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Design Consulting Services LETTER AGREEMENT FOR CONSULTING SERVICES O\OLSSON ASSOCIATES September 21 , 2008 City of Salina, Kansas 300 West Ash Street Salina, Kansas 67402-0736 Re: AGREEMENT FOR PROFESSIONAL SERVICES GREELEY AVENUE BRIDGE OVER THE SMOKY HILL RIVER SALINA, KANSAS It is our understanding that the City of Salina, Kansas ("Client") requests Olsson Associates ("OA") to perform the following services pursuant to the terms of this Letter Agreement, OA's General Provisions and any exhibits attached thereto (hereinafter "the Agreement"). 1. OA has acquainted itself with the information provided by Client relative to the Project and based upon such information offers to provide the services described below for the Project. Client warrants that it is either the legal owner of the property to be improved by this Project or that Client is acting as the duly authorized agent of the legal owner of such property. Client acknowledges that it has reviewed the General Provisions (and any exhibits attached thereto), which are expressly made a part of and incorporated into this Agreement by this reference. In the event of any conflict or inconsistency between this Agreement and the General Provisions regarding the services to be performed by OA, the requirements of this Agreement shall take precedence. 2. OA shall provide Client, all Basic Services for bridge design as more specifically described in Scope of Design attached hereto. OA understands this portion of the project to include design of the bridge carrying Greeley Avenue over the Smoky Hill River in Salina, Kansas. Should Client request Additional Services, other than work described and included in the attached Scope of Design, Consultant shall prepare a supplemental agreement. OA shall not commence work on Additional Services without Client's prior approval in writing. OA agrees to provide all of its services in a timely, competent and professional manner, in accordance with applicable standards of care, for projects of similar geographic location, quality and scope. OA agrees to provide all of it~ services in accordance with the "Contractural Provisions Attachment" identified as form DA-146a(Rev. 1-01) from the State of Kansas Department of Administration. 2627 KFB Plaza, Suite 101W Manhattan, KS 66503 TEL 785.539.6900 FAX 785.539.6901 www.oaconsulting.com I 3. The project will be designed in conformity with the state and federal design criteria appropriate for the project in accordance with the current Proiect Develooment Manual for Non-National Hiohwav System Local Government Road and Street Proiects. Volume 1. Bureau of Local Projects (BLPs) project memorandums, memos, the KDOT Desion Manual, Geotechnical Bridae Foundation Investioation Guidelines, Bureau of Design's road memorandums, the latest version, as adopted by the Secretary, the Manual on Uniform Traffic Control Devices (MUTCD), the current version of the Bureau of Traffic Engineering's Traffic Enoineerina Guidelines, and the current version of the KDOT Standard Soecifications for State Road and Bridoe Construction with Special Provisions, and any necessary Project Special Provisions, and with the rules and regulations of the Federal Highway Administration pertaining thereto. All plan development stages will be completed no later than the current project schedule's due dates as issued by KDOT, exclusive of delays beyond the consultant's control. KDOT currently anticipates funds being available for construction in October of 2010. Progress reports will be submitted monthly to the City and to the KDOT Secretary of Transportation upon request or at mutually agreed intervals in conformity with the official project schedule. SCHEDULE FOR CONSULTANT'S SERVICES 4. Unless otherwise agreed, OA would expect to begin performing its services under this Agreement promptly upon your signing. COMPENSATION 5. Compensation for OA's services shall be a Lump Sum Fee of $55,000.00. These financial arrangements. are proposed with the assumption OA's bills will be paid promptly and the Project will progress orderly and continuously. Client agrees to pay OA the amounts due for services rendered and expenses incurred pursuant to the terms of this Agreement within thirty (30) days after OA has provided its invoice for such services. In the event Client disputes any invoice item, Client shall give OA written notice of such disputed item within fifteen (15) days after receipt of such invoice and shall pay to OA the undisputed portion of the invoice according to the provisions hereof. If Client fails to pay any invoiced amounts when due, interest will accrue on each unpaid amount at the rate of thirteen percent (13%) per annum from the date due until paid according to the provisions of this Agreement. Interest shall riot be charged on any disputed invoice item which is finally resolved in Client's favor. Payment of interest shall not excuse or cure any default or delay in payment of amounts due. TERMS AND CONDITIONS OF SERVICE 6. The Client's standard Professional Service Insurance Requirements are attached hereto. OA agrees to comply with these requirements. Agreement between City of Salina and Olsson Associates - Greeley Ave. Bridge Salina, KS September 21, 2008 7. The Agreement represents the entire understanding between Client and OA with respect to the Project and may only be modified in writing signed by both parties. 8. If this proposal satisfactorily sets forth your understanding of our agreement, please sign the Letter Agreement in the space provided (indicating Client's designated Project representative if different from the party signing the Agreement). Retain a copy for your files and return an executed original to OA. This proposal will be open for acceptance for a period of thirty days from the date set forth above, unless changed by us in writing. 9. By signing below, you acknowledge that you have full authority to bind Client to this agreement. OLSSON ASSOCIATES By ~o~ ~~ By Brad Sonner, RLA, ASLA Title Sam Malinowsky, P.E. Team Leader Title Team Leader If you are in agreement with the preceding proposal, please sign: City of Salina By ~ uJ~ Title Mtt'/or Dated: ll"2~"'OB If different from above, Dltn ~ Client's Designated Project Representative Agreement between City of Salina and Olsson Associates - Greeley Ave. Bridge Salina, KS September 21, 2008 GENERAL PROVISIONS These General Provisions are attached to and made a part of an LETTER AGREEMENT Dated September 21, 2008, between the City of Salina (CLIENT) and Olsson Associates (OA) for professional services in connection with civil engineering services for the proposed Greeley Avenue Bridge over the Smoky Hill River in Salina, Kansas (hereinafter called the "Project"). SECTION 1-0A's BASIC SERVICES See Letter Agreement attached. See Scope of Design attached. SECTION 2-ADDITIONAL SERVICES OF OA 2.1 Unless otherwise expressly included; OA's normal and customary engineering services described here or in the LETTER AGREEMENT do not include the following categories of work which shall be referred to as Additional Services. 2.2. If CLIENT and OA mutually agree to perform any of the following Additional Services, CLIENT will provide written approval of the agreed upon scope of services, and OA shall perform or obtain from others such services and will be paid therefore as provided in the LETTER AGREEMENT. EITHER CLIENT or OA may elect not to perform all or any of the following Additional Services without cause or explanation: 2.2.1 Preparation of applications and supporting documents for governmental financial support of the Project in addition to those required under Basic Services; preparation or review of environmental studies and related services; and assistance in obtaining environmental approvals. 2.2.2 Services to make measured drawings of or to investigate existing conditions of facilities. 2.2.3 Services resulting from significant changes in the general scope, extent or character of the Project or major changes in documentation previously accepted by CLIENT where changes are due to causes beyond OA's control. 2.2.4 Providing renderings or models. 2.2.5 Preparing documents for alternate bids requested by CLIENT for work which is not executed or for out-of-sequence work. 2.2.6 Detailed consideration . of operations, maintenance and overhead expenses; value engineering and the preparation of rate schedules, earnings and expense statements, cash flow and economic 19-3868.01 evaluations, feasibility studies, appraisals and valuations. 2.2.7 Furnishing the services of independent professional associates or consultants for work other than Basic Services. , 2.2.8 If OA's compensation for Basic Services is not on the basis of Direct Labor or Salary Costs, Additional Services shall include services necessary due to the 9lient's award of more than one prime contract for the project, services necessary due to the construction contract containing cost plus or incentive-savings provisions, services necessary in order to arrange for performance by persons other than the prime contractor and those services necessary to administer CLIENT's contract(s). 2.2.9 Services in connection with staking out the work of Contractor(s). 2.2.10 Services during out-of-town travel other than visits to the site. 2.2.11 Preparation of operating and maintenance manuals to supplement Basic Services. 2.2.12 Services to redesign some or all of the Project. 2.2.13 Preparing to serve or serving as a consultant or witness or assisting CLIENT with any litigation, arbitration or other legal or administrative proceeding except where required as part of Basic Services. 2.3 When" required by the Agreement or Contract pocuments in circumstances beyond OA's control, OA shall perform or obtain from others any of the following Additional Services as circumstances' require during construction and without waiting for specific instructions from CLIENT, and OA will be paid therefore as provided in the Letter Agreement: 2.3.1 Services in connection with work directive changes and change orders to reflect the changes requested by CLIENT if the resulting change in l;:ompensation for Basic Services is not commensurate with the additional services rendered. 2.3.2 Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitutions proposed by Contractor(s); services after the award of each contract in evaluating and determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor; and evaluating an unreasonable or extensive number of claims submitted by Contractor(s) or others in connection with the work. Page 1 of 2.3.3 Services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material, equipment or energy shortages. 2.3.4 Additional or extended services during' construction made necessary by (1) work damage by fire or other causes during construction, (2) a significant amount of defective, inefficient or neglected work by any Contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, (4) default by any Contractor. SECTION 3-ClIENT'S RESPONSIBiliTIES 3.1. CLIENT shall provide all criteria and full information as to CLIENT's requirements for the Project; designate and identify in writing a person to act with authority on CLIENT's behalf in respect of all aspects of the Project; examine and respond promptly to OA's submissions; and give prompt written' notice to OA whenever CLIENT observes or otherwise becomes aware of any defect in the work. 3.2 If CLIENT fails to make any payment due OA for services and expenses within thirty (30) days after receipt of OA's statement therefore, OA may, after giving seven days' written notice to CLIENT, suspend services to CLIENT under this Agreement until OA has been paid in full all amounts due for services, expenses and , charges. 3.3 Payments to OA shall not be withheld, postponed or made contingent on the construction, completion or success of the Project or upon receipt by the CLIENT of offsetting reimbursements or credit from other parties who may have caused Additional Services or expenses. No withholdings, deductions or offsets shall be. made from OA's compensation for any reason unless OA has been found to be legally liable for such amounts. 3.4 CLIENT shall also do the following and pay all costs incident thereto: 3.4.1 Furnish to OA any borings, probingsand subsurfa.ce explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; appropriate professional interpretations of all of the foregoing; environmental assessment and impact statements; property, boundary, easement, right- of-way, topographic and utility surveys; property descriptions; zoning and deed restrictions; all of which OA may rely upon in performing services hereunder. 3.4.2 Guarantee access to and make all provisions for OA to enter upon public and private property. 3.4.3 Provide such legal, accounting, independent cost estimating and insurance counseling services as 19-3868.01 I _ may be required for the Project, any auditing service required in respect of Contractor(s)' applications for payment, and any inspection services to determine if Contractor(s) are performing the work legally. ~.4.4 Provide engineering surveys to establish reference points for construction. 3.4.5 Furnish approvals and permits from all governmental authorities having jurisdiction over the Project. 3.4.6 If more than one prime contractor is to be awarded the contract for construction, designate a party to have responsibility and authority for coordinating the activities of the various prime contractors. 3.5 CLIENT shall pay all costs incident to obtaining bids or proposals from Contractor(s). 3.6 CLIENT shall pay all permit application review costs for government authorities having jurisdiction over the Project. 3.7 Contemporaneously with the execution of the LETTER AGREEMENT, CLIENT shall designate in writing an individual to act as its duly authorized Project representative. SECTION ~MEANING OF TERMS 4.1 As used herein, the term "this Agreement" refers to these General Provisions, the LETTER AGREEMENT to which these General Provisions refer, and any other exhibits or attachments made a part thereof as if they were part of one and the same document. 4.2 The "construction cost" of the entire Project (herein referred to as "Construction Cost") means the total cost to CLIENT of those portions of the entire Project designed and specified by OA, but it will not include OA's compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properties unless this Agreement so specifies, nor will it include CLIENT's legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project or the cost of other services to be provided by others to CLIENT pursuant to Section 3. 4.3 The "Salary Costs": Used as a basis for payment mean salaries and wages (basic and incentive) paid to all OA's personnel engaged directly on the Project, including, but not limited to, engineers, architects, surveyors, designers, draftsmen, speCification writers, estimators, other technical and business personnel; plus the cost of customary and statutory benefits, including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, Page 2 of5 sick leave, vacation and holiday pay and other group benefits. ' 4.4 "Reimbursable Expenses: The expenses incurred by OA or OA's independent professional associates or consultants directly or indirectly in connection with the Project, and shall be included in periodic billing as applicable as follows: Classification Automobiles Suburbans and Pick-Ups Duplication In-house Outside Meals Postage & Shipping Charges for Project Related Materials Film and Photo Developing Telephone and Fax Transmissions Miscellaneous Materials & Supplies Applicable only to this Project Subconsultants Costs $0.45/mile* $0.60/mile* Actual Cost Actual Cost+10% Actual Cost Actual Cost Actual Cost + 10% Actual Cost+ 10% Actual Cost+ 10% Actual Cost+ 10% * IRS Standard Mileage Rate (Subject to Change) 4.5 "Certify" or "a Certification": A statement of OA's opinion, based on its observation of conditions, to the best of OA's professional knowledge, information and belief. Such statement of opinion does not constitute a warranty, either express or implied. It is understood that OA's certification shall not relieve the CLIENT or the CLIENT's contractors of any responsibility or obligation they may have by industry custom or under any contract. 4.6 "Cost Estimate": An opinion of probable construction cost made by OA. In providing opinions of probable construction cost, it is recognized that neither the CLIENT nor OA has control over the costs of labor, equipment or materials, or over the Contractor's methods of determining prices or bidding. The opinion of probable construction costs is based on OA's reasonable professional judgment and experience and does not constitute a warranty, express or implied, that the Contractor's bids or the negotiated price of the Work will not vary from the CLIENT's budget or from any opinion of probable cost prepared by OA. 4.7 ~'Day": A calendar day of 24 hours. The term "days" shall mean consecutive calendar days of 24 hours each, or fraction thereof. ' 4.8 ~'Inspect" or "Inspection": The visual' observation of construction to permit OA, as an experienced and qualified professional, to determine that the Work when completed by the Contractor, generally conforms to the 19-3868.01 Page 3 of5 Contract Documents. In making such inspections, OA makes no guarantees for, and shall have no authority or control over, the Contractor's performance or failure to perform the Work in accordance with the Contract Documents. OA shall have no responsibility for the means, methods, techniques, sequences or procedures selected by the Contractor or for the Contractor's safety precautions and programs nor for failure by the Contractor to comply with any laws or regulations relating to the performance or furnishing of the Work by the Contractor. 4.9 "Record Documents": Drawings prepared by OA upon the completion of construction based upon the drawings and other data furnished to OA by the, Contractor and others showing significant changes in the Work made during construction. Because Record Documents are prepared based on unverified information provided by others, OA makes no warranty of the accuracy or completeness of the drawings. SECTION 5- TERMINATION 5.1 Either party may terminate this Agreement for cause upon giving the other party not less than seven (7) calendar days' written notice for any of the following reasons: 5.1.1 Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; 5.1 .2 Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; 5.1.3 Suspension of the Project or OA's services by the CLIENT 'for more than ninety (90) calendar days, consecutive or in the aggregate; 5.1.4 Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 5.2 In the event of a "for cause" termination of this Agreement by either party, the CLIENT shall within fifteen (15) calendar days of termination pay OA for all ~ervices rendered and all reimbursable costs incurred by OA up to the date of termination, in accordance with the payment provisions of this Agreement. 5.3 The CLIENT may terminate this Agreement for the CLIENT's convenience and without cause upon giving OA not less than seven (7) calendar days' written notice. In the event of any termination that is not the fault of OA, the CLIENT shall pay OA, in addition to payment for services rendered and reimbursable costs incurred, for all expenses reasonably incurred by OA in connection with the orderly termination of this Agreement, including but not limited to demobilization, reassignment of personnel, associated overhead costs, any fees, costs or expenses incurred by OA in preparing or negotiating any proposals submitted to CLIENT for OA's Basic or Additional Services under this Agreement and all other expenses directly' resulting from the termination and a reasonable profit of not less than 10% of OA'sactual costs incurred. SECTION 6-DISPUTE RESOLUTION 6.1. Mediation 6.1.1 . All questions in dispute under this Agreement shall be submitted to mediation. On the written notice of either party to the other of the election to submit any dispute under this Agreement to mediation, each party shall designate their representatives and shall meet within ten (10) days after the service of the noti~e. The parties themselves shall .then attempt to resolve the dispute within ten (10) days of meeting. 6.1.2 Should the parties themselves be unable to agree on a resolution of the dispute, then the parties shall appoint a third party who shall be a competent and impartial party and who shall be acceptable to each party, to mediate the dispute. Any third party mediator shall be qualified to evaluate the performance of both of the parties, and shall be familiar with the design and construction progress. The third party shall meet to hear the dispute within ten (10) days of their selection and shall attempt to resolve the dispute within fifteen (15) days of first meeting. 6.1 .3 Each party shall pay the fees and expenses of the third party mediator and such costs shall be borne equally by both parties. SECTION 7-MISCELLANEOUS 7.1 Reuse of Documents All documents, including Drawings and Specifications prepared or furnished by OA (and OA's independent professional associates and consultants) pursuant to this Agreement, are instruments of service in respect of the Project and OA shall retain an ownership and property interest therein whether or not the Project is completed. CLIENT may make and retain copies for information and reference in connection with the use and occupancy of the Project by CLIENT and others; however, such documents are not intended or represented to be suitable for reuse by CLIENT or others on extensions of the Project or on any other project. Any reuse. without written verification or adaptation by OA for the specific purpose intended will be at CLIENT's sole risk and without liability or legal exposure to OA, or to OA's independent professional associates or consultants, and 19.3868.0 1 CLIENT shall indemnify and hold harmless OA and OA's independent professional associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle OA to further compensation at rates to be agreed upon by CLIENT and OA. 7.2 Electronic Files By accepting and utilizing any electronic file of any drawing, report or data transmitted by OA, the CLIENT agrees for itself, its successors, assigns, insurers and all those claiming under or through it, that by using any of the information contained in the attached electronic file, all users agree to be bound by the following terms. All of the information contained in any electronic file is the work product and instrument of service of OA, who shall be deemed the author, and shall retain all common law, statutory law and other rights, including copyrights, unless the same have previously been transferred in writing to the CLIENT. The information contained in any electronic file is provided for the convenience to the CLIENT and is provided in "as is" condition. The CLIENT is aware that differences may exist between the . electronic files transferred and the printed hard-copy original signed and stamped drawings or reports. In the event of a conflict between the signed original documents prepared by OA and the. electronic files, which may be transferred, the signed and sealed original documents shall govern. OA specifically disclaims all warranties, expressed or implied, including without limitation, and any warranty of merchantability or fitness for a particular purpose with respect to any electronic files. It shall be CLIENT's responsibility to confirm the accuracy of the information contained in the electronic file and that it accurately reflects the information needed by the CLIENT. CLIENT shall not retransmit any electronic files, or any portion thereof, without including this disclaimer as part of any such transmissions. In addition, CLIENT agrees, to the fullest extent permitted by law, to indemnify and hold harmless OA, its officers, directors, employees and sub consultants against any and all damages, liabilities, claims or costs, including reasonable attorney's and expert witness fees and defense costs, arising from any changes made by anyone other than OA or from any reuse of the electronic files without the prior written consent of OA. 7.3 Opinions of Cost Since OA has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor(s)' methods of determining prices, or over competitive bidding or market conditions, OA's opinions of probable Total Project Costs and Construction Cost provided for herein are to be made on the basis of OA's experience and qualifications and represent OA's best judgment as an experienced and qualified professional engineer, familiar with the Page4 of 5 construction industry; but OA cannot and does not guarantee that proposals, bids or actual Total Project or Construction Costs will not vary from opinions of probable cost prepared by OA. If prior to the Bidding or Negotiating Phase CLIENT wishes greater assurance as to Total Project or Construction Costs, CLIENT shall employ an independent cost estimator as provided in paragraph 3.4.3. OA's services to modify the Contract Documents to bring the Construction Cost within any limitation established by CLIENT will be considered Additional Services and paid for as such by CLIENT. 7.4 Controlling Law and Venue 7.4.1 The parties agree that this Agreement and any legal actions concerning its validity, interpretation or performance shall be governed by the laws of the State of Kansas. 7.4.2 Any legal action between OA and CLIENT arising out of this AGREEMENT shall be brought in a court of competent jurisdiction located in Saline County, Kansas. 7.5 Subconsultants OA may utilize as necessary in its discretion Subconsultants and other subcontractors. OA will be paid for all services rendered by its subconsultants and other subconsultants as set forth in this Agreement. 7.6 Assignment 7.6.1 CLIENT and OA each is hereby bound and the partners, successors, executors, administrators and legal representatives of CLIENT and OA (and to the extent permitted by paragraph 7.6.2 the assigns of CLIENT and OA) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. 7.6.2. Neither CLIENT nor OA shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the' written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent OA from employing such subconsultants and other subcontractors as OA may deem appropriate to assist in the performance of services under this Agreement. . 19-3868.0 1 7.6.3 Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than CLIENT and OA, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of CLIENT and OA and not for the benefit of any other party. There are no third-party beneficiaries of this Agreement. 7.7 Indemnity OA and the CLIENT mutually agree, to the fullest extent permitted by law, to indemnify and hold each other harmless from any and all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, arising from their own negligent acts, errors or omissions in the performance of their services under this Agreement, to the extent that each party is responsible for such damages, liabilities or costs on a comparative basis of fault. 7.8 Limitation on Damages Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the CLIENT nor OA, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to. the Project or to this AGREEMENT. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation or any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied warranty. Both the CLIENT and OA shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this Project. 7.9 Entire Agreement This Agreement supersedes all prior communications, understandings and agreements, whether oral or written. Amendments to this Agreement must be in writing and signed by the CLIENT and OA. Page 5 of 5 - Cityof ~ SiIIIna Professional Service Insurance Requirements The following requirements shall not be construed to limit the liability of the Engineer/Architect or it's insurer(s). The City does not represent that the specified coverages or limits of insurance are sufficient to protect the Engineers/Architect's interests or liabilities. Required coverages are to be maintained without interruption from the date of the commencement of the work until date of final payment and termination of any coverage required to be maintained after final payment. For purposes of this' document, the term Contractor refers to the project Architect or Engineer. Questions regarding these requirements should be directed to Nancy' Schuessler, Risk Management Specialist at (785)309-5705. Professional Liabilitv- Errors and Omissions I The Contractor shall provide Architects or Engineers Professional Liability Insurance with limits not less than $500,000, covering the liability of the Contractor and any and all consultants, agents, independent contractors, etc. Which are employed or retained by the Contractor. The insurer must be acceptable to the City of Salina. In the event coverage provided is a claims made coverage, the insurance shall be maintained for a period of not less than three (3) years after completion of the contract or in . lieu thereof purchase of tail coverage (extended reporting period) under which the City of Salina shall be afforded protection. Upon review of each project, the Risk Management Department may require higher or lower coverage limits. In lieu of the above coverage, the CO'!tractor may provide the described coverage for its own firm in the above amount and submit proof all his consultants, agents and independent contractors have insurance deemed adequate by the City of Salina. Commercial General Liabllitv Insurance The Contractor shal~ provide public liability insurance coverage in an amount no less than $500,000 covering the liability of the Contractor and any and all consultants, agents, . independent contractors, etc. which are employed or retained by the Contractor, onan occurrence basis. The insurer must be acceptable to the City of Salina. Upon review of each project, the Risk Management Department may require higheror lower coverage limits. In lieu of the above coverage, the Contractor may provide coverage for its own firm in the above amount or an additional amount and submit proof all his consultants, agents and independent contractors have insurance deemed adequate by the City of Salina. Automobile Liabllitv . The Contractorshall provide coverage protecting the contractor against claims for bodily injury and/or property damage arising out of the ownership or use of any owned, hired and/or non- owned vehicle. Required minimum limits: $500,000 each accident, combined single limits, bodily injury and property damage. Worker's Compensation 8efore beginning work, the Contractor shall furnish to the City satisfactory proof that he has taken out, for the period covered by the work under this contract, full workers' compensation coverage as required by state law for all persons who he may employ directly, or through subcontractors, in carrying out the work contemplated under this contract, and shall hold the City free and harmless for all personal injuries of all"persons who the contractor may employ directly or through subcontractors. CertificateCsl of Insurance Certificate(s) of Insurance acceptabl~ to the City shall be filed with the City at the time the Rev. 04/08 contract between the City and the Contractor is executed. These certificates shall contain a provision that coverage afforded under the policies will not be cancelled or substantially changed until at least thirty (30) days prior written notice has been given to the City and acknowledged. Note: if the Contractor is subject to worker's compensation law a certificate shall be provided. Notice of Claim The Contractor,' upon receipt of notice of any claim in excess of $1 \000 in connection with this contract shall promptly notify the Risk Management Department, (785) 309-5705, providing full details thereof, inCluding an estimate of the amount of loss or liability. Indemnification Clause The Contractor agrees to indemnify and save harmless the City, its officials; agents, servants, officers, directors and employees from and against all claims, expenses, demands, judgements and causes of action for personal injury or death or damage to property where, and to the extent that, such claims, expenses, demands judgement or causes or action arise from the Contractor's negligent acts.. Rev. 04/08 In SCOPE OF DESIGN PROFESSIONAL SERVICES City of Salina Design Professional Services for the Greeley Avenue Bridge Reconstruction over the Smoky Hill River KDOT Project # 85 U-2119-0l I. TYPE OF STRUCTURE A. In discussions with the city it has been determined that the type of bridge structure will by a CONSPAN precast concrete bridge or approved equal. II. SURVEYING AND MAPPING A. SURVEYS 1. The DESIGN PROFESSIONAL shall make such surveys as are necessary to accomplish the Services under this CONTRACT. Such surveys shall be complete, detailed and as accurate as, necessary to develop plans for the design of the PROJECT to usual standards of the CITY and to yield the data necessary for computation of the quantities of the items of work in the construction of the PROJECT. B. Surveys shall include such investigation of the site, locating and field staking as may be necessary to provide adequate ties between utility facilities and the roadway stationing for development of the design. 1. The DESIGN PROFESSIONAL survey and mapping tasks will entail the following, but are not limited to: a) Perform horizontal control traverse and tie to on State Plane Coordinates. b) Perform vertical control level loops and tie to CITY benchmark. c) Establish temporary benchmark along project site. . d) Profile centerline and edge of road for 1000' @ 100' intervals east side of bridge. Profile centerline and edge of road to intersection of S Kenwood Park Drive and Greeley A venue. Profile centerline and edge of road 500' @ 100' intervals each direction from intersection along S Kenwood Park Drive. e) Cross-section every 50' for 100'north and 100' south of centerline for 500' west and 500' east of bridge. f) Define existing intersection. g) Perform stream cross-section surveys (maximum of 6 sections across the floodplain). h) Locate low beam and bridge opening elevations. i) Topographic survey to include the following: Edge of traveled way, edge of shoulder, top of slope, toe of slope, ditch flowline, culverts/pipes - flowlines up and down stream- diameter & type, signs, driveways, streets, utilities, bridge ends, wing walls, etc., guard rails. j) Process field acquired survey data in the office and prepare topographical base map City of Salina - Scope of Professional Services - Page 1 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) k) Tie soil-boring location in both horizontal and vertical project control. 1) Tie into land corners (section corners) and perform right-of-way survey to recover and tie existing property corners that are apparent into project control. This work does not include performing boundary survey of the individual parcels. m) Acquire land corner tie data, tax maps, subdivision plats and tax records along with t;he field-acquired data, prepare a right-of-way strip map. n) Notify Kansas One Call System for marking all utilities in the field, also acquire sewer and water plans from the city if available, and locate sanitary and storm sewer manholes with flow lines within project limits. Utilities with signs found in the field and not on the one call list will also be located. Depths of utility lines will be provided as supplied to the DESIGN PROFESSIONAL by the locators or utility companies. Excavation of utility lines for depths will be the responsibility of the utility companies and the CITY. 0) Right-of-way will be staked only one time in this Scope of Services. Centerline stakings for the purpose of locating borings will be provided. p) Pictures and reference of all control points. q) Submit files including ASCII file. Recordable survey drawings produced with AutoCAD or Microstation with levels compatible GEOP AK/Microstation use. Point files, drawing files, hard copy and electronic files. C. Survey will be in U.S. feet. III. GEOTECHNICAL INVESTIGATION A. The DESIGN PROFESSIONAL shall conduct soils and subsurface investigations in general accordance with the Kansas Department of Transportation's Geotechnical Bridge Foundation Investigation fractice. B. The DESIGN PROFESSIONAL shall conduct soils and subsurface investigations necessary to determine the suitability of the material in the existing or proposed roadway to sustain the overlying embankment; the need for special treatment of the underlying soils to adequately support 'the embankment, base course or pavement; the suitability of the material for roadway embankment or base courses; the suitability of the material for bridge abutments and bent foundations; and the location of and extent to which rock or sub-surface water may be ~ncountered in construction. A total of two (2) borings shall be drilled, with one boring at each abutment. C. The extent of all subsurface investigation performed shall be fully justified in the Geotechnical Report furnished for the PROJECT. IV. HYDROLOGY AND HYDRAULIC ANALYSIS A. The DESIGN PROFESSIONAL shall provide the following for the Hydrology and Hydraulic Analysis for the PROJECT: City of Salina - Scope of Professional Services - Page 2 , KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) 1. Determine the hydrologic data for use in establishing peak flows for the local watershed. 2. Model the proposed bridge structure alternatives utilizing HEC-RAS software. 3. Evaluate scour at abutments, contractions and long term degradation. Determine remediation method and design details for remediation for scouring. 4. Complete KDOT Hydraulic Assessment Checklist for the bridge. 5. Prepare bridge deck drainage design and approach roadway drainage design. B. The DESIGN PROFESSIONAL has based the scope and fee for the PROJECT on the below assumptions: 1. The HEC-RAS model will be based on 2 cross-sections upstream and 2 cross- sections downstream of the proposed bridge. 2. The deliverables for the completion of the hydrology and hydraulic analysis shall be one (1) electronic and three (3) printed copy of hydraulics and scour report; three (3) printed copies of the design spreadsheets and details to insert into construction plans for countermeasures, deck drainage and roadway drainage shall be provided to the CITY. V. ENVIRONMENTAL A. The DESIGN PROFESSIONAL shall complete a Kansas Division of Water Resources Permit, and a Section 404 Nationwide Permit application. 1. The Section 404 Nationwide Permit application report shall be prepared for a linear transportation project in coordination with the bridge design. The application reports shall include all appropriate mapping and engineering drawings to identify the extent of the PROJECT, a description of the purpose and need for the PROJECT, a discussion of avoidance and minimization of impacts to jurisdictional waters. 2. Draft copies of both the KDWR Permit and the Section 404 Nationwide Permit Application Report shall be provided to the CITY and KDOT for review and comment. Following approval by the CITY and KDOT, final copies of the documents shall be provided to the U.S. Army Corps of Engineers, the Kansas Division of Water Resources and the Kansas Department of Health and Environment. VI. AGENCY COORDINATION A The DESIGN PROFESSIONAL shall coordinate the proposed bridge design with the appropriate federal, state and local agencies. Coordination activities will include a review of known Threatened and Endangered Species concerns through the U.S. Fish and Wildlife Service and the Kansas Department of Wildlife and Parks. The DESIGN PROFESSIONAL shall also involve the Kansas Division of Water Resources and the . Kansas Department of Health and Environment to coordinate permit application. A Review of recorded historic and cultural resource sites within or adjacent to the PROJECT area will be completed through the Kansas State Historical Society. B. The following services are excluded as part of the scope of work for the CONTRACT, but can be provided as an addendum, should they be required as part of this PROJECT. City of Salina - Scope of Professional Services - Page 3 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) 1 . Phase I or Phase II Cultural Resource Investigations 2. Section 7 Consultation or Threatened and Endangered Species Field Surveys 3. Environmental Impact Statement or Environmental Assessment C. Contact with these agencies shall be made early enough in the development of the PROJECT to enable them to make a timely response so that their comments can be considered at the appropriate stage of Services under this Agreement. These contacts shall be identified within the public involvement plan and public participation log as set forth in this Agreement. D. The DESIGN PROFESSIONAL shall keep the CITY fully informed of its and other affected agency activities. E. Permits - General: 1. The DESIGN PROFESSIONAL shall determine those permits necessary to advance the PROJECT to the letting stage. When unable to make this determination the DESIGN PROFESSIONAL shall confer with the CITY. 2. When a permit is required, the DESIGN PROFESSIONAL shall prepare the permit applications, on the forms and in the manner prescribed by the issuing agency, for execution and submittal by the CITY. VII. UTILITY COORDINATION A. General: 1. The CITY shall provide the DESIGN PROFESSIONAL with a list of known utilities on the PROJECT and a list of contact personnel for utility coordination. This list is not warranted to be complete, but is furnished to assist the DESIGN PROFESSIONAL. If necessary, the list should be expanded by the DESIGN PROFESSIONAL based on any additional facilities found in the field or based on contacts with other utilities. 2. During the development of the work under this CONTRACT, the DESIGN PROFESSIONAL shall confer on an ongoing basis with utility companies in the PROJECT vicinity, to establish mutual understanding on design features of the PROJECT affecting utility facilities. 3. The DESIGN PROFESSIONAL shall coordinate with utility companies to insure that facility relocations/alterations have been adequately considered. 4. The DESIGN PROFESSIONAL shall keep the CITY duly informed of the status and nature of all such coordination activities. The DESIGN PROFESSIONAL shall provide the CITY with timely plans and information that will permit it to meet its planned construction schedule. B. Utility Coordination: 1. The DESIGN PROFESSIONAL shall arrange for all utility coordination as to reflect the existing information necessary for the purpose of design of the PROJECT, with the exception of negotiating for utility company land interests. 2. It is the responsibility of the DESIGN PROFESSIONAL to locate existing utilities on plans and plats. City of Salina - Scope of Professional Services - Page 4 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River . Olsson Associates (9/21/08) 3. DESIGN PROFESSIONAL shall provide notifications and project plans to the affected owners of utility facilities, review the work plans of the utility facility owners, consider their schedules and prepare special provisions to complete the design of the PROJECT. 4. DESIGN PROFESSIONAL shall provide notification letters to the utility facility owners for the PROJECT. The letters shall notify the utility facility owners of the following milestones; project survey, completed preliminary plans, completed final plans and the construction bid date. C. Utility Negotiations/Agreements: 1. The DESIGN PROFESSIONAL shall provide the CITY with all necessary PROJECT information including the names of affected utility companies, the locations of the facilities along the PROJECT, the manner and extent to which they are affected, and exhibits, plans, specifications, estimates, reports, and other pertinent documentation as may be required to enable the affected utility companies to obtain the necessary permits, to enter into any necessary agreements and to adjust and/or relocate their facilities. 2. The CITY shall enter into negotiations with the affected utility companies and will prepare all necessary agreements and conveyances. 3. Plans and Other Material: a. DESIGN PROFESSIONAL shall provide the CITY with all plans necessary for the 'acquisition of utility interests. In addition to all other plans, DESIGN PROFESSIONAL shall provide one copy of the final plan, and for each utility line, railroad and municipality located within the PROJECT limits. VIII. ROAD PLANS - FIELD CHECK, OFFICE CHECK AND FINAL PLANS A. The DESIGN PROFESSIONAL shall prepare Roadway Plans for the PROJECT under this CONTRACT. B. Road Plans are the compilation of documents, reproducible drawings, depicting the location, character, dimensions, and relevant data necessary to the layout and construction of the prescribed work which is limited to the bridge approaches under this CONTRACT. Road Plans will consist of the following: 1 . Title Sheet 2. General Notes 3. Survey Reference Sheet 4. Project Overview 5. Unique / Special Construction Details 6. Alignment Diagram 7. Miscellaneous Quantities 8. Roadway Plan and Profile Sheets 9. Traffic Control Plan 10. Erosion Control Plan City of Salina - Scope of Professional Services - Page 5 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) C. Road Plans shall be designed in accordance with the principles, standards, and practices adopted by the CITY for manual and computer aided design of roadway plans, as specified in the City of Salina "Standard Specifications' and "Standard Detail Sheets" for streets and sidewalks hereinafter referred to as STANDARDS and AASHTO Green Book - A Policy on Geometric Design of Highways and Streets, 5th Ed., 2004 and KDOT Design Manual Volume 1, Road Section. D. Plans for minor incidental retaining walls less than six feet in height and pipe type. structures in this CONTRACT shall be considered as special construction details of the Road Plans and not as Structure Plans. E. In preparation of Road Plans, the DESIGN PROFESSIONAL shall prepare and furnish to the CITY specifications. for construction work included in the plans which are not covered by the STANDARDS of the CITY, and such amendments to or revisions of the STANDARDS as may be required to properly cover the work contemplated by the plans. F. The DESIGN PROFESSIONAL shall furnish such other pertinent information and data with respect to the plans and design as may be necessary for completion of work under this CONTRACT. G. Plans are subject to review and examination by the CITY at the completion of the field check, office check and final check plans. H. The DESIGN PROFESSIONAL excludes the following roadway design services as part of the scope of work for this CONTRACT 1. Design of typical roadway sections 2. Design of storm sewer facilities and other utility facilities. IX. STRUCTURE PLANS - FIELD CHECK, OFFICE CHECK AND FINAL DESIGN A. The field check plans will be prepared in accordance with Section 2.4 FIELD CHECK PLANS of the KDOT Design Manual Volume III - Bridge Section. B. The office check plans will be prepared in accordance with "Attachment E-3 Bureau of Local Projects Memorandum (05-16)" of the KDOT Design Manual Volume III - Bridge Section and shall incorporate the comments from the field check plans. The office check plans are the plans for only the bridge and approach slab developed to a point that are essentially 100% complete, with the exception of City of Salina and KDOT reviews and items that are typically provided by KDOT. Office check plans contain all details necessary to construct the project and quantities. C. The DESIGN PROFESSIONAL shall provide Project Special Provisions for bridge construction work included in the plans and not addressed by the 2007 Kansas Standard Specifications for State Road and Bridge Construction. D. The DESIGN PROFESSIONAL shall provide an Engineer's Opinion of Construction Cost with the field check plans. 1. In providing opinions of probable construction cost, it is recognized that neither the CITY nor the DESIGN PROFESSIONAL has control over the costs of labor, equipment or materials, or over the Contractor's methods of determining prices or bidding. The opinion of probable construction costs is based on the DESIGN PROFESSIONAL'S reasonable professional judgment and experience and does not constitute a warranty, express or implied, that the Contractor's bids or the City of Salina - Scope of Professional Services - Page 6 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) negotiated price of the Work will not vary from the CITY'S budget or from any opinion of probable cost prepared by the DESIGN PROFESSIONAL. . 2. Since the DESIGN PROFESSIONAL has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor(s)' . methods of determining prices, or over competitive bidding or market conditions, the DESIGN PROFESSIONAL'S opinions of probable Total Project Costs and Construction Cost provided for herein are to be made on the basis of the DESIGN PROFESSIONAL'S experience and qualifications and represent the DESIGN PROFESSIONAL'S best judgment as an experienced and qualified professionarengineer,familiar with the construction industry; but the DESIGN PROFESSIONAL cannot and does not guarantee that proposals, bids or actual Total Project or Construction Costs will not vary from opinions of probable cost prepared by the DESIGN PROFESSIONAL. If prior to the Bidding Phase CITY wishes greater assurance as to Total Project or Construction Costs, CITY shall employ an independent cost estimator. The DESIGN PROFESSIONAL'S services to modify the Contract Documents to bring the Construction Cost within any limitation established by CITY will be considered Additional Services and paid for as such by the CITY. X. RIGHT-OF-WAY PLANS A. The DESIGN PROFESSIONAL shall prepare right-of-way plans and easement plans if required. B. The DESIGN PROFESSIONAL shall provide three (3) copies of plan sheets including the current landowners, property lines, easement lines, property size in square footage, condemnation maps, proposed easements/right-of-way in to be acquired in square footage. C. The DESIGN PROFESSIONAL will order and obtain the Guaranteed Title Reports for the necessary properties adjacent and involved with the project improvements. The cost of the title report will be paid directly by the City. D. The DESIGN PROFESSIONAL will incorporate the information from the Title Reports, plats, and plans to provide the most accurate document for the purposes of land acquisition. E. The DESIGN PROFESSIONAL will develop ownership, easement and condemnation maps from the plan document for the purposes of land acquisition, if deemed necessary. XI. BIDDING A. The DESIGN PROFESSIONAL shall review and respond to requests for interpretation or clarification of the intent of the plans and/or specifications from the Contractors and the CITY throughout the bidding process. B. The DESIGN PROFESSIONAL shall attend one pre-bid meeting. C. The DESIGN PROFESSIONAL shall attend one bid opening. D. The DESIGN PROFESSIONAL shall assist the CITY in evaluating bids and provide bid recommendation. City of Salina - Scope of Professional Services - Page 7 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) XII. MEETINGS A. Meetings may be scheduled at the request of the DESIGN PROFESSIONAL or the CITY for the purpose of discussing and reviewing the Services under this CONTRACT. B. Meeting schedules are to be coordinated with the CITY to ensure that CITY representatives are available to attend the meetings. XIII. DELlVERABLES A. The DESIGN PROFESSIONAL shall prepare the below items for the City under this CONTRACT. 1 . Geotechnical Report. 2. Hydrology and Hydraulic Analysis Report. 3. Preliminary Plans and Preliminary Engineer's Opinion of Construction Cost. 4. Right-of-way plans, legal descriptions, tract maps, and O&E reports. 5. Final plans, Final quantities, and Engineer's Opinion of Construction Cost. 6. Technical Specifications. 7. Information, plans, specifications and calculations and other data as necessary to obtain certificates, permits, and/or approvals. 8. Record or As-built Drawings. City of Salina - Scope of Professional Services - Page 8 KDOT Project # 85 U-2119-01 Design Professional Services for the Greeley Avenue Bridge over the Smoky Hill River Olsson Associates (9/21/08) PERIOD OF SERVICE City of Salina Greeley Avenue Bridge Reconstruction over the Smoky Hill River KDOT Project # 85 U-2119-01 The phases of work will be completed in accordance with the following schedule: 1 . FIELD CHECK PLANS submitted to the City and KDOT for review by Monday, December 15, 2008, anticipating approval by January 12, 2009. . Upon approval of the field check plans, the contract will be considered to be 35% complete. < 2. OFFICE CHECK PLANS submitted to the City and KDOT for review by Monday, February 16, 2009, anticipating approval by March 16, 2009. Upon approval of the office check plans, the contract will be considered to be 65% complete. 3. FINAL PLANS submitted to the City and KDOT for review by Monday, April 13, 2009, anticipating approval by May 11, 2009. Upon approval of the final plans, the contract will be considered to be 90% complete. 4. AS-BUILT PLANS submitted to the City and KDOT for review by Monday, December 7, 2009, anticipating approval by December 21, 2009. Upon approval of the final plans, the contract will be considered to be 100% complete. Consultant invoices will not be approved for payment beyond the percentages listed above. The City will grant time extensions for unavoidable delays beyond the control of the CONSULTANT. ,;; City's/Countv's COpy Special Attachment No. 1 Sheet 1 of 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 SpecialAtt~chment 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 POPULATIONS 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),9504 of the Rehabilitation Act of 1973 (87 Sta( 3555) and the Americans with Disabilities Act 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.P.R., Part 21, 23, and 27), issued pursuant to such ACT, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low, Income Populations (1994), and the DBE Program (49 C.F.R.; Part 26.1), hereby notifies all contracting parties that, the contracting parties will affirmatively insure that this contract will be implemented without discrimination on the grounds of race, religion, color, gender, age, disability, national origin, or minority populations and low income 'populations as more specifically set out in the following seven "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 During the performance of this contract, the consultant, 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 TransportatiQn relative to nondiscrimination in federally- (Revised 07~29-1999) r---n- Special Attachment No. 1 Sheet 2 of3 assisted programs ofthe U.S. Department of Transportation (Title 49, Code of Federal Regulations, Parts 21, 23 and 27, hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. City's/County's COpy (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 and 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 consultant 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 pertinent 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 employlnent because of race, religion, color, gender, age, disability, or national origin. (6) . Sanctions for Noncompliance: In the event of 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, (Revised 07~29-1999) J Special Attachment No. 1 Sheet 3 of 3 (a) withholding of payments to the consultant under the contract until the contractor complies, and/or Citv's/Countv's COpy (b) cancelllition, termination or suspension of the contract,. in whole or in part. (7) Disadvantaged Business Obligation (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) All necessary and reasonable steps shall be taken in accordance with the Regulations to ensure that Disadvantaged Businesses have equal opportunity to compete for and perform contracts. No person(s) 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 subcontractorshall 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 a material breach ofthis 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 of the state of Kansas and use such information in . complying with this Order. (9) Incorporation of Provisions: The consultant will include the prOVISIOns of paragraphs (1) through (8) in every subcontract, including procurements of materialS and 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 asa means of enforcing such provisions including sanctions for noncompliance: PROVIDED, however, that, ,in the event a consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the consultant may request the State to enter into such litigation to protect the interests of the State. (Revised 07-29-1999) State of Kansas Department of Administration DA-146a (Rev. 1-01) , . CONTRACTUAL PROVISIONS ATTACHMENT Important: This form contains mandatory contract provisions and must be attached to or incorporated in all copies of any contractual agreement. If it is attached to the vendor/contractor's standard contract form, then that form must be altered to contain the following provision: "The Provisions found in Contractual Provisions Attachment (Form DA-146a, Rev. 1-01), which is attached hereto, are hereby incorporated in this contract and made a part thereof." The parties agree that the following provisions are hereby incorporated into the contract to which it is attached and made a part thereof, said contract being the _ day of , 20_. 1. Terms Herein Controllina Provisions: It is expressly agreed that the terms of each and every provision in this attachment shall prevail and control over the terms of any other conflicting provision in any other document relating to and a part of the contract in . which this attachment is incorporated. 2. Aareement With Kansas Law: All contractual agreements shall be subject to, governed by, and construed according to the laws of the State of Kansas. , . 3. Termination Due To Lack Of Fundina AODrooriation: If, in the judgment of the Director of Accounts and Reports, Department of Administration, sufficient funds are not appropriated to continue the function performed in this agreement and for the payment ofthe charges hereunder, State may terminate this agreement at the end of its current fiscal year. State agrees to give written notice of termination to contractor at least 30 days prior to the end of its current fiscal year, and shall give such notice for a greater period prior to the end of such fiscal year as may be provided in this contract~ except that such notice shall not be required prior to 90 days before the end of such fiscal year. Contractor shall have the right, at the end of such fiscal year, to take possession of any equipment provided State under the contract. State will pay to the contractor all regular contractual payments incurred through the end of such fiscal year, plus contractual charges incidental to the return of any such equipment. Upon termination ofthe agreement by State, title to any such equipment shall revert to contractor at the end of State's current fiscal year. The termination of the contract pursuant to this paragraph shall not cause any penalty to be charged to the agency or the contractor. . 4. Disclaimer Of Liabilitv: Neither the State of Kansas nor any agency thereof shall hold harmless or indemnify any contractor beyond that liability incurred under the Kansas Tort Claims Act (K.SA 75-6101 m ~). 5. Anti-Discrimination Clause: The contractor agrees: (a) to comply with the Kansas Act Against Discrimination (K.S.A. 44-1001 m ~) and the Kansas Age Discrimination in Employment Act (K.SA 44-1111 m~) and the applicable provisions ofthe Americans . With Disabilities Act (42 U.S.C. 121 01 m~ (ADA) and to not discriminate against any person because of race, religion, color, sex, disability, national origin or ancestry, or age in the admission or access to, or treatment or employment in, its programs or activities; (b) to include in all solicitations or advertisements for employees, the phrase "equal opportunity employer"; (c) to comply with the reporting requirements set out at K.SA 44-1031 and K.SA 44-1116; (d) to include those provisions in every subcontract or purchase order so that they are binding upon such subcontractor or vendor; (e) that a failure to comply with the reporting requirements of (c) above or if the contractor is found guilty of any violation of such acts by the Kansas Human Rights Commission, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration; (f) if it is determined that the contractor has violated applicable provisions of ADA, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration. Parties to this contract understand that the provisions of this paragraph number 5 (with the exception of those provisions relating 10 the ADA) are not applicable to a contractor who emplOYS fewer than four employees during the term of such contract or whose contracts with the. contracting state agency cumulatively total $5,000 or less during the fiscal year of such agency. 6. Acceotance Of Contract: This contract shall not be considered accepted, approved or otherwise effective until the statutorily required approvals and certifications have been given. 7. Arbitration. Damaaes. Warranties: Notwithstanding any language to the contrary, no interpretation shall be allowed to find the State or any agency thereof has agreed to binding arbitration, or the payment of damages or penalties upon the occurrence of a contingency. Further, the State of Kansas shall not agree to pay attorney fees and late payment charges beyond those available under the Kansas Prompt Payment Act (K.S.A. 75-6403), and no provision will be given effect which attempts to exclude, modify, disclaim or otherwise attempt to limit implied warranties of merchantability and fitness for a particular purpose. 8. Reoresentative's Authoritv To Contract: By signing this contract, the representative ofthe contractor thereby represents that such person is duly authorized by the contractor to execute this contract on behalf of the contractor and that the contractor agrees to be bound by the provisions thereof. 9. Resoonslbilitv For Taxes: The State of Kansas shall not be responsible for, nor indemnify a contractor for, any federal, state or . local taxes which may be imposed or levied upon the subject matter of this contract. 10. Insurance: The State of Kl3nsas shall not be required to plJrchase, any insurance against loss or damage to any personal property to which this contract relates, nor shall this contract require the State to establish a "self-insurance" fund to protect against any such loss or damage. Subject to the provisions of the Kansas Tort Claims Act (K.S.A. 75-6101 m sea.), the vendor or lessor shall bear the risk of any loss or damage to any personal property in which vendor or lessor holds title. 11. Information: No provision of this contract shall be construed as limiting the Legislative Division of Post Audit from having access to information pursuant to K.S.A. 45-1101 !!!!2Q. 12. The Eleventh Amendment: "The Eleventh Amendment is an inherent and incumbent protection with the State of Kansas and need not be reserved, but prudence requires the State to reiterate that nothing related to this contract shall be deemed a waiver of the Eleventh Amendment."