2021-22 School Bus Financing

STATE OF NORTH CAROLINA Department of Public Instruction Invitation for Bid #: 40-311449674 2021-22 School Bus Financing Date of Issue: November 16, 2021 Bid Opening Date: December 2, 2021 At 2:00 PM ET Direct all inquiries concerning this IFB to: Shannon Hanchey Procurement Manager Email: Shannon.hanchey@dpi.nc.gov Phone: 984-236-2367 mailto:Shannon.hanchey@dpi.nc.gov STATE OF NORTH CAROLINA Invitation for Bid # 40-311449674 ______________________________________________________ For internal State agency processing, including tabulation of bids in the Interactive Purchasing System (IPS), please provide your company’s Federal Employer Identification Number or alternate identification number (e.g. Social Security Number). Pursuant to G.S. 132-1.10(b) this identification number shall not be released to the public. This page will be removed and shredded, or

otherwise kept confidential, before the procurement file is made available for public inspection. This page is to be filled out and returned with your bid. Failure to do so may subject your bid to rejection. ___________________________________________________ Vendor Name ______________________________ Vendor # Note: For your bid to be considered, your company (you) must be a North Carolina registered vendor in good standing. You must enter the vendor number assigned through eVP (Electronic Vendor Portal). If you do not have a vendor number, register at https://vendor.ncgov.com/vendor/login Electronic responses ONLY will be accepted for this solicitation. https://vendor.ncgov.com/vendor/login Ver: 08/31/2021 Page 1 of 39 Bid Number: 40-PR12133018 Vendor: __________________________________________ Refer ALL Inquiries regarding this IFB to: Shannon Hanchey 984-236-2367 Shannon.hanchey@dpi.nc.gov Invitation for Bid #: 40-311449674 Bids will be publicly opened: November 16,2021 at 2:00 PM Using Agency: NC Department of Public Instruction Commodity No. and Description: 641119 - Structured financial products Requisition No.: PR12133018 EXECUTION In compliance with this Invitation for Bid (IFB), and subject to all the conditions herein, the undersigned Vendor offers and agrees to furnish and deliver any or all items upon which prices are bid, at the prices set opposite each item within the time specified herein. By executing this bid, the undersigned Vendor understands that false certification is a Class I felony and certifies that: ▪ this bid is submitted competitively and without collusion (G.S. 143-54), ▪ none of its officers, directors, or owners of an unincorporated business entity has been convicted of any violations of Chapter 78A of the General Statutes, the Securities Act of 1933, or the Securities Exchange Act of 1934 (G.S. 143-59.2), and ▪ it is not an ineligible Vendor as set forth in G.S. 143-59.1. Furthermore, by executing this bid, the undersigned certifies to the best of Vendor’s knowledge and belief, that: ▪ it and its principals are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal or State department or agency. As required by G.S. 143-48.5, the undersigned Vendor certifies that it, and each of its sub-Contractors for any Contract awarded as a result of this IFB, complies with the requirements of Article 2 of Chapter 64 of the NC 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. G.S. 133-32 and Executive Order 24 (2009) prohibit the offer to, or acceptance by, any State Employee associated with the preparing plans, specifications, estimates for public contracts; or awarding or administering public contracts; or inspecting or supervising delivery of the public contract 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 this response to the IFB, the undersigned certifies, for Vendor’s entire organization and its employees or agents, that Vendor is not aware that any such gift has been offered, accepted, or promised by any employees of your organization. By executing this bid, Vendor certifies that it has read and agreed to the INSTRUCTION TO VENDORS and the NORTH CAROLINA GENERAL TERMS AND CONDITIONS. These documents can be accessed from the ATTACHMENTS page within this document. Failure to execute/sign bid prior to submittal may render bid invalid and it MAY BE REJECTED. Late bids shall not be accepted. COMPLETE/FORMAL NAME OF VENDOR: STREET ADDRESS: P.O. BOX: ZIP: CITY & STATE & ZIP: TELEPHONE NUMBER: TOLL FREE TEL. NO: PRINCIPAL PLACE OF BUSINESS ADDRESS IF DIFFERENT FROM ABOVE (SEE INSTRUCTIONS TO VENDORS ITEM #12): PRINT NAME & TITLE OF PERSON SIGNING ON BEHALF OF VENDOR: FAX NUMBER: VENDOR’S AUTHORIZED SIGNATURE*: DATE: EMAIL: STATE OF NORTH CAROLINA Division of NC Department of Public Instruction Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 2 of 39 VALIDITY PERIOD Offer shall be valid for at least 120 days from date of bid opening, unless otherwise stated here: ______ days, or if extended by mutual agreement of the parties. Any withdrawal of this offer shall be made in writing, effective upon receipt by the agency issuing this IFB. ACCEPTANCE OF BIDS If your bid is accepted, all provisions of this IFB, along with the written results of any negotiations, shall constitute the written agreement between the parties (“Contract”). The NORTH CAROLINA GENERAL TERMS AND CONDITIONS are incorporated herein and shall apply. Depending upon the Goods or Services being offered, other terms and conditions may apply, as mutually agreed. FOR DEPARTMENT OF PUBLIC INSTRUCTION USE ONLY Offer accepted and contract awarded this ___ day of _____________________, 2021, as indicated on attached certification, by __________________________________ (Authorized representative of Department of Public Instruction), Chief Financial Officer North Carolina Department of Public Instruction By: ____________________________________________ Catherine Truitt, NC Superintendent of Public Instruction Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 3 of 39 Contents 1.0 PURPOSE AND BACKGROUND ............................................................................................. 5 1.1 CONTRACT TERM .................................................................................................................. 5 2.0 GENERAL INFORMATION ....................................................................................................... 5 2.1 INVITATION FOR BID DOCUMENT ........................................................................................ 5 2.2 E-PROCUREMENT FEE ......................................................................................................... 5 2.3 NOTICE TO VENDORS REGARDING IFB TERMS AND CONDITIONS ................................. 6 2.4 IFB SCHEDULE ...................................................................................................................... 6 2.5 BID QUESTIONS ..................................................................................................................... 6 2.6 BID SUBMITTAL ..................................................................................................................... 7 2.7 BID CONTENTS ...................................................................................................................... 7 2.8 ALTERNATE PROPOSALS .................................................................................................... 7 2.9 DEFINITIONS, ACRONYMS, AND ABBREVIATIONS ............................................................ 7 3.0 METHOD OF AWARD AND BID EVALUATION PROCESS .................................................... 8 3.1 METHOD OF AWARD ............................................................................................................. 8 3.2 CONFIDENTIALITY AND PROHIBITED COMMUNICATIONS DURING EVALUATION......... 8 3.3 BID EVALUATION PROCESS ................................................................................................ 8 3.4 PERFORMANCE OUTSIDE THE UNITED STATES ............................................................... 9 3.5 INTERPRETATION OF TERMS AND PHRASES .................................................................... 9 4.0 REQUIREMENTS ..................................................................................................................... 9 4.1 PRICING .................................................................................................................................. 9 4.2 FINANCIAL STABILITY .......................................................................................................... 9 4.3 VENDOR EXPERIENCE ........................................................................................................ 10 4.4 PERSONNEL ......................................................................................................................... 10 4.5 VENDOR’S REPRESENTATIONS ........................................................................................ 10 4.6 INSURANCE.......................................................................................................................... 11 4.7 HISTORICAL DATA .............................................................................................................. 11 5.0 SPECIFICATIONS AND SCOPE OF WORK .......................................................................... 13 5.1 SPECIFICATIONS ................................................................................................................. 13 6.0 CONTRACT ADMINISTRATION............................................................................................. 14 6.1 PROJECT MANAGER AND CUSTOMER SERVICE ............................................................ 14 6.2 TRANSITION ASSISTANCE ................................................................................................. 14 6.3 DISPUTE RESOLUTION ....................................................................................................... 14 Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 4 of 39 6.4 CONTRACT CHANGES ........................................................................................................ 15 7.0 ATTACHMENTS ..................................................................................................................... 16 ATTACHMENT A: PRICING............................................................................................................... 16 ATTACHMENT B: INSTRUCTIONS TO VENDORS .......................................................................... 17 ATTACHMENT C: NORTH CAROLINA GENERAL TERMS & CONDITIONS ................................... 17 ATTACHMENT D: LOCATION OF WORKERS UTILIZED BY VENDOR ........................................... 17 ATTACHMENT E: CERTIFICATION OF FINANCIAL CONDITION.................................................... 17 ATTACHMENT F: HUB SUPPLEMENTAL SUPPLIER INFORMATION ............................................ 17 ATTACHMENT G: FORM OF MASTER FACILITATOR AGREEMENT ............................................. 18 ATTACHMENT H: FORM OF MASTER REPLACEMENT BUS FINANCING AGREEMENT ............. 20 Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 5 of 39 1.0 PURPOSE AND BACKGROUND The State of North Carolina funds the vast majority of the school bus transportation program statewide. There are 115 Local Education Agencies (LEAs) in the State, transporting over 800,000 students daily for 180 school days per year. Through an appropriation from the North Carolina General Assembly, the North Carolina Department of Public Instruction (NCDPI or DPI) allots a block grant to each LEA for operation of the school transportation system. From this block grant, the LEA pays expenses for drivers, benefits, other personnel, fuel, tires, etc. Of all eligible expenditures for school transportation, the State funds approximately 90%. Through a separate legislative appropriation, NCDPI replaces school buses as needed, based on mileage and age criteria. Note that if an LEA needs to add an additional bus to its fleet, the LEA must purchase the initial bus with local funding. However, after purchase the bus is included in the State’s replacement system for school buses, and the State will provide a replacement bus. Current replacement criteria are as follows: • 150,000 Miles and at least 20 years; OR • 250,000 miles and at least 15 years; OR • 300,000 miles When a bus is replaced, it is removed from the State’s replacement program and the LEA is allowed to retain it as a spare bus. Typically, an existing spare bus will be removed from the county – either sold or transferred to another county as a spare bus. The State Term Contract referenced just (herein “State Term Contract”) requires that buses be delivered within 270 days of the order. The bus is then immediately turned over to the LEA and titled in the name of the LEA. The State Term Contract can be found at: https://files.nc.gov/ncdoa/pandc/Documents/StateTermContracts/STC071C/071C.pdf NCDPI is soliciting bids from the financial community to provide third party financing services for school buses. NCDPI is seeking equipment financing to be made available to North Carolina LEAs through fixed rate loans based on North Carolina General Statute 115C-528. For this procurement, NCDPI anticipates financing the purchase of approximately 400 school buses ranging in capacity from 41 to 72. Some vehicles will be equipped with wheelchair lifts. Most, but not all, vehicles will be equipped with air conditioning. The school buses are to be purchased from the State Term Contract for school buses and activity buses linked above. The successful Vendor shall comply with the specifications and requirements as stipulated herein. Total available funding from State’s replacement sources for school buses will not exceed $40 million over four (4) years. An estimated quantity based on past history or other means may be used as a guide but shall not be a representation by the State of any anticipated purchase volume under any contract made pursuant to this solicitation. The estimated expenditure on this contract is up to $40,000,000, however, no minimum or maximum quantities are guaranteed. Bids shall be submitted in accordance with the terms and conditions of this IFB and any addenda issued hereto. 1.1 CONTRACT TERM The Contract shall have an initial term of one (1) year, beginning immediately upon execution of the contract. 2.0 GENERAL INFORMATION 2.1 INVITATION FOR BID DOCUMENT This IFB is comprised of the base IFB document, any attachments, and any addenda released before Contract award, which are incorporated herein by reference. 2.2 E-PROCUREMENT FEE Orders placed pursuant to this contract are not subject to payment of an e-procurement fee. ATTENTION: This is an NC eProcurement solicitation facilitated by the Ariba Network. The E-Procurement fee does not apply to this solicitation. Paragraph entitled ELECTRONIC PROCUREMENT subsections (d) and (e) of the North Carolina General Terms and Conditions do not apply to this solicitation. General information on the E-Procurement Services can be found at: http://eprocurement.nc.gov/. https://files.nc.gov/ncdoa/pandc/Documents/StateTermContracts/STC071C/071C.pdf http://eprocurement.nc.gov/ Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 6 of 39 What is the Ariba Network? The Ariba Network is a web-based platform that serves as a connection point for buyers and vendors. Vendors can log in to the Ariba Network to view purchase orders, respond to electronic requests for quotes, participate in Sourcing Events, and collaborate with buyers on contract documents. For training on how to use the Sourcing Tool to view solicitations, submit questions, develop responses, upload documents, and submit offers to the State, Vendors should go to the following site: http://eprocurement.nc.gov/training/vendor-training. 2.3 NOTICE TO VENDORS REGARDING IFB TERMS AND CONDITIONS It shall be the Vendor’s responsibility to read the Instructions to Vendors, the North Carolina General Terms and Conditions, all relevant exhibits and attachments, and any other components made a part of this IFB and comply with all requirements and specifications herein. Vendors are also responsible for obtaining and complying with all Addenda and other changes that may be issued in connection with this IFB. If Vendors have questions, issues, or exceptions regarding any term, condition, or other component of this IFB, those must be submitted as questions in accordance with the instructions in the BID QUESTIONS Section. If the State determines that any changes will be made as a result of the questions asked, then such decisions will be communicated in the form of an IFB addendum. The State may also elect to leave open the possibility for later negotiation and amendment of specific provisions of the Contract that have been addressed during the question and answer period. Other than through this Q and A process or negotiation under 01 NCAC 05B.0503, the State rejects and will not be required to evaluate or consider any additional or modified terms and conditions submitted with Vendor’s bid or otherwise. This applies to any language appearing in or attached to the document as part of the Vendor’s bid that purports to vary any terms and conditions or Vendors’ instructions herein or to render the bid non-binding or subject to further negotiation. Vendor’s bid shall constitute a firm offer that shall be held open for the period required herein (“Validity Period” above). By execution and delivery of this IFB Response, the Vendor agrees that any additional or modified terms and conditions, whether submitted purposely or inadvertently, shall have no force or effect, and will be disregarded. Noncompliance with, or any attempt to alter or delete, this paragraph shall constitute sufficient grounds to reject Vendor’s bid as nonresponsive. The State may exercise its discretion to consider Vendor proposed modifications. 2.4 IFB SCHEDULE The table below shows the intended schedule for this IFB. The State will make every effort to adhere to this schedule. Event Responsibility Date and Time Issue IFB State November 16, 2021 Submit Written Questions Vendor November 23, 2021 Provide Response to Questions State November 24, 2021 Submit Bids Vendor December 2, 2021 Contract Award State As soon as possible 2.5 BID QUESTIONS Upon review of the IFB documents, Vendors may have questions to clarify or interpret the IFB in order to submit the best bid possible. To accommodate the Bid Questions process, Vendors shall submit any such questions by the “Submit Written Questions” date and time provided in the IFB SCHEDULE Section above, unless modified by Addendum. Written questions shall be emailed to Shannon.hanchey@dpi.nc.gov by the date and time specified above. Vendors should enter “IFB # 40-311449674 Questions” as the subject for the email. Question submittals should include a reference to the applicable IFB section and be submitted in the format shown below: Reference Vendor Question mailto:Shannon.hanchey@dpi.nc.gov Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 7 of 39 IFB Section, Page Number Vendor question …? Questions received prior to the submission deadline date, the State’s response, and any additional terms deemed necessary by the State will be posted in the form of an addendum to the Interactive Purchasing System (IPS), http://www.ips.state.nc.us, and shall become an Addendum to this IFB. No information, instruction or advice provided orally or informally by any State personnel, whether made in response to a question or otherwise in connection with this IFB, shall be considered authoritative or binding. Vendors shall rely only on written material contained in the IFB and an addendum to this IFB. 2.6 BID SUBMITTAL Failure to submit a bid in strict accordance with instructions provided shall constitute sufficient cause to reject a Vendor’s bid(s). Solicitation responses are subject to Sealed Bids requirements. Vendor is solely responsible for ensuring its bid is received in accordance with the IFB requirements before the bid due date and time. 2.7 BID CONTENTS Vendors shall populate all attachments of this IFB that require the Vendor to provide information and include an authorized signature where requested. Failure to provide all required items, or Vendor’s submission of incomplete items, may result in the State rejecting Vendor’s bid, in the State’s sole discretion. Vendor IFB responses shall include the following items and attachments, which shall be arranged in the following order: a) Cover Letter, must include a statement that confirms that the Vendor has read the IFB in its entirety, including all links, and all Addenda released in conjunction with the IFB. b) Title Page: Include the company name, address, phone number and authorized representative along with the Bid Number. c) Completed and signed version of all EXECUTION PAGES, along with the body of the IFB. d) Signed receipt pages of any addenda released in conjunction with this IFB, if required to be returned. e) Vendor’s Response. f) Completed version of ATTACHMENT A: PRICING g) Completed and signed version of ATTACHMENT D: LOCATION OF WORKERS UTILIZED BY VENDOR h) Completed and signed version of ATTACHMENT E: CERTIFICATION OF FINANCIAL CONDITION i) Completed and signed version of ATTACHMENT F: HUB SUPPLEMENTAL SUPPLIER INFORMATION j) ATTACHMENT G: FORM OF MASTER FACILITATOR AGREEMENT k) ATTACHMENT H: FORM OF MASTER REPLACEMENT BUS FINANCING AGREEMENT 2.8 ALTERNATE PROPOSALS Unless provided otherwise in this IFB, Vendor may submit alternate bids for comparable Services, various methods or levels of Service(s), or that propose different options. Alternate bid must specifically identify the IFB requirements and advantage(s) addressed by the alternate bid. Any alternate bid, in addition to the marking described above, must be clearly marked with the legend: “Alternate Bid # 40-311449674”. Each bid must be for a specific set of Goods and Services and must include specific pricing. If a Vendor chooses to respond with various offerings, each must be offered with a separate price and be contained in a separate bid. Each bis must be complete and independent of other bids offered. 2.9 DEFINITIONS, ACRONYMS, AND ABBREVIATIONS Relevant definitions for this IFB are provided in 01 NCAC 05A .0112 and in the Instructions to Vendors found below which are incorporated herein by this reference. The following definitions, acronyms, and abbreviations are also relevant to this IFB: http://www.ips.state.nc.us/ Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 8 of 39 3.0 METHOD OF AWARD AND BID EVALUATION PROCESS 3.1 METHOD OF AWARD North Carolina G.S. 143-52 provides a general list of criteria the State shall use to award contracts, as supplemented by the additional criteria herein. The Goods or Services being procured shall dictate the application and order of criteria; however, all award decisions shall be in the State’s best interest. All responsive bids will be reviewed, and an award or awards will be based on the responsive bid(s) offering the lowest price that meets the specifications provided herein. While the intent of this IFB is to award a Contract(s) to a single Vendor for all line items, the State reserves the right to make separate awards to different Vendors for one or more line items, to not award any portion of the goods or services or to cancel this IFB in its entirety without awarding a contract, if it is considered to be most advantageous to the State to do so. The State reserves the right to waive any minor informality or technicality in bids received. 3.2 CONFIDENTIALITY AND PROHIBITED COMMUNICATIONS DURING EVALUATION While this IFB is under evaluation, the responding Vendor, including any subcontractors and suppliers, is prohibited from engaging in conversations intended to influence the outcome of the evaluation. See the Paragraph of the Instructions to Vendors entitled Confidential Information. 3.3 BID EVALUATION PROCESS Only responsive submissions will be evaluated. The State will conduct an evaluation of responsive Bids, as follows: Bids will be received according to the method stated in the Bid Submittal section above. All bids must be received by the issuing agency not later than the date and time specified in the IFB SCHEDULE Section above, unless modified by Addendum. Vendors are cautioned that this is a request for offers, not an offer or request to contract, and the State reserves the unqualified right to reject any and all offers at any time if such rejection is deemed to be in the best interest of the State. At the date and time provided in the IFB SCHEDULE Section above, unless modified by Addendum, the bid from each responding Vendor will be opened publicly and the name of the Vendor and total cost offered may be announced. Interested parties are cautioned that these costs and their components are subject to further evaluation for completeness and correctness and therefore may not be an exact indicator of a Vendor’s pricing position. If negotiation is anticipated under 01 NCAC 05B.0503, pricing may not be public until award. At their option, the evaluators may request oral presentations or discussions with any or all Vendors for clarification or to amplify the materials presented in any part of the bid. Vendors are cautioned, however, that the evaluators are not required to request presentations or other clarification—and often do not. Therefore, all bids should be complete and reflect the most favorable terms available from the Vendor. Prices bid cannot be altered or modified as part of a clarification. Bids will generally be evaluated, based on completeness, content, cost and responsibility of the Vendor to supply the requested Services. Specific evaluation criteria are listed in Section 3.1 METHOD OF AWARD. Upon completion of the evaluation process, the State will make Award(s) based on the evaluation and post the award(s) to IPS under the IFB number for this solicitation. Award of a Contract to one Vendor does not mean that the other bids lacked merit, but that, all factors considered, the selected bid was deemed most advantageous and represented the best value to the State. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 9 of 39 The State reserves the right to negotiate with one or more Vendors, or to reject all original offers and negotiate with one or more sources of supply that may be capable of satisfying the requirement, and in either case to require Vendor to submit a Best and Final Offer (BAFO) based on discussions and negotiations with the State. 3.4 PERFORMANCE OUTSIDE THE UNITED STATES Vendor shall complete ATTACHMENT D: LOCATION OF WORKERS UTILIZED BY VENDOR. In addition to any other evaluation criteria identified in this IFB, the State may also consider, for purposes of evaluating proposed or actual contract performance outside of the United States, how that performance may affect the following factors to ensure that any award will be in the best interest of the State: a) Total cost to the State b) Level of quality provided by the Vendor c) Process and performance capability across multiple jurisdictions d) Protection of the State’s information and intellectual property e) Availability of pertinent skills f) Ability to understand the State’s business requirements and internal operational culture g) Particular risk factors such as the security of the State’s information technology h) Relations with citizens and employees i) Contract enforcement jurisdictional issues 3.5 INTERPRETATION OF TERMS AND PHRASES This IFB serves two functions: (1) to advise potential Vendors of the parameters of the solution being sought by the State; and (2) to provide (together with other specified documents) the terms of the Contract resulting from this procurement. The use of phrases such as “shall,” “must,” and “requirements” are intended to create enforceable contract conditions. In determining whether bids should be evaluated or rejected, the State will take into consideration the degree to which Vendors have proposed or failed to propose solutions that will satisfy the State’s needs as described in the IFB. Except as specifically stated in the IFB, no one requirement shall automatically disqualify a Vendor from consideration. However, failure to comply with any single requirement may result in the State exercising its discretion to reject a bid in its entirety. 4.0 REQUIREMENTS This Section lists the requirements related to this IFB. By submitting a bid, the Vendor agrees to meet all stated requirements in this Section as well as any other specifications, requirements, and terms and conditions stated in this IFB. If a Vendor is unclear about a requirement or specification or believes a change to a requirement would allow for the State to receive a better bid, the Vendor is urged to submit these items in the form of a question during the question and answer period in accordance with the Bid Questions Section above. 4.1 PRICING Bid price shall constitute the total cost to the State for complete performance in accordance with the requirements and specifications herein, including all applicable charges for handling, transportation, administrative and other similar fees. Complete ATTACHMENT A: PRICING FORM and include in Vendor’s response. 4.2 FINANCIAL STABILITY As a condition of contract award, the Vendor must certify that it has the financial capacity to perform and to continue to perform its obligations under the Contract; that Vendor has no constructive or actual knowledge of an actual or potential legal proceeding being brought against Vendor that could materially adversely affect performance of this Contract; and that entering into this Contract is not prohibited by any contract, or order by any court of competent jurisdiction. Each Vendor shall certify it is financially stable by completing ATTACHMENT E: CERTIFICATION OF FINANCIAL CONDITION. The State is requiring this certification to minimize potential issues from contracting with a Vendor that is financially unstable. From the date of the Certification to the expiration of the Contract, the Vendor shall notify the State Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 10 of 39 within thirty (30) days of any occurrence or condition that materially alters the truth of any statement made in this Certification. The Contract Manager may require annual recertification of the Vendor’s financial stability. 4.3 VENDOR EXPERIENCE Vendor must have a minimum of three (3) years of experience providing similar services to public sector (state, city or county government) clients with similar or greater size and complexity to the State of North Carolina as describe in this IFB. Required minimum 3 years of experience YES NO Please list the government entity and services provided below. No. Government Entity: Service Provided: 1 2 3 Can the vendor begin providing the required services described in this IFB within fifteen (15) days from the executed agreement? YES NO 4.4 PERSONNEL NCDPI Section Chief for Transportation Services is designated as the Contract Administrator (Project Coordinator) for the Department, for the purpose of this contract. Vendor warrants that qualified personnel shall provide Services under this Contract in a professional manner. “Professional manner” means that the personnel performing the Services will possess the skill and competence consistent with the prevailing business standards in the industry. Vendor will serve as the prime contractor under this Contract and shall be responsible for the performance and payment of all subcontractors(s) that may be approved by the State. Names of any third-party Vendors or subcontractors of Vendor may appear for purposes of convenience in Contract documents; and shall not limit Vendor’s obligations hereunder. Vendor will retain executive representation for functional and technical expertise as needed in order to incorporate any work by third party subcontractor(s). Should the Vendor’s bid result in an award, the Vendor shall be required to agree that it will not substitute key personnel assigned to the performance of the Contract without prior written approval by the Contract Lead. Vendor shall further agree that it will notify the Contract Lead of any desired substitution, including the name(s) and references of Vendor’s recommended substitute personnel. The State will approve or disapprove the requested substitution in a timely manner. The State may, in its sole discretion, terminate the Services of any person providing Services under this Contract. Upon such termination, the State may request acceptable substitute personnel or terminate the contract Services provided by such personnel. 4.5 VENDOR’S REPRESENTATIONS If Vendor’s bid results in an award, Vendor agrees that it will not enter any agreement with a third party that may abridge any rights of the State under the Contract. If any Services, deliverables, functions, or responsibilities not specifically described in this solicitation are required for Vendor’s proper performance, provision and delivery of the Service and deliverables under a resulting Contract, or are an inherent part of or necessary sub-task included within such Service, they will be deemed to be implied by and included within the scope of the Contract to the same extent and in the same Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 11 of 39 manner as if specifically described in the Contract. Unless otherwise expressly provided herein, Vendor will furnish all of its own necessary management, supervision, labor, facilities, furniture, computer and telecommunications equipment, software, supplies and materials necessary for the Vendor to provide and deliver the Services and/or other Deliverables. 4.6 INSURANCE The State is self-insured with respect to damage to school buses. When a bus is involved in a collision, it is up to the LEA to make the needed repairs to the vehicle. If there are proceeds from the insurance company of the other vehicle operator, then those proceeds will offset the cost of repair. Otherwise, the LEA must make repairs using funds from its block grant allotment. If a bus is declared a total loss where, in the estimation of NCDPI Transportation Consultants, the cost to replace the bus exceeds its value, then the state replaces the bus. The same process applies to school bus damage caused by vandalism, fire, flood, storms, or other natural disasters. Activity buses are insured by each LEA. 4.7 HISTORICAL DATA The following table shows the number of replacement buses purchased by the NCDPI for North Carolina LEAs during the past years. Indicated also is the dollar amount of these purchases. Year Number Buses Purchase Amount 1995-96 995 $ 40,306,843 1996-97 978 $ 42,261,861 1997-98 905 $ 41,015,613 1998-99 1022 $ 45,646,083 1999-00 591 $ 28,154,995 2000-01 1061 $ 18,787,764 2001-02 162 $ 9,650,784 2002-03 37 $ 2,193,867 2002-03 472 financed $28,976,911 (total amount financed, to be paid in 3 equal payments over 3 years) 2003-04 31 $1,859,374 2003-04 756 financed $44,847,198 (total amount financed, to be paid in 3 equal payments over 3 years) 2004-05 10 $ 634,314 2004-05 612 Financed $37,947,889 (total amount financed, to be paid in 3 equal payments over 3 years) 2005-06 31 $ 1,929,257 2005-06 476 $30,371,550 (total amount financed, to be paid in 3 equal payments over 3 years) 2006-07 21 $1,376,057 2006-07 1165 Financed $80,423,810 (total amount financed, to be paid in 3 equal payments over 3 years) 2007-08 15 $1,083,109 2007-08 660 Financed $50,720,189 (total amount financed, to be paid in 3 equal payments over 3 years) 2008-09 869 Financed $69,970,575 (total amount financed, to be paid in 3 equal payments over 3 years) 2008-09 13 $1,010,618 2009-10 1023 Financed $ 82,372,140 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2009-10 16 $ 1,233,766 2010-11 46 Financed $3,933,976 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2010-11 13 $1,094,239 2011-12 1210 Financed $100,818,436 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2011-12 11 $880,896 2012-13 0 Financed $3,933,976 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2012-13 72 $5,863,306 2013-14 403 Financed $32,728,937 (total amount financed, to be paid in 4 equal payments over 4 yes) 2013-14 0 Direct pay $00.00 2014-15 533 Financed $43,849,654 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2014-15 15 Direct pay $1,224,205 2015-16 701 Financed $60,775,208 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2015-16 0 Direct pay $0 2016-17 781 Financed $68,560,172 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2016-17 0 Direct Pay $0.00 2017-18 700 Financed $62,113,721 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2017-18 8 Direct Pay $680,280 2018-19 664 Financed $58,503,845 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2018-19 0 Direct pay $0 Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 12 of 39 2019-20 654 Financed $62,668,416 (total amount financed, to be paid in 4 equal payments over 4 yrs.) 2019-20 3 Direct Pay $281,153 2020-21 598 Financed $57,492,412 (total amount financed, to be paid in 4 equal payments over 4 yrs.) Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 13 of 39 SPECIFICATIONS AND SCOPE OF WORK 5.1 SPECIFICATIONS A. THE PROCESS a) For each LEA, funding (first year payments including finance charges) will be allotted to that LEA. b) The State Term Contract for school buses requires delivery to a location within 75 miles of Asheboro, NC. Acceptance of the buses by DPI and LEA, will take place at such location. It is anticipated that buses will be accepted in lots of 50-100 buses. c) DPI will sign a Master Facilitator Agreement with Vendor. A Master Facilitator Agreement is shown in Exhibit A. d) LEAs will each sign a Master Replacement Bus Financing Agreement (MRBFA) with Vendor. A sample MRBFA is shown in Attachment H e) Within 10 days of acceptance of the equipment by DPI and the LEA, the LEA will make the first payment to the Vendor. Within 30 days of the acceptance of the equipment by DPI and the LEA, the Vendor must make full payment to the school bus manufacturer or dealer. The second, third and fourth payments to the Vendor will take place as described in the body of this IFB. No payments shall be due to the Vendor prior to DPI and LEA acceptance of the equipment. f) LEAs that wish to finance the purchase of additional school buses from non-state funds may use this contract and will provide appropriate approval documentation to the Vendor and will initiate separate contracts with the Vendor incorporating the terms and payment amounts established pursuant to this IFB. SBE shall not be a party to these separate agreements and shall not be responsible for payments under these separate agreements. B. FINANCING ARRANGEMENTS a) NCDPI is not requesting an annual percentage rate nor are the payments to be indexed or prorated based on fluctuating market interest rates. The prices bid for each of FOUR equal payments for each configuration of bus to be financed shall be fixed for the duration of this contract. There are three vendors of school buses on the State Term Contract. As such, financed prices per $1000 will be requested in lieu of specific prices per bus. b) A small number of LEAs may use this contract to finance the purchase of up to, collectively, 15 activity and school buses from their own, non-state funding sources. Vendor shall allow these LEAs to participate in this financing contract upon the LEAs request and in accordance with the terms and payment amounts established pursuant to this IFB. These school districts will provide payment on the same payment schedule as the state replacement buses and will provide evidence of their creditworthiness upon request of Vendor. The LEAs will also complete a separate contract with Vendor containing the same payment amounts proposed in response to this IFB. DPI shall not be a party to these separate agreements and shall not be responsible for payments under these separate agreements. Vendor also understands that school buses purchased by these school districts will be covered for liability and vehicle replacement just like the replacement buses described in this document. c) The proposed amount of this contract will be determined as a result of the proposed payment amount. Total school bus purchase price is estimated to be $40,000,000. Payments to Vendor will include bus purchase price and finance costs and will be paid in four equal payments. As directed by the General Assembly, NCDPI will make allotments to each LEA receiving replacement school buses under this acquisition. At the time that such buses are delivered, DPI and the LEA will inspect the buses and verify their condition, approving that they meet state specifications and are acceptable to be included in the state school bus fleet. Documentation of this approval will be provided to the Vendor, indicating that payment Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 14 of 39 is forthcoming from the LEA within 10 days of acceptance and that payment will be due from the Vendor to the school bus manufacturer within 30 days of acceptance. d) LEA PAYMENTS. Repayment of monies by North Carolina LEAs will be on an annual basis. The first of FOUR equal payments for each school bus will be made by the appropriate LEA to the Vendor within 10 days of the acceptance of the school bus. The second of the four equal payments will be made by the LEA by November 15, 2022, or within 10 days of the acceptance of the school bus, whichever is later. The third of the four equal payments will be made by the LEA prior to November 15, 2023. The fourth of the four equal payments will be made by the LEA prior to November 15, 2024. e) Vendor payments to school bus manufacturer or dealer – Payment of the full purchase price of each bus must be made by Vendor to school bus manufacturers or dealers not later than thirty (30) days of the acceptance of each bus by DPI and the LEA. f) No discounts, rebates or other incentives offered by school bus manufacturers or dealers or entities other than Vendor will be considered in the evaluation of any response to this IFB. g) A contract awarded pursuant to this IFB, if any, shall not be assigned in any manner that would allow securitization of the loan and permit it to be sold on behalf of the State of North Carolina by a third party to public investors. h) BOND RATING – This financing will NOT be rated and will NOT be bank qualified. i) All costs associated with the financing as described herein shall be the responsibility of the Vendor. NCDPI shall not pay for any legal or other services associated with this transaction. 6.0 CONTRACT ADMINISTRATION All Contract Administration requirements are conditioned on an award resulting from this solicitation. This information is provided for the Vendor’s planning purposes. 6.1 PROJECT MANAGER AND CUSTOMER SERVICE The Vendor shall be required to designate and make available to the State a project manager. The project manager shall be the State’s point of contact for Contract related issues and issues concerning performance, progress review, scheduling, and service. 6.2 TRANSITION ASSISTANCE If a Contract results from this solicitation, and the Contract is not renewed at the end of the last active term, or is canceled prior to its expiration, for any reason, Vendor shall provide transition assistance to the State, at the option of the State, for up to six months to allow for the expired or canceled portion of the Services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Services to the State or its designees. If the State exercises this option, the Parties agree that such transition assistance shall be governed by the terms and conditions of the Contract (notwithstanding this expiration or cancellation), except for those Contract terms or conditions that do not reasonably apply to such transition assistance. The State shall agree to pay Vendor for any resources utilized in performing such transition assistance at the most current rates provided by the Contract for performance of the Services or other resources utilized. 6.3 DISPUTE RESOLUTION During the performance of the Contract, the parties agree that it is in their mutual interest to resolve disputes informally. Any claims by the Vendor shall be submitted in writing to the State’s Contract Manager for resolution. Any claims by the State shall be submitted in writing to the Vendor’s Project Manager for resolution. The Parties shall agree to negotiate in good faith and use all reasonable efforts to resolve such dispute(s). During the time the Parties are attempting to resolve any dispute, each shall proceed diligently to perform their respective duties and responsibilities under this Contract. The Parties will agree on a reasonable amount of time to resolve a dispute. If a dispute cannot be resolved between the Parties within the agreed upon period, either Party may elect to Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 15 of 39 exercise any other remedies available under the Contract, or at law. This provision, when agreed in the Contract, shall not constitute an agreement by either party to mediate or arbitrate any dispute. 6.4 CONTRACT CHANGES Contract changes, if any, over the life of the Contract shall be implemented by contract amendments agreed to in writing by the State and Vendor. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 16 of 39 7.0 ATTACHMENTS ATTACHMENT A: PRICING The Pricing associated with this IFB can be found in the table below: FURNISH AND DELIVER: LIST ACTUAL PAYMENTS YEAR 1 All Vendors shall complete the table below and return with bid submission: A B C Purchase Price Amount of Each of Four Payments #1 – within 10 Days of vehicle acceptance # 2 - 11/15/22 or with payment #1 (whichever is later) # 3 – 11/15/23 # 4 – 11/15/24 4-Payment Total (B) x 4 $1,000 $___________ $_________ NOTE 1: The timing of Payment Number 2 depends on the delivery date of the bus. While we anticipate that all buses will be received before November 2022 the timing of payment #2 allows for this contingency. EXAMPLE #1: Bus cost $80,000, total finance cost $80,800, delivered July 1, 2022 Payment #1, paid to Vendor by July 11, 2022, $20,200 (Vendor pays school bus manufacturer/dealer $80,000 by July 31, 2022) Payment #2, paid to Vendor by November 15, 2022, $20,200 Payment #3, paid to Vendor by November 15, 2023, $20,200 Payment #4, paid to Vendor by November 15, 2024, $20,200 EXAMPLE #2: Bus cost $80,000, total finance cost $80,800, delivered November 25, 2022 Payment #1, paid to Vendor by December 5, 2022, $20,200 (Vendor pays school bus manufacturer/dealer $80,000 by December 25, 2022) Payment #2, paid to Vendor by December 5, 2022, $20,200 Payment #3, paid to Vendor by November 15, 2023, $20,200 Payment #4, paid to Vendor by November 15, 2024, $20,200 To clarify further, the 4-payment-total amount (column C above) will be used to calculate the payments for varying prices of school buses. For instance, if a school bus has a state contract purchase price of $79,233.45 the 4-payment-total amount will be multiplied by 79.23345 – the total will then be divided into four equal payments (rounded up to the nearest penny), paid to the Vendor according to the schedule described in column (B) above. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 17 of 39 ATTACHMENT B: INSTRUCTIONS TO VENDORS The Instructions to Vendors, which are incorporated herein by this reference, may be found here: https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_North-Carolina-Instructions-to-Vendors_09.2020.pdf ATTACHMENT C: NORTH CAROLINA GENERAL TERMS & CONDITIONS The North Carolina General Terms and Conditions, which are incorporated herein by this reference, may be found here: https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_North-Carolina-General-Terms-and-Conditions_12.2020.pdf ATTACHMENT D: LOCATION OF WORKERS UTILIZED BY VENDOR The Location of Workers Utilized by Vendor associated with this IFB is a separate document that can be found at the following link: https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_Location-of-Vendors-Located-Outside-the-United-States_01.2020.pdf ATTACHMENT E: CERTIFICATION OF FINANCIAL CONDITION The Certification of Financial Condition associated with this IFB is a separate document that can be found at the following link: https://files.nc.gov/ncdoa/pandc/OnlineForms/CERTIFICATION-OF-FINANCIAL-CONDITION.docx ATTACHMENT F: HUB SUPPLEMENTAL SUPPLIER INFORMATION The Historically Underutilized Businesses (HUB) Supplier Information associated with this IFB is a separate document that can be found at the following link: https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_HUB-Supplemental-Vendor-Information_9.2020.pdf https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_North-Carolina-Instructions-to-Vendors_09.2020.pdf https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_North-Carolina-General-Terms-and-Conditions_12.2020.pdf https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_Location-of-Vendors-Located-Outside-the-United-States_01.2020.pdf https://files.nc.gov/ncdoa/pandc/OnlineForms/CERTIFICATION-OF-FINANCIAL-CONDITION.docx https://files.nc.gov/ncdoa/pandc/OnlineForms/Form_HUB-Supplemental-Vendor-Information_9.2020.pdf Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 18 of 39 ATTACHMENT G: FORM OF MASTER FACILITATOR AGREEMENT THIS MASTER FACILITATOR AGREEMENT (this “Agreement”), dated as of ________, is by and between the NORTH CAROLINA STATE BOARD OF EDUCATION (the “Board”), and __________, hereinafter known as CONTRACTOR. WITNESSETH: WHEREAS, pursuant to G.S. 115C-240(e), the Board is authorized to fund public school transportation operations and, pursuant to G.S. 115C-249, the replacement of school buses and other vehicles; and WHEREAS, the Board has promulgated criteria by which buses in the statewide fleet are to be replaced in a given year; and WHEREAS, the Board, through the Department of Public Instruction (“DPI”) has identified buses (the “Buses”) for replacement for use by the local boards of education (each, a “LEA”) at an estimated aggregate cost of $40 million; and WHEREAS, pursuant to G.S. 115C-528, an LEA may purchase or finance the purchase of school buses; and WHEREAS, of the funds appropriated to the Board for the 2021-2022 fiscal year, the North Carolina General Assembly has authorized the Board to use funds for allotments to the LEAs to pay the cost of Bus financing for the first year; and WHEREAS, pursuant to a solicitation for third party financing (DPI IFB 40-311449674 School Bus Financing), DPI has selected CONTRACTOR to provide financing for the replacement Buses; and WHEREAS, each LEA will enter into a Master Replacement Bus Financing Agreement (each, a “Financing Agreement”) with CONTRACTOR pursuant to which the LEAs will finance the purchase of the Buses through CONTRACTOR, on the terms and conditions as provided therein; and WHEREAS, as buses are accepted, each LEA will submit an Appendix (each, an “Appendix”) to CONTRACTOR to facilitate the acquisition of one or more Buses; and WHEREAS, for purposes of financing, the Buses will be considered to be accepted at the time that the Buses are accepted by DPI and the respective LEA; and NOW, THEREFORE, the Board and CONTRACTOR agree: 1. The Board agrees to allocate to the LEAs all necessary funds appropriated by the General Assembly to the LEAs for the acquisition of the Buses acquired pursuant to the Financing Agreements. The Board agrees to direct those funds to CONTRACTOR for Installment Payments on behalf of the LEAs pursuant to the Financing Agreements. 2. The Board will collect the Installments Payments from the LEA and will cause the Installment Payments to be paid to CONTRACTOR, on the dates and in the amounts set forth “Part 2--Payment Schedule” in the applicable Appendix to each Financing Agreement. 3. In the event that during fiscal years 2022-2023, 2023-2024, or 2024-2025 sufficient funds are not appropriated for the payment of the total of all Installment Payments required to be paid pursuant to the Financing Agreements, then any LEA under the terms of its respective Financing Agreement, may terminate its Financing Agreement together with each and every one of the Appendices. 4. The Board further intends and hereby covenants that it will (i) include in its proposed budgets for fiscal years 2022- 2023, 2023-2024 or 2024-2025 an appropriation in an amount sufficient to provide for all Installment Payments due and owing for such fiscal years on behalf of the LEAs; (ii) include in such proposed budget and accompanying material submitted for each such fiscal year adequate information and recommendations regarding the purchase of the Buses, the public purposes served, and the Installment Payments required therefor; (iii) do all things lawfully within its power to request the appropriation of all funds anticipated by this Agreement; and (iv) use its best efforts to secure the timely approval and appropriation in the budget for each of the fiscal years of any and all such amounts as may become due under this Agreement. 5. If the Board shall take any official action, or if any other fact or circumstance shall occur, regarding the Board’s proposed budget with respect to the total amount of the Installment Payments collected by the Board on behalf of each of the LEAs, or any amended or supplemental appropriation that may be proposed with respect to the Installment Payment that adversely affects the securing of timely approval and appropriation of funds therefor, the Board shall promptly notify Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 19 of 39 CONTRACTOR thereof. 6. Pursuant to G.S. 115C-249(f), if any Bus is damaged or destroyed by fire, collision or otherwise, the LEA may apply to the Board for funds with which to replace it. If the Board finds that the Accepted Bus has been destroyed or damaged to the extent that it cannot be made suitable for further use, and if the Board finds that the replacement of the Bus is necessary in order to enable the LEA to operate properly its transportation system, the Board shall allot the LEA from the funds held by it for the replacement of school buses, or from funds hereafter appropriated by the General Assembly of the State of North Carolina for that purpose, a sum sufficient to purchase free and clear a new bus to be used as a replacement for the damaged or destroyed Bus and upon such allocation, such sum shall be paid over to or for the account of the LEA for such purpose. The replacement Bus will be substituted as a security interest for the financing of the damaged or destroyed Bus. Alternatively, the Board may allot to the LEA sufficient funds to fulfill remaining payments due. 7. The State recognizes that CONTRACTOR may assign its right to receive payment under this contract only with written permission of the State. In no event does the recognition of assignment of CONTRACTOR’S right to receive payments obligate the State to anyone except CONTRACTOR. The State merely recognizes financial assignment as a convenience to CONTRACTOR and will hold CONTRACTOR responsible for fulfillment of all contract obligations. 8. The DPI agrees to coordinate the inspection and acceptance of the Buses by the respective LEAs at the school bus manufacturer vendor's facilities in the state of North Carolina. To the extent possible, Buses will be inspected by the DPI and accepted by one or more LEAs in lots of at least fifty (50). Each LEA will inspect the Buses ordered by it. Upon satisfactory inspection of one or more Buses by the LEA, and approval by the DPI, the respective LEA and the DPI may complete and execute the Form of Acceptance Certificate attached to this Agreement as Exhibit "A". An identical form of the Acceptance Certificate is attached to the Disbursement Request, which is Part 3 of each Financing Agreement. Execution of the Acceptance Certificate constitutes acceptance of the buses for any Master Replacement Bus Financing Agreement. The DPI agrees to transmit any Acceptance Certificate by facsimile or email transfer to CONTRACTOR within 72 hours of execution of such Acceptance Certificate. CONTRACTOR agrees to transmit by facsimile or email transfer any Payment Schedule within 72 hours of receipt of such Acceptance Certificate. 9. This Agreement may be executed in one or more counterparts, any of which shall be regarded for all purposes as an original and all of which constitute one and the same instrument. The Board agrees that it will execute any and all documents or other instruments and take such other actions as may be necessary to give effect to the terms of this Agreement. 10. No waiver by the Board of any term or condition of this Agreement shall be deemed or construed as a waiver of any other terms or conditions, nor shall a waiver of any breach be deemed to constitute a waiver of any subsequent breach, whether of the same or of a different section, subsection, paragraph, clause, phrase or other provision of this Agreement. 11. CONTRACTOR, not being a “seller” of the Accepted Buses, as such term is used in the Uniform Commercial Code nor a seller’s agent, hereby expressly disclaim, and make no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of the Accepted Buses, or any other warranty with respect thereto and, as to CONTRACTOR, the Accepted Buses will be purchased AS IS. In no event shall CONTRACTOR be liable for any loss or damage, including incidental, indirect, special or consequential damage, in connection with or arising out of the existence, furnishing, functioning, or the use of the Accepted Buses by the LEAs. 12. This Agreement may only be revised with the prior written consent of the Board and CONTRACTOR, as the third- party financier under each of Financing Agreements. IN WITNESSETH WHEREOF, we have set our hands unto this Agreement as of the date above written NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION By: _______________________________ Catherine Truitt, State Superintendent By: _______________________________ Alexis Schauss, Chief Financial Officer CONTRACTOR By: _______________________________ (Name, Title) Print: _______________________________ (Name, Title) Date: _______________________________ Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 20 of 39 ATTACHMENT H: FORM OF MASTER REPLACEMENT BUS FINANCING AGREEMENT THIS MASTER REPLACEMENT BUS FINANCING AGREEMENT, dated as of ,20 (this “Agreement”), is made and entered into by and between __________, hereinafter referred to as “CONTRACTOR” and the ______________________________________________________________________________________ (hereinafter referred to as “local education agency” or the “LEA”), a political subdivision of the State of North Carolina (the “State”) and its successors and permitted assignees, whose offices are located at __________________________________________________________. RECITALS WHEREAS, pursuant to the authority granted by G.S. 115C-249(c) and 115C-528, the LEA is authorized to acquire, own, lease, contract and operate school buses for the transportation of pupils enrolled in the public schools of such LEA, in accordance with the rules and regulations adopted by the North Carolina State Board of Education (the “Board”) under the authority of G.S. 115C-12(17); and WHEREAS, the General Assembly of the State of North Carolina has authorized the Board to use funds for allotments to the various local education agencies of the State for the replacement of school buses for the 2021- 2022 fiscal year; and WHEREAS, pursuant to a solicitation for third party financing, the Board, acting through its Department of Public Instruction (“DPI”) has selected CONTRACTOR. to provide financing for the replacement of school buses; and WHEREAS, the LEA desires to purchase certain replacement buses (the “Buses”) and CONTRACTOR desires to finance the purchase of the Buses on an installment basis, pursuant to the terms and conditions hereinafter set forth and as authorized by G.S. 115C-249(c) and 115C-528; and WHEREAS, this Agreement shall be implemented through one or more series of Appendices (as defined herein), with each Appendix constituting a single transaction subject to and entered into pursuant to this Agreement; NOW, THEREFORE, for and in consideration of the foregoing recitals and the covenants and agreements contained herein, the parties do hereby agree as follows: ARTICLE I – DEFINITIONS The following terms will have the meanings indicated below unless the context clearly requires otherwise: “Accepted Buses” means those Buses identified on “Part I--List of Accepted Buses” as a part of each Appendix, to be purchased by the LEA and financed, on an installment basis, by CONTRACTOR for a term not exceeding the useful life of each Accepted Bus pursuant to this Agreement. “Agreement” means this Master Replacement Bus Financing Agreement by and between the LEA and CONTRACTOR, any duly executed Amendment(s), and the Appendices executed in connection herewith. “Appendix” means each consecutively numbered Appendix utilized to acquire the Accepted Buses, and includes- Part 1--List of Accepted Buses indicating the total cost of the Accepted Buses Part 2--Payment Schedule Part 3--Disbursement Request, with Acceptance Certificate Form 8038-G and UCC-1 Financing Statements, if applicable “Board” or “NCSBE” means the North Carolina State Board of Education. “Buses” means the aggregate listing of anticipated replacement buses identified by DPI to be acquired by the LEA and identified on Exhibit B attached to this Agreement. “Code” means the Internal Revenue Code of 1986, as amended, together with all published rulings, regulations and court decisions with respect thereto. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 21 of 39 “Contract Documents” consist of— • this Agreement • Exhibit A--North Carolina General Contract Terms and Conditions. • Exhibit B--Aggregate List of Replacement Buses Anticipated to be Acquired by the LEA • Exhibit C--General Certificate of the LEA • each Appendix • any other documents deemed necessary by CONTRACTOR and/or the LEA. Where the terms and provisions of the Agreement vary from the terms and provisions of the other Contract Documents, the terms and provisions of the Agreement shall prevail over the other Contract Documents. “DPI” means the North Carolina Department of Public Instruction. “Financing Term” means, with respect to the Accepted Buses acquired pursuant to an Appendix, the term of its related Payment Schedule. “Installment Payment Date” means, with respect to an Appendix, each date set forth in its related Payment Schedule on which the payment of an installment of principal or interest must be made by the LEA. “Installment Payments” means one or more of the periodic payments made by the LEA pursuant to Section 4.01 hereof and at the times and in the amounts set forth in the Payment Schedule with respect to each Appendix, and that are payable in consideration of CONTRACTOR’s financing of the Accepted Buses for the benefit of the LEA and other obligations under this Agreement. Exact installment payment amounts are listed in CONTRACTOR’s cost proposal in response to IFB #40-PR11855651. “Master Facilitator Agreement” means the Master Facilitator Agreement executed between CONTRACTOR and the Board, dated as of March 4, 2021. “Payment Schedule” means the schedule of payments set forth in Part 2 to each Appendix to be made by the LEA in consideration of CONTRACTOR’s financing of the Accepted Buses pursuant to this Agreement. “Prepayment Price” means the amount which the LEA may, in its discretion, pay to CONTRACTOR to prepay all Installment Payments with respect to an Appendix. With respect to the LEA’s option to prepay all Installment Payments with respect to an Appendix, the “Prepayment Price” shall be set forth on “Part 2--Payment Schedule” to the applicable Appendix after paying the Installment Payment and all other amounts due on or before such date for prepayment. “State” means the State of North Carolina. “Vendor” means any manufacturer of the Buses as well as the agents or dealers of the manufacturer from whom the Buses were originally purchased or are being purchased. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 22 of 39 ARTICLE II – GENERAL Section 2.01 Purpose of this Agreement. The purpose of this Agreement is to provide for the terms of the financing of the Accepted Buses by CONTRACTOR on behalf of the LEA. Each transaction implemented and entered into hereunder shall be deemed to be a separate and distinct legal and binding obligation of the LEA and CONTRACTOR with this Agreement being applicable thereto independent of additional transactions that may be entered into by CONTRACTOR and the LEA hereunder. Section 2.02 Agreement to Finance. CONTRACTOR agrees to provide financing for the Accepted Buses described in “Part 1--List of Accepted Buses” to each properly executed Appendix for the consideration indicated in “Part 2--Payment Schedule” of the related Appendix to the LEA, and the LEA agrees to accept the terms of the financing provided by CONTRACTOR for each of the Accepted Buses. The LEA shall be entitled to retain possession of the Accepted Buses as long as it is not in default under this Agreement. ARTICLE III – IMPLEMENTATION OF THE AGREEMENT Section 3.01 General Contract Terms and Conditions. The North Carolina General Contract Terms and Conditions contained in Attachment D to IFB # 40-311449674, which are attached hereto as Attachment A and are incorporated herein by reference. All references to the term “the State” in Attachment D to IFB # 40- PR12133018 are deemed to mean the “LEA”, with the exception of references to “the State” contained in Section 22, “Insurance”, which is unchanged. Section 3.02 Ordering of the Buses. The DPI has identified certain Buses for replacement for use by the LEA, which are listed on the attached Exhibit B and incorporated herein by reference. The LEA will issue a Purchase Order for the Buses to the Vendor. Section 3.03 Delivery of the Buses. In response to the LEA Purchase Order, subject to the terms of the current state term contract for school buses, Vendor will deliver one or more replacement Buses to the DPI on behalf of the LEA. Upon delivery, the DPI and the LEA will inspect the replacement Buses to ascertain that the replacement Buses meet the State’s replacement criteria. Section 3.04 Acceptance of the Buses. Upon acceptance of the replacement Buses, the DPI and the LEA will notify CONTRACTOR of the aggregate cost of the Accepted Buses. The LEA will provide to CONTRACTOR a properly completed Appendix, including a listing of the “Part 1--List of Accepted Buses” as well as notifying CONTRACTOR as to the aggregate cost of the Accepted Buses. CONTRACTOR will be responsible for preparing “Part 2--Payment Schedule” for each Appendix. In accordance with the Master Facilitator Agreement, CONTRACTOR will provide copies of “Part 2--Payment Schedule” for each Appendix to the Board. Section 3.05 Vendor Payment. Pursuant to the Master Facilitator Agreement, the Board will allocate funds to the LEAs for the acquisition of the Buses acquired pursuant to the Financing Agreements. The Board will direct those funds to CONTRACTOR to pay the Installment Payments required by this Agreement. Within ten (10) days from the date of acceptance of the Accepted Buses in connection with an Appendix, the Board will direct funds representing the LEA’s first annual Installment Payment to be paid pursuant to “Part 2--Payment Schedule “of an Appendix and will arrange to transfer the Installment Payment to CONTRACTOR, No later than thirty (30) days after the LEA accepts the Accepted Buses, CONTRACTOR will pay the total cost of the Accepted Buses to the Vendor. Section 3.06 The Board’s Allocation of Funds to the LEA. Pursuant to the Master Facilitator Agreement, the Board will allocate to the LEA funds appropriated by the General Assembly for the purchase of the Buses and will direct such funds to CONTRACTOR for annual Installment Payments. By its execution of this Agreement and of each Appendix, the LEA authorizes the Board to and acknowledges that the Board will direct such funds to CONTRACTOR. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 23 of 39 ARTICLE IV – INSTALLMENT PAYMENTS Section 4.01 Payment of Installment Payments. Required payments for each bus configuration are quoted by CONTRACTOR in its response to IFB # 40-311449674 which is incorporated into this Agreement by reference thereto. Pursuant to the terms of the Contract Documents, the LEA will pay FOUR equal Installment Payments for each Bus, as set forth on each “Part 2--Payment Schedule” of each Appendix. The total estimated financed cost for the Buses is shown on Exhibit B attached hereto. Each Installment Payment comprises an interest component and a principal component, as set forth on “Part 2--Payment Schedule” to each Appendix. The Installment Payments will be payable without notice or demand at such address as CONTRACTOR has designated and provided in writing to the LEA and to the Board. Pursuant to the Master Facilitator Agreement and subject to Section 4.03 hereof, the Board will direct funds allocated to the LEA by the General Assembly of the State for the replacement of buses to pay, on behalf of the LEA, the Installment Payments to CONTRACTOR. In the event that the Board is unable to direct Installment Payments because the General Assembly fails to allocate funds for the replacement of school buses, the LEA may continue this Agreement, at its option, from alternative sources of funding. The LEA hereby acknowledges and agrees that the Board will combine the Installment Payments with similar payments from other local education agencies acquiring replacement Buses and will cause the total of the Installment Payments be paid to the CONTRACTOR. Section 4.02 Unconditional Obligation to Pay Installment Payments. There will be no abatement or reduction of payments by the LEA for any reason, including but not limited to, any defense, recoupment, setoff, counterclaim, or any claims (real or imaginary) arising out of or related to any defects, damages, malfunctions, breakdowns or infirmities of the Accepted Buses. The LEA assumes and shall bear the entire risk of loss and damage to the Accepted Buses from any cause whatsoever, it being the intention of the parties that the Installment Payments shall be made in all events unless the obligation to pay such amount is terminated as otherwise provided herein. Section 4.03 Non-Appropriation. The LEA’s obligation to pay any amounts due under this Agreement is conditioned upon availability and continuation of funds for that purpose as stated in Section 8 of the North Carolina General Contract Terms and Conditions – attached to IFB # 40-311449674 as Attachment D and similarly stated in Section 8.01 of this Agreement. Notwithstanding the foregoing, the LEA agrees that it will use its best efforts to obtain approval of the necessary funds to continue this Agreement by taking appropriate action to request adequate funds to continue the Agreement in force. In the event the LEA returns the Accepted Buses pursuant to the terms of this Agreement, CONTRACTOR shall retain all sums paid hereunder. Section 4.04 Late Payments. Any Installment Payment or other payment required to be paid under this Agreement which is not received by the CONTRACTOR at its designated address within thirty (30) days after the date specified on the Payment Schedule shall be considered past due. ARTICLE V – TITLE TO ACCEPTED BUSES; SECURITY INTEREST Section 5.01. Title; Security Interest. Title to each Accepted Bus shall and does vest immediately in the LEA upon acceptance of the Bus by the DPI and the LEA and the delivery of an Acceptance Certificate to CONTRACTOR by the DPI; provided, however, in the event of termination of this Agreement pursuant to Section 8.02 (a) hereof, title to the Accepted Buses will immediately vest in CONTRACTOR. Upon any vesting of title to the Accepted Buses in CONTRACTOR pursuant to the preceding sentence, the LEA shall deliver the Accepted Buses to CONTRACTOR promptly without fraud or delay and in good order, condition and repair, except for reasonable wear and tear, free and clear of all lettings, liens and encumbrances created or suffered by the LEA, and without any payment or allowance whatever by CONTRACTOR on account of any improvements made by the LEA, to a mutually-agreed upon location in the State of North Carolina. CONTRACTOR will have all legal and equitable rights and remedies to take possession of the Accepted Buses. In order to further secure its obligations hereunder, the LEA hereby (i) grants to CONTRACTOR a first and prior security interest in any and all right, title, and interest of the LEA in the Accepted Buses and on any proceeds therefrom; (ii) agrees that this Agreement may be filed as a financing statement evidencing such security interest; and (iii) agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to evidence such security interest. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 24 of 39 Section 5.02. Liens. The LEA shall not directly or indirectly create, incur, assume, or suffer to exist any mortgage, pledge, lien, charge, security interest, encumbrance, or claim on or with respect to the Accepted Buses or any interest therein, except for the lien and security interest of CONTRACTOR therein. The LEA shall promptly, at its own expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, security interest, charge, encumbrance, or claim if the same shall arise at any time. Section 5.03. Payment to Bus Vendor(s). Following acceptance, DPI, on behalf of the LEA will execute and deliver to CONTRACTOR “Part 3--Disbursement Request” together with each of the documents referenced thereon. The actual Disbursement Request used by DPI will include the aggregate cost of the Accepted Buses for any affected LEA and will request that payment be made by CONTRACTOR to the Vendor within thirty (30) days, pursuant to the Disbursement Request. Within ten (10) days of the acceptance of the Accepted Buses by the LEA and the DPI, the Board, on behalf of the LEA, will transmit the first annual Installment Payment to the contractor as indicated on the Payment Schedule for the Accepted Buses. Within thirty (30) days of the DPI and LEA’s acceptance of the Accepted Buses, CONTRACTOR will render payment to the Vendor. ARTICLE VI – RESPONSIBILITIES OF THE LOCAL EDUCATION AGENCY Section 6.01 Maintenance of the Accepted Buses. The LEA agrees that for each Accepted Bus described in Part I to an Appendix, the LEA, at its own cost and expense, shall maintain, preserve and keep such Accepted Bus in good repair, working order and condition subject to reasonable wear and tear, as outlined in the Preventative Maintenance and Vehicle Replacement Manual promulgated by the DPI. Section 6.02 Inspection. CONTRACTOR shall have the right upon reasonable prior notice to the LEA and with the LEA’s consent to enter into and upon the premises where the Accepted Buses are located to inspect them and observe their use during normal business hours. Section 6.03 Taxes. The LEA agrees to pay or cause to be paid when due all taxes related to the Accepted Buses and the LEA’s obligations hereunder, including but not limited to, all license or registration fees, gross receipts tax, sales and use tax, documentary stamp taxes, rental taxes, assessments, charges, ad valorem taxes, excise taxes, and all other taxes, licenses and charges imposed on the ownership, possession or use of the Accepted Buses by any governmental body or agency, together with any interest and penalties, other than taxes on or measured by the net income of CONTRACTOR, if any. Section 6.04 Damage, Destruction, and Insurance. The State of North Carolina is covered under a program of self- insurance. Pursuant to the G.S. 115C-249(f), if any Accepted Bus is damaged or destroyed by fire, collision or otherwise, the LEA may apply to the Board for funds with which to replace it. If the Board finds that the Accepted Bus has been destroyed or damaged to the extent that it cannot be made suitable for further use, and if the Board finds that the replacement of the Accepted Bus is necessary in order to enable the LEA to operate properly its transportation system, the Board shall allot the LEA from the funds held by it for the replacement of school buses, or from funds hereafter appropriated by the General Assembly of the State for that purpose, a sum sufficient to purchase a new bus to be used as a replacement for the damaged or destroyed Accepted Bus and upon such allocation, such sum shall be paid over to or for the account of the LEA for such purpose. The replacement Bus will be substituted as a security interest for the financing of the damaged or destroyed Bus. Alternatively, the LEA, with funds provided by the Board, may pay the remaining balance of the damaged or destroyed bus. Section 6.05 Federal Taxation. The LEA will not take or permit any of its officers to take any action with respect to the Agreement or the Buses which would cause the interest component of any Installment Payment payable under any Appendix to become subject to federal income taxation under the Code and will take all actions legally and reasonably within its powers necessary to ensure that the interest will not become subject to federal income taxation under the Code. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 25 of 39 ARTICLE VII DISCLAIMER OF WARRANTIES; VENDOR’S WARRANTIES; USE OF THE ACCEPTED BUSES Section 7.01 Disclaimer of Warranties. (a) CONTRACTOR , NOT BEING A SELLER OF THE ACCEPTED BUSES AS SUCH TERM IS USED IN THE UNIFORM COMMERCIAL CODE NOR A SELLER’S AGENT, HEREBY EXPRESSLY DISCLAIM, AND MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE ACCEPTED BUSES, OR ANY OTHER WARRANTY WITH RESPECT THERETO AND, AS TO CONTRACTOR , THE LEA PURCHASES THE ACCEPTED BUSES AS IS. In no event shall CONTRACTOR be liable for any loss or damage, including incidental, indirect, special or consequential damage, in connection with or arising out of the existence, furnishing, functioning, or LEA’s use of the Accepted Buses. (b) Each execution of an Appendix shall constitute acknowledgment by (and as to (i) and (ii), a representation of) the LEA that: (i) the Accepted Buses are of a size, design, capacity and manufacture selected by the LEA and DPI; (ii) the LEA is satisfied that the Accepted Buses are suitable for its purpose; (iii) CONTRACTOR is not a vendor or a manufacturer or dealer in property of such kind; and (iv) CONTRACTOR has disclaimed any representation or warranty or covenant as set forth in Section 7.01(a) above. Section 7.02 Vendor’s Warranties. CONTRACTOR irrevocably appoints the LEA its agent and attorney-in- fact during the term of this Agreement, so long as the LEA shall not be in default hereunder for the purpose of asserting from time to time whatever claims and rights which CONTRACTOR may have against the Vendor, including warranty claims with respect to the Accepted Buses, but for no other purpose whatsoever. The LEA’s sole remedy for the breach of a warranty shall be against the Vendor and not against CONTRACTOR, nor shall such matters have any effect whatsoever of this Agreement, including the LEA’s obligation to make timely Installment Payments hereunder. The LEA expressly acknowledges that CONTRACTOR makes, and has made, no representation or warranties whatsoever as to the existence or availability of such warranties from the Vendor. Section 7.03 Use of the Accepted Buses. The LEA will not install, use, operate or maintain the Accepted Buses improperly, carelessly, in violation of any applicable law or regulations or in a manner contrary to that contemplated by this Agreement. The LEA shall obtain and maintain all permits and licenses necessary for the operation of the Accepted Buses. Section 7.04 Quiet Enjoyment. The LEA shall be entitled to possess and use the Accepted Buses during the Financing Term of the related Appendix without interruption by CONTRACTOR, provided that the LEA has duly performed its obligations under this Agreement. Any Accepted Bus acquired under terms of this Agreement may be operated at any time at the convenience of the LEA (exclusive of time required for preventive maintenance, remedial maintenance and/or approved engineering changes). The LEA may make Accepted Buses available to other users, provided that the Accepted Buses are used for governmental purpose, as allowed by North Carolina General Statutes. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 26 of 39 ARTICLE VIII TERMINATION ON ACCOUNT OF NON-APPROPRIATION OF FUNDS; EVENTS OF DEFAULT AND REMEDIES Section 8.01 Termination on Account of Non-appropriation of Funds. Notwithstanding any contrary provision in this Agreement, the LEA may, at its option, terminate this Agreement as to all (but not less than all) the Accepted Buses that are the subject of each and every Appendix entered into herewith, as of the end of any fiscal year, if funds are not appropriated for the next fiscal year in an amount equal to the aggregate of all Installment Payments due during such next fiscal year for the purpose of making the Installment Payments. The LEA agrees to provide CONTRACTOR with written notice immediately upon the occurrence of non-appropriation. If the LEA terminates this Agreement because of non-appropriation of funds in accordance with the provisions of this Section 8.01, the LEA shall return the Accepted Buses to CONTRACTOR in the manner described in Section 5.01 hereof and all obligations of the LEA to pay Installment Payments coming due following such termination shall cease without penalty or expense to the LEA of any kind. Section 8.02 Events of Default. Any of the following events shall constitute an Event of Default under this Agreement: a) The LEA fails to make any Installment Payment within thirty (30) days of when such payment is due for which payment funds have been lawfully appropriated and are lawfully available, or shall fail to perform or observe any term or condition or covenant of this Agreement or any schedule or supplemental hereto, and fails to perform or observe as required for a period of (30) days after written notice to the LEA by CONTRACTOR, specifying such failure and requesting that it be remedied; or b) The LEA fails to perform as required for a period of thirty (30) days after written notice to the LEA by CONTRACTOR, specifying such failure and requesting that it be remedied; or c) CONTRACTOR fails to pay the vendor as required under this Agreement; or d) CONTRACTOR fails to perform as required under this Agreement. Section 8.03 Remedies on Default. (i) Immediately upon the occurrence of an Event of Default described in Section 8.02(a) hereof or (ii) upon the occurrence of any other Event of Default described in Section 8.02 hereof, and the failure of the LEA or CONTRACTOR, as applicable, to remedy such Event of Default within any specified cure period, then the respective parties shall have the right, at its option and without any further demand or notice, to take one or any combination of the following remedial steps: a) With or without terminating this Agreement, and upon written notice to the LEA, CONTRACTOR may re- enter and take possession of the Accepted Buses; or b) With or without terminating this Agreement, and upon written notice to the LEA, re-enter and take possession of the Accepted Buses, and sell, lease or sublease all or any part of them in such a manner as will not cause a violation of Section 6.05 hereof, with any excess sales proceeds being paid to the Board. c) The LEA may terminate this Agreement as to the financing of any additional Appendix without penalty or expense to the LEA of any kind. ARTICLE IX PREPAYMENT OPTION Section 9.01 Prepayment Option. Notwithstanding the provisions of Section 11.d of the General Terms and Conditions attached hereto as Exhibit A, and if no event of default exists, the LEA may at its option elect to prepay the Installment Payments due pursuant to an Appendix in full on the dates indicated on “Part 2--Payment Schedule” attached to each Appendix. The LEA agrees to provide written notice to CONTRACTOR of its intention to prepay not less than thirty (30) days prior to the applicable Installment Payment Date. If the LEA exercises its option to prepay its obligations to pay the Installment Payments pursuant to an Appendix in full, the Prepayment Price shall be the amount shown as such on the Payment Schedule attached to the Appendix. Section 9.02 LEA’s Rights on Prepayment in Full. Upon (1) the LEA’s exercise of its right to prepay in full in accordance with the preceding subsection or (2) the LEA’s having satisfied all of its monetary and other obligations hereunder, within thirty (30) days thereafter, CONTRACTOR shall deliver to the LEA any and all documentation necessary to evidence the termination of CONTRACTOR’s interest in the Accepted Buses. The Accepted Buses will Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 27 of 39 be accepted by the LEA at that time on an AS IS, WHERE IS basis, and CONTRACTOR makes no warranties or representations of any type as to the Accepted Buses. ARTICLE X MISCELLANEOUS Section 10.01 Waiver. No covenant or condition of this Agreement or in any of the other Contract Documents can be waived except by the written consent of the parties. The failure of any party to require strict performance by the other party or any waiver by any party of any terms, covenants or agreements herein shall not be construed as a waiver of any other breach of the same or of any other term, covenant or agreement herein. Section 10.02 Amendments. This Agreement cannot be amended except by written consent of both parties. Section 10.03 Severability. In the event any portion of this Agreement shall be determined to be invalid under any applicable law, such provision shall be deemed void and the remainder of this Agreement shall continue in full force and effect. Section 10.04 Notice. All notices made or required to be given pursuant to this Agreement shall be in writing and shall be deemed duly served if and when mailed, certified or registered mail, postage prepaid, return receipt requested, to the other party at its address set forth below or at such other address as such party shall hereafter designate in writing: If to CONTRACTOR: If to the BOARD: North Carolina State Board of Education DPI Transportation Services 6319 Mail Service Center Raleigh, North Carolina 27699-6319 Attn: Kevin Harrison, Section Chief If to the LEA: LEA Name: Address City, State, Zip ATTN: Section 10.05 Section Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. Section 10.06 Entire Agreement. This Agreement, the Contract Documents, and the Appendices as may be hereafter executed, constitute the entire agreement between the parties with regard to the subject matter hereof. Section 10.07 Binding Effect. Subject to the specific provisions of this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assignees. Section 10.08 Time. Time is of the essence of this Agreement and each and all of its supplements and provisions. Section 10.09 Governing Law. The provisions of this Agreement shall be governed by the laws of the State of North Carolina. Section 10.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but which together shall constitute but one and the same instrument. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 28 of 39 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto by their duly authorized representatives. LOCAL EDUCATION AGENCY: CONTRACTOR: By: _____________________________ By: _______________________________ Name: ________________________ Title: _________________________ OR By: ____________________________ Name: _______________________ Superintendent, on behalf of the LEA Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 29 of 39 Exhibit “A” Master Replacement Bus Financing Agreement dated__________________, by and between Contractor And___________________________________________________________________________________________ NORTH CAROLINA GENERAL CONTRACT TERMS AND CONDITIONS THIRD-PARTY FINANCING 1. DEFINITIONS: For purposes of this Contract, the following definitions will apply: Equipment: The goods enumerated on the IFB and the Purchase Order(s), including replacement, repair parts, additional attachments and accessories. Acceptance: The written acknowledgment by the State that the Equipment has been accepted and is performing satisfactorily. Acceptance Date: the date when the Equipment is accepted by the State and is operating satisfactorily. Assignee: the person(s) to whom Contractor transfers its payment rights pursuant to the section entitled “Assignment”. 2. ACCEPTANCE OF EQUIPMENT: The State will provide a written acknowledgment to the Contractor when the Equipment is accepted and performing satisfactorily. 3. DEFAULT AND REMEDIES: Default: Any of the following events will constitute an event of default under this Contract: 1. The State fails to make any payment required when due and such failure continues after written notice by Contractor; or 2. The State fails to observe or perform any other covenants, conditions or agreements of the Contract and such failure continues for thirty (30) days without cure after the Contractor provides the State written notice of the failure. 3. The Contractor fails to apply any payment required to be paid under this Agreement towards retirement of the State obligation hereunder. 4. The Contractor fails to perform under this Agreement, or otherwise observe, keep or perform any provision of this Agreement required to be observed, kept or performed by Contractor. Remedies: In the event of default as specified above, failure by either the Vendor or State to remedy such default within a period of thirty (30) days from receipt of written demand by either party, the Vendor or the State may, at its respective option as may be applicable, take any of the following actions: a. Proceed by appropriate court action(s) to enforce performance of the applicable covenants of this Contract or to recover damages for breach. In the case of such action by the Vendor, damages shall be limited to the then unpaid balance due and payable under the terms of the Contract. b. The Vendor may upon proper notice or demand upon the State, take possession of the Equipment and sell the same in a commercially reasonable manner and apply the proceeds of any such sale, after deducting all costs and expense incurred with the recovery, repair, storage and sale of the Equipment against any remaining obligations of the State hereunder. Any remaining sales proceeds shall be paid to the State. c. The State may terminate the Contract and direct the Vendor to remove all equipment at the Vendor’s expense with no costs to be incurred by the State. In addition, in the event of default by the Vendor under this contract, the State may immediately cease doing business with the Vendor, immediately terminate for cause all existing contracts the State has with the Vendor, and de-bar the Vendor from doing future business with the State. Bid Number: 40-311449674 Vendor: __________________________________________ Ver: 08/31/2021 Page 30 of 39 Upon the Vendor filing a petition for bankruptcy or the entering of a judgment of bankruptcy by or against the Vendor, the State may immediately terminate, for cause, this contract and all other existing contracts the Vendor has with the State, and de-bar the Vendor from doing future business with the State. 4. TITLE: Title to the Equipment is to be conveyed to the State by the Equipment vendor effective upon State acceptance in writing of Equipment and such title shall thereafter remain vested in the State. 5. CONTRACT TERMINATION: This Contract is effective from the date of acceptance by the State until terminated, in whole or in part, as provided below: Termination for Non-Available Funds: The State’s obligations to pay any amounts due under the Contract are contingent upon availability and continuation of funds for that purpose, and in the event of the non-availability of funds the State may terminate this Contract by giving the Contractor thirty (30) days prior written notice. All payment obligations of the State will cease upon the date of termination. Notwithstanding the foregoing, the State agrees (I) not to effect termination of the Contract under this provision if funds are available to continue the Contract for this or functionally similar equipment, and (ii) that it will use its best efforts to obtain approval of the necessary funds to continue the Contract by taking appropriate action to request adequate funds to continue the Contract in force. In the event the State returns the Equipment pursuant to the terms of this paragraph, the Contractor shall retain all sums paid hereunder by State. Activity Discontinuance: This Contract may be terminated with thirty (30) days written notice to the Contractor if the organizational activity within the State agency using the Equipment is discontinued or disestablished. Notwithstanding the foregoing if such organizational activity is transferred to another agency, department or other instrumentality of the State, then this Contract shall not be subject to termination under this Section. Return of the Equipment: Penalty Charges: In any case of termination, as stated in paragraphs (a) and (b) above, the State shall return the Equipment, along with all repair and other related records, in good operating condition (i.e., in a condition equal to the condition of the Equipment as when it was originally delivered to the State subject to normal wear, tear and usage) to the Contractor, at the State’s sole cost and expense, at a location to be mutually agreed upon. Prepayment: If no event of default exists, the State will have the right, upon providing the Contractor with thirty (30) days prior written notice, to prepay its obligation for the amount set forth according to respective dates provided in the Purchase Order(s) or prorated by Contractor to another specified date. The State’s Rights on Prepayment or Payment in Full: Upon (I) the State’s exercising of its right of prepayment or (ii) the State’s having satisfied all of its monetary and other obligations hereunder, Contractor will release its security interest in the Equipment. 6. SECURITY INTEREST: If required, the State shall grant and convey a security interest in the Equipment t