North Ohio Grade Seperation ProjectFILE COVY Agreement No. 6-02
PROJECT NO. 85 K-8307-01
RAILROAD GRADE SEPARATION PROJECT: GRADING, BRIDGE, AND SURFACING
CITY OF SALINA, KANSAS
AGREEMENT
This Agreement, made. and entered into this day of, 20__-_, by and
between the city of Salina, Kansas, hereinafter referred to as the. "City," and the Secretary of
Transportation of the State of Kansas, hereinafter referred to as the "Secretary."
RECITALS:
WHEREAS, the Comprehensive Transportation Program passed by the 1999 Kansas
Legislature included a new program entitled the Local Partnership Grade Separation Program, and
WHEREAS, the City of Salina's application for a Grade Separation Project at North Ohio
Street over the Union Pacific Railway Company tracks and the Kansas and Oklahoma Railroad
Company's tracks was approved for funding, and
WHEREAS, -the Secretary and the City are empowered by the laws of Kansas to enter into
agreements for the construction of streets in cities, and
WHEREAS, cities are, under certain circumstances, entitled to receive assistance in the
financing of the construction and reconstruction of streets and highways, provided however, that in
order to be eligible for such state aid, such work is required to be done in accordance with the laws
of the state and under the responsible charge of the Department of Transportation of such state, and
.WHEREAS, the Secretary desires to enter into an agreement with the City to participate in
a Grade Separation Project in the City, and is described as follows:
North Ohio Street over the Union Pacific Railway Company's tracks and the Kansas and
Oklahoma Railroad Company's tracks.
Total length of Project is approximately 0.91 kilometers.
NOW, THEREFORE, in consideration of the premises and to secure the approval and
construction of the Project, the parties hereto mutually agree as follows:
1. That the Project when approved shall be undertaken, prosecuted and completed for
and on behalf of the City by the Secretary acting in all things as its agent, and the City hereby
constitutes and appoints the Secretary its agent, and all acts, proceedings, matters and things
hereinafter done by the Secretary in connection therewith are hereby by the City authorized,
adopted, ratified and confirmed to the same extent and with the same effect as though done directly
by the City acting in its own individual corporate capacity instead of by its agent except as otherwise
modified by this Agreement. The plans for the Project, when approved by the City and the. State
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Transportation Engineer, are by reference made a part of this Agreement. The City agrees to prepare,
or have prepared, the plans for such improvements.
2. The parties hereto agree that benefits will accrue to the Union Pacific Railway
Company and the Kansas and Oklahoma Railroad Company pursuant to the provisions of Title 23
of the US Code (Highways) as amended and 23 C.F.R. § 646, due to the construction or use of -said
roadway, because: the Project covered bythis Agreement is the construction of an overpass structure
that eliminates an existing grade crossing at which active warning devices are in place; 23 C.F.R.
§ 646.210(b) (3) (2000), in which there will be no less than a five percent (5%) .Union Pacific
Railway Company and the Kansas and Oklahoma Railroad Company combined funding contribution
to the cost of the Project. The City agrees to negotiate with the Union Pacific Railway Company and
the Kansas and Oklahoma Railroad Company to secure said contribution.
3. The City agrees that it will, in its own name, acquire by purchase, dedication or
condemnation, the rights of way, easements and access rights shown on the approved plans in
accordance with the schedule established by the Kansas Department of Transportation. The City
agrees the acquisition of rights of way, easements, and access rights shall be in compliance with the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended by
the Surface Transportation and Uniform Relocation Assistance Act of 1987, and Administrative
regulations contained in 49 C.F.R. pt. 24, entitled Uniform Relocation Assistance and Real Property
Acquisition for Federal and Federally Assisted Programs. The City shall certify in the manner
required -by the Secretary that such rights of way, easements and access rights have been acquired.
The City funther agrees that it will have recorded in the office of the Register of Deeds all rights of
way Deeds, Dedications, Permanent Easements and Temporary Easements.
4. The City agrees to contact the Secretary if there will be any displaced person on the
Project prior to making the offer for the property. The parties mutually agree that the Secretary will
provide relocation assistance for eligible persons. as defined in the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970 as amended by the Surface Transportation and
Uniform Relocation Assistance Act of 1987, and as provided in 49 C.F.R. pt. 24, entitled Uniform
Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,,
and in general accordance with K.S.A. 58-3501 to 58-3507, inclusive, and Kansas Administrative
Regulations 36-6-1 et seq.
5. The City agrees to provide all legal descriptions required for rights of way
acquisition.
6. The City agrees that any disposal of or change in the use of right of way or in the
access control will require advance, written approval by the Secretary.
7. The City agrees that it will move or adjust, or cause to be moved or adjusted, and will
be responsible for such removal or adjustment of all existing structures, pole lines, pipe lines,
meters, manholes and other utilities, publicly or privately owned, which may, be necessary to
construction of the Project in accordance with the approved plans. New or existing utilities that have
to be installed, moved, or adjusted will be located or relocated in accordance with the Kansas
Department of Transportation "Utility Accommodation Policy, (1998)" as amended or
supplemented. The expense of the removal or adjustment of the utilities located on public right of
way'shall be borne by the owners. The expense of the removal or adjustment of privately owned
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utilities located on private right of way or easement shall be as indicated in paragraphs 13 and 14
in this Agreement.
8. The City agrees that it will initiate the removal or adjustment of the utilities, and will
proceed with reasonable diligence to prosecute this work to completion. The City further agrees to
move or adjust or cause to be moved or adjusted all necessary utilities sixty (60) days prior to the
scheduled construction letting except those necessary to be adjusted during construction and those
which would disturb the existing street surface, curbs or sidewalks. The City will, upon notification
from the Department's District Engineer, cause the adjustment of the remaining utilities to be
completed in order that the contractor shall not be delayed in construction. of the Project. .
The City agrees to furnish the Secretary a list of existing and known utilities affected,
together with locations and proposed adjustments of the same, and designate an individual to be
responsible for coordinating the necessary removal or adjustment of utilities and report each month
to the Department's District Engineer the progress of the removal or adjustment on forms finnished.
by the Secretary.
9. The City agrees to certify to the Secretary that all privately owned utilities occupying
public right of way -required for the construction of the Project -are permitted thereon by franchise,
ordinance, agreement or permit, and the instrument shall include a statement as to which party will
bear the cost of future adjustments or relocations that may be required as a result of street or
highway improvements.
10. It is understood that the City and the Secretary shall determine the manner in which
traffic is to be handled during construction. It is therefore agreed between the parties that before
Project plans have been completed, detour routes and street closings, if necessary, shall be agreed
upon by authorized representatives of the City and the Secretary, and noted on the Project plans. If
revisions to the traffic handling plan are proposed during the progress of construction, the City and
the Secretary.shall approve such revisions before they become effective.
The City further agrees that the Secretary or his or her authorized representative may
act as its agent with fall authority to determine the following:
(a) The dates upon which the street closings shall commence and terminate.
(b) The appropriate barricades and signing to be placed on or about the Project limits
. prohibiting through traffic and their locations.
The Secretary or his or her authorized representative shall notify the City of the
determinations made pursuant to this section.
11. The Secretary agrees to let the contract for the Project and shall award the contract
to the lowest responsible bidder upon concurrence in the award by the City. The Secretary further
agrees, as agent for the City, to administer the construction of the Project in accordance with the
approved plans and administer the payments due the contractor, including the portion of the cost
borne by the City.
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12. The City agrees to provide the construction inspection in accordance with the rules
and guidelines developed for the KDOT approved construction engineering program. Further, the
City agrees to comply with the requirements of KDOT's Local Partnership Grade Separation
Program.
13. The Secretary agrees to be responsible for eighty-two and one-half percent (82.5%)
of the total actual cost of rights of way, utility adjustments, construction (which includes the cost
of construction contingency items) and construction engineering, but not to exceed a maximum of
$12,322,903. The Secretary further agrees to be responsible only for preliminary engineering costs
incurred by the Secretary to review the Project.
14. The City agrees to be responsible for seventeen and one-half percent (17.5%) of the
total actual cost of rights of way, utility adjustments, construction (which includes the cost of
construction contingency items) and construction engineering, under $14,936,852.12, and one -
hundred percent (100%) of the total actual cost of rights of way, utility adjustments, construction
(which includes the cost of construction contingency items) and construction engineering, in excess
of $14,936,852.12. It is further mutually agreed that the City is responsible for one hundred percent
(100%) of the preliminary engineering costs for the Project, excluding the Secretary's preliminary
engineering costs incurred by the Secretary to review the Project.
It is further mutually agreed that the City's seventeen and one-half percent (17.5%)
participation includes a minimum of a five (5%) Union Pacific Railway Company and the Kansas
and Oklahoma Railroad Company combined contribution to the cost of the Project.
15. It is mutually agreed .that if any items are found to be non -participating by the
Secretary, the total cost of these items will be paid by the City.
16. The City will deposit with the Secretary its estimated share of the total Project
expenses based upon estimated approved contract quantities. The City will remit its estimated share
by the date indicated on the resolution form "Authorization to Award Contract, Commitment of City
Funds" received by the City from the Secretary. The date indicated for the City to deposit its
estimated share of the total Project expenses is fifty (50) days after the letting date.
The Secretary agrees that after receipt of the final voucher claim, the Chief of Fiscal
Services for the Department will, in. a timely manner, prepare a complete and final billing of all
Project costs for which the City is responsible and shall then transmit the complete and final billing
to the City. The City agrees that if any payment is due to the Secretary, such payment be made
within thirty (30) days after receipt of a complete and final billing from the Secretary's Chief of
Fiscal Services.
18. The City agrees to be responsible for maintenance of the Project after construction
is complete and opened to traffic.
19. The City agrees that it will adopt an ordinance requiring the removal of all
encroachments either on or above`the limits of the right of way shown on the approved plans for this
Project, .and it will initiate and proceed with diligence to remove or require the removal of the
encroachments. It is further agreed that all such encroachments be. removed before the Project is
advertised for letting (provided, however, that if the Secretary is satisfied, with respect to any
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encroachment, that the physical removal thereof has been fully provided for between the City and
the owner thereof and will be accomplished within a time sufficiently short to present no hindrance
or delay to the construction of the Project, the Secretary may cause the Project to be advertised for
letting before such encroachment is fully removed). The City further agrees that it will not in the
fixture permit the erection of fuel dispensing pumps upon the right of way of the Project, and it will
require that any fuel dispensing pumps erected, moved or installed along the Project be placed no
less than 3.7 meters back of the right of way line. All right of way provided for the Project shall be
used solely for public highway purposes and no signs, posters, billboards, roadside stands,, fences,
structures or other private installations shall be permitted within the right'of way limits except as
provided by state laws.
20. The City agrees to locate and shall be responsible for all costs necessary to remedy
or clean up any hazardous waste site, including, but not limited to, leaking underground storage
tanks that are discovered on right of ways, easements and access rights acquired by the City. The
City shall be responsible to the Secretary for all damages, fines or penalties, expenses, claims and
costs incurred by the Secretary from any hazardous waste site discovered on right of ways,
easements and access rights acquired by. the City.
For any hazardous waste site, including but not limited to, leaking underground
storage tanks, the City shall hold harmless, defend and indemnify the Secretary, its agents and
employees against and from all damages, expenses and costs incurred by any person, the State of
Kansas, or the United States Government for determining and undertaking remedial action, any fines
or penalties assessed under state or federal laws, contract claims, personal injury claims, and damage
of or loss of natural resources.
.. It is specifically agreed between the parties executing this contract that any provision
of this hazardous waste clause is not intended to make the public, or any member thereof, a third
party beneficiary hereunder, or to authorize anyone not a party of this contract to maintain a suit for
personal injuries, property damages, or hazardous waste claims. The duties, obligations and
responsibilities of the parties to this Agreement with respect to third parties shall remain as imposed
by law.
The City by signing this Agreement with the Secretary has not repudiated,
abandoned, surrendered, waived or forfeited its right to bring any action, seek indemnification or
seek any other form of recovery or remedy against any third party responsible for any hazardous
waste on any right of ways, easements, and access rights.acquired by the City. The City reserves
the right to bring any action against any third party fdr any hazardous waste site on any right of
ways, easements, and access rights acquired by the City.
The term hazardous waste includes, but is not limited to, any substance which meets
the test of hazardous waste characteristics by exhibiting flammability, corrosivity, or reactivity, or
which is defined by state and federal laws and regulation, and any pollutant or contaminant which
may present an imminent and substantial danger to the public health or welfare. Any hazardous
waste as defined by state and federal laws and regulations and amendments occurring after
November 11, 1991 are incorporated by reference and include but not limited to: (1) 40 C.F.R. §
261 et seq., Hazardous Waste Management System; Identification and Listing of Hazardous Waste;
Toxicity Characteristics Revisions; Final Rule; (2) 40 C.F.R. § 280 et seq., Underground Storage,
Tanks; Technical Requirements and State Program Approval; Final Rules; (3).40 C.F.R. § 300,.
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National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule; and (4) K.S.A.
1990 Supp. 65-3431 et seq., Hazardous Waste.
The standards to establish cleanup of a hazardous waste site include, .but is not
limited to, federal programs administered by the E.P.A., Kansas environmental laws and regulations,
and city and county standards where the hazardous waste site is located.
21. The City agrees to prohibit - parking of vehicles on the city street and on the
acceleration and deceleration lanes of all connecting streets and on additional portions of the
connecting streets and highways that the Secretary may deem necessary to permit free flowing
traffic throughout the length of the improvement covered by this Agreement.
22. The City agrees to maintain the . control of access rights and to prohibit the
construction or use of any entrance or access points along the Project other than those shown on the
approved plans. Any exceptions therefrom must be approved by the Secretary.
23. The location, form and character of informational, regulatory and warning signs, of
traffic signals and of curb and pavement or other markings installed or placed by any public
authority, or other agency as authorized by K.S.A. 8-2005, shall conform to the manual and
specifications adopted under K.S.A. 8-2003 and any amendments thereto are incorporated by
reference.
24. The City agrees to adopt all necessary ordinances and or resolutions and to take such
legal steps as may be required to give full effect to the terms of this Agreement.
25. .Responsibility for damage claims: The contractor shall be required to indemnify and
save the Secretary and the City harmless from and against all liability for damages, costs and
expenses arising out of any claim, suit, action, or otherwise for injuries and/or damages sustained
to persons or property by reason of the work performed by the contractor, his or her subcontractor,
agents, or employees under this Agreement.
26. The parties mutually agree that the funds will be made available at the beginning of
the fiscal year for which the Project was approved and programmed. In addition, the parties mutually
agree that the funding will extend through changes in the scheduling and authorizing process. The
City further agrees to provide and follow a schedule for the design and development of plans that
will allow the Project to be let to contract in the programmed fiscal year.
27. Upon request by the Secretary, the City agrees to provide the Secretary an accounting
of all actual non -participating costs which are paid directly by the City to any party outside of the
KDOT and all costs incurred by the City not to be reimbursed by the KDOT for preliminary
engineering, or any other major expense associated with the Project. This will enable the Secretary
to report all costs of the Project to the legislature.
28. The parties do hereby agree that the "Special Attachment No. 1" attached hereto,
pertaining to the, implementation of the Civil Rights Act of 1964, is hereby made a part of this
Agreement.
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29. It is further understood that this Agreement and all contracts entered into under the
provisions of this Agreement shall be binding upon the Secretary and the City and their successors
in office.
30. It is expressly agreed that no third party beneficiaries are intended to be created by
this Agreement, nor do the parties herein authorize anyone not a party to this Agreement to maintain
a suit for damages pursuant to the terms or provisions of this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed by
their duly authorized officers on the day and year first written above.
ATTEST:
CITY CLERK
(SEAL)
THE CITY OF SALINA, KANSAS
MAYOR
E. Dean Carlson
Secretary of Transportation
BY:
Warren L. Sick, P.E.
Assistant Secretary and
State Transportation Engineer
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APPROVED
1Py
RDOT
Special Attachment No. 1
. - Sheet l o f 3
KANSAS DEPARTMENT OF TRANSPORTATION
Special Attachment
To Contracts or Agreements Entered Into
By the Secretary of Transportation of the State of Kansas
NOTE: Whenever this Special Attachment conflicts with provisions of the Document to which it is'attached,
this Special Attachment shall govern. _
THE CIVIL RIGHTS ACT OF 1964, and any amendments thereto,
REHABILITATION ACT OF 1973, and any amendments thereto,
AMERICANS WITH DISABILITIES ACT OF 1990, and any amendments thereto,
AGE DISCRIMINATION ACT OF 1975, and any amendments thereto,
EXECUTIVE ORDER 12898, FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN
MINORITY POPULATION'S AND LOW INCOME POPULATIONS (1994), and any amendments thereto,
49 C.F.R. Part 26;1 (DBE Program), and any amendments thereto
NOTIFICATION
The Secretary of Transportation for the State of Kansas, in accordance with the provisions of Title VI and Title
VII of the -Civil Rights Act of 1964 (78 Stat. 252); §'504 of the Rehabilitation Act of 1973 (STStat. 3555) and
the Americans withDisabilitiesAct of 1990 (42 USC 12101), the Age Discrimination Act of 1975 (42 USC
6101),, the -Regulations of the U.S. Department of Transportation (49 C•F.R, Part21,
23, and 27) issued
pu.rsuaat to such ACT, Executive Order 12898, Federal Actions to Address Environmental Justice in MinodtY
Populations and Low Income Populations (1994), and the Di3E Program (49 C.F.R., Part 26. 1), hereby notifies .
be
All contracting parties that, the contracting parties will affirmatively insure that this contract will Y,
national
implemented «�[thout discrimination on the grounds of race, religion, solar, gender, age, disability,
origin, or minority populations and low income populatiQns as more specifically set out in the following nine
"Nondiscrimination Clauses".
CLARIFICATION
Where the term "consultant" appears in the following seven "Nondiscrimination Clauses", the term "consultant"
is understood to include all parties to contracts or agreements with the Secretary of Transportation of the State
of Kansas.
Nondiscrimination Clauses
Da.
During the perfotrance of this contract, the cansultaut, or the consultant's assignees and successors in interest.
(hereinafter referred to as the "Consultant"), agrees as follows:
{1) Compliance with Regulations: The consultant will comply with the Regulations of the.U- S.
Department of Transportation relative to nondiscrimination in federally -assisted progtanls Of the
U.S. Department of Transportation (Title 49, Code of Federal Regulations, Parts 21, 23 and 27,
_(Revised 07-29-1999)
Special Attachment No. l
Sheet 2 of 3
hereinafter referred to as the Regulations), which are herein incorporated by reference and made
apart of this contract.
(2) Nondiscrimination: The consultant, with.regard to the work performed by the consultant after
award and prior to the completion of the contract work, will not discriminate on the grounds of
race, religion, color, gender, age, disability, national origin or minority populations.and low
income populations in the selection and retention of subcontractors, including procurements of
materials and leases of equipment. The consultant will not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including
employment practices when the contract covers a.program set forth in Appendix B of the
Regulations.
(3) Solicitations for Subcontractors, Including Procurements of Material and Equipment: In all
solicitations, either competitive bidding or negotiation made by the consultant for work to be
performed under a subcontract including procurements of materials or equipment, each potential
subcontractor or supplier shall be notified by the consultant of the'consultant's obligation under
this contract and the Regulations relative to nondiscrimination on the grounds of race, religion,
color, gender, age, disability, national origin or minority populations and low income
populations.
(4) Information and Reports: The eonsultant.will provide all information and reports required by the
Regulations, or orders and instructions issued pursuant thereto, and the Secretary of the
Transportation of the State of Kansas will be permitted access to the consultant's books, records,
accounts, other sources of information, and facilities as may be determined by the Secretary of
Transportation of the State of Kansas to be pprtineat to. ascertain -compliance with such
Regulations, orders and instructions. Where'any information required of a consultant is in the
exclusive possession of another who fails- or refuses to furnish this information, the consultant
shall so certify to the Secretary of Transportation of the State of Kansas and shall set forth what
efforts it has made to obtain the information.
(5) Employment: The consultant will not discriminate against any employee or applicant for
employment because of raco, religion, color, gender, age, disability, or national origin -
(6) Sanctions for rloneompliance: In the ovent.o£the consultant's noncompliance with the
nondiscrimination provisions of this contract, the Secretary of Transportation of the State,of
Kansas shall impose such contract sanctions as the Secretary of Transportation of the State of
Kansas may determine to -be appropriate, including, but not limited to,
(a) withholding of payments to the consultant under.the contract until the contractor
complies, and/or
(b) cancellation, termination or suspension of the contract, in whole or in part.
(7) Disadvantaged Business Obligation
(Revised 07-29'-1999)
Special Attaclullcnt No.
Sheet 3 of
(a) Disadvantaged Businesses as defined in the Regulations, shall have a level playing field
to compete fairly for contracts financed in whole or in part with. Federal funds under this
contract.
(b) Ai[ necessary and reasonable steps shall be taken accordance with the Regulations to
ensure that Disadvantaged Businesses have equal opportunity to compete for and perforr
contracts. No persons) shall be discriminated against on the basis of race, color, gender
or national origin in the award and performance of federally -assisted contracts.
(c) The contractor, sub recipient or subcontractor shall not discriminate on the basis of race,
color, national origin, or sex in the performance of this contract. The contractor shall
carry out applicable requirements of 49 CFR Part 26 in the award and administration of
Federally -assisted contracts. Failure by the contractor to carry out these requirements is
material breach of this contract, which may result in the termination of this contract or
such other remedy, as the recipient deems appropriate.
(8) Executive Order 12898
' (a) To the extent permitted by existing law, and whenever practical and appropriate; all
necessary.and reasonable steps shall be taken in accordance with Executive Order 12898
to collect, maintain, and analyze information on the race, color, national origin and
income level of persons affected by programs, policies and activities of the Secretary of
Transportation and use such information in complying with this Order.
(9) Incorporation of Provisions: The consultant will include the'provisions of paragraph (1) through
(8) in every subcontract, including procurerrients of materials and leases of equipment, unless
exempt by the Regulations, order, or instructions issued pursuant thereto: The consultant will
take such action with respect to any subcontract or procurement as the Secretary of
Transportation of the State of Kansas may direct as a.means of enforcing such provisions
including sanctions for noncompliance: Piovided, however, that, in the eveat a consultant rsult
becomes involved in, or is threatened with, litigation with a subcontractor or tion ie protect the
of such direction, the consultant may request the State to cater into such litiga
interests of the State.
(Rcvised 07-29-1999)