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HomeMy WebLinkAboutFY17 ENGINEERING MASON CREEK AIWW DREDGING GRANT 7009GRANT CONTRACT NO. 7009 STATE OF NORTH CAROLINA GRANTEE'S FEDERAL COUNTY OF WAKE IDENTIFICATION NUMBER:'* - *'*0324 This Contract is hereby made and entered into this 1 *t day of October, 2016, by and between the NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY (the "Agency ") and NEW HANOVER COUNTY, (the "Grantee ") (referred to collectively as the "Parties "). 1. Contract Documents: This Contract consists of the Grant Contract and its attachments, all of which are identified by name as follows: (1) Grant Contract No. 7009 (2) General Terms and Conditions (Attachment A) (3) Grantee's Response to Agency's RFP, including line item budget and budget narrative and if applicable, indirect cost documentation (Attachment B) (4) Iran Certification (Attachment C) These documents constitute the entire agreement between the Parties and supersede all prior oral or written statements or agreements. The Parties may enter into Contract Amendments in accordance with the General Terms and Conditions as described in Attachment A. 2. Precedence Among Contract Documents: In the event of a conflict between terms of the Contract Documents, the term in the Contract Document with the highest relative precedence prevails. The order of precedence is established by the order of documents in Paragraph 1, above, with the first- listed document having the highest precedence and the last- listed document having the lowest precedence. If there are multiple Contract Amendments, the most recent amendment has the highest precedence and the oldest amendment has the lowest precedence. 3. Contract Period: This Contract shall be effective on the 1 It day of October, 2016 and shall terminate on the 30th day of June, 2017. 4. Project Period: The Grantee shall begin the project on the 1 Sl day of October, 2016. The Grantee shall undertake and complete the project in a sequence that assures expeditious completion in light of the purposes of this agreement. Grantee shall complete the project on the 30th day of June, 2017. 5. . 6. Grantee's Duties: The Grantee shall complete the project as described in Attachment B, Mason Inlet / AIWW Crossing Dredging Project and in accordance with the approved budget in Attachment B. 7. Agency's Duties: The Agency shall pay the Grantee in the manner and in the amounts specified in the Contract Documents. The total amount paid by the Agency to the Grantee under this Contract shall not exceed EIGHT HUNDRED SIXTY THOUSAND DOLLARS ($860,000.00). Page 1 of 8 GRANT CONTRACT NO. 7009 This amount consists of: Type of Funds Funding Source CFDA No. Other Receipts SDNCDBAW Fund NA Accounting Code Information: Dollars GL Company GL Account GL Center $860,000.00 1602 536990 2182 [ ] a. There are no matching requirements from the Grantee. [ ] b. There are no matching requirements from the Grantee; however, the Grantee has committed the following match to this project: [ X ] c. The Grantee's matching requirement is $, which shall consist of: In -Kind $ X Cash $ Cash and In -Kind $ Other / Specify: $ [ X ] c. The Grantee's matching requirement is $, which shall consist of: [ ] d. The Grantee has committed to an additional $ to complete the project as described in Attachment C. The Grantee warrants contributions from the Grantee shall be sourced from non - federal funds. The total contract amount is $1,290,000.00. 8. Reversion of Unexpended Funds Any unexpended grant funds shall revert to the Agency upon termination of this Contract. Page 2 of 8 In -Kind $ X Cash $430,000.00 Cash and In -Kind $ Other / Specify: $ [ ] d. The Grantee has committed to an additional $ to complete the project as described in Attachment C. The Grantee warrants contributions from the Grantee shall be sourced from non - federal funds. The total contract amount is $1,290,000.00. 8. Reversion of Unexpended Funds Any unexpended grant funds shall revert to the Agency upon termination of this Contract. Page 2 of 8 GRANT CONTRACT NO. 7009 9. Reporting Requirements Pursuant to 09 NCAC Subchapter 03M, a Grantee that receives State funds shall maintain, for inspection by the Office of the State Auditor, reports and accountings that support the allowable expenditure of State funds. The Grantee shall also abide by the following reporting thresholds: (1) a Grantee receiving less than $25,000 shall also include a certification and accounting, completed by the Grantee Board, stating that the funds were received and used for the purpose in which they were granted; (2) a Grantee receiving between $25,000 to $500,000 shall also include a certification of accounting and description, completed by the Grantee Board, stating the funds were received and used for the purpose in which they were granted; (3) a Grantee receiving greater than $500,000 shall include a certification and description, completed by the Grantee Board, stating that the funds were received and used for the purpose in which they were granted, and an audit prepared by a licensed Certified Public Accountant." If the Grantee receives $500,000 or more in FEDERAL awards during its fiscal year from any source, including federal funds passed through the State or other grantors, it must obtain a single audit or program - specific audit conducted in accordance with the Federal Office of Management and Budget's Circular A -133 "Audits of States, Local Government and Non - Profit Organizations." If the above amounts are not met by one single funding agency, but rather any combination of funding agencies, then the appropriate reports shall be sent to the Office of the State Auditor and to the Agency. Also, a corrective action plan for any audit findings and recommendations must be submitted along with the audit report or within the period specified by the applicable OMB Circular or Memorandum. 10. Payment Provisions: The Agency shall reimburse the Grantee for actual allowable expenditures with the Agency retaining a minimum of ten percent (10 %) of the Agency's funds until all required activities are completed and reports/deliverables are received and accepted by the Agency. Allowable expenditures are defined as expenditures associated with work performed to meet the milestones for a specific reporting period. The Agency may withhold payment on invoices when the Grantee fails to accomplish the milestones stated in Attachment B. 11. Invoices: The Grantee shall submit invoices to the Agency Contract Administrator at least quarterly. The final invoice must be received by the Agency within forty -five (45) days following the end of the contract period. Amended or corrected invoices must be received by the Agency's Office of the Controller within six (6) months following the end of the contract period. The Agency will not pay any invoice received more than six (6) months after the end of the effective period. 12. Contract Administrators: All notices permitted or required to be given by one party to the other, and all other questions about the Contract shall be addressed and delivered to the Parties' Contract Administrator. The name, post office address, street address, telephone number, fax number, and email address of the Parties' initial Contract Administrators are set out below. Either Party may change the name, post office address, street address, telephone number, fax number, or email address of its Contract Administrator or Principal Investigator or Key Personnel by giving timely written notice to the other Party. Any changes in the scope of the contract which increase or decrease the Grantee's compensation are not effective until approved in writing by the Agency's Head or Authorized Agent. Agency Contract Administrator: Darren England NC DEQ Water Resources 1611 MSC Raleigh, NC 27699.1611 Telephone: 919 - 707 -9013 Email: darren.eno land @jLdenrgoy Page 3 of 8 GRANT CONTRACT NO. 7009 Grantee Contract Administrator: Grantee Principal Investigator or Key Personnel H. Layton Bedsole SAME New Hanover County 230 Govemment Center Drive, Suite 160 Wilmington, NC 28403 Telephone: 910-798-7104 Email: lbedsole(a)nhcciov.com 13. Grantee Principal Investigator or Key Personnel: The Grantee shall not substitute the Principal Investigator or Key Personnel assigned to the performance of this Contract without prior written approval by the Agency Contract Administrator. 14. Supplantation of Expenditure of Public Funds: 15. The Grantee assures that funds received pursuant to this Contract shall be used only to supplement, not to supplant, the total amount of Federal, State and local public funds that the Grantee otherwise expends for the Mason Inlet / AIWW Crossing Dredging Project services and related programs. Funds received under this Contract shall be used to provide additional public funding for such services; the funds shall not be used to reduce the Grantee's total expenditure of other public funds for such services. Page 4 of 8 GRANT CONTRACT NO. 7009 16. Grantee's Disbursements: As a condition of this Contract, Grantee acknowledges and agrees to make disbursements in accordance with the following requirements: a. Implement adequate internal controls over disbursements; b. Pre -audit all vouchers presented for payment to determine: • Validity and accuracy of payment • Payment due date • Adequacy of documentation supporting payment • Legality of disbursement c. Assure adequate control of signature stamps /plates; d. Assure adequate control of negotiable instruments; and e. Implement procedures to ensure that account balance is solvent and reconcile the account monthly. 17. Outsourcing: The Grantee certifies that it has identified to the Agency all jobs related to the Contract that have been outsourced to other countries, If any. Grantee further agrees that it will not outsource any such jobs during the term of this Contract without providing notice to the Agency and obtaining written approval from the Agency Contract Administrator prior to outsourcing. 18. E- Verify: As required by G.S. §143 -48.5 (Session Law 2013 -418), the Grantee certifies that it, and each of its subcontractors for any contract awarded as a result of this solicitation, complies with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes, including the requirement for each employer, with more than 25 employees in North Carolina, to verify the work authorization of its employees through the federal E -Verify system. 19. Confidentiality: Each party shall be solely responsible for properly identifying any document(s) containing "CONFIDENTIAL" information. Anything that qualifies as a "TRADE SECRET" under State law must be designated as "CONFIDENTIAL. All "CONFIDENTIAL" documents shall be property identified by conspicuously marking it "CONFIDENTIAL" at the top and bottom of each page. Any document(s) not properly identified as CONFIDENTIAL, prior to its release to the Agency, may be deemed a public record. 20. Records Retention: Records created or kept in connection with this Contract shall be maintained in accordance with the applicable retention policies of the Agency, and shall not be destroyed, purged or disposed of without the express written consent of the Agency. If any litigation, claim, negotiation, audit, disallowance action, or other action involving this Contract is initiated prior to expiration of the applicable retention period, the records must be retained until completion of the action and resolution of all issues arising therefrom, or until the end of the applicable retention period, whichever is later 21. Assurances For Non - Federally Funded Contracts: The GRANTEE certifies that with regard to: 1. Debarment And Suspension -To the best of its knowledge and belief that it and its principals: (a) are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal, State, or local government agency; (b) have not within a 3 -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) have not within a 3 -year period preceding this application /proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. Page 5 of 8 GRANT CONTRACT NO. 7009 2. Lobbying - To the best of his or her knowledge and belief, that: No Federal, State or local government appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal, State or local government agency; a member of Congress, North Carolina's General Assembly or local government body; an officer or employee of Congress, North Carolina's General Assembly or local government body, or an employee of a member of Congress, North Carolina's General Assembly or local government body, in connection with the awarding of any Federal, State or local government contract, the making of any Federal, State or local government grant, the making of any Federal, State or local government loan, the entering into of any Federal, State or local government cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal, State or local government contract, grant, loan, or cooperative agreement. If any funds other than Federal, State or local government appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency; a member of Congress, North Carolina's General Assembly or local government body; an officer or employee of Congress, North Carolina's General Assembly or local government body; or an employee of a member of Congress, North Carolina's General Assembly or local government body in connection with the Federal, State or local government contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying" in accordance with its instructions. 3. Druq -Free Work Place Requirements -It will comply by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the Grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing a drug -free awareness program to inform employees about - (1) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug -free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a) above; (d) Notifying the employee in the statement required by paragraph (a), above, that, as a condition of employment under the grant, the employee will - (1) Abide by the terms of the statement; and (2) Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction; (e) Notifying the agency within ten days after receiving notice under subparagraph (d)(2), above, from an employee or otherwise receiving actual notice of such conviction; (f) Taking one of the following actions, within 30 days of receiving notice under subparagraph (d)(2), above with respect to any employee who is so convicted - Page 6 of 8 GRANT CONTRACT NO. 7009 (1) Taking appropriate personnel action against such an employee, up to and including termination; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug -free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f), above. 4. Will comply with the provisions of the Equal Employment Practices Act set out in Article 49A of Chapter 143 of the North Carolina General Statutes. 5. Will comply, as applicable, with the provisions of the Wage and Hour Act, Occupational Safety and Health Act of North Carolina, Controlled Substance Examination Regulation, Retaliatory Employment Discrimination, Safety and Health Programs and Committees, Workplace Violence Prevention, and other applicable provisions of Chapter 95 of the North Carolina General Statutes regarding labor standards. 6. Will comply with all applicable requirements of all other Federal, State and local government laws, executive orders, regulations and policies governing this program. Page 7 of 8 GRANT CONTRACT NO. 7009 22. Signature Warranty: The undersigned represent and warrant that they are authorized to bind their principals to the terms of this agreement. N.C.G.S. §133 -32 and Executive Order 24 prohibit the offer to, or acceptance by, any State Employee of any gift from anyone with a contract with the State, or from any person seeking to do business with the State. By execution of any response in this procurement, you (Grantee) attest, for your entire organization and its employees or agents, that you are not aware that any such gift has been offered, accepted, or promised by any employees of your organization. IN WITNESS WHEREOF, the Grantee and the Agency execute this agreement in two (2) originals, one (1) of which is retained by the Grantee and one (1) of which is retained by the Agency, the day and year first above written. NEW HANOVER COUNTY By Gran s Signature n Typed / Phnted Name �n tt`j�Jk`�Allk Title NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY Donald R. van der Vaart, Secretary By Department Head's Signature or Authorized Agent Tommy Kirby, Purchasing Director Type / Printed Name and Title Financial Services Division /Purchasing and Contracts Section Division /Section ORIGINAL Page 8 of 8 General Terms and Conditions Governmental Entities DEFINITIONS Unless indicated otherwise from the context, the following terms shall have the following meanings in this Contract. All definitions are from 9 NCAC 3M.0102 unless otherwise noted. If the rule or statute that is the source of the definition is changed by the adopting authority, the change shall be incorporated herein. (1) "Agency" (as used in the context of the definitions Wow) means and includes every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subagency of government. For other purposes in this Contract, "Agency" means the entity identified as one of the parties hereto. (2) "Audit" means an examination of records or financial accounts to verify their accuracy. (3) "Certification of Compliance" means a report provided by the Agency to the Office of the State Auditor that states that the Grantee has met the reporting requirements established by this Subchapter and included a statement of certification by the Agency and copies of the submitted grantee reporting package. (4) "Compliance Supplement" refers to the North Carolina State Compliance Supplement, maintained by the State and Local Government Finance Agency within the North Carolina Department of State Treasurer that has been developed in cooperation with agencies to assist the local auditor in identifying program compliance requirements and audit procedures for testing those requirements. (5) "Contract" means a legal instrument that is used to reflect a relationship between the agency, grantee, and sub - grantee. (6) "Fiscal Year" means the annual operating year of the non -State entity. (7) "Financial Assistance" means assistance that non- State entities receive or administer in the form of grants, loans, loan guarantees, property (including donated surplus property), cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations, and other assistance. Financial assistance does not include amounts received as reimbursement for services rendered to individuals for Medicare and Medicaid patient services. (8) "Financial Statement" means a report providing financial statistics relative to a given part of an organization's operations or status. (9) "Grant" means financial assistance provided by an agency, grantee, or sub - grantee to carry out activities whereby the grantor anticipates no programmatic involvement with the grantee or sub - grantee during the performance of the grant. (10) "Grantee" has the meaning in G.S. 143C- 6- 23(a)(2): a non -State entity that receives a grant of State funds Attachment A DEQ Contract 7009 from a State agency, department, or institution but does not include any non -State entity subject to the audit and other reporting requirements of the Local Government Commission. For other purposes in this Contract, "Grantee" shall mean the entity identified as one of the parties hereto. For purposes of this contract, Grantee also includes other State agencies such as universities. (11) "Grantor" means an entity that provides resources, generally financial, to another entity in order to achieve a specified goal or objective. (12) "Non -State Entity" has the meaning in N.C.G.S. 143C- 1-1(d)(18): A firm, corporation, partnership, association, county, unit of local government, public authority, or any other person, organization, group, or governmental entity that is not a State agency, department, or institution. (13) "Public Authority" has the meaning in N.C.G.S. 159- 7(10): A municipal corporation that is not a unit of local government or a local governmental authority, board, commission, council, or agency that (i) is not a municipal corporation, (ii) is not subject of the State Budget Act, and (iii) operates on an area, regional, or multiunit basis, and the budgeting and accounting systems of which are not fully a part of the budgeting and accounting systems of a unit of local government. (14) "Single Audit" means an audit that includes an examination of an organization's financial statements, internal controls, and compliance with the requirements of Federal or State awards. (15) "Special Appropriation" means a legislative act authorizing the expenditure of a designated amount of public funds for a specific purpose. (16) "Stale Funds" means any funds appropriated by the North Carolina General Assembly or collected by the State of North Carolina. State funds include federal financial assistance received by the State and transferred or disbursed to non -State entities. Both Federal and State funds maintain their identity as they are sub - granted to other organizations. Pursuant to N.C.G.S. 143C- 6- 23(a)(1), the terms "State grant funds" and "State grants" do not include any payment made by the Medicaid program, the Teachers' and State Employees' Comprehensive Major Medical Plan, or other similar medical programs. (17) "Sub - grantee" has the meaning in G.S. 143C -6- 23(a)(4): a non -State entity that receives a grant of State funds from a grantee or from another sub - grantee but does not include any non -State entity subject to the audit and other reporting requirements of the Local Government Commission. (18) "Unit of Local Government has the meaning in G.S. 159- 7(b)(15): A municipal corporation that has the power to levy taxes, including a consolidated city- county as defined by G.S. 160B -2(1), and all boards, agencies, commissions, authorities, and institutions thereof that are not municipal corporations. Relationships of the Parties Independent Contractor: The Grantee is and shall be deemed to be an independent contractor in the performance of this Contract and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. The Grantee represents that it has, or shall secure at its own expense, all personnel required in performing the services under this agreement. Such employees shall not be employees of, or have any individual contractual relationship with, the Agency. Subcontracting: To subcontract work to be performed under this contract which involves the specialized skill or expertise of the Grantee or his employees, the Grantee first obtains prior approval of the Agency Contract Administrator. In the event the Grantee subcontracts for any or all of the services or activities covered by this contract: (a) the Grantee is not relieved of any of the duties and responsibilities provided in this contract; (b) the subcontractor agrees to abide by the standards contained herein or to provide such information as to allow the Grantee to comply with these standards, and; (c) the subcontractor agrees to allow stale and federal authorized representatives access to any records pertinent to its role as a subcontractor. Sub - grantees: The Grantee has the responsibility to ensure that all sub - grantees, I any, provide all information necessary to permit the Grantee to comply with the standards set forth in this Contract. Assignment: The Grantee may not assign the Grantee's obligations or the Grantee's right to receive payment hereunder. However, upon Grantee's written request approved by the issuing purchasing authority, the Agency may: (a) Forward the Grantee's payment check(s) directly to any person or entity designated by the Grantee, or (b) Include any person or entity designated by Grantee as a joint payee on the Grantee's payment check(s). Such approval and action does not obligate the State to anyone other than the Grantee and the Grantee remains responsible for fulfillment of all contract obligations. Beneficiaries: Except as herein specifically provided otherwise, this Contract inures to the benefit of and is binding upon the parties hereto and their respective successors. It is expressly understood and agreed that the enforcement of the terms and conditions of this Contract, and all rights of action relating to such enforcement, are strictly reserved to the Agency and the named Grantee. Nothing contained in this document shall give or allow any claim or tight of action whatsoever by any other third person. It is the express intention of the Agency and Grantee that any Attachment A DEQ Contract 7009 third person receiving services or benefits under this Contract is an incidental beneficiary only. Indemnity Indemnification: In the event of a claim against either party by a third party arising out of this contract, the party whose actions gave rise to the claim is responsible for the defense of the claim and any resulting liability, provided that a party may not waive the other party's sovereign immunity or similar defenses. The parties agree to consult with each other over the appropriate handling of a claim and, in the event they cannot agree, to consult with the Office of the Attorney General. Insurance: During the term of the contract, the Grantee at its sole cost and expense provides commercial insurance of such type and with such terms and limits as may be reasonably associated with the contract. As a minimum, the Grantee provides and maintains the following coverage and limits: Worker's Compensation: The Grantee provides and maintains Worker's Compensation insurance as required by the laws of North Carolina, as well as employer's liability coverage with minimum limits of $500,000.00, covering all of Grantee's employees who are engaged in any work under this contract. If any work is sublet, the Grantee requires the subgrantee to provide the same coverage for any of his employees engaged in any work under this contract. Commercial General Liability: General Liability Coverage on a Comprehensive Broad Form on an occurrence basis in the minimum amount of $1,000,000.00 Combined Single Limit. (Defense cost shall be in excess of the limit of liability.) Automobile: Automobile Liability Insurance, to include liability coverage, covering all owned, hired and non -owned vehicles used in performance of the contract. The minimum combined single limit is $500,000.00 bodily injury and property damage; $500,000.00 uninsured /underinsured motorist; and $25,000.00 medical payment. Providing and maintaining adequate insurance coverage is a material obligation of the Grantee and is of the essence of this contract. The Grantee may meet its requirements of maintaining specified coverage and limits by demonstrating to the Agency that there is in force insurance with equivalent coverage and limits that will offer at least the same protection to the Agency. Grantee obtains insurance that meets all laws of the State of North Carolina. Grantee obtains coverage from companies that are authorized to provide such coverage and that are authorized by the Commissioner of Insurance to do business in North Carolina. The Grantee complies at all times with the terms of such insurance policies, and all requirements of the insurer under any such insurance policies, except as they may conflict with existing North Carolina laws or this contract. The limits of coverage under each insurance policy maintained by the Grantee do not limit the Grantee's liability and obligations under the contract. Default and Termination Termination by Mutual Consent: Either party may terminate this agreement upon thirty (30) days notice in writing from the other party. In that event, all finished or unfinished documents and other materials, at the option of the Agency, be submitted to the Agency. If the contract is terminated as provided herein, the Grantee is paid in an amount which bears the same ratio to the total compensation as the services actually performed bear to the total services of the Grantee covered by this agreement; for costs of work performed by subcontractors for the Grantee provided that such subcontracts have been approved as provided herein; or for each full day of services performed where compensation is based on each full day of services performed, less payment of compensation previously made. The Grantee repays to the Agency any compensation the Grantee has received which is in excess of the payment to which he is entitled herein. Termination for Cause: If, through any cause, the Grantee fails to fulfill in timely and proper manner the obligations under this agreement, the Agency thereupon has the right to terminate this contract by giving written notice to the Grantee of such termination and specifying the reason thereof and the effective date thereof. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports prepared by the Grantee, at the option of the Agency, be submitted to the Agency, and the Grantee is entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. The Grantee is not relieved of liability to the Agency for damages sustained by the Agency by virtue of any breach of this agreement, and the Agency may withhold payment to the Grantee for the purpose of set off until such time as the exact amount of damages due the Agency from such breach can be determined. Waiver of Default: Waiver by the Agency of any default or breach in compliance with the terms of this Contract by the Grantee is not a waiver of any subsequent default or breach and is not a modification of the terms of this Contract unless stated to be such in writing, signed by an authorized representative of the Agency and the Grantee and attached to the contract. Availability of Funds: The parties to this Contract agree and understand that the payment of the sums specified in this Contract is dependent and contingent upon and subject to the appropriation, allocation, and availability of funds for this purpose to the Agency. Attachment A DEQ Contract 7009 Force Majeure: Neither party is in default of its obligations hereunder if it is prevented from performing such obligations by any act of war, hostile foreign action, nuclear explosion, riot, strikes, civil insurrection, earthquake, hurricane, tomado, or other catastrophic natural event or act of God. Survival of Promises: All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the contract expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable Federal or Stale statutes of limitation. Intellectual Property Rights Copyrights and Ownership of Deliverables: Any and all copyrights resulting from work under this agreement shall belong to the Grantee. The Grantee hereby grants to the North Carolina Department of Environmental Quality a royalty -free, non - exclusive, paid -up license to use, publish and distribute results of work under this agreement for North Carolina State Government purposes only. Compliance with Applicable Laws Compliance with Laws: The Grantee understands and agrees that it is subject to compliance with all laws, ordinances, codes, rules, regulations, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and /or authority. Equal Employment Opportunity: The Grantee understands and agrees that it is subject to compliance with all Federal and State laws relating to equal employment opportunity. Confidentiality Confidentiality: As authorized by law, the Grantee keeps confidential any information, data, instruments, documents, studies or reports given to or prepared or assembled by the Grantee under this agreement and does not divulge or make them available to any individual or organization without the prior written approval of the Agency. The Grantee acknowledges that in receiving, storing, processing or otherwise dealing with any confidential information it will safeguard and not further disclose the information except as otherwise provided in this Contract or without the prior written approval of the Agency. Oversight Access to Persons and Records: The State Auditor and the using agency's internal auditors shall have access to persons and records as a result of all contracts or grants entered into by State agencies or political subdivisions in accordance with General Statute 147 -64.7 and Session Law 2010 -194, Section 21 (i.e., the State Auditors and internal auditors may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees or performance). The Contractor shall retain all records for a period of six (6) years following completion of the contract or until any audits begun during this period are completed and findings resolved, whichever is later. Record Retention: The Grantee may not destroy, purge or dispose of records without the express written consent of the Agency. State basic records retention policy requires all grant records to be retained for a minimum of six (6) years or until all audit exceptions have been resolved, whichever is longer. If the contract is subject to Federal policy and regulations, record retention may be longer than six (6) years since records must be retained for a period of three years following submission of the final Federal Financial Status Report, if applicable, or three years following the submission of a revised final Federal Financial Status Report. Also, if any lifigation, claim, negotiation, audit, disallowance action, or other action involving this Contract has started before expiration of the six (6) year retention period described above, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular six (6) year period described above, whichever is later. Time Records: The GRANTEE will maintain records of the time and effort of each employee receiving compensation from this contract, in accordance with the appropriate OMB circular. Miscellaneous Choice of Law: The validity of this Contract and any of its terms or provisions, as well as the rights and duties of the parties to this Contract, are governed by the laws of North Carolina. The Grantee, by signing this Contract, agrees and submits, solely for matters concerning this Contract, to the exclusive jurisdiction of the courts of North Carolina and agrees, solely for such purpose, that the exclusive venue for any legal proceedings shall be Wake County, North Carolina. The place of this Contract and all transactions and agreements relating to it, and their situs and forum, shall be Wake County, North Carolina, where all matters, whether sounding in contract or tort, relating to the validity, construction, interpretation, and enforcement shall be determined. Amendment: This Contract may not be amended orally or by performance. Any amendment must be made in written form and executed by duly authorized representatives of the Agency and the Grantee. Severability: In the event that a court of competent jurisdiction holds that a provision or requirement of this Contract violates any applicable law, each such provision or requirement shall continue to be enforced to the extent it is not in violation of law or is not otherwise unenforceable and all other provisions and requirements of this Contract shall remain in full force and effect. Headings: The Section and Paragraph headings in these General Terms and Conditions are not material parts of the agreement and should not be used to construe the meaning thereof. Attachment A DEQ Contract 7009 Time of the Essence: Time is of the essence in the performance of this Contract. Care of Property: The Grantee agrees that it is responsible for the proper custody and care of any State owned property furnished him for use in connection with the performance of his contract and will reimburse the State for its loss or damage. Ownership of equipment purchased under this contract rests with the Agency. Upon approval of the Agency Contract Administrator, such equipment may be retained by the Grantee for the time the Grantee continues to provide services begun under this contract. Travel Expenses: All travel, lodging, and subsistence costs are included in the contract total and no additional payments will be made in excess of the contract amount indicated in above. Contractor must adhere to the travel, lodging and subsistence rates established in the Budget Manual for the State of North Carolina. Sales /Use Tax Refunds: If eligible, the Grantee and all sub - grantees shall: (a) ask the North Carolina Department of Revenue for a refund of all sales and use taxes paid by them in the performance of this Contract, pursuant to G.S. 105- 164.14; and (b) exclude all refundable sales and use taxes from all reportable expenditures before the expenses are entered in their reimbursement reports. Advertising: The Grantee may not use the award of this Contract as a part of any news release or commercial advertising. Recycled Paper: The Grantee ensures that all publications produced as a result of this contract are printed double -sided on recycled paper. Sovereign Immunity: The Agency does not waive its sovereign immunity by entering into this contract and fully retains all immunities and defenses provided by law with respect to any action based on this contract. Gratuities, Kickbacks or Contingency Fee(s): The parties certify and warrant that no gratuities, kickbacks or contingency fee(s) are paid in connection with this contract, nor are any fees, commissions, gifts or other considerations made contingent upon the award of this contract. Lobbying: The Grantee certifies that it (a) has neither used nor will use any appropriated funds for payments to lobbyist; (b) will disclose the name, address, payment details, and purpose of any agreement with lobbyists whom the Grantee or its sub -fier contractor(s) or sub-grantee(s) will pay with profits or non - appropriated funds on or after December 22, 1989; and (c) will file quarterly updates about the use of lobbyists if material changes occur in their use. Attachment A DEQ Contract 7009 By Executive Order 24, issued by Governor Perdue, and N.C. G.S.§ 133.32: It is unlawful for any vendor or contractor ( i.e. architect, bidder, contractor, construction manager, design professional, engineer, landlord, offeror, seller, subcontractor, supplier, or vendor), to make gifts or to give favors to any State employee of the Governor's Cabinet Agencies (i.e., Administration, Commerce, Correction, Come Control and Public Safety, Natural and Cultural Resources, Environmental Quality, Health and Human Services, Juvenile Justice and Delinquency Prevention, Revenue, Transportation, and the Office of the Governor). This prohibition covers those vendors and contractors who: (1) have a contract with a governmental agency; or (2) have performed under such a contract within the past year; or (3) anticipate bidding on such a contract in the future. For additional information regarding the specific requirements and exemptions, vendors and contractors are encouraged to review Executive Order 24 and G.S. Sec. 133-32. Executive Order 24 also encouraged and invited other State Agencies to implement the requirements and prohibitions of the Executive Order to their agencies. Vendors and contractors should contact other State Agencies to determine if those agencies have adopted Executive Order 24." Attachment B DEC Contract 7009 North Carolina Division of Water Resources Water Resources Development Grant Application Mason Creek/Atlantic Intracoastal Waterway Crossing 2016/2017 Maintenance Dredging Event Submitted by New Hanover County in coordination with The Mason Inlet Preservation Group 12 September 2016 Attachment B DEQ Contract 7009 Date: 1 12 September 2016 Project Name: Mason Creek/AIWW Crossing Maintenance Dredging Event Water Body: Mason Inlet Complex County: New Hanover County River Basin: Cape Fear River Project Sponsor: New Hanover County Chris Coudriet, County Manager 230 Government Center Drive Wilmington, NC 28403 Primary Contact: H. Layton Bedsole Jr., R.E.M. Shore Protection Coordinator 230 Government Center Drive Suite 160 Wilmington, NC 28403 Phone: 910-798-7104 Email: Ibedsole(a nhcgov.com Cover Page Mason Creek and Atlantic InVacoe W Water yCrossing Source: GBA 2016 2 Attachment B DEQ Contract 7009 Project Overview: The Mason Inlet Relocation Project (MIRP) was North Carolina's (NC) first inlet relocation effort, initially constructed in 2002. The MIRP has successfully managed the Mason Inlet complex inclusive of the Atlantic Intracoastal Waterway (AIWW) crossing, Mason Creek, the creek's confluence with Banks Channel, Mason Inlet proper and the ebb tide delta (Figure One). Figure One, Flan View. New Hanover County (NHC) holds all permits and manages the project on behalf of the Mason Inlet Preservation Group (MIPG). The MIPG is a group of approximately 1000 parcel owners (private citizens) half from Wrightsville Beach and half from Figure Eight Island. The MIPG members have fiscally supported the original 2002 relocation effort and subsequent maintenance /management tasks. The project has a navigation component within the AIWW crossing and an inlet location component for ensuring healthy inlet shoulders. Elements of the Mason Inlet complex has template design dimensions equivalent to shallow draft inlets located in southeastern NC. Many of NC's shallow draft inlet crossings including the Mason Creek crossing are maintained at AIWW design standards of -12 feet (ft.) ( ±2 ft.) mean low water (mlw) with a channel bottom width of 90 ft. The inlet complex design, alignment and template dimensions allow for sediment flushing and tidal prism access as a connecting channel from the Atlantic Ocean to the AIWW. Attachment B DEQ Contract 7009 Project Narrative: The MIRP is authorized under the North Carolina Division of Coastal Management (NCDCM) permit #151 -01 and the US Army Corps of Engineers (USACE) Permit #1999- 01052. The MIRP has multiple facets which act as trigger points for maintaining inlet system features. The USACE, Wilmington District evoked Federal Permit Condition 17 on 8 July 2016 (attached). USACE Permit Condition 17 states: "If the District Engineer, in his sole discretion, determines that shoaling has occurred within the AIWW on Tangent 12, Section 3 between monuments T12 -8 and T12 -41, at any time during the life of the project and that such section should be dredged in order to maintain safe and efficient navigation on the AIWW, he will so notify the permittee in writing." The MIRP's authorization includes dredge material management at three onsite locations (1) AIWW confined disposal facility (CDF) 241 and along 10,000 linear feet of oceanfront shoreline on (2) Wrightsville Beach and /or (3) Figure 8 Island. NHC also manages the MIRP's financial administration including assessment of applicable parties within MIPG for the cost of maintaining /managing project elements. The MIRP is initially funded through the NHC room occupancy tax (ROT) which is then refunded through the project's reimbursement protocols. The MIRP's administration and management meets all applicable contracting laws of public funding by local governments. NHC participates in the oversight of all administrative actions as well as maintenance activities. The AIWW crossing as well as Mason Creek east to the ocean are public trust waters and bottoms with practicable public access. The MIPG, in conjunction with NHC, holds the responsibilities of the MIRP's operation and maintenance. Attachment B DEQ Contract 7009 Project Reaches: AIWW Crossing The MIRP includes approximately 3,000 ft. of the AIWW from Station 70 +00 to 100 +00 in Section 3, Tangent 12 (Figure Two). Permit stipulations require removal of any shoaled material the USACE District Engineer considers a result of the MIRP. The AIWW maintenance template has a -12 ft. (t2 ft.) mlw depth with a bottom toe width of 90 ft. Figure Two A represents a July 2016 bathymetric survey depicting shoaling within these project reaches. AM IN Attachment B DEQ Contract 7009 Mason Creek and CDF 241 The Mason Creek confluence with the AIWW includes a 90 -foot widener with a template depth transitioning to the AIWW's depth. Figure Three depicts inlet features including the AIWW confluence with Stations 58 +00 through 55 +00 at the mouth of Mason Creek. Figure Three A is a 2016 aerial of CDF 241 to be used for dredge material management. Attachment B DEQ Contract 7009 Project Plan: The MIRP has multiple maintenance event triggers; the primary navigation trigger is shoaling within the AIWW crossing and the USACE notification for shoal removal. On 8 July 2016, NHC received written USACE notification to remove the accumulated sand within the USACE's AIWW crossing. The notification called for the event to occur during the upcoming environmental window (16 Nov — 30 Mar). The sand removed will be managed in the adjacent CDF 241. This CDF was recently used in 2014 for similar maintenance material management. This maintenance event is market driven by fiscal obligations, the dredging sector's project interest and dredge equipment availability. NHC anticipates a construction start date after 16 November 2016 and an anticipated completion date before 31 March 2017. The following table specifies the shoaled volumes surveyed in July 2016. Project Volumes 2016 July Surveys cubic yards c 12 ft. Grade 52,000 + -2 ft. Allowed 23,000 Total Available 75,000 The shoaled material within the AIWW and crossing meets the sediment criteria overseen by the NCDCM for upland and /or shoreline beneficial reuse. These smaller volumes located at or near the AIWW crossing have been managed within the USACE's CDF 241. In time, the CDF volumes will be recycled and beneficially reused. Regional Benefits: The MIRP continues to protect public and private infrastructure, small businesses, tax bases, tourism and important ecological niches. When maintained, Mason Inlet promotes tidal flushing within the engineered template as well as within the adjoining marshes and nearby tidal creeks. The project supports multiple anthropogenic uses such as pedestrian access, fishing, shelling, birding and surfing. Ecological benefits include marsh habitat, colonial and migratory bird habitat, sea turtle habitat, essential fish habitat, primary nursery areas for finfish, shellfish and macro - benthics. If allowed to return to a southern migrating pattern, many of the benefits mentioned would be compromised including potential navigation within reaches of the AIWW. Attachment o DEQ Contract 7009 Project Budget: The assessment capability is one of the primary reasons why NHC is part of this private sector's project. NHC has the ability to 000eoo M|PG members for accrued expenses. Maintenance/management costs are paid from NHC'o ROT fund and then the applicable &4|PG members are assessed reimbursing the fund. The following suggested budget reflects pre-event efforts kjeygn, plans and specifications, pennitbng, bidding and pre-maintenance surveys); construction and post-event efforts (as-buiKo and project ounnnnery). Project Name! Almost CreekAIRIIA' Project, 2016,1017 Maintenance Event Other N on- Federal Design pennitting S.—y (pre construction) Surs,ey (post construction) Construction Management construction Education Cash Monitoring 01HAlUeria I) Land Cash DX%'R OeNrticipation 66.6-.. 33.W.1 cipation Attachment B DEQ Contract 7009 Conclusion: The Mason Inlet Relocation Project is located in New Hanover County within the Cape Fear River Basin. The inlet location project is maintained within an authorized engineered corridor separating Wrightsville Beach to the south and Figure 8 Island to the north. Managed by New Hanover County on behalf of the Mason Inlet Preservation Group, the project is funded by approximately 1000 parcel owners. The project maintains a navigation template within the AIWW crossing at -12 ft. ( ±2 ft.) mlw. The system design supports a tidal prism accessible by a connecting channel from Mason Creek to Mason Inlet at a depth of -8 ft. (t2 ft.) mlw. In response to the US Army Corps of Engineers' permit mandate and in coordination with the Mason Inlet Preservation Group, New Hanover County is requesting a Water Resources Development Project Grant supporting the Mason Inlet Relocation Project's 2016/2017 Mason Creek/Atlantic Intracoastal Waterway Crossing maintenance dredging event. This project will restore the template dimensions at the Atlantic Intracoastal Waterway crossing and Mason Creek widener. The applicable project costs are - $1.29M and New Hanover County is submitting a grant request of 66.67% or -$860K of the Mason Inlet Relocation Project's administration /design /permitting /surveying and construction fees associated with this maintenance event. Mason Inlet Preservation Group members, in coordination with New Hanover County, will meet the remaining 33.33% or - $430K. All project reimbursements will be supported by invoices received and approved by New Hanover County via the project engineer of record. The New Hanover County Board of County Commissioners has passed a resolution supporting this grant request (attached). New Hanover County, in coordination with the Mason Inlet Preservation Group, humbly requests this Water Resources Development Project Grant of -$860K for the 2016/2017 Mason Creek/Atlantic Intracoastal Waterway Crossing maintenance dredging event. Attachment C DEO Contract 7009 CERTIFICATION OF ELIGIBILITY Under the Iran Divestment Act Pursuant to G.S. 147 - 86.59, any person identified as engaging in investment activities in Iran, determined by appearing on the Final Divestment List created by the State Treasurer pursuant to G.S. 147 - 86.58, is ineligible to contract with the State of North Carolina or any political subdivision of the State. The Iran Divestment Act of 2015, G.S. 147 -86.55 et seq.* requires that each vendor, prior to contracting with the State certify, and the undersigned on behalf of the Vendor does hereby certify, to the following: 1. that the vendor is not identified on the Final Divestment List of entities that the State Treasurer has determined engages in investment activities in Iran; 2. that the vendor shall not utilize on any contract with the State agency any subcontractor that is identified on the Final Divestment List; and 3. that the undersigned is authorized by the Vendor to make this Certification. Vendor: NlR kL\ C�dey cNif1k� By: C-Yk 9-e w L q 1 '231 1 ip Signature Date L -"r' fEkd C- tw.oA CAC-e(- Printed Name Title The State Treasurers Final Divestment List can be found on the State Treasurer's website at the address: https: / /www.nctreasu rer.com /inside- the - department /OpenGovernment /Pages /I ra n- Divestment - Act- Resources.asr)x and will be updated every 180 days. For questions about the Department of State Treasurer's Iran Divestment Policy, please contact Meryl Murtagh at Meryl.Murtagh@nctreasurer.com or (919) 814 -3852. * Note: Enacted by Session Law 2015 -118 as G.S. 143C -55 et seq., but has been renumbered for codification at the direction of the Revisor of Statutes.