MAINE DEPARTMENT OF TRANSPORTATION

Industrial Rail Access Program Agreement

With

Regarding

Locally Administered Project – IRAP (State Funds)

Project WIN:	Vendor ID:

Agreement Amount: $	Agreement Begin Date:

State Share: $	Agreement End Date:

Grantee Share: $

This Agreement is entered into by and between the Maine Department of Transportation (MaineDOT), an agency of state government with its principal administrative offices located at 24 Child Street in Augusta, Maine, and (the Grantee), a corporation or other legal entity with its principal place of business at and a mailing address of . (MaineDOT and the Grantee are referred to collectively as the Parties and individually as a Party.)

RECITALS

In , MaineDOT awarded the Grantee funding from the Industrial Rail Access Program (IRAP) for (the Project); and

IRAP provides financial assistance to businesses and shippers for investments in freight rail and related infrastructure located on or adjacent to the state transportation system; and

The Grantee shall administer the Project, subject to MaineDOT oversight to ensure that the Grantee fulfills all requirements of the State of Maine (the State); and

MaineDOT and the Grantee acknowledge that the State shall not acquire or gain any interest of ownership in the Grantee’s property, whether personal, real or otherwise.

AGREEMENT

NOW, in consideration of the foregoing statements, MaineDOT and the Grantee agree as follows:

APPENDIX

Appendix A: IRAP application from the Grantee.

ROLES AND RESPONSIBILITIES

ROLE OF GRANTEE. The Grantee shall assign a qualified Project Coordinator to manage the Project and carry out the Grantee’s responsibilities under this Agreement.

Project Coordinator:

Email:

Phone:

ROLE OF MAINEDOT. MaineDOT will assign a Project Manager to carry out the State’s responsibilities. This Project Manager will have the authority to request design changes to meet applicable laws and design standards; accept and reject invoices; inspect construction activities; and take all other action to ensure proper performance of this Agreement.

Project Manager: , Multimodal Program

Email:

Phone:

FINANCIAL OBLIGATIONS

AUTHORIZATIONS. MaineDOT’s financial participation in the Project shall be contingent upon completion of steps A through D below.

MaineDOT must execute this Agreement; and

The Grantee must submit to MaineDOT an updated schedule and the required environmental, railroad, and right-of-way certifications listed on page 3 of this Agreement; and

The Grantee must procure construction services using one of the methods described in the “Contracting” section, starting on page of this Agreement; and

MaineDOT must issue the Grantee a Notice to Proceed with construction work.

PROJECT COST. The estimated Project Cost is $ , which MaineDOT and the Grantee shall share as set out below. If the actual cost of the Project is less than this estimated amount, the final amount owed to the Grantee shall be based on the share percentages below.

MAINEDOT’S SHARE. MaineDOT will share in the Project Cost up to a maximum of percent or $ , whichever is less.

GRANTEE’S SHARE. The Grantee shall share in the Project Cost at the approximate rate of percent, for an estimated contribution of $ . Unless MaineDOT approves otherwise in writing, the Grantee shall be fully responsible for the following:

All costs exceeding $ ;

All costs determined by MaineDOT to be ineligible for reimbursement; and

All costs incurred before the execution date of this Agreement.

REIMBURSEMENT. The Grantee may submit periodic progress invoices to MaineDOT requesting reimbursement of the State’s share of costs incurred, in the format provided in MaineDOT Letter 4, as follows:

Each invoice shall include a progress report for the service period of the invoice;

Each invoice shall document the charges incurred and proof of payment made in sufficient detail to satisfy the MaineDOT Project Manager;

Each invoice shall show MaineDOT’s and the Grantee’s portions of Project costs;

The Grantee must certify that amounts claimed are correct and not claimed previously;

Upon completion of the Project, the Grantee shall submit to MaineDOT a final invoice in the format provided in MaineDOT Letter 20. Payment shall be contingent on a passing inspection of the Project by MaineDOT or its designee.

REPAYMENT. If the Grantee withdraws from the Project, the Grantee shall refund all invoice payments from MaineDOT toward the Project.

STATE RIGHTS OF SET-OFF. MaineDOT shall have all of its common law, equitable and statutory rights of set-off. These rights shall include, but not be limited to, the State of Maine’s option to withhold for the purposes of set-off monies due to the Railroad under a specific project contract up to any amounts due and owed to MaineDOT with regard to this Agreement any other agreement or contract with any State of Maine department or agency, including any agreement/contract for a term commencing prior to the term of this Agreement, plus any amounts due and owed to the State of Maine for any reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. MaineDOT shall exercise its set-off rights in accordance with normal state practices including, in cases of set-off pursuant to an audit, the finalization of such audit by MaineDOT, its representatives, or the State Controller.

OBLIGATION OF FUNDS. Notwithstanding anything herein to the contrary, the Grantee acknowledges and agrees that although the execution of this Agreement manifests MaineDOT’s intent to honor its terms and to seek funding to fulfill MaineDOT’s obligations arising hereunder, such obligations by law are subject to available budgetary appropriations by the Maine Legislature. This Agreement creates no obligation on behalf of MaineDOT in excess of such appropriations.

PROJECT DEVELOPMENT

KICKOFF. Upon execution of this Agreement, the Grantee shall hold a Project Kickoff with MaineDOT to go over the scope of work, budget, schedule, and legal requirements.

PROGRESS REPORTS. The Grantee shall provide MaineDOT with written progress reports upon request. MaineDOT may withhold payment until the Grantee provides requested reports.

DESIGN. If applicable, the Grantee shall provide MaineDOT with design plans, specifications and an updated cost estimate (PS&E) for review. MaineDOT will enforce all laws, regulations and construction standards that apply to the Project and will require changes if they are not met.

ENVIRONMENTAL CERTIFICATION. The Grantee shall submit to MaineDOT a signed certification modeled after MaineDOT Letter 12, stating either that all environmental permits were obtained or that no permits were required.

RAILROAD CERTIFICATION. The Grantee shall submit to MaineDOT a signed certification modeled after MaineDOT Letter 13 stating that it coordinated the Project with the railroad serving the Grantee’s facility and, if applicable, any utility that may be affected by the Project.

RIGHT-OF-WAY CERTIFICATION. The Grantee shall submit to MaineDOT a signed certification modeled after MaineDOT Letter 14 stating that it either holds title to the property necessary for the Project or has obtained easements, licenses or leases from the owners of all such property. Such right, title and interest shall remain with the Grantee for the 10-year term of Useful Life. The Grantee shall notify MaineDOT if ownership of the property is transferred during this term.

CONTRACTING. The Grantee, with written authorization from MaineDOT’s Project Manager, shall procure construction services for the Project by one of the following methods:

Contracting with the Grantee’s own forces or with the railroad serving the Grantee’s facility;

Contracting with the lowest responsive/responsible bidder, using a competitive process;

Using a task order to contract with a qualified contractor with whom the Grantee has an established, ongoing contract for services.

CONSTRUCTION. The Grantee shall provide oversight sufficient to ensure that the work complies with the MaineDOT Trackwork Inspection Criteria and the intent of the IRAP award. The Grantee shall provide MaineDOT personnel with access to the Project site, with appropriate notice.

CHANGES IN SCOPE. The Grantee shall submit proposed changes to the Scope of Work for review and concurrence. Upon such concurrence, the Parties shall execute a modification to this Agreement. MaineDOT reserves the right not to participate financially in any change in scope made without such prior review.

FINAL INSPECTION. MaineDOT may inspect the completed Project to ensure that it meets the MaineDOT Trackwork Inspection Criteria and the intent of the IRAP award. MaineDOT reserves the right not to reimburse the Grantee for work not meeting these criteria.

OPERATION AND MAINTENANCE

USEFUL LIFE. The Grantee shall use the Project for moving freight for at least 10 years after completion of the Project. If the Grantee ceases to do so – and such action was not caused by a discontinuation of rail service – MaineDOT may recover from the Grantee the fair market value of all materials incorporated into the Project. MaineDOT’s right of recovery shall be limited to the actual value of the reimbursement to the Grantee under this Agreement.

MAINTENANCE. For the Useful Life of the Project, the Grantee shall assure that the improvements made under this Agreement with IRAP funding are maintained at an appropriate level to preserve their intended use and function pursuant to the Track Safety Standards of the Federal Railroad Administration.

This section shall survive the expiration of this Agreement.

PROJECT RECORDS

Project Records, whether printed or electronic, shall consist of all plans, specifications, contracts, reports, notes, or other documents prepared by or for the Grantee. The Grantee shall retain all Project Records for at least 3 years from the date of MaineDOT’s acceptance of the final invoice for the Project or the termination of this Agreement. If any litigation, claim, negotiation or audit has begun before the end of this retention period, all Project Records shall be kept for at least 3 years after the claim or litigation is resolved.

The Grantee shall treat all Project Records – except for proprietary information – as public records. “Proprietary information” shall apply to trade secrets or information that is commercial or financial in nature, the disclosure of which would impair the competitive position of the Grantee and make available information otherwise not in the public domain.

The Grantee and any contracted party working on its behalf shall allow, upon request, authorized representatives from the State of Maine to inspect and audit Project Records. Copies shall be furnished at no cost to the agencies requesting them. Project audits shall comply with generally accepted government auditing standards.

This section shall survive the termination or expiration of this Agreement.

GENERAL PROVISIONS

LEGAL COMPLIANCE. This Agreement shall be construed under the laws of the State of Maine.

During the performance of this Agreement, the Parties agree to comply with and abide by all applicable federal, state and local laws, statutes, rules, regulations, standards and guidelines; avoid hindering each other’s performance; fulfill all obligations diligently; and cooperate in achieving the intent of this Agreement.

INDEMNIFICATION. To the extent permitted by law, the Grantee shall indemnify and hold harmless the State of Maine, its agents, employees and contractors from all claims, suits or liabilities arising from any negligent or wrongful act, error or omission by the Grantee, its agents, employees or contractors. Nothing herein shall waive any defense, immunity or limitation of liability that may be available to either Party under the Maine Tort Claims Act (14 M.R.S. Section 8101 et seq.) or any other privileges or immunities provided by law. This section shall survive the termination or expiration of this Agreement.

INSURANCE. The Grantee shall carry insurance at its own expense adequate to fund its indemnity, liability and other obligations arising from or related to this Agreement. In addition, the Grantee shall require contractors hired for work pursuant to this Agreement to carry a commercial general liability insurance policy providing coverage of at least $1,000,000.00 per occurrence listing the Grantee and the MaineDOT as additional insureds.

EQUAL EMPLOYMENT OPPORTUNITY. During the performance of this Agreement, the Grantee agrees as follows:

The Grantee shall not discriminate against any employee or applicant for employment relating to this Agreement because of race, color, religious creed, sex, national origin, ancestry, age, physical or mental disability, or sexual orientation, unless related to an actual occupational qualification. The Grantee shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, age, national origin, physical or mental disability, or sexual orientation. The Grantee agrees to post in conspicuous places available to employees and applicants for employment notices setting forth the provisions of this section.

The Grantee shall state – in all solicitations or advertising for employees placed by or on behalf of the Grantee relating to this Agreement – that all qualified applicants shall receive consideration for employment without regard to race, color, religious creed, sex, national origin, ancestry, age, physical or mental disability, or sexual orientation.

The Grantee shall cause the foregoing provisions to be inserted in any contract for any work covered by this Agreement so that such provisions shall be binding upon each contractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials.

FLOW DOWN. Contracts between the Grantee and all third parties shall contain or incorporate by reference applicable provisions of this Agreement.

ASSIGNMENT. No assignment of this Agreement is contemplated, and in no event shall any assignment be made without MaineDOT’s express written permission.

AMENDMENT AND MODIFICATION. This Agreement may only be modified or amended in writing and signed by duly authorized representatives of both Parties.

BINDING EFFECT. The Parties shall be bound by the terms of this Agreement. This requirement shall apply to its executors, their successors, administrators and legal representatives.

INDEPENDENT CAPACITY. The Grantee, its employees, agents, representatives, consultants and contractors shall not act as officers, employees or agents of MaineDOT.

ENTIRE AGREEMENT. This document represents the entire Agreement between the Parties. Neither MaineDOT nor the Grantee shall be bound by any statement, correspondence, agreement or representation not expressly contained in this Agreement.

CONFLICT OF INTEREST

No officer or employee of the Grantee with a financial or other personal interest in any contract or subcontract for the Project shall negotiate, make, accept or approve any such contract or subcontract.

No professional performing services for the Grantee on the Project shall have a financial or other personal interest in any contract or subcontract for the Project, other than the person’s employment or retention by the Grantee. If applicable, no officer or employee of any professional performing services for the Grantee on the Project shall have a financial or other personal interest in any real property acquired for the Project unless such interest is openly disclosed in the public record and such officer or employee has not participated in such acquisition for and on behalf of the Grantee.

No person or entity entering into a contract for services for the Project shall have a financial or other interest in the Project or in its outcome, other than the performance of the contract. This prohibition applies to the following:

Any agreement with, or other interest involving, third parties having an interest in the outcome of the Project that is the subject to the contract;

Any agreement providing incentives or guarantees of future work on the Project or related matters; and

Any interest in real property acquired for the Project unless such real property interest is openly disclosed to the Grantee before the person or entity enters into the contract.

DEBARMENT

By signing this Agreement, the Grantee certifies that neither it or its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. If the Grantee is unable to certify to this statement, it shall attach an explanation to this Agreement. The Grantee shall notify MaineDOT promptly if it or its principals are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this transaction by any federal department or agency.

DEFAULT, TERMINATION AND EXPIRATION

DEFAULT. MaineDOT may send the Grantee a Notice of Default if the Grantee:

Fails to complete the Project by the expiration date of this Agreement;

Makes no attempt to respond to repeated requests for progress updates from MaineDOT;

Withdraws from the Project, resulting in cancellation of the Project;

Uses Project funds for a purpose not authorized by this Agreement;

Misrepresents or falsifies any claim for reimbursement;

Fails to meet the standards of performance set forth in this Agreement.

TERMINATION. MaineDOT will have just cause to terminate this Agreement in the event of default by the Grantee, as defined above. MaineDOT will afford the Grantee a 14-day cure period, effective on the Grantee’s receipt of Notice of Default. If the Grantee fails to address all defaults within this cure period or any longer period as MaineDOT may authorize, MaineDOT may terminate this Agreement for cause, as follows:

MaineDOT will recover from the Grantee all reimbursements made to date; and

The Grantee shall forfeit all funds from the State remaining in the terminated Project.

EXPIRATION

This Grantee shall complete the terms of this Agreement by , which shall be the expiration date of this Agreement. Any request for an extension shall be submitted in writing to the MaineDOT Office of Freight and Business Services before this expiration date.

AGREEMENT APPROVAL

The Grantee represents that it has received all necessary approvals or authorizations by its governing authorities to enter into this Agreement and that it commits to appropriate the necessary funds to satisfy its obligations identified herein.

IN WITNESS WHEREOF, MaineDOT and the Grantee, through their duly authorized representatives, have executed this Agreement effective on the date last signed below.

Maine Department of Transportation

By:	By:

*	Richard J. Crawford, P.E., Director *

Bureau of Project Development

Date:	Date:

* Pursuant to 10 M.R.S.A. §9502, et seq., I certify that the foregoing electronic signature: (a) is intended to have the same force as my manual signature, (b) is unique to me, (c) is capable of verification, (d) is under my control, and (e) is linked to data in such a manner that it is invalidated if the data are changed.

APPENDIX A:

Industrial Rail Access Program Application