Hazardous Material Emergency Reponse Team
CONTRACT FOR HAZARDOUS MATERIALS
EMERGENCY RESPONSE TEAMS
1.0 Recitals
This agreement is between the State of Kansas Office of the State Fire Marshal (KSFM)
700 Southwest Jackson Street, Topeka, Kansas, and the City of Salina. 300 West Ash,
Salina. Kansas 67401
(Contractor name and address) for the purpose of providing hazardous materials
emergency response services authorized by K.S.A. 31-133 and described herein.
1.1 Contract Term
This agreement shall be in force and effef!,rom the J. 7 day of f-eb . ,J.oOo/'
through and including the J 7 day of :eh ,Jj:j153, a period of one year with
automatic one-year renewals thereafter.
2.0 Definitions
2.1.1 Administrative costs mean those administrative expenses incurred by the
contractor to maintain incident readiness and to respond to an authorized hazardous
materials incident as the chemical assessment team.
2.1.2 Agreement means this contract together with the following exhibits which are
incorporated by reference.
A. Exhibit 1 Regional Map
B. Exhibit 2 Notice to Proceed Checklist
C. Exhibit 3 Vehicle Reimbursement Schedule
D. Exhibit 4 Administrative Costs
E. Exhibit 5 Standard Operating Guidelines
2.1.3 Authorized hazmat incident means a hazardous material (hazmat) incident or
emergency that the chemical assessment team has been authorized to respond to
by the Kansas state fire marshal, the director of the hazardous materials division, or
the state fire marshal's designee, pursuant to a tiered response system or an
emergency response meeting the guidelines for a tiered response. It includes a
response by the chemical assessment team to the same incident or emergency
within 48 hours of leaving the scene. It does not include a local response, except if
authorized by the state fire marshal or hazmat director.
2.1.4 Call back means off-duty personnel that will be called in by the contractor to
replace the chemical assessment team responding to an authorized hazmat
incident. Reimbursement for call back personnel begins from the time that the
response is authorized through the emergency phase to the time that the chemical
assessment team returns to the contractor's facilities.
2.1.5 C.AT. or chemical assessment team means either (1) a type of emergency
response team whose primary objective is the assessment of chemical hazards; or,
(2) those members of a hazardous materials response team whose primary
objective is the assessment of chemical hazards.
2.1.6 C.F.R. means the Code of the Federal Regulations.
2.1.7 Cleanup means the measures taken after the hazardous materials emergency
to permanently remove a hazard from the incident after a spill or leak has been
contained.
2.1.8 Contractor means the local government agency or entity which will perform the
hazmat service or services under this agreement.
2.1.9 Chemical assessment team means a hazardous materials response team or
chemical assessment team comprised of certified technician level hazmat
responders under contract with the KSFM through this agreement to provide
response to hazardous materials emergencies in accordance with the provisions of
this agreement.
2.1.10 Exposure incident means exposure of an emergency response team member
to hazardous materials as result of a response to an authorized hazmat incident or
during a pre-approved training activity.
2.1.11 Hazardous material or hazmat means any material defined as a hazardous
substance under 29 C.F.R. 1910.120 (a)(3).
2.1.12 Hazardous materials emergency response fund means the fund established
pursuant to K.S.A 31-133 for the purpose of funding hazardous materials
operations through the KSFM division of hazardous materials.
2.1.13 Chemical assessment team means a team whose primary responsibility is to
respond to hazardous materials incidents with full capabilities to assess and control
the situation in order to protect life and property from the hazardous materials
incident.
2.1.14 Hazardous materials incident, hazardous materials emergency or hazmat
incident means an uncontrolled release, or threatened release of a hazardous
substance requiring outside assistance by the chemical assessment team to
accomplish an assessment and the control of the incident.
2.1.15 Hazardous materials response or hazmat response is a response by an
chemical assessment team to an authorized hazmat incident.
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2.1.16 Hazardous materials technical advisor or hazmat technical advisor means an
individual or public or private entity designated by the state fire marshal as an
advisor to a chemical assessment team or teams in the area of hazardous materials.
The hazmat technical advisor may assist the hazmat director with evaluation of
reimbursement claims, training, planning, operations or other duties requested.
2.1.17 Hazmat director means the director of the SFM's division of hazardous
materials or the director's authorized designee.
2.1.18 Life threatening means a situation that may pose an immediate threat to life
of an emergency response team member or others or that would cause irreversible
or delayed adverse health effects or pose a substantial interference with a person or
persons ability to escape from a dangerous situation.
2.1.19 Local response or local purpose means any response to any emergency
incident not authorized by the SFM, hazmat director or authorized designee.
2.1.20 N.F.P.A. means the national fire protections association.
2.1.21 Pre-approved training opportunity means training provided by the SFM or
training provided by any other organization approved by the SFM or hazmat director
prior to attendance.
2.1.22 Primary response area means that geographical area where contractor is
principally responsible for providing regional hazardous material emergency response
services.
2.1.23 Response costs means contractor expenses resulting from the activation of
and costs incurred by the chemical assessment team in responding to and mitigating
of an authorized hazmat incident.
2.1.24 Replacement personnel costs mean those contractor expenses for personnel
who are called in to replace the chemical assessment team personnel attending pre-
approved training or providing emergency response services for an authorized
hazmat incident.
2.1.25 Responsible party means the person or persons or their agents or employees
responsible for causing or liable for the emergency to which the contractor
responded.
2.1.26 State means the KSFM acting through the State Fire Marshal, the hazmat
director or their designee.
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2.1.27 Technician level entry capability means the capacity of an emergency
response team to meet the training and equipment requirements and to maintain
technician level certification standards as defined in NFPA 472 and 29 CFR
1910.120, to respond to a hazardous materials incident requiring affirmative
measures such as patching, plugging, or other action necessary to stop and contain
the release of a hazardous substance at its source.
Services to be provided bv Contractor
During the term of this agreement, the contractor agrees to provide emergency
response team services within the boundary of the contractor's assigned primary
response areas as defined by Exhibit 1 and outside the assigned area at the written or
oral request of the state fire marshal, the hazmat director or the fire marshal's designee.
Outside the assigned area includes a response out of the State of Kansas pursuant to
any emergency assistance compact entered into by the State.
Contractor is hereby designated as chemical assessment team number /0
Contractor's response activities under this agreement shall be limited to emergency
operations, reporting and documentation activities arising from authorized hazmat
incidents which threaten life or property.
Contractor shall not be responsible under this agreement for providing any services with
respect to sampling, testing and analysis, treatment, removal, remediation, recovery,
packaging, monitoring, transportation, movement of hazardous materials, cleanup
storage and disposal of hazardous materials except as these services may be
reasonably necessary and incidental to preventing the release or threat of release of
hazardous materials or in stabilizing the hazardous materials incident.
Contractor shall not be required to maintain general security and/or safety perimeters at
or near sites, locate underground utilities, ensure appropriate traffic control services,
conduct hydrological investigations or analysis, or provide testing, removal or disposal
of underground storage tanks at or near the authorized hazmat incident to which the
contractor is assigned.
Contractor makes no representations or warranties of any kind to third parties with
regard to the ultimate outcome of the hazardous materials services to be provided, but
shall respond to the best of its abilities, subject to the terms of this agreement.
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3.1.1 Performance Conditions
Prior to undertaking any hazardous materials assignment under this agreement,
contractor must first receive written approval from the KSFM, the hazmat director or
the state fire marshal's designee to proceed with response activities in accordance
with the "Notice to Proceed Checklist" attached as Exhibit 2 to this document. KSFM
approval shall be conditioned upon the contractor demonstrating to the KSFM that
the contractor's employees, equipment and vehicles meet or exceed applicable state
and federal laws and regulations. Contractor may not respond to hazardous
materials incidents under this agreement until all required signatures have been
obtained and the State has issued a written "Notice to Proceed" to contractor.
Contractor shall not respond to authorized hazmat incidents under this agreement
until its personnel meet the training requirements set forth in Exhibit 5, Standard
Operating Guideline #05, "Training Standards and Guidelines".
3.1.2 Personnel
Contractor shall maintain sufficient numbers of trained, medically monitored,
competent and supervised personnel capable of responding immediately with a
minimum of three (3) persons for a chemical assessment team and four (4) persons
for a hazardous materials response team. These immediately available personnel
must be capable of responding twenty-four (24) hours per day, three hundred sixty
five (365) days per year, three hundred sixty six (366) days if leap year. Contractor
shall respond with personnel who are capable of providing emergency response to
authorized hazmat incidents requiring technician-level entry capability. Contractor
shall limit its response team activity to those measures within the level of training
and capability of those on the scene of the incident. The obligation to provide
personnel pursuant to this section is subject to contractor's budget limitations
consistent with Kansas Cash Basis Laws.
Chemical assessment team personnel will provide reconnaissance and evaluation of
scene needs. If the incident is within the capabilities of the chemical assessment
team, this team may deal with the situation. If the incident is beyond the capabilities
of the team, the team shall call the hazardous materials response team to deal with
the incident. The chemical assessment team shall remain on scene to assist the
hazardous materials response team.
A hazardous materials response team or chemical assessment team may be
composed of members of more than one entity. The contractor will submit billing for
all team expenses regardless of composition of the team members.
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3.1.3 Vehicles and Equipment
Contractor shall provide and maintain vehicles and equipment for use by the
chemical assessment team during the authorized hazmat incident response.
Contractor shall provide physical facilities suitable for use by the emergency
response team, and for storage of such vehicles and equipment used by the
chemical assessment team in responding to authorized hazmat incidents.
Contractors applying for equipment for KSFM program funds must submit an item
description and cost estimate to KSFM for evaluation and approval before funds will
be allocated.
Contractor shall be responsible for insurance maintenance and all other costs
associated with maintaining vehicles and equipment in a safe and suitable condition
for use during an authorized hazmat incident response.
In addition, contractor shall operationally test communications gear and maintain this
equipment in accordance with the manufacturers' recommendations. Contractor
shall also maintain protective clothing, self-contained breathing apparatus, and all
other equipment in a serviceable condition and in accordance with manufacturer's
recommendations.
Contractor is responsible for all costs incurred in responding to an authorized
hazmat incident, subject to the reimbursement of certain costs and expenses as set
forth in section 3.2 of this agreement.
3.1.4 Response Procedure
Contractor's obligation to provide emergency response team services arises when
dispatched by the Kansas state fire marshal, the hazmat director or the state fire
marshal's designee in accordance with a request for assistance of an emergency
response team. Contractor's obligation also arises when a request for the assistance
of an emergency response team meets the immediate incident dispatch criteria set
forth in Exhibit 5, Standard Operating Guideline #02.
If a request for assistance does not satisfy the criteria for immediate incident
dispatch, contractor shall contact the KSFM, hazmat director or designee for
approval to respond. Contractor shall dispatch the emergency response team to the
incident only after receiving such approval. Response by the contractor to incidents
not authorized by the Kansas state fire marshal, the hazmat director or the state fire
marshal's designee shall not be compensated under the provisions of this
agreement.
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3.1.5 Right of Refusal
Contractor agrees to respond to all request for response services by the Kansas
state fire marshal, the hazmat director or the state fire marshal's designee except
when the contractor's resources are committed to an emergency in its own
jurisdiction or committed to an emergency in another jurisdiction pursuant to existing
interlocal agreements, or conditions in contractor's fire protection area are such that
adequate fire protection cannot be supplied. In that event, the local response and
concerns shall have priority. The contractor shall immediately inform the Kansas
state fire marshal, the hazmat director or the state fire marshal's designee of its
unavailability in the event a request for response service to the contractor is made
under this agreement. When the contractor's resources are no longer committed and
become available to respond to an authorized hazmat incident, the contractor shall
notify the Kansas state fire marshal, the hazmat director or the state fire marshal's
designee of its return to available status. Within twenty-four (24) hours following the
conclusion of the local situation, which made the contractor unavailable to respond
to an authorized hazmat incident, the contractor shall submit written documentation
of the circumstances constituting its unavailability to the office of the state fire
marshal.
A contractor shall provide hazmat response services outside its primary response
area upon request of the Kansas state fire marshal, the hazmat director or the state
fire marshal's designee. Outside of the primary response area includes a response
out of the State of Kansas pursuant to any emergency assistance compact entered
into by the State.
3.1.6 Standard Operating Guidelines
The standard operating guidelines attached hereto as Exhibit 5 assist with the
understanding and implementation of this agreement. Standard operating guidelines
for use on scene during a response shall be developed by, and for the use of, the
individual hazardous materials response teams and/or chemical assessment teams.
3.2 Contractor Compensation
3.2.1 Personnel Costs
KSFM agrees to reimburse contractor for the normal salaries and overtime costs at
the current rate of emergency response team personnel providing emergency
response services for an authorized hazmat incident. KSFM also agrees to
reimburse contractor for replacement personnel costs. These costs are submitted by
mail or fax within 30 days following the response or training on the form provided.
Forms are included in Standard Operating Guidelines attached hereto in Exhibit 5.
Contractor shall take reasonable action to minimize any overtime costs incurred
when emergency response team personnel attend a pre-approved training
opportunity.
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3.2.2 Vehicles and Equipment
KSFM agrees to reimburse contractor for the use of vehicles and equipment utilized
by contractor in responding to an authorized hazmat incident. Reimbursement for
the use of vehicles and equipment shall be in accordance with the Vehicle
Reimbursement Schedule attached hereto as Exhibit 3.
If contractor responds to the same authorized hazmat incident within 48 hours of
leaving the scene, the additional responses shall not warrant the first hour rate for
equipment. All other hourly rates for personnel and equipment shall apply.
Any initial response under one hour, even if units are recalled before or after arriving
on scene, will be eligible for the initial first hour reimbursement.
3.2.3 Replacement of Damaged Equipment and Disposable Materials
KSFM agrees to reimburse contractor for equipment damaged or disposable
materials used during a response to an authorized response to a hazmat incident.
KSFM reserves the right to reimburse contractor either through monetary
compensation or by providing comparable equipment and disposable materials to
contractor.
If the request for replacement is for equipment not directly related to entry or
decontamination procedures, the Kansas state fire marshal, the hazmat director or
the state fire marshal's designee may request the testing and maintenance logs for
damaged equipment, as well as a written report by the incident commander as to
what happened.
3.2.4 Administrative Costs
KSFM agrees to reimburse contractor for administrative costs incurred in responding
to an authorized hazmat incident as set out in Exhibit 4. Examples of administrative
costs are included in Exhibit 4. Administrative cost will be reimbursed with each
incident's cost reimbursement.
3.2.5 Training
KSFM shall reimburse contractor for certain expenses associated with attendance
by current or proposed emergency response team members at pre-approved
training opportunities. KSFM shall reimburse contractor for mileage, meals, hotel
and any registration or tuition expenses. Reimbursement for mileage, meals and
hotel shall be in accordance with the relevant provisions of K.A. R. Chapter 1, Article
16 and amendments thereto. KSFM also agrees to reimburse contractor for
replacement of personnel costs. These personnel costs shall be limited to actual
cost for personnel services.
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All requests for training shall be submitted in writing to the Kansas state fire marshal,
the hazmat director, or the state fire marshal's designee on the provided form.
Confirmation of the class will be communicated to the requesting agency by phone
and in writing.
3.2.6 Medical Surveillance
Contractor shall be responsible for administering medical surveillance. As a
minimum, baseline physicals should include a hands-on examination by physician or
nurse practitioner, wellness screen (blood work), urinalysis, pseudocholinesterase,
pulmonary function and E.K.G.
The entity requesting physicals must supply physicians with the duties and
operations the employee will be expected to perform.
3.2.7 Workers Compensation
Chemical assessment team members shall remain under the workers compensation
coverage being provided by the current employer. KSFM will reimburse the current
employer a portion of the premiums for that coverage based on an actuarial study.
3.2.8 Billing and Cooperation
The contractor shall provide a written itemized bill to the KSFM for all reimbursable
expenses incurred in connection with hazmat response or training activities within
fourteen (14) days following completion of the authorized hazmat incident response
or other activity. The contractor's claim for reimbursement shall contain complete
documentation. Contractor shall cooperate fully with any audit or verification process
in connection with billed costs and in connection with KSFM's cost recovery efforts
against the party or parties responsible for the hazmat incident.
State funds for chemical assessment teams must be used to supplement existing
funds for program activities and may not replace (supplant) local funds already
appropriated for the same purpose. Potential supplanting will be the subject of
monitoring and audit. Violations can result in suspension of future funds under this
program.
3.2.9 Prior Approval
Contractor will be reimbursed only for reimbursable costs incurred in connection with
a response to an authorized hazmat incident and pre-approved training opportunity.
Authorization or pre-approval by the Kansas state fire marshal, the hazmat director
or state fire marshal's designee shall constitute agreement to pay contractor's
reimbursable costs in accordance with this agreement. Contractor agrees to make
reasonable good faith efforts to minimize reimbursable expenses.
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4.0 Hazardous Materials Emeraency Response Fund
KSFM shall reimburse contractor from the hazardous materials emergency response
fund. If the fund becomes depleted or appears to be insufficient to satisfy expected
claims, the KSFM shall immediately notify the contractor by phone and in writing of
this fact. Upon receiving notice of the funds depletion or insufficiency, the contractor
may suspend response actions under this agreement.
The contractor shall be reimbursed for any unpaid costs as funds become available,
but no reimbursements shall be made from funds other than the hazardous materials
emergency response fund. If a contractor commences a response after receiving
notice that the fund is depleted or potentially insufficient, the contractor assumes the
risk of non-payment if the KSFM is unable to secure additional funds.
5.0 Assianments and Subcontractina
Contractor agrees not to assign, sell, transfer, subcontract or otherwise delegate its
rights or responsibilities under this agreement, unless approved in writing in advance
by the state fire marshal.
6.0 Successors in Interest
The provisions of this agreement shall be binding upon and shall inure to the benefit
of the parties to the agreement and their respective successors.
7.0 Compliance Standards
Contractor agrees to substantially comply with all applicable federal, state, and local
statutes and regulations and with duly adopted and applicable NFPA standards, or
codes in relation to this agreement. Failure to comply shall constitute a breach of this
agreement.
8.0 Acts of God
Neither party shall be responsible for delay or default caused by fire, riots, acts of
God and/or war which are beyond the party's reasonable control.
9.0 State Tort Claims Act
Upon commencing and while engaged in an authorized hazmat incident response or
while participating in a pre-approved training opportunity pursuant to this agreement,
contractor and members of the chemical assessment team shall be deemed to be
employees of the KSFM office and the State of Kansas, and shall be subject to the
provisions of K.S.A. 75-6101 et seq. This agreement does not in any way waive any
sovereign or governmental immunity of the KSFM, the State of Kansas or the
contractor.
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Contractor shall immediately give notice in writing to the KSFM of any demand,
request, or occurrence that may reasonably give rise to a claim against the
contractor or the KSFM or State of Kansas. Contractor shall follow the procedural
requirements for notice and all other provisions of the tort claims act, K.S.A. 75-6101
et seq.
10.0 Severability
If any provision of this agreement is declared by a court to be illegal or in conflict
with any law, the validity of the remaining terms and provisions shall not be affected;
and the rights and obligations of the parties shall be construed and enforced as if the
agreement did not contain the particular provision held to be invalid.
11.0 Access to Records
Each party to this agreement and their duly authorized representative shall have
access to the other party's books, documents, investigative reports, and accounts
which are directly pertinent to this agreement for the purpose of making financial,
maintenance, or regulatory audits. Records shall be maintained for at least five
years.
12.0 Confidentiality
Each party agrees that except as otherwise required by law, they shall not disclose
each other's confidential information to a third party without the written consent of
the party sharing the information. The rights and obligations set forth herein shall
survive termination of the agreement. Any duty under this sub-section shall be
subject to and interpreted consistently with the Kansas Open Records Act, K.S.A.
45-201 et seq. and other provisions of law. Contractor agrees that disclosure of
investigative on scene records or information shall be made only in conformance
with the Kansas open records act, the Kansas Arson Reporting and Immunity Act,
and the KSFM written policies and practices relating to public disclosures attached
and made part of this contract.
13.0 Amendments
The terms of this agreement shall not be waived, altered, modified, supplemented,
or amended in any manner whatsoever without the prior written approval of both the
KSFM and the contractor.
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14.0 Payment of ObliQations
Contractor agrees to make payment promptly as due to all persons furnishing
services, equipment or supplies to contractor for the performance of this agreement.
If contractor fails, neglects, or refuses to pay any such claims as they become due
and for which the KSFM or State of Kansas may be held liable, the KSFM, after
determining that the claim is just, due, and payable, may, but is not required to, pay
the claim and charge the amount of the payment against funds due the contractor
under this agreement. The payment of such a claim by KSFM shall not relieve the
contractor of any duty with respect to any unpaid claims.
15.0 Dual Payment
Contractor shall not be compensated for any work performed under this agreement
including but not limited to any response or training activity, by any other public or
private agency or entity, except as authorized by and provided for in this agreement.
16.0 Remedies
This agreement shall be governed by and construed in accord with the law of the
State of Kansas.
17.0 Termination
This agreement may be terminated by mutual consent of both parties or by either
party upon thirty (30) days advance notice in writing. This agreement may be
terminated at will effective upon delivery of written notice to the KSFM or contractor
by either party under the following conditions: (1) funding from federal, state or other
sources is not obtained or continued at levels insufficient to cover costs; (2) changes
in federal, state, or other applicable law, including court decisions, substantially
changing the relationship or terms of the agreement; (3) any license or certification
contractor is required to obtain and/or maintain is revoked, suspended or otherwise
becomes ineffective.
Any equipment, including vehicles, printed materials, tools and any other items
purchased with funds from the KSFM hazardous materials response program
(excluding any reimbursement materials or equipment) shall revert to the KSFM
program in the event that the host entity defaults in contract performance or elects to
no longer participate in the program.
The KSFM may terminate performance of work under this contract in whole or in part
whenever, for any reason, the parties determine that the termination is in their best
interest. In the event that the KSFM elects to terminate this contract pursuant to this
provision, it shall provide the Contractor written notice at least thirty- (30) days prior
to the termination date. The termination shall be effective as of the date specified in
the notice. The parties shall continue to perform any part of the work that may have
not been terminated by the notice.
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18.0 Default
KSFM or contractor may terminate the whole or part of any of this agreement if: (1)
the other party substantially fails to provide the services called for by the agreement;
or (2) the other party substantially fails to perform any other provision of the
agreement. Prior to termination, KSFM or contractor must provide written notice of
default, including breach of agreement and provision of agreement allegedly to have
been breached, and allow at least ten (10) days for the other party to correct such
failures. The other party must correct such failures within ten (10) days, or such
longer period as the notice may authorize, of receipt of the notice of default.
19.0 ProvisionsThe Provisions found in Contractual Provisions Attachment (Form
DA-146a, Rev. 1-01), which is attached hereto, are hereby incorporated in this
agreement and made a part thereof.
20.0 Approvals
Contractor's representatives certify by their signature herein that they have the
necessary and lawful authority to enter into this agreement and to bind the
contracting entity to this agreement.
21.0 Kansas Act Aaainst Discrimination
The Contractor and KSFM agree that:
1. They shall observe the provisions of the Kansas act against discrimination and
not discriminate against any person in the performance of work under the present
contract because of race, color, religion, age, disability, sex, ancestry, national
origin or veteran status
2. in all solicitations or advertisements for employees, they shall include the phrase,
"equal opportunity employer," or a similar phrase to be approved by the Kansas
Human Rights Commission (Commission);
3. if either party fails to comply with the manner in which the contractor reports to
the commission in accordance with the provisions of K.S.A. 44-1031 and
amendments thereto, they shall be deemed to have breached the present
agreement and it may be canceled, terminated or suspended, in whole or in part,
by the contracting agency,
4. if either party is found guilty of a violation of the Kansas Act Against
Discrimination under a decision or order of the Commission which has become
final, they shall be deemed to have breached the present agreement and it may
be canceled, terminated or suspended, in whole or in part, by the contracting
agency; and
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5. they shall include the provisions of subsections (A)(1) through (4) in every
subcontract or purchase order so that such provisions will be binding upon such
subcontractor or vendor.
The provisions of this section shall not apply to a contract entered into by Contractor or
KSFM:
(a) contracting party employs fewer than four employees during the term of
such contract; or
(b) contact with the parties cumulatively total $5,000 or less during the fiscal
year.
The parties further agrees that they shall abide by the Kansas Age Discrimination in
Employment Act (K.S.A. 44-111 et seq.) and the applicable provision in the Americans
with Disabilities Act (42 U.S.C. 1201 et seq.) as well as all federal, state and local laws
ordinances and regulations applicable to this project and to furnish any certification
required by any federal, state or local government agency in connection therewith.
Entered into this ). 7
day of fel:;
.
, 20rJ.@
Dennis M. Kissinger,
City of SALINA
, ;~ e aI~..
J seph P. Odle
~~.
State Fire Marshal
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Date
Date
(February 2003)
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