6.2 East Magnolia Improvements Supplemental AgreementCITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
4/1/2013 4:00 P.M.
AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL:
NO: 6
BY:
ITEM PUBLIC WORKS FINAL APPROVAL:
NO: 2
Page 1 BY: Daniel R. Stack BY:
ITEM:
Supplemental Agreement No. 1 with the Kansas Department of Transportation (KDOT) to exchange
2012 federal funds for the East Magnolia Improvements, City Project No. 10 -2808.
BACKGROUND:
On October 15, 2012, the City Commission authorized the Mayor to enter into KDOT Agreement No.
160 -12 to exchange $203,189.48 of the City's 2012 federal fiscal year partial allotment of Highway
Bridge Program and /or Surface Transportation Funds (Federal Funds) for $182,870.53 of State
funds. On February 4, 2013, the City Commission authorized the city manager to sign a request from
KDOT to exchange $246,045.96 of the remaining 2012 federal funds at a similar 90% reimbursement
rate and apply them to the East Magnolia improvements. The attached supplemental agreement
modifies the original agreement to reflect the new total amount of $449,235.44.
Many LPAs find the rules and requirements of the federal transportation dollars they receive annually
to be overly restrictive, cumbersome, and costly to administer. Although these funds help cities and
counties construct major projects, they often fall short of helping them address many important
problem areas in their transportation systems. This new program was established to provide the LPAs
the option to "sell" their federal funds to KDOT in exchange for state dollars. This voluntary program
benefits the local agency by allowing them to build their projects with less KDOT /Federal Highway
Administration oversight in exchange for 10% of the reimbursement.
FISCAL NOTE:
For this exchange program, State funds are paid on a reimbursement basis as the Local Public
Agencies (LPA) incurs costs. The total project cost is estimated at around $3.4 million. The approved
Capital Improvement Program includes selling bonds to finance the balance of the project costs
estimated at $2,140,000.
CONFORMANCE WITH STRATEGIC PLAN:
Goal #3: The City will provide the highest quality of services, consistent with governing body direction,
available resources and staff commitment to quality.
COMMISSION ACTION OR RECOMMENDED ACTION:
Staff has identified the following options and recommends Option 1:
1. Approve Supplemental Agreement No. 1 with KDOT to exchange 2012 federal funds for the
East Magnolia Improvements, City Project No. 10 -2808.
2. Provide another option or give further direction to staff.
Attachments: Supplemental Agreement No. 1
February 4, 2013 Request for City Commission Action
Original Agreement
Supplemental No. 1 to
Agreement No. 160 -12
PROJECT NO. 85 U- 0077 -12
FUND EXCHANGE
CITY OF SALINA, KANSAS
SUPPLEMENTAL AGREEMENT No.1
This Agreement is made and entered into effective the date signed by the Secretary or
designee, 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,"
collectively referred to as the "Parties."
RECITALS:
WHEREAS, the Parties entered into an Agreement dated October 26, 2012, hereinafter
referred to as the "Original Agreement" for the fund exchange program which allows local units
of government to exchange some or all of the federal funds allocated to them in a specific federal
fiscal year for state funds allocated to Secretary, and
WHEREAS, Secretary and City mutually desire to increase the amount of State Funds
that are being exchanged for the City's annual allotment of Federal Funds.
NOW, THEREFORE, in consideration of this premise, the Parties hereto agree as
follows:
1. On page 1 of the Original Agreement, the PURPOSE paragraph shall be replaced
in its entirety to read as follows:
PURPOSE: Secretary has authorized a fund exchange program which allows local
units of government to exchange some or all of the federal funds allocated
to them in a specific federal fiscal year for state funds allocated to
Secretary.
Secretary and City desire to exchange state transportation funds ( "State
Funds ") for all, or a portion of, the annual allotment of City's Highway
Bridge Program and/or Surface Transportation Funds ( "Federal Funds. ")
City has requested $449,235.44 of their annual allotment of Federal Funds
for federal fiscal year 2012 be exchanged for State Funds. Secretary and
City are empowered by the laws of Kansas to enter into agreements
incident to the financing, construction, and maintenance of city roads
utilizing federal or state funds.
2. On page 1 of the Original Agreement, Article I paragraph 1 shall be replaced in its
entirety to read as follows:
1. To reimburse City, with State Funds, for one hundred percent (100 %) of
costs incurred pursuant to this Agreement, up to $404,311.90. Secretary agrees to make
partial payments to the City for amounts not less than $1,000 and no more frequently than
monthly. Such payments will be made after receipt of proper billing.
- 1 -
Supplemental No. 1 to
Agreement No. 160 -12
3. On page 2 of the Original Agreement, Article II, paragraph 6 shall be replaced in
its entirety to read as follows:
6. To allow Secretary to retain and use $449,235.44 of City's Federal Funds
in exchange for State Funds. City understands Secretary may use the captured funds for
any purpose or for any project throughout the state.
THIS SUPPLEMENTAL AGREEMENT shall not be construed to alter, modify, or
void the terms, provisions or conditions of the Original Agreement, incorporated herein by
reference, except as herein specifically provided.
IN WITNESS WHEREOF, the Parties hereto have caused this Supplemental
Agreement to be signed by their duly authorized officers.
ATTEST:
THE CITY OF SALINA, KANSAS
CITY CLERK (Date) MAYOR
(SEAL)
IMM
- 2 -
Kansas Department of Transportation
Michael S. King, Secretary of Transportation
Jerome T. Younger, P.E. (Date)
Deputy Secretary and
State Transportation Engineer
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
2/4/2013 4:00 P.M.
AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL:
NO: 6
BY:
ITEM PUBLIC WORKS FINAL APPROVAL:
NO: 3
Page 1 BY: Daniel R. Stack BY:
ITEM:
Authorizing the City Manager to sign a request from the Kansas Department of Transportation (KDOT)
to exchange the 2012 federal funds for the East Magnolia Improvements, City Project No. 10 -2808.
BACKGROUND:
On February 3, 2011, KDOT and City staff conducted a City Commission Study Session to discuss a
new federal funds exchange program available to Local Public Agencies (LPA). On September 12,
2011 and February 27, 2012, the City Commission authorized the City Manager to sign the requests
to exchange 2011 and 2012 federal funds for the East Magnolia Improvements. Attached is a
summary of funds exchanged and reimbursed thus far.
Many LPAs find the rules and requirements of the federal transportation dollars they receive annually
to be overly restrictive, cumbersome, and costly to administer. Although these funds help cities and
counties construct major projects, they often fall short of helping them address many important
problem areas in their transportation systems. This new program was established to provide the LPAs
the option to "sell" their federal funds to KDOT in exchange for state dollars. This voluntary program
benefits the local agency by allowing them to build their projects with less KDOT /Federal Highway
Administration oversight in exchange for 10% of the reimbursement.
This request is for $246,045.96 of federal dollars now available (April 1, 2012 to September 30, 2012)
since the previous 2012 request. KDOT will follow this action by sending the City an agreement for
the Mayor's signature. These annual allotments will continue to be applied to East Magnolia thru the
end of 2013.
FISCAL NOTE:
For this exchange program, State funds are paid on a reimbursement basis as the LPA incurs costs.
The total project cost is estimated at around $3.4 million. The approved Capital Improvement Program
includes selling bonds to finance the balance of the project costs estimated at $2,140,000.
CONFORMANCE WITH STRATEGIC PLAN:
Goal #3: The City will provide the highest quality of services, consistent with governing body direction,
available resources and staff commitment to quality.
COMMISSION ACTION OR RECOMMENDED ACTION:
Staff recommends the City Commission authorize the City Manager to sign the request from KDOT to
exchange 2012 federal funds for the East Magnolia Improvements, City Project No. 10 -2808.
Attachments: Exchange request form
Previous blue sheet from 9/12/2011 and request from 2/27/12
Summary of funds available and reimbursed
Hari
Department of Transportation
KANSAS DEPARTMENT OF TRANSPORTATION
BUREAU OF LOCAL PROJECTS
REQUEST TO EXCHANGE FEDERAL FUNDS
County /City:
Federal Funds to Be Exchanged:
Funds to be banked for 2012:
�aIinA
$ 114l0 104 5.%
$
The Secretary of Transportation is hereby requested to make available to the city /county state funds in exchange
for the city's /county's allotment of federal funds in the amount stated above.
We understand that the amount of state funds provided by the Secretary will be calculated at an exchange rate of
$0.90 of state funds per dollar of federal funds. We further understand that the state funds must be used for
transportation project(s) in accordance with the program guidelines and will be paid on a reimbursement basis as
the city /county incurs costs on the project(s).
Proposed project(s) to use the state funds are listed on the attached sheets.
Contact Person: Da ni e- I R
Eck Title:
C i -t� En obi n�e.e,r�
Address: 300 W , A e. , , Po Box 13 G Sa I in a, l< 5 G ?'1 o2- 0'7 3b
Phone: OWS) 309 - S'12 5 Email
Tign tore*
JCL 5 0 (1 A • &aqg-,
Typed or Printed Name
Title
2- li -- 13
Date
dgr).5 -tack (�Sa It* not.vc0
*The representative signing this request must be authorized by law to bind the city/county to an agreement.
TWOR�KS
REQUEST TO EXCHANGE FEDERAL FUNDS Project List: (Attach as many sheets as needed)
Project Location: MaLdinottak Read C Ohio A-. to (eDD, Qast b� ie�ee
Scope of Work: Grad, e) c i n 0, Seectl n g
Estimated Construction Start Date:
Estimated Costs: (Only show those costs for which you will request reimbursement)
Design $
Right of Way $ r
Utility Adjustments $ r
Construction $ `�.� B2"119Li11. z6
Inspection $
Total Estimated Costs $ 2 $2`i Q47. 25
Project Location:
Scope of Work:
Estimated Construction Start Date:
Estimated Costs: (Only show those costs for which you will request reimbursement)
Design $
Right of Way $
Utility Adjustments $
Construction $
Inspection
Total Estimated Costs
WORKS
Ft. � �,h . Eomcrta{ PkwgmMl�
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
09/12/2011 4:00 P.M.
AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL:
NO: 6
BY:
ITEM FINAL APPROVAL:
NO: 4
Page 1 BY: Daniel R. Stack BY:
ITEM:
Authorize the City Manager to sign the request from the Kansas Department of Transportation
(KDOT) to exchange federal funds for the East Magnolia Improvements, City Project No. 10 -2808.
BACKGROUND:
On August 26, 2009, KDOT informed the City of Salina that $1.4 million had been authorized for the
East Magnolia Improvements, subject to federal funding being available. The project will involve new
and wider pavement, a center median and landscaping east of Huntington Road, underground storm
sewers, a ten foot bicycle /pedestrian path on the south side, a five foot sidewalk on the north side,
and continuous street - lighting.
On February 3, 2011, KDOT and City staff conducted a City Commission Study Session to discuss a
new funding program available to Local Public Agencies (LPA). Many LPAs find the rules and
requirements of the federal transportation dollars they receive annually to be overly restrictive,
cumbersome, and costly to administer. Although these funds help cities and counties construct major
projects, they often fall short of helping them address many important problem areas in their
transportation systems. This new program has been established to provide the LPAs the option to
"sell" their federal funds to KDOT in exchange for state dollars, which allows the agency to tailor
projects to better meet the local needs. This is a voluntary program which benefits the local agency
by allowing them to build their projects with less KDOT /Federal Highway Administration oversight in
exchange for 10% of the reimbursement. For this project, the City will give up $140,000. KDOT
benefits by getting an additional $140,000 to spend on their own federally funded projects, while
Salina gets more flexibility in the use of the funds.
City staff believes this 10% loss in federal dollars would be easily made up by the Construction
Engineering costs typical for a KDOT administered project. KDOT figures construction engineering
(CE) at about 15% of the construction costs. For this $4.0 million construction project, the CE costs
would amount to $600,000 or 7,500 hours of inspection at $80 /hour. We anticipate this project will
take approximately 240 working days (a little more than one construction season), so 7,500 hours
equates to 31 hours of inspection each day, or 3 to 4 people full -time. KDOT informed us they would
typically staff a project like East Magnolia with 2 to 3 people a day and 3 to 4 when placing concrete,
which includes one person at the concrete plant.
Due to current work loads for City inspectors, staff does not anticipate being able to dedicate more
than one person full -time to the East Magnolia Improvements and would have to hire at least two
consultants full -time to assist. Two consultants for 240 days at 8 hours /day at $80 /hour = $307,200,
which is more than the $140,000 the City will give up by entering this project into the exchange
program. This exchange would not make sense if the project was a fully funded KDOT 80/20
percentage, similar to past projects for the City where all inspection costs would be reimbursed.
The following table illustrates some of the past CE costs for City /KDOT /federally funded projects with
South Ninth Street being the exception. South Ninth Street Phase IV (2009 -2010) contained no
federal funds and was inspected by one full -time City staff inspector with part -time assistance from
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
09/12/2011 4:00 P.M.
AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL:
NO: 6
BY:
ITEM FINAL APPROVAL:
NO: 4
Page 2 BY: Daniel R. Stack BY:
another City inspector and an outside testing company. City staff believes this level of CE could be
completed again on the East Magnolia project to still produce a quality project at a reduced cost.
FISCAL NOTE:
The 2010 -2014 Capital Improvement Program includes selling bonds to finance the balance of the
project costs above the $1.4 million. These costs include the consultant design fee, construction
services, right -of -way and easement acquisition, utility relocations, testing, financing and construction
costs. The total project cost is estimated at around $4.5 million. For the exchange program, State
funds would be paid on a reimbursement basis as the LPA incurs costs.
CONFORMANCE WITH STRATEGIC PLAN:
Goal #3: The City will provide the highest quality of services, consistent with governing body direction,
available resources and staff commitment to quality.
Goal #6: The City will work to make Salina a city that has connectivity physically and socially.
COMMISSION ACTION OR RECOMMENDED ACTION:
Staff has identified the following options for Commission consideration:
1. Authorize the City Manager to sign the request from KDOT to exchange federal funds for the
East Magnolia Improvements, City Project No. 10 -2808, reducing the KDOT commitment for
the project from $1.4 million to $1.26 million.
2. Continue the funding arrangement for the East Magnolia project as currently planned,
maintaining the KDOT commitment to the project at $1.4 million.
3. Provide another option or give further direction to staff.
Staff recommends Option 1.
Attachments: Request to exchange federal funds
Request for reimbursement
Federal funds exchange program pamphlet
Construction
Construction
CE % of
Project
Project No. Cost
Engineering
Construction
North Broadway Corridor (Pacific to North Street)
03 -1409 $2,149,000
$437,000
20.3%
Broadway Hageman Intersection
05 -1538 $ 374,000
$ 44,000
11.8%
South Ohio (Schilling to Magnolia)
03 -1402 $2,591,000
$361,000
13.9%
South Ninth Street Phase 4 (Riffel to Belmont)
06 -1579 $4,700,000
$314,000*
6.7%
*Includes $50,000 in contract testing and $264,000
for in -kind City staff costs which were calculated using 3300 hours
(actual time spent) at $80 /hour (same as consultant average pay per hour for comparison)
FISCAL NOTE:
The 2010 -2014 Capital Improvement Program includes selling bonds to finance the balance of the
project costs above the $1.4 million. These costs include the consultant design fee, construction
services, right -of -way and easement acquisition, utility relocations, testing, financing and construction
costs. The total project cost is estimated at around $4.5 million. For the exchange program, State
funds would be paid on a reimbursement basis as the LPA incurs costs.
CONFORMANCE WITH STRATEGIC PLAN:
Goal #3: The City will provide the highest quality of services, consistent with governing body direction,
available resources and staff commitment to quality.
Goal #6: The City will work to make Salina a city that has connectivity physically and socially.
COMMISSION ACTION OR RECOMMENDED ACTION:
Staff has identified the following options for Commission consideration:
1. Authorize the City Manager to sign the request from KDOT to exchange federal funds for the
East Magnolia Improvements, City Project No. 10 -2808, reducing the KDOT commitment for
the project from $1.4 million to $1.26 million.
2. Continue the funding arrangement for the East Magnolia project as currently planned,
maintaining the KDOT commitment to the project at $1.4 million.
3. Provide another option or give further direction to staff.
Staff recommends Option 1.
Attachments: Request to exchange federal funds
Request for reimbursement
Federal funds exchange program pamphlet
CITY'S Agreement No. 160 -12
ORIGINAL
PROJECT NO. 85 U- 0077 -12
FUND EXCHANGE
CITY OF SALINA, KANSAS
AGREEMENT
PARTIES: MICHAEL S. KING, Secretary of Transportation, Kansas Department of
Transportation (KDOT) hereinafter referred to as the "Secretary,"
The City of Salina, Kansas, hereinafter referred to as the "City,"
Collectively referred to as the "Parties."
PURPOSE: Secretary has authorized a fund exchange program which allows local units of
government to exchange some or all of the federal funds allocated to them in a
specific federal fiscal year for state funds allocated to Secretary.
Secretary and City desire to exchange state transportation funds ( "State Funds ") for
all, or a portion of, the annual allotment of City's Highway Bridge Program and/or
Surface Transportation Funds ( "Federal Funds. ") City has requested $203,189.48 of
their annual allotment of Federal Funds for federal fiscal year 2012 be exchanged for
State Funds. Secretary and City are empowered by the laws of Kansas to enter into
agreements incident to the financing, construction, and maintenance of city roads
utilizing federal or state funds.
EFFECTIVE
DATE: The Parties in consideration of the premises and to secure the approval of the Project
shall mutually agree to perform in accordance with this Agreement as of the date
signed by Secretary or designee.
ARTICLE I
SECRETARY AGREES:
1. To reimburse City, with State Funds, for one hundred percent (100 %) of costs
incurred pursuant to this Agreement, up to $182,870.53. Secretary agrees to make partial payments
to the City for amounts not less than $1,000 and no more frequently than monthly. Such payments
will be made after receipt of proper billing.
ARTICLE II
CITYAGREES:
1. The total dollars exchanged under this Agreement are contingent upon the
availability of State funds. If, in the judgment of Secretary, sufficient State Funds are not
1
Agreement No. 160 -12
appropriated to continue the function performed in this Agreement, Secretary may terminate this
Agreement. Secretary will not be responsible to City for any reduction in State Funds.
2. The total dollars exchanged under this Agreement are also contingent upon the
availability of Federal funds. If, due to Congressional funding restrictions, sufficient Federal funds
have not been allotted to City, Secretary shall exchange funds in the amount available.
3. City agrees it shall not deposit the State Funds exchanged into the operating budget
for City.
4. State Funds exchanged pursuant to this Agreement shall be used on specific road and
bridge projects, including but not limited to roadway construction, reconstruction or rehabilitation,
pavement preservation programs, bridge construction, replacement, rehabilitation, repair and
removal, construction of low water crossing, safety improvement programs. State Funds exchanged
pursuant to this Agreement shall be used on specific road and bridge projects only, as pre- approved
by Secretary.
5. State Funds exchanged pursuant to this Agreement may be used for all phases of a
road and bridge project including, but not limited to preliminary engineering, right of way
acquisition, utility relocation, construction and inspection. City understands if used for right of way
acquisition, the acquisition shall be done 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.
6. To allow Secretary to retain and use $203,189.48 of City's Federal Funds in
exchange for State Funds. City understands Secretary may use the captured funds for any purpose
or for any project throughout the state.
7. Secretary is authorized by City to take such steps as are deemed by Secretary to be
necessary or advisable for the purpose of securing the benefits of the current Federal -Aid
Transportation Act for this exchange.
8. To participate and cooperate with Secretary in an audit which will occur either
annually or by project. City shall make its records and books available to representatives of
Secretary for audit for a period of five (5) years after date of final payment under this Agreement. If
any such audits reveal payments have been made with state funds by the City for items considered
non - participating, the City shall promptly reimburse the Secretary for such items upon notification
by the Secretary.
9. 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.
10. Upon completion of the road or bridge project, the City shall notify Secretary and
participate in a final review of the road or bridge project.
2
Agreement No. 160 -12
11. To the extent permitted by law, City agrees to defend, indemnify, hold harmless, and
save the Secretary and his or her authorized representatives from any and all costs, liabilities,
expenses, suits, judgments, damages to persons or property or claims of any nature whatsoever
arising out of or in connection with the provisions or performance of this Agreement by the City or
the City's employees.
12. To follow all applicable laws and statutes governing the projects undertaken pursuant
to this Agreement.
ARTICLE III
THE PARTIES AGREE:
1. 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.
2. The Provisions found in Contractual Provisions Attachment (Form DA -146a, Rev.
10 -11), which is attached hereto, are hereby incorporated in this contract and made a part thereof.
3. This Agreement and all contracts entered into under the provisions of this Agreement
shall be binding upon Secretary and City and their successors in office.
4. 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.
5. The application submitted by City for Federal Fund exchange is hereby incorporated
into this Agreement and made a part thereof.
6. Any State Funds exchanged pursuant to this Agreement may be carried over in the
next federal fiscal year by City.
The signature page immediate1v ollows this ara ra h.
Agreement No. 160 -12
IN WITNESS WAEREOF the Parties hereto have caused this Agreement to be sighed by
their duly authorized officers on the day and year first above written.
ATTEST;
l /0 -1 -/o'
CITY CLERK 1i (Date)
(SEAL)
CITY OF SALINA, KANSAS
Kansas Department of Transportation
Michael S. King, Secretary of Transportation
!'4BY ot B .
APPROVED y
me T. You E. (Date)
r ►v eputy Sec and
nRj�t. State Transportation Engineer
ADOI
4
Special Attachment No. 1
Page 1 of 2
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 DISCRINIINATION 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), §504 of the Rehabilitation Act of 1973 (87 Stat. 355) 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.F.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 ensure
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
"Nondiscrimination Clauses ".
CLARIFICATION
Where the term "Consultant" appears in the following "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
Transportation relating to nondiscrimination in its federally- assisted programs and codified at Title 49, Code of Federal
Regulations, Parts 21, 23 and 27, (hereinafter referred to as the "Regulations "). The Regulations are herein
incorporated by reference and made a part 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 in the 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.
(Revised 9/29/11)
Special Attachment No. 1
Page 2 of 2
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 employment 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,
(a) withholding of payments to the Consultant under the contract until the Consultant complies, and /or
(b) cancellation, termination or suspension of the contract, in whole or in part.
7) Disadvantaged Business Obligation
(a) Disadvantaged Business as defined in the Regulations shall have a level playing field to compete 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 Consultant, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The Consultant shall carry out applicable requirements of 49 C.F.R. Part
26 in the award and administration of Federally- assisted contracts. Failure by the Consultant to carry out these
requirements is a 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 of the State of Kansas and use such information in complying with Executive Order 12898.
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 as a 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 9/29/11)
State of Kansas
Department of Administration
DA -146a (Rev. 10 -11)
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. 10 -11), 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 Hereln Controlling 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. Any terms that conflict or could be interpreted to conflict with this attachment are nullified.
2. Kansas Law and Venue: This contract shall be subject to, governed by, and construed according to the laws of the State of Kansas, and
jurisdiction and venue of any suit in connection with this contract shall reside only in courts located in the State of Kansas.
3. Termination Due To Lack Of Funding Appropriation: 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 of the 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
of the agreement by State, title to any such equipment shall revert to contractor at the end of the 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 Liability: No provision of this contract will be given effect that attempts to require the State of Kansas or its agencies to defend,
hold harmless, or indemnify any contractor or third party for any acts or omissions. The liability of the State of Kansas is defined under the Kansas
Tort Claims Act (K.S.A. 75 -6101 et se . ).
5. Anti - Discrimination Clause: The contractor agrees: (a) to comply with the Kansas Act Against Discrimination (K.S.A. 44 -1001 et se and the
Kansas Age Discrimination in Employment Act (K.S.A. 44 -1111 et se(L) and the applicable provisions of the Americans With Disabilities Act (42
U.S.C. 12101 et se (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.S.A. 44 -1031 and K.S.A. 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.
Contractor agrees to comply with all applicable state and federal anti - discrimination laws.
The provisions of this paragraph number 5 (with the exception of those provisions relating to 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. Acceptance 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, Damages, Warranties: Notwithstanding any language to the contrary, no interpretation of this contract shall find that the State or its
agencies have agreed to binding arbitration, or the payment of damages or penalties. Further, the State of Kansas and its agencies do not agree to
pay attorney fees. costs, or late payment charges beyond those available under the Kansas Prompt Payment Act (K.S.A. 75- 6403), and no
provision will be given effect that attempts to exclude, modify, disclaim or otherwise attempt to limit any damages available to the State of Kansas
or its agencies at law, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
8. Representative's Authority To Contract: By signing this contract, the representative of the 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. Responsibility For Taxes: The State of Kansas and its agencies 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 Kansas and its agencies shall not be required to purchase any insurance against loss or damage to property or any other
subject matter relating to this contract, nor shall this contract require them 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 et seg.), the contractor shall bear the risk of any loss or damage
to any property in which the contractor 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. 46 -1101 et se g.
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."
13. Campaign Contributions / Lobbying: Funds provided through a grant award or contract shall not be given or received in exchange for the
making of a campaign contribution. No part of the funds provided through this contract shall be used to influence or attempt to influence an officer
or employee of any agency or a member of the Legislature regarding any pending legislation or the awarding, extension, continuation, renewal,
amendment or modification of any government contract, grant, loan, or cooperative agreement.