AGREEMENT FOR CAPITAL AND OPERATING ASSISTANCE FUNDS
FOR
STATE TRANSPORTATION PROJECTS
BETWEEN THE
SECRETARY OF TRANSPORTATION OF THE STATE OF KANSAS
AND
CITY OF LAWRENCE
THIS AGREEMENT made this day
of 20___, by and between the Secretary of Transportation
of the State of Kansas (hereinafter referred to as "SECRETARY"),
and City of Lawrence, Public Transit Department, (hereinafter referred
to as "PROVIDER") acting by and through its duly authorized
representative, whose office is located at City Offices, 6 East 6th,
PO Box 708, Lawrence, KS 66044-0708.
INTRODUCTION
The Kansas Elderly and
Disabled Coordinated Public Transportation Assistance Act enacted in 1994 by
the Legislature of the State of Kansas provides for capital grants to transit
authority grantees for the specific purpose of assisting them in providing
transportation services meeting the special needs of elderly persons and
persons with disabilities for whom mass transportation services are
unavailable, insufficient or inappropriate.
The Legislature of the
State of Kansas has designated the SECRETARY to evaluate and
select projects by eligible applicants and to coordinate the grant
applications.
The SECRETARY and
the PROVIDER desire to secure and utilize grant funds for the
transportation needs of the citizens of the State of Kansas.
The PROVIDER has
expressed an interest in sponsoring the project within its geographic area to
include the provisions and support of transportation services.
The SECRETARY is
willing, subject to the terms of this agreement, to provide financial
assistance to the PROVIDER for the project.
The SECRETARY and
the PROVIDER, in consideration of the mutual covenants herein set
fourth, agree as follows:
Section 1. Purpose of
Agreement. The purpose of this Agreement is to provide for the
undertaking of transportation services to elderly persons and persons with
disabilities (herein after referred to as "PROJECT") by the PROVIDER
and to state the terms, conditions and mutual understandings of the parties as
to the manner in which the PROJECT will be undertaken and completed.
Section 2. Administration.
The SECRETARY has delegated the Office of Public Transportation
responsibility for administrating the PROJECT.
Section 3. Scope of
Project. The PROVIDER shall undertake and complete the PROJECT
as described in its proposal, which is attached hereto and incorporated
herein as Special Attachment No. 1.
Section 4. Contractual
Provisions. The provisions and assurances found in the Contractual
Provisions Attachment and the Certification of the PROVIDER are hereby
incorporated into this Agreement and made a part hereof. (DA 146a, Special
Attachment No. 2 and Special Attachment No. 3).
Section 5. Cost of
Project. The cost of the PROJECT for FY 2005 will be $250,986, which will be provided
by the SECRETARY from state funds. The funding will be used to support
the purchase of capital equipment and operating expenses, as listed in Special
Attachment 1. In addition to the purchase of the equipment, the PROJECT
will include operating costs as delineated in Appendix A, PROJECT
budget. The PROVIDER agrees that it will provide the local funds in an
amount sufficient, together with the grant, to assure payment of the total PROJECT
cost. The PROVIDER shall initiate and prosecute to completion all
actions necessary to provide its share of the PROJECT costs at or prior
to the time that such funds are needed to meet PROJECT costs. The PROVIDER
further agrees that no refund or reduction of the amount so provided will be
made unless there is, at the same time, a refund made to the SECRETARY
of a proportional amount of the grant.
Section 6. Contracts
Under This Agreement. Unless otherwise authorized in writing by the SECRETARY,
the PROVIDER shall not assign to any third party the use of any capital
equipment provided for under this Agreement. Nor shall the PROVIDER
execute any contract, amendment or change order thereto, or obligate itself in
any manner with any third party with respect to its rights and responsibilities
under this Agreement without the prior written concurrence of the SECRETARY.
Section 7. Contract
Time. This contract is effective from the signing of this Agreement until
the useful life of the capital equipment, as determined by the SECRETARY,
is expired unless the contract is terminated in accordance with the sections
titled Disposal of Capital Equipment and Termination of Agreement.
Section 8. Title of
Capital Equipment. Title to all capital equipment shall be held by
the PROVIDER. See section titled Creation of Security Interest.
Section 9. Audit and
Maintenance Inspection. The PROVIDER shall permit the SECRETARY’S
authorized representatives, to inspect all the capital equipment, the
books, records, and accounts of the PROVIDER pertaining to the PROJECT.
The PROVIDER shall maintain at its expense, all capital equipment in
accordance with the detailed maintenance and inspection schedules furnished by
the manufacturer. The PROVIDER, if requested, shall submit to an annual
inspection by the SECRETARY of all capital equipment purchased by the PROVIDER
as part of the PROJECT.
Section 10. Use of
Capital Equipment. The PROVIDER agrees that the capital
equipment shall be used for the purpose of transporting the public within the
area described in the project application. The PROVIDER shall maintain,
in amount and form satisfactory to the SECRETARY, such insurance or
self-insurance as will be adequate to protect capital equipment through the
period of required use. The PROVIDER shall keep satisfactory records
with regard to use of the capital equipment and submit to the SECRETARY
upon request such information as is required to assure compliance with this
section.
Capital equipment may be
used for the provision of transportation services within the metropolitan area
of Kansas
City, Kansas as defined in K.S.A. 12-2802(9). If, at any time, any
capital equipment is used in a manner not approved by the SECRETARY or
withdrawn from transportation service whether by planned withdrawal or casualty
loss, the PROVIDER shall immediately notify the SECRETARY.
Section 11. Disposal of
Capital Equipment. The PROVIDER agrees that the SECRETARY has
reserved the right to dispose of the capital equipment as follows:
(a) Misuse: If, at any
time, any capital equipment is used for purposes other than those described in
the project application or approved by the SECRETARY, the PROVIDER
shall immediately notify the SECRETARY. The SECRETARY then has
the option of having the PROVIDER remit to the SECRETARY a
proportional amount of the fair market value, if any, of the capital equipment,
which shall be determined on the basis of the ratio of the financial assistance
made by the state to the actual cost of the capital equipment. See Special
Attachment 1. Fair market value shall be deemed to be the value of the
property as determined by a competent appraisal solicited by the SECRETARY.
(b) Casualty Loss: In the event
of loss due to casualty or fire, the damages paid by the insurance carrier or
payable from the self-insured reserve account of the PROVIDER shall be
considered fair market value. In no event is salvage value to be considered
fair market value.
(c) Withdrawal: At any time
the capital equipment is withdrawn from transportation by planned withdrawal,
the PROVIDER shall immediately notify the SECRETARY and shall
remit to the SECRETARY a proportional amount of the fair market value.
The proportional amount to be based on the original funding ratio of the capital
equipment as listed in Attachment A.
(d) Buy Out: The PROVIDER
can submit a written request to the SECRETARY to obtain release of
the vehicle lien only upon withdrawal from the program or replacing capital
equipment. The PROVIDER understands that the SECRETARY has the
option to approve or disapprove the request to release the lien. If a request
is approved, the PROVIDER agrees to buy out the state interest based on
a proportional amount of the fair market value as determined by the SECRETARY.
The proportional amount to be based on the original funding ratio of the
capital equipment as listed in Special Attachment 1.
(e) Default: Any material
default by the PROVIDER for the PROVIDER'S project application or
this Agreement, allows the SECRETARY the option of having the PROVIDER
remit to the SECRETARY a proportional amount of the fair market value.
See Special Attachment 1.
Section 12. Agreement
Changes. Any proposed change in this Agreement shall be
submitted in writing to the SECRETARY for approval. A revision in this
Agreement shall be made by an amendment to this Agreement.
Section 13. Indemnification. The PROVIDER
shall indemnify and hold harmless the SECRETARY, and his or her
officers, agents, employees from any and all costs, liabilities, expenses,
damages, suits, judgements, and claims of any nature whatsoever arising out of
or in connection with the provisions of performance of this Agreement, or any
contracts entered into under this Agreement, or the operation of vehicles
described herein, by the PROVIDER, its agents, employees, or lessee.
Section 14. Creation of
Security Interest. For the purpose of securing the performance by
the PROVIDER of all the terms and conditions of the above stated
Agreement, the PROVIDER hereby grants to the SECRETARY, pursuant
to K.S.A. 84-9-101, et seq. of the Kansas Uniform Commercial Code, a security
interest in the vehicles and or other equipment listed in Special Attachment 1
of this Agreement.
(a) Default Remedies: If the PROVIDER
fails to perform any of the terms of this Agreement where such failure would
constitute grounds to terminate this Agreement as provided in the Section
titled Termination of Agreement, or the PROVIDER becomes insolvent,
ceases doing business as a going concern, or if bankruptcy proceedings are
instituted by or against the PROVIDER, the SECRETARY shall have
the option and in addition to and without prejudice to any other rights and
remedies provided as secured party under Article 9 of the Kansas Uniform
Commercial Code, shall have the following remedies:
The SECRETARY may,
upon default by the PROVIDER, repossess any of the capital equipment.
Any repossession however, shall not constitute a termination of this Agreement
unless the SECRETARY notifies the PROVIDER of such termination in
writing. It is the SECRETARY'S option to dispose of the capital
equipment in accordance with the procedures incorporated into this Agreement.
The PROVIDER shall be liable to the SECRETARY for all fee
expenses, including attorney fees, incurred in connection with any repossession
of the capital equipment or their disposition as provided herein.
(b) Non-waiver: Failure by
the SECRETARY to require strict compliance with this Agreement by the PROVIDER
does not constitute a waiver of said Agreement or any provision thereof. No
waiver by the SECRETARY of any breach or default of the PROVIDER
shall be deemed a waiver of any breach or default thereafter occurring.
Section 15. Third
Party Claim. It is specifically agreed between the parties executing
this Agreement that it is not intended by any of the provisions of any part of
this Agreement to make the public, or any member thereof, a third party
beneficiary here-under, or to authorize any one not a part of this Agreement to
maintain a suit pursuant to the terms or provisions of this Agreement. The
duties, obligations and responsibilities of the parties to this Agreement with
respect to third parties shall remain as imposed by law.
Section 16. Covenant
Against Contingent Fees. The PROVIDER warrants that it
has not employed or retained any company or person, other than a bona fide
employee working solely for the PROVIDER, to solicit or secure this
Agreement, and that it has not paid or agreed to pay any company or person, other
than a bona fide employee working solely for the PROVIDER, any fee,
commission, percentage, brokerage fee, gifts, or any other consideration
contingent upon or resulting from the award or making of this Agreement. For
breach or violation of this warranty, the SECRETARY shall have the right
to annul this Agreement without liability, or in his or her discretion to
deduct from the agreement price or consideration, or otherwise recover, the
full amount of such fee, commission, percentage, brokerage fee, gift, or
contingent fee.
Section 17. Maintenance
and Inspection of Equipment. The PROVIDER shall maintain, at
its expense, all equipment in accordance with the detailed maintenance and
inspection schedules furnished by the manufacturer. Certification of compliance
with required maintenance procedures would be submitted to the SECRETARY
on an annual basis.
Section 18. Maximum
Utilization of Equipment. In connection with the performance of
the PROJECT, the PROVIDER will cooperate with the SECRETARY
in meeting its commitments and goals with regard to the maximum utilization of
capital equipment, insuring that said equipment is used in a fashion that will
not hamper interagency cooperation and coordination of transportation services
provided in their respective geographic area.
Section 19. Termination
of Agreement.
(a) Without Cause: The SECRETARY
may for any reason terminate the PROJECT and cancel this Agreement by
written notice from the SECRETARY to the PROVIDER. The PROVIDER
may terminate the PROJECT and cancel this Agreement only upon written
request to the SECRETARY and after receiving written approval by the SECRETARY.
(b) For Cause: The SECRETARY
shall terminate the PROJECT and cancel this Agreement by written notice
from the SECRETARY to the PROVIDER for any of the following
reasons:
(1)
The PROVIDER discontinues the use of such vehicle during the useful life
for the purpose of providing transportation services to elderly persons and
persons with disabilities;
(2)
The PROVIDER takes any action pertaining to this Agreement without the
approval of the SECRETARY as required by this Agreement;
3)
The commencement or timely completion of the PROJECT by the PROVIDER
is, for any reason, rendered improbable, impossible or illegal;
(4)
A material breach of this Agreement by the PROVIDER, or a subcontractor;
and
(5)
The PROVIDER becomes insolvent or commits an act of bankruptcy, or makes
a general assignment for the benefit of creditors to an agent authorized to liquidate
his property or assets, or becomes involuntarily bankrupt, or if a writ or
warrant of attachment or levy on a judgement or other similar process is issued
by any court against all or a substantial portion of the Capital Equipment of
this Agreement, and the same is not removed and discharged within thirty (30)
days after entry, levy or service, then this Agreement shall be deemed breached
by the PROVIDER and terminated.
(c) Action upon
Termination: Upon termination of the PROJECT and cancellation
of this Agreement, the PROVIDER agrees to dispose of the capital
equipment in accordance with SECRETARY'S policies and procedures. This
Agreement's termination shall not relieve the PROVIDER of any of its
obligations to the SECRETARY existing at the time of expiration, or
terminate those obligations of the PROVIDER, which, by their nature,
survive the termination of this Agreement.
Section 20. Records and
Reports.
(a) Established and
Maintenance of Accounting Records: The PROVIDER shall establish
and maintain a separate account for the PROJECT, either independently or
within its existing accounting system, to be known as the PROJECT
account. The PROVIDER agrees to keep detailed and accurate records of
all labor, material, supplies, incidentals, and any other necessary costs
involved in the PROJECT.
(b) Retention of Records: The PROVIDER
shall be required to maintain accounting records and other evidence pertaining
to the costs incurred and to make the records available at their office at all
reasonable times during the period of contract performance and for three (3)
years from the date of the release of the security lien on the vehicle to the PROVIDER
under this Agreement. The SECRETARY or their authorized representatives
will make such accounting records and other evidence pertaining to the costs
incurred available for inspection, and copies thereof shall be furnished if
requested.
(c) Reports: The PROVIDER
shall advise the SECRETARY regarding the progress of the PROJECT at
such times and in such a manner as the SECRETARY may require, including,
but not limited to meetings and/or written reports. The PROVIDER shall
submit to the SECRETARY such financial statements, data, records,
contracts, and other documents related to the PROJECT as may be deemed
necessary by the SECRETARY. Such records include, but are not limited,
to the keeping of daily trip records.
Section 21. Disputes.
The SECRETARY shall resolve any dispute, which may arise out of, or
relating to this Agreement when there is no mutually agreeable solution.
Section 22. Equal
Employment Opportunity. In connection
with the execution of this Agreement, the PROVIDER shall not
discriminate against any employee or applicant for employment because of race,
religion, age, color, sex, national origin, or disability. The PROVIDER
shall take affirmative action to insure that applicants are employed, and that
employees are treated during this employment, without regard, religion, color,
age, sex, national origin or disability. Such actions shall include, but not
be limited to the following: employment, upgrading, demotion, or transfer,
recruitment or advertising; layoff or termination; rates of pay, or other forms
of compensation; and selection for training, including apprenticeship.
Section 23. Cooperation
and Coordination of Transportation Services. The PROVIDER
has demonstrated and will continue to demonstrate acceptable efforts to achieve
coordination with other transportation providers and users, including private
transit and paratransit operators capable of providing service and social
services capable of purchasing service. In connection with the performance of
the PROJECT, the PROVIDER will cooperate with the SECRETARY
in meeting its commitments and goals with regard to the provision of service
that will not hamper interagency cooperation and coordination of transportation
services provided in their respective geographic area.
Section 24. Contractor
Capabilities. The PROVIDER possesses and will maintain the
requisite fiscal, managerial, and legal capability to carry out the PROJECT.
Section 25. Responsibility
to Employees. The PROVIDER accepts full responsibility for
providing worker's compensation coverage and for payment of unemployment
insurance, and social security as well as all income tax deductions and any
other taxes or payroll deductions required by law for their employees engaged
in the work authorized by this Agreement, and will indemnify and hold harmless,
the SECRETARY from the same.
Section 26. Matching
Share. The
designated combination of federal, state, local, and/or private funding sources
has been or will be committed by the PROVIDER for the PROVIDER'S
required funding share.
Section 27. Prohibition
Against Use of State Funds for Lobbying. The PROVIDER or any
subcontractor shall not use state assistance funds for publicity or propaganda
purposes designed to support or defeat legislation pending before the State
Legislature.
Section 28. Compliance
with Laws. The PROVIDER agrees to comply with all federal,
state, and local laws, ordinances and resolutions in the implementation of this
Agreement, including Title VI and Title VII of the Civil Rights Act of 1964,
Executive Order 11246 and nondiscrimination clauses incorporated herein as
Special Attachment No. 4.
Section 29. Prohibited
Interest. No member, officer, or employee of the PROVIDER
during their tenure or two-years thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof.
Section 30. Successors
and Assigns. It is further understood that this Agreement and all
contracts entered into under the provisions of this Agreement shall be binding
upon the SECRETARY and the PROVIDER and their successors and
assigns.
Section 31. Status of
the Contractor and the Secretary for the State of Kansas Procurement
Procedures. The SECRETARY shall not be responsible for
any obligations that the PROVIDER has assumed with using the State of Kansas' procurement
procedures. Furthermore, the PROVIDER acknowledges and agrees that its
request to the SECRETARY to use the State of Kansas' procurement
procedures shall not bind the SECRETARY to render or provide assistance
in any manner associated with this Agreement.
Section 32. Civil
Rights Act of 1964. The PROVIDER will comply with all the
requirements imposed by Title VI and Title VII of the Civil Rights Act of 1964
(78 Sta. 252), the Regulations of USDOT issued thereunder (CFR, Title 49,
Subtitle A, Part 21), and the assurance by the Public Body pursuant thereto.
(See Special Attachment No. 4 which is incorporated herein).
Section 33. Section
504 - Rehabilitation Act of 1973. The PROVIDER will comply with
all requirements imposed by Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), the Regulations of USDOT issued thereunder (CFR, Title 49,
Subtitle A, Part 27), and the assurances by the Public Body pursuant thereto.
This document has important legal
consequences; consultation with an attorney is encouraged with respect to its
requirements or modification.
IN WITNESS WHEREOF: The parties
hereto have caused this Agreement to be signed by their duly authorized
officers on the day and year first above written.
_________________________
Mike Rundle, City Mayor Secretary
of Transportation
Lawrence, Kansas for the
State of Kansas
BY:
John Jay Rosacker
Assistant
Bureau Chief Bureau
of Transportation Planning
__________________________
ATTEST
ATTEST
PT-0701-05
Special
Attachment No. 2
Page
1 of 1
State of KansDepartment 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 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.
2. Agreement
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 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 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: 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.S.A. 75-6101
et seq.).
5. Anti-Discrimination
Clause: The contractor agrees: (a) to comply with the Kansas Act
Against Discrimination (K.S.A. 44-1001 et seq.) and the Kansas
Age Discrimination in Employment Act (K.S.A. 44-1111 et seq.) and
the applicable provisions of the Americans With Disabilities Act (42 U.S.C.
12101 et seq.) (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.
Parties
to this contract understand that 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 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. 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 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 shall not be required to purchase,
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 et
seq.), 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.
46-1101 et seq.
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."
PT-0701-05
Special Attachment No. 4
Page 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 Special Attachment shall govern.
THE CIVIL RIGHTS ACT OF 1964, and any amendments
thereto,
REHABILITATION ACT OF 1973, and any amendments thereto,
AMERICANS WITH DISABILITIES ACT OF 1990, and any
amendments thereto,
AGE DISCRIMINATION ACT OF 1975, and any amendments
thereto,
EXECUTIVE
ORDER 12898, FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND LOW INCOME POPULATIONS (1994), and any amendments thereto,
9 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. 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.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 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:
PT-0701-05
Special Attachment No. 4
Page 2 of 3
(1)
Compliance with Regulations: The consultant will comply with the
Regulations of the U. S. Department of Transportation relative to
nondiscrimination in federally-assisted programs of the 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.
(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 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 contractor
complies, and/or
(b)
cancellation, termination or suspension of the contract, in whole or in
part.
PT-0701-05
Special Attachment No. 4
Page 3 of 3
(7)
Disadvantaged Business
(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 subcontractor shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this
contract. The contractor shall carry out applicable requirements of 49 CFR
Part 26 in the award and administration of Federally-assisted contracts.
Failure by the contractor to carry out these requirements is 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 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 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.
