. Subrecipient further agrees to include a provision requiring such compliance in its lower tier covered transactions. FTA 11. LOBBYING Subrecipients and all subcontractors who apply or bid for an award of $ 100,000 or more 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 use 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 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 Such disclosures are forwarded from tier to tier up to RTD. Subrecipient should contact RTD for the appropriate certification or retrieve a copy from the FTA Best Practices Manual at FTA 12. ACCESS REQUIREMENTS FOR PERSONS WITH DISABILITIES A. RTD must comply with: 49 U.S.C. 5301(d), which states the Federal policy that elderly individuals and individuals with disabilities have the same right as other individuals to use public transportation services and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement transportation accessibility rights for elderly individuals and individuals with disabilities; all applicable provisions of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of disability; the Americans with Disabilities Act of 1990 (ADA), as amended; 42 U.S.C et seq., which requires that accessible facilities and services be made available to individuals with disabilities; and the Architectural Barriers Act of 1968, as amended, 42 U.S.C et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities. B. All deliverable items provided by Subrecipient for RTD under this Contract shall comply with the above-referenced laws as well as all other applicable federal, state and local regulations and directives and any subsequent amendments thereto. FTA 13. DRUG & ALCOHOL TESTING Subrecipient agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Part 40 Part 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Colorado, or RTD, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Part 40 and 655 and review the testing process. Subrecipient agrees further to certify annually its compliance with Part 40 and 655 before December 31 st of every year and to submit the Management information System (MIS) reports no later than February 15 th of every year to the Substance Abuse Testing Department, Regional Transportation District, 1600 Blake Street, Denver, CO To certify compliance, Subrecipient shall use the Substance Abuse Certifications in the Annual List of 21

22 Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements, which is published annually in the Federal Register. A. Rights in Data. FTA 14. RIGHTS IN DATA 1. The term "Subject Data" used in this Article means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under the Contract. Subject Data 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. 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 this Contract: a. Except for its own internal use, RTD or the Subrecipient may not publish or reproduce Subject Data in whole or in part, or in any manner or form, nor may RTD or the Subrecipient 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 CFR and 49 CFR 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 subparagraphs (2)(b)(i) and (2)(b)(ii) of this Article 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. i ii Any Subject Data developed under the Contract, whether or not a copyright has been obtained; and Any rights of copyright purchased by RTD or the Subrecipient 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, RTD and the Subrecipient performing experimental, 22