NOVEMBER 8, 2005 AGENDA REPORTS Agenda Item No. 5a City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1003 TO: Mayor and City Council Members SUBJECT: Petitions to construct Paving and Drainage Improvements in The Fairmont 3rd Addition (West of 127th St. East, North of 21st) (District II) INITIATED BY: Department of Public Works AGENDA: Consent Recommendation: Approve the Petitions. Background: The Petitions have been signed by one owner, representing 100% of the improvement districts. Analysis: The projects will provide paving and drainage improvements within a residential development located west of 127th St. East, north of 21st. Financial Considerations: The Petitions totals $375,000. The funding source is special assessments. Legal Considerations: State Statutes provide that a Petition is valid if signed by a majority of resident property owners or the majority of the property in the improvement district. Recommendation/Action: It is recommended that the City Council approve the Petitions, adopt the Resolutions and authorize the necessary signatures. Agenda Item No. 5b City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1004 TO: Mayor and City Council Members SUBJECT: Petitions for Sanitary Sewer and Water Distribution System to serve Krug North 2nd Addition (north of 21st, west of 143rd St. East) (District II) INITIATED BY: Department of Public Works AGENDA: Consent Recommendation: Approve the new Petitions. Background: On August 2, 2005, the City Council approved Petitions for sanitary sewer and water distribution system to serve Krug North 2nd Addition. The developer has submitted new Petitions to reallocate special assessments to equalize total assessments within the development and reflect recent platting activity. The signature on the petitions represents 100% of the improvement districts. Analysis: These projects will serve a new residential development located north of 21st, west of 143rd Street East. Financial Considerations: The original Petitions total $266,000. The revised Petitions total $345,000. The funding source is special assessments. Legal Considerations: State Statutes provide that a Petition is valid if signed by a majority of resident property owners or the majority of the property in the improvement district. Recommendation/Action: It is recommended that the City Council approve the new Petitions, adopt the Resolutions and authorize the necessary signatures. Agenda Item No. 7 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1005 TO: Mayor and City Council SUBJECT: Special Events INITIATED BY: City Manager's Office AGENDA: Consent Recommendation: Approve the request for street closures. Background: In accordance with the Special Events Procedure, event sponsors are to notify adjacent property owners and coordinate arrangements with Staff, subject to final approval by the City Council. Analysis: The following street closure requests have been submitted (see attached maps): 30th Annual Turkey Trot - Saturday, November 19, 8:00 p.m.-10:00 p.m. § Sim Park Drive to Amidon just south of 13th Street at the bike path (streets will be opened/barricades removed as last runners pass) Wichita Symphony Orchestra Young People's Concert, November 8-10, 9:00 a.m.-Noon § Section of Century II Drive from Main Street north to Douglas Avenue § Perimeter Drive around east side of Century II KS Sports Hall of Fame Grand Opening, Thursday, November 17, 10:00 a.m. - Noon § 238 N. Mead from First Street to edge of adjacent parking lot Bradley Fair/Ronald MacDonald House Event, Friday, November 25, 4:00-6:00 p.m. § Bradley Fair Parkway from Rock Road east & north to 21st Street Christmas Tree Lighting & Night with Santa, Friday, December 8, 5:30-7:00 p.m. § Sycamore from old railroad track site north to First/McLean § First Street from McLean east to Waco § Waco from First Street south to Douglas § Douglas from McLean east to Water § McLean from First Street south to Douglas Police security is arranged to remove street barricades as necessary to allow emergency vehicle access during entire designated time period Financial Consideration: Inasmuch as possible, event sponsors are responsible for all costs associated with special events. Recommendation/Actions: It is recommended that the City Council approve the request subject to: (1) Event sponsors notifying every property and/or business adjoining any portion of the closed street; (2) Coordination of event arrangements with City Staff; (3) Hiring off-duty public safety officers as required by the Police Department; (4) Obtaining barricades to close the streets in accordance with requirements of Police, Fire and Public Works Department; (5) Submitting a Certificate of Insurance evidencing general liability insurance which covers the event and its related activities, including the naming of the City as an additional insured with respect to the event's use of the closed City streets. Agenda Item No. 8a City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1006 TO: Mayor and City Council SUBJECT: Contract-Wichita Minority Business Development Council INITIATED BY: Finance Department AGENDA: Consent ______________________________________________________________________________ Recommendation: Approve the contract. Background: On August 16, 2005, the City Council approved the revised budget that included funding assistance in the amount of $35,000 for the Wichita Minority Business Development Council, Inc for economic development services. Staff has developed the necessary contractual documents and performance measurements. Analysis: The Wichita Minority Business Development Council (WMBDC) is a non-profit organization that was created in January 1991. Its mission statement is to promote and enhance minority and woman-owned business enterprises by increasing business opportunities and access to mainstream markets. The primary goal is to improve the economic viability of small, minority and women owned businesses in Wichita, with an emphasis on job creation. WMBDC will provide networking opportunities among mutually supportive businesses as well as seminars to grow their business. A contract has been negotiated with the Wichita Minority Business Council, which establishes performance measures and performance outcomes. Small, minority and women owned businesses would be served under the contract. The contract term is January 1, 2005 to December 31, 2005. Financial Considerations: The contract amount is $35,000 and funding is appropriated in the 2005-revised budget. Legal Considerations: The contract has been reviewed and approved as to form by the City Law Department. Recommendations/Actions: It is recommended that the City Council approve the contract and authorize the Mayor to sign. Agenda Item No. 8b City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1007 TO: Mayor and City Council Members SUBJECT: Supplemental Agreement for Professional Services for Brooks Landfill- C&D Facility (District VI). INITIATED BY: Department of Public Works AGENDA: Consent Recommendation: Approve the Supplemental Agreement Background: On December 21, 2004, The City Council approved an Agreement for Professional Services for a permit modification for the second phase of filling with construction and demolition (C&D) waste at the Brooks Landfill. Analysis: As the design was being undertaken it was discovered that current survey information was not available for the area when the Phase II filling will occur and for the area where the yard waste composting site is proposed to be expanded. The Supplemental Agreement provides for a ground survey of the new fill area and the yard waste composting area to ensure the maximum possible air space will be developed and all drainage systems will function properly. Financial Considerations: The Supplemental Agreement is for a fee of $3,900. The original Agreement was for a not-to-exceed total of $44,383.00. Legal Considerations: The Law Department has approved the Supplemental Agreement as to form. Recommendations/Actions: It is recommended that the City Council approve the Supplemental Agreement and authorize the City Manager to sign it. Agenda Item No. 8c City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1008 TO: Mayor and City Council SUBJECT: Transit Service Agreement for Oaklawn Improvement District. (District III) INITIATED BY: Wichita Transit AGENDA: Consent Agenda Recommendation: Approve contract to allow Wichita Transit to provide transit service to the Oaklawn Improvement District. Background: For the past several years, Wichita Transit has provided fixed-route and paratransit van service to the Oaklawn Improvement District. Currently, Sedgwick County reimburses Wichita Transit for the actual cost of providing such service according to a year-by-year contractual agreement. The purpose of this action is to establish the contractual agreement for 2005, with option years through 2007. Analysis: Wichita Transit operates one fixed-route, which provides service the the Oaklawn area. Paratransit service is also provided to Oaklawn based on ADA guidelines (which require service in areas in which fixed-route service is provided). In 2005, an estimated 736 hours of fixed-route service will be provided. The estimated hourly cost for this service is $44.58 ($61.66 per hour less revenues and federal funding credit). Paratransit service cost is estimated at $15.40 per trip, with an estimated 20 trips per month to be provided in 2005. Financial Considerations: Based on the projected service levels, the total projected revenue from the 2005 agreement will be $26,950 after deducting passenger revenues and federal credit. The adopted 2005 budget includes the expenditure authority necessary to provide the service. Legal Consideration: City Council approval is required for contracts in excess of $25,000. Recommendations/Actions: Approve the contract and authorize the necessary signatures. AGREEMENT THIS AGREEMENT, made and entered into on the ________ day of ________________, 2005, by and between the City of Wichita, Kansas, hereafter referred to as "City," and the Board of County Commissioners of Sedgwick County, Kansas, hereafter referred to as "County." WITNESSETH: WHEREAS, County desires to provide public transportation to a certain unincorporated area of Sedgwick County located within and around the general civinity of the Oaklawn Improvement District; and WHEREAS, City operates Wichita Transit, which provides public transportation throughout the City of Wichita; and WHEREAS, County desires to contract with City to provide public transportation through Wichita Transit to said unincorporated area of Sedgwick County. NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained herein, the parties hereto agree as follows: 1. City, through Wichita Transit, agrees to provide public transportation to the unincorporated area of Sedgwick County located within and around the general civinity of the Oaklawn Improvement District through the extension of a bus route to said area by way of Wichita Transit's regular route service. In addition, City will provide paratransit van services to meet Americans With Disabilities Act (ADA) guidelines. 2. Route service will operate Monday through Saturday and will run a minimum of eighteen (18) one-way trips per day. Paratransit services will operate Monday through Saturday and will be provvided under present program guidelines. Trip totals are subject to change as demand and/or revenues require, with proper coordination between City and County. 3. County agrees to pay the City's actual costs to operate said services to the Oaklawn Improvement District, which, for 2005, is estimated to cost $26,950. City's costs for this service will not exceed this amount without County approval. 4. City agrees to bill County on a quarterly basis and provide, at the same time, an operating report on the Oaklawn service, which will include ridership trips, passenger fare revenue, and other pertinent information. 5. City shall have sole discretion as to the time, means, and methods of providing bus service on the Oaklawn service, and the only obligation of County pertaining thereto and the only liability assumed by County hereunder is to pay the costs required in paragraph 3 above. 6. Either party may terminate this Agreement upon sixty (60) days' advance written notice to the other party. Such notice may be hand-delivered or sent via first-class mail. Notice must be given by City to County Cler, Sedgwick County Legal Department and the director of the Sedgwick County Bureau of Community Development. Notice must be given by the County to the City Cler, City of Wichita Department of Law, and the General Manager of Wichita Transit. 7. The term of this Agreement shall be for the period commencing January 1, 2005, and ending on December 31, 2005, with an option to renew the Agreement under the same terms and conditions for two (2) successive one (1)-year terms by mutual agreement of the parties. 8. This Agreement is not intended to and, in fact, does not create a partnership or joint venture relationship between the parties hereto. City shall be an independent contractor to County for purposes of this Agreement. 9. This Agreement constitutes the complete agreement between the parties hereto. No amendment, wawiver, or modification of this agreement shall be effective unless reduced to writing and signed by the parties hereto. IN WITNESS WHEREOF, the parties have set their hands the day and year first above written. BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, KANSAS CITY OF WICHITA, KANSAS By order of the City Council ______________________, Chairman Carlos Mayans, Mayor Attest: Attest: Brenda Shell Karen Sublett Approved as to Form: Assistant County Counselor Gary E. Rebenstorf Director of Law and City Attorney Agenda Item No. 8d City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1009 TO: Mayor and City Council SUBJECT: Subsidy Increase of ADA-Purchased Rides INITIATED BY: Wichita Transit AGENDA: Consent Agenda ___________________________________________________________________________________ Recommendation: Authorize increase of ADA subsidy rates for purchased rides and approve the contract. Background: The current Purchased Transportation program that enables Wichita Transit to satisfy federal ADA requirements began in 1991. At that time, Wichita Transit subsidized rides that were being provided by private operators (mostly human service agencies) to the disabled in lieu of expanding Wichita Transit Special Services in-house. Subsidy rates were negotiated with agencies on an individual basis and, in some cases, included leasing wheelchair-accessible vans for $1.00 per year as additional subsidy support. Those subsidy rates varied from $1.50 to $3.00 per trip, depending on the agencies operations and whether or not vehicles were leased to the agencies as part of the subsidy. Those rates have not changed since then, and the van lease program has been discontinued. Analysis: Over the last year, Wichita Transit staff met with agencies that have elected to participate in the Purchased Ride Program. Based on those meetings, a proposed increase in subsidy has been arrived at. The subsidy rate would be $4.00 for ambulatory and $5.00 for wheelchair passengers until December 31, 2006. During the course of 2006, staff will be working with the agencies to address their increasing costs issues and explore alternatives to afford a more equitable subsidy, considering WT's budget and available revenues. Financial Considerations: Based on the existence of carry-over funds, plus money from FTA, KDOT, and the City, sufficient funds exist for the program through year 2007 at the $4.00/$5.00 rate. Beyond 2007 shortfalls begin to show, particularly if increases in subsidy or rides are realized. Legal Consideration: The ADA provides for the purchase of ADA paratransit rides provided the level of service to individuals is the same as that offered by the City. The terms of the Purchased Ride Agreement require monthly reporting to ensure a similar level of service. The City Law department has reviewed the contract as to form. Recommendations/Actions: It is recommended that the City Council approve the contract and authorize the necessary signatures. PURCHASED ADA PARATRANSIT RIDES CONTRACTOR AGREEMENT This Agreement is entered into this ______ day of _______________, 20__ by and between the City of Wichita - Wichita Transit, hereinafter referred to as "City", and _______________________________ hereinafter referred to as "Contractor." Hereinafter both "City" and "Contractor" shall be jointly referred to as "parties." WHEREAS, The purpose of the program is to provide for purchased ADA paratransit rides, and WHEREAS, The Contractor guarantees the ability to provide ADA paratransit rides in a safe and professional nature, as required by City, to eligible passengers within the corporate limits of the City of Wichita, NOW, THEREFORE, in consideration of the mutual covenants, conditions, and promises contained herein, the parties hereto agree as follows: 1. Term: This Agreement shall become a legal and binding contract upon execution of same by both parties, effective retroactively from ______________ ___, 20___, until _________________________. 2. Compensation: Parties expressly understand and agree that payments made to the Contractor pursuant to the terms of this Agreement shall be on a fee-for-service basis according to the rates outlined in Appendix A and according to the method of billing and payment as set forth in Appendix A. 3. Termination: Either party, upon thirty (30) days written notice, stating the effective date of the termination, may terminate this Agreement. Whether the City or the Contractor cancels this Agreement as provided herein, the Contractor shall be paid for work satisfactorily completed to date of termination, as long as the provisions applicable to Billing and Payment have been met by the Contractor. 4. Indemnification: The Contractor shall indemnify, defend and hold harmless the City and the City Council, directors, officers, employees, agents, legal representatives, heirs, successors and assigns (collectively referred to as "Indemnified Parties") from and against any and all losses, costs, injuries, claims, damages, expenses and liabilities, including attorneys' fees (without limitations), collectively referred to as "Liabilities," arising out of or resulting from, (i) the provision by the Contractor of transportation services hereunder, or (ii) the failure of the Contractor to fulfill any of its obligations pursuant to this Agreement. 5. Duties: As listed in Appendix A, the Contractor and the City shall perform duties pursuant to this Agreement. 6. Local and Federal Compliance: The parties shall comply with the requirements of all applicable federal, state, and local rules and regulations, standard assurances, and one time submissions, listed in Appendixes A and B. 7. Assignment: Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by either party without the prior written consent of the other. 8. Amendments: This Agreement may not be amended unless such amendment is in writing and signed by both parties. 9. Incorporation of Appendices: Appendix A and B are attached hereto and made a part hereof. IN WITNESS WHEREOF, the City and the Contractor have executed this Agreement as of the day and year first above written. CITY OF WICHITA, KANSAS _____________________________ Carlos Mayans, Mayor ATTEST: _____________________________ City Clerk City of Wichita, Kansas APPROVED AS TO FORM: _____________________________ City of Wichita, Department of Law CONTRACTOR __________________________________ Authorized Contractor Representative APPENDIX A GENERAL CONTRACTUAL PROVISIONS FOR CONTRACTOR ARTICLE 1: AUTHORITY TO CONTRACT. 1.1 AFFIRMATION OF LEGAL AUTHORITY. The Contractor assures it possesses legal authority to contract these services, that resolution, motion or similar action has been duly adopted or passed as an official act of the Contractor's governing body, authorizing the signing of this Agreement, including all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of the Contractor to act in connection with the application and to provide such additional information as may be required. 1.2 REQUIRED DOCUMENTATION. Corporations, limited liability companies, or other forms of business requiring statutory conformance shall furnish evidence of good standing in the form of a Certificate signed by the Kansas Secretary of State. A corporation shall furnish a copy of its Corporate Resolution evidencing the authority to sign this Agreement, executed by the Corporation's Secretary or President. ARTICLE 2: RELATIONSHIP OF PARTIES. It is agreed that the legal relationship between Contractor and City of Wichita (City) is of a contractual nature. Both parties assert and believe that the Contractor is acting as an independent contractor in providing the services and performing the duties provided for by this Agreement. The Contractor is at all times acting as an independent contractor and not as an officer, agent, or employee of the City. As an independent contractor, the Contractor, and employees of the Contractor will not be within the protection or coverage of City's worker's compensation insurance, subject to the provisions of K.S.A. 1997 Supp. 44-505, nor shall the Contractor, and employees of the Contractor, be entitled to any current or future benefits provided to employees of the City. Further, the City shall not be responsible for withholding of social security, federal, and/or state income tax, or unemployment compensation from payments made by the City to the Contractor. ARTICLE 3: SCOPE OF SERVICES. 3.1 PURPOSE. It is mutually agreed by and between City and Contractor that the purposes of this Agreement are for the Contractor to efficiently provide eligible passengers a level of curb-to-curb paratransit service equivalent to the curb-to-curb paratransit service operated by Wichita Transit and to provide Wichita Transit those operating statistics required for Federal reporting. 3.2 SPECIAL NEEDS OF ELIGIBLE PASSENGERS. All eligible passengers have one or more disabilities that preclude their use of regular fixed route transit. Many will require special assistance when boarding or leaving the paratransit vehicle. The Contractor shall be responsible for assuring that all drivers are capable, competent, courteous and sensitive to these special needs. ARTICLE 4: GENERAL PROVISIONS 4.1 DEFINITIONS. (A) UNIT OF SERVICE - One, one-way trip equals one unit of service per eligible passenger. A round-trip taken by an eligible passenger equals two units of service. Unit of service is the basis for subsidy reimbursement. (B) ELIGIBLE PASSENGER (or Passengers) - Individuals who are certified and approved as ADA paratransit eligible by Wichita Transit, both ambulatory and non-ambulatory. (C) PERSONAL CARE ATTENDANT (PCA) - A person who has been approved to ride free of charge with an eligible passenger for the purpose of providing the passenger with mobility assistance. Qualified drivers employed by the Contractor may act as a PCA for eligible passengers who are also the clients of the Contractor (human service agency). (D) EQUIVALENT LEVEL OF PARATRANSIT SERVICE - The following criteria are used to evaluate the Contractor's performance relative to the level of paratransit service operated by the Wichita Transit: (1) On-time performance for pick-ups. Actual pick-up times shall be evaluated relative to a 30-minute pick-up window. (2) Length of time an eligible passenger spends on the paratransit vehicle. Length of time shall be evaluated relative to a 90-minute maximum ride time. (E) NO-SHOW - When an eligible passenger fails to board the vehicle when the vehicle arrives on time (within the 30-minute pick-up window). Pursuant to subsection 9.1(F) of this Agreement, subsidy reimbursement shall not be paid for "no-shows". (F) 30-MINUTE PICK-UP WINDOW - The 30-minute timeframe provided to the eligible passenger that indicates when the paratransit vehicle has been scheduled to arrive. Vehicles arriving within the 30-minute pick-up window are considered on time. (G) MISSED TRIP - When the vehicle arrives for the pick-up, at a time after the end of the 30-minute pick-up window, and the client does not board the van. Pursuant to subsection 9.1(F) of this Agreement, subsidy reimbursement shall not be paid for "missed trips". (H) PASSENGER FARE - For eligible passengers, the amount of money that the Contractor is to collect when the passenger boards the paratransit vehicle. Pursuant to subsection 9.4(D) of this Agreement, the passenger fare is to be retained by the Contractor as partial subsidy payment. As required by The ADA, passenger fare for eligible passengers shall not be more that twice the price of regular bus fare. (I) REFERRED ADA TRIP - A subscription service ride request referred to an agency by WT. Possible Contractor acceptance of a referred trip is provided for in subsection of 9.4(C) of this Agreement. (J) SUBSCRIPTION SERVICE - A trip to the same place at the same time at least twice a week for a minimum period of 30 days. 4.2 SERVICE AREA. All transportation service provided pursuant to this Agreement shall be limited to trips within the corporate limits of the City of Wichita, within the Oaklawn Improvement District, or within that portion of The City of Bel Aire that lies within 3/4-mile of a fixed bus route operated by Wichita Transit. 4.3 PASSENGER ELIGIBILITY. The City, acting through Wichita Transit, shall establish a procedure to determine eligible passengers. No person shall be transported under this Agreement who has not first been determined by the City as eligible for the service. 4.4 LAWS TO BE OBSERVED. The Contractor shall make themselves familiar with, and at all times shall observe and comply with Federal, State and local laws, ordinances, and regulations which in any manner govern or affect the conduct of the work and shall indemnify and hold harmless the City and its representatives against any claim arising from the violation of any such law, ordinance or regulation, whether by itself or by its employees. ARTICLE 5: PERSONNEL 5.1 QUALIFIED PERSONNEL. The Contractor represents that it has, or shall secure at its own expense, all personnel required to perform the transportation service provided under this Agreement. Such personnel shall not be employees of or have any other contractual relationship with the City. All personnel engaged in the work shall be fully qualified according to the laws of the State of Kansas and the provisions of this Agreement. 5.2 MINIMUM WAGES. The Contractor shall comply with the minimum wage and maximum hours provisions of the Federal Fair Labor Standards Act. 5.3 EMPLOYEE CONFLICT OF INTEREST. The Contractor shall establish safeguards to prohibit employees from using their positions for a purpose that is or gives the appearance of being motivated by desire for private gain for themselves or others, particularly those with whom they have family, business, or other ties. 5.4 EMPLOYEE BACKGROUND CHECKS. The parties to this Agreement recognize that those entities or persons providing government funded services are subject to public scrutiny. Consequently, by entering into this Agreement the Contractor assumes an affirmative and ongoing duty during the term of this Agreement to guarantee and maintain compliance with requirements set forth in Subsection 5.5 below. Such compliance will require the use of criminal or other legal background checks upon all personnel or agents providing services pursuant to this Agreement, or administering the funds conveyed under this Agreement. 5.5 PARTICIPANT SAFEGUARD. The Contractor certifies that: (A) Persons convicted of any felony, drug or drug related offense, crime of falsehood or dishonesty, or a crime against another person during the ten-year period concluding on the date of execution of this Agreement or during the term of this Agreement shall not be permitted to provide services, administer this Agreement, or handle the funds conveyed under this Agreement; (B) Persons convicted of any crime of moral turpitude, including but not limited to sex offenses and crimes against children, during the ten-year period concluding on the date of execution of this Agreement or during the pendency of this Agreement shall not be permitted to interact in any way with persons served pursuant to this Agreement; and (C) Persons convicted of a serious driving offense, including but not limited to driving under the influence of alcohol or a controlled substance, during the ten-year period concluding on the date of execution of this Agreement or during the pendency of this Agreement shall not be permitted to operate a vehicle in which an eligible passenger is provided transportation pursuant to this Agreement. For purposes of this section, "serious traffic offense: shall not include any offense deemed a "traffic infraction" under K.S.A. 8-2116 and 8-2118. (D) Any questions concerning the interpretation of this subsection and/or its application to an individual shall be referred to the City of Wichita Law Department. The Department of Law's decision shall be final for purposes of compliance with this Agreement. The term "conviction" shall include convictions from any Federal, State, Local, Military, or other court of competent jurisdiction, and shall include being placed into a diversion or deferred judgment program in lieu of prosecution. ARTICLE 6: PROHIBITION OF CONFLICT OF INTEREST. 6.1 INTEREST OF PUBLIC OFFICIALS AND OTHERS. No officer or employee of the City, no member of its Governing Body, and no other public official who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to this Agreement which affects such person's personal interest or the interest of any corporation, partnership, or association in which such person is directly or indirectly interested. Nor shall any officer or employee of the City or any member of its Governing Body or other public official have any interest, direct or indirect, in this Agreement or the proceeds thereof. 6.2 INTEREST OF CONTRACTOR. The Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. 6.3 EMPLOYEE CONFLICTS. Situations in which a) an employee of the City shall also be an employee of the Contractor at the time of the Agreement, b) an employee of the Contractor seeks additional / alternative employment with the City during term of the Agreement, or c) an employee of the City seeks additional / alternative employment with the Contractor during term of the Agreement, shall require written notice of the City. The City shall make every effort to assure that such employees do not have any authority to approve a) grant funds, b) agreements, or c) affiliate status to the Contractor or Contractor's competitors. ARTICLE 7: FUNDING / CASH BASIS AND BUDGET LAWS. The right of the City to enter into this Agreement is subject to the provisions of the Cash Basis Law (K.S.A. 10-1112 and 10-1113), the Budget Law (K.S.A. 79-2935), and other laws of the State of Kansas. This Agreement shall be construed and interpreted so as to ensure that the City shall at all times stay in conformity with such laws, and as a condition of this Agreement the City reserves the right to unilaterally sever, modify, or terminate this Agreement at any time if, in the opinion of its legal counsel, the Agreement may be deemed to violate the terms of such laws. ARTICLE 8: REPORTS, RECORDS AND INSPECTION. 8.1 DOCUMENTATION OF COSTS. Proper invoices, vouchers, or other documentation evidencing in proper detail the nature and propriety of charges shall support all costs incurred by the Contractor for which the Contractor purports to be entitled to reimbursement. All checks, invoices, vouchers, payrolls, or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible to both parties to this Agreement. 8.2 MAINTENANCE OF RECORDS. Except as otherwise authorized by the City, the Contractor shall retain such documentation as listed in subsections 8.1 and 8.3 for a period of not less than three (3) years after receipt of the final expenditure report under this Agreement. This is the case unless action, including but not limited to litigation or audit resolution proceedings, necessitate maintenance of records beyond the minimum three (3) year period. 8.3 REPORTS. During the term of this Agreement, the Contractor shall furnish the City, in such form as the City may require, such statements, records, reports, data and information as the City requests pertaining to matters covered by this Agreement. If the Contractor fails to provide all required reports in a timely, complete and accurate manner, the City will withhold payments to the Contractor until such time as all reports are furnished. (A) COMPLAINT RECORDS. The Contractor agrees to maintain complete records of all complaints received regarding service provided under this Agreement. The Contractor agrees to submit a service complaint report each time a request for reimbursement is submitted. Such report shall identify the general nature of complaints received during the billing period along with any actions taken by the Contractor. The Contractor agrees that complaint records used to prepare complaint reports are subject to review by the City to ensure the accuracy and validity of information reported. (B) FINANCIAL AND OPERATING DATA. The Contractor shall be responsible for providing financial and operating data as may be required by the City and/or necessary to comply with the requirements of the National Transit Database of the Urban Mass Transportation Act of 1964, as amended. (C) ON-TIME PERFORMANCE AND TRIP LENGTH RECORDS. For the purpose of determining if the Contractor is providing a level of paratransit service equivalent to that provided by Wichita Transit, the Contractor agrees to maintain records of on-time performance and trip length for all eligible passengers provided paratransit service under this Agreement. The Contractor agrees to submit an on-time performance and trip length report each time a request for billing is submitted. For the billing period, the report shall identify the percentage of pick ups occurring before, during and after the 30-minute pick-up window and the number of trips involving an eligible passenger ride of 90 minutes or greater. The Contractor agrees that on-time performance and trip length records used to prepare the report are subject to review by the City to ensure the accuracy and validity of information reported. (D) ALCOHOL AND DRUG TEST REPORTS. The Contractor agrees to submit to the City an annual report that identifies the Contractor's efforts to comply with FTA and U.S. DOT requirements for pre-employment, post-accident and random alcohol and drug testing of safety sensitive employees. The annual alcohol and drug testing report shall be submitted by January 30th. (E) NO-SHOW RECORDS. For the purpose of eliminating trips referrals involving a passenger who demonstrates a pattern of "no-showing" for trips, the Contractor agrees to maintain records of no-shows recorded by passengers provided paratransit service under this Agreement. The Contractor agrees to submit a no-show report each time a request for billing is submitted. For the billing period, the report shall identify the number of no-shows per eligible passenger and the dates on which no-shows were recorded. The Contractor agrees that no-show records used to prepare the report are subject to review by the City to ensure the accuracy and validity of information reported. (F) MISSED TRIPS. For the purpose of reporting "missed trips", the Contractor agrees to maintain records of missed trips affecting passengers who are provided paratransit service under this Agreement. The Contractor agrees to submit a missed trip report each time a request for billing is submitted. For the billing period, the report shall identify the number of missed trips affecting eligible passengers and the dates on which missed trips were experienced. The Contractor agrees that missed trip records used to prepare the report are subject to review by the City to ensure the accuracy and validity of information reported. (G) ADA RIDES. In order to assure that rides provided pursuant to this Agreement are provided to eligible passengers and that operating statistics needed for Federal reporting are provided, the following is required: (1) Pursuant to subsection 9.1(B) of this Agreement, each month, the Contractor shall submit an alphabetical listing of those persons who have been provided service during the month who the Contractor has reported as being an eligible passenger (approved by WT as ADA paratransit eligible). (2) WT will check the names on the list against the database of persons who have been granted ADA paratransit eligibility. WT will provide the Contractor with the names of those individuals who have not been determined as ADA paratransit eligible. (3) After receipt of the names of non-ADA eligible persons, the Contractor may assist the subject individuals with completion of an ADA Paratransit Eligibility Application OR, shall in the future, discontinue reporting them as eligible passengers on monthly billing. (H) ACCESS TO JOBS TRIPS. In order to report the number of rides funded through The Access to Jobs Program, and pursuant to 9.1(B) of this Agreement, the Contractor's monthly billing shall identify the number of rides funded by way of that Program. (I) PEAK HOUR RIDES. As required by subsection 9.1(B) of this Agreement, the Contractor shall provide as part of monthly billing the number of rides provided to eligible passengers between 6:00 AM and 10:00 AM and between 2:00 PM and 6:00 PM. (J) AMBULATORY / WHEELCHAIR RIDES. As required by subsection 9.1(B) of this Agreement, the Contractor shall provide as part of monthly billing the number rides provided to ambulatory persons and the number or rides provided to persons using a wheelchair or similar mobility device. (K) NEW FREEDOM TRIPS. In order to report the number of rides funded through The New Freedom Program, and pursuant to subsection 9.1(B) of this Agreement, the Contractor's monthly billing shall identity the number of rides funded by way of that Program. 8.4 AVAILABILITY OF RECORDS. The Contractor agrees to make any and all of its records, books, papers, documents, and data available to City, or to the authorized representative of the Federal, State or local agency with statutory oversight authority, for the purposes of assisting in litigation or pending litigation, or making audits, examinations, excerpts, copies, and transcriptions at any time during the term of this Agreement and for a period of three (3) years following the final payment under the terms of this Agreement. 8.5 RIGHT TO INSPECT ALL WORK, EQUIPMENT AND MATERIALS. The Contractor shall permit the City or any authorized representative of the City's General Manager of Wichita Transit to inspect all work, equipment and materials with regard to the provision of service under this Agreement. (A) These inspections shall be at any reasonable time during business hours; 8:00 a.m. to 5:00 p.m. 8.6 RIGHT TO OBSERVE OPERATIONS. The City reserves the right to observe operations by the Contractor pursuant to this Agreement at any reasonable time, i.e., maintenance, sensitivity training, loading and unloading eligible passengers, etc. (A) If any observed operations are deemed defective by the City, the City shall notify the Contractor in writing of such defect. (B) Upon receipt of a written notice of defect, the Contractor has 10 days to investigate the defect and provide reports to the City. (C) The report shall include a copy of the City's notice of defect together with a written statement of the corrective action taken, and shall be subject to City approval. (D) If corrective actions are satisfactory the City will advise the Contractor within 10 days. Otherwise the Contractor has an additional five (5) days to remedy the defect and failure to do so may be considered as a breach of this Agreement. 8.7 CONFIDENTIALITY. Both parties will comply with the provisions of State and Federal regulations in regard to confidentiality of eligible passenger records. ARTICLE 9: METHOD OF BILLING AND PAYMENT 9.1 BILLING PROCEDURES. Vendor agrees that billings and payments made under this Agreement shall be processed in accordance with established budgeting, purchasing and accounting procedures of the City. After receipt of billing, payment shall be made as soon as procedures allow. (A) MONTHLY BILLING. A monthly billing system will be used and all billing, statements, and other necessary supporting documentation must be submitted by the 15th day of the month following the billing period. (B) BILLING CONTENT. All billings from the Contractor shall include: 1) an itemization of each ride provided, including designation if the ride involved a person who used a wheelchair or similar mobility device, 2) the date of the ride, 3) passenger names, 4) total units of service provided for each eligible passenger, 5) amount of passenger fares collected pursuant to subsection 9.4(D) of this Agreement, 6) the number of rides provided between 6:00 AM and 10:00 AM and between 2:00 PM and 6:00 PM, 7) the number or rides provided under the Access to Jobs Program, 8) the number of rides provided under the New Freedom Program, and 9) the number of rides provided to ambulatory persons and the number of rides provided to persons who use a wheelchair or similar mobility device. Copies of daily vehicle manifests shall be submitted with monthly billing that indicate passenger pick up windows for eligible passengers and the actual time of vehicle arrival for passenger boarding. Trips provided to eligible passengers shall be highlighted on vehicle manifests to make them easily differentiated from trips provided to persons who have not been granted ADA paratransit eligibility. If the Contractor is providing rides under the Access to Jobs Program, those rides shall be totaled on monthly billing. (C) BILLING PROCEDURE. The City will process the billings, verify the information / data submitted, and issue a check pursuant to the City's standard purchasing procedure. (D) RATE OF REIMBURSEMENT. Transportation reimbursements will be made on a unit of service basis plus passenger fares pursuant to subsection 9.4(D) of this Agreement. The reimbursement per unit of service for trips provided pursuant to this Agreement shall be $4.00 per ambulatory person and $5.00 per person who use a wheelchair or similar mobility device. (E) REVIEW OF REIMBURSEMENT RATES. The amount of reimbursement per unit of service will be reviewed during the last 6 months of 2006, and may be subject to revision starting January 1, 2007. Any change in the reimbursement rate must be agreed to in writing by all parties prior to implementation. (F) NO-SHOW TRIPS AND MISSED TRIPS. No reimbursement shall be provided for trips involving passenger "no-shows" or "missed trips". 9.2 SUPPORT DOCUMENTATION. Billing shall be supported with documentation required by the City, including but not necessarily limited to, the documentation described above and in Article 8. 9.3 REIMBURSEMENT RESTRICTIONS. Payments shall be made to the Contractor only for items and services provided to support the stated purpose of this Agreement and when such items and services are specifically authorized by this Agreement. The City reserves the right to disallow reimbursement for any item or service if the City believes that such item or service was not provided to support the purpose of this Agreement or is not authorized by this Agreement. 9.4 SERVICE BY CONTRACTOR. (A) GENERAL. Service is to be provided by the Contractor in a prompt and courteous manner. Passengers must be determined ADA paratransit eligible before the Contractor provides paratransit rides pursuant to this Agreement. Passengers are to be picked up within a 30-minute pick-up window and the unit of service or one-way trip shall not last longer than 90 minutes. If circumstances dictate, that the fore-mentioned conditions cannot be met, the Contractor shall make note of the incident and reference it as part of the on-time performance or trip length reports discussed in subsection 8.3(C). As discussed in subsection 8.3(A) of this Agreement, the Contractor is to provide the City a Complaints Report. (B) BACK-UP SYSTEM. The Contractor must have a back-up system in place to ensure that eligible passengers are not stranded. (C) ACCEPTANCE OF RIDES REFERRED BY THE CITY. When referred by the City, The Contractor agrees to accept subscription service ride requests by persons who are not the agency's client. This is provided that acceptance of the referral will not negatively impact the Contractor's ability to meet on-time performance or trip length standards for existing eligible passengers. (D) COLLECTION OF FARE FROM ELIGIBLE PASSENGERS. As part of the reimbursement subsidy for providing the paratransit trip, the Contractor shall collect and retain the standard ADA paratransit fare from the eligible passenger at the time of providing the one-way trip or unit of service. (E) ALCOHOL AND DRUG TESTING. The Contractor shall comply with the Federal Drug and Alcohol Regulations, as set forth in Appendix B of this Agreement. Pre-employment, post accident, and random tests shall be conducted for any and all safety sensitive Contractor positions that perform duties under the terms of this Agreement. (F) VEHICLE SPECIFICATIONS. All vehicles used in service pursuant to this Agreement shall be equipped with a two way radio or other acceptable telecommunications device and shall at all times be maintained in the safest possible operating condition and shall be kept in clean and comfortable condition for the transportation of eligible passengers. Vehicles used to transport eligible passengers who use a wheelchair shall be equipped with an operable wheelchair lift or ramp. Use of vehicles equipped with wheelchair lifts or ramps will be compensated at the same rate as vehicles not equipped with such equipment. Compliance with vehicle specifications shall be subject to regular monitoring by the City or the designated representative of Wichita Transit. (G) ADA COMPLIANCE. The Contractor must be in compliance with the Federal Americans with Disabilities Act (ADA) requirements. ARTICLE 10: LICENSES AND PERMITS. (A) The Contractor shall procure and maintain all permits, licenses, certifications, bonds and insurance required by federal, state or local authority for carrying out this Agreement. (B) The Contractor shall maintain Workers Compensation Insurance in amounts not less than minimum statutory requirements. (C) The Contractor shall notify the City immediately if any required license, permit, bond or insurance is cancelled, suspended, or is otherwise ineffective. Such cancellation, suspension, or other ineffectiveness may be the basis for immediate termination of this Agreement by the City. ARTICLE 11: INSURANCE. The Contractor shall provide to the City a Certificate of Insurance evidencing Comprehensive General Liability, Professional Liability, and Comprehensive Automobile Liability coverage in the following minimum amounts: (A) Bodily Injury: $500,000 Each Occurrence (B) Property Damage: $500,000 Each Occurrence (C) Bodily Injury: $500,000 Each Person (D) Bodily Injury: (owned, not owned, hired, renter or otherwise): (1) Bodily Injury $500,000 Each Accident (2) Property Damage $500,000 Each Accident (E) Workers Compensation: As statutorily required. ARTICLE 12: SUBCONTRACTING. (A) None of the work or services covered by this Agreement shall be subcontracted without the prior written approval of the City. (B) All approved subcontracts must conform to applicable requirements set forth in this Agreement. (C) If the City consents to the use of subcontractors, the Contractor shall remain fully responsible for all obligations of this Agreement, including indemnification of the City for all actions by subcontractors. ARTICLE 13: TERMINATION OF AGREEMENT. 13.1 TERMINATION FOR CAUSE. If the Contractor fails to fulfill in a timely and proper manner its obligations under this Agreement, or if the Contractor violates any of the terms, covenants, conditions or stipulations of this Agreement, the City has the right to terminate this Agreement by giving written termination notice to the Contractor. Such notice of termination shall specify the effective date of the termination. In the event of termination, such information prepared by the Contractor to carry out this Agreement, including data, studies, surveys, records, drawings, maps, and reports shall, at the option of the City, become the property of the City and be immediately turned over to the City. The Contractor shall be entitled to just and equitable compensation for any satisfactory work completed on such documents and other materials. In spite of the above, the Contractor shall not be relieved of liability to the City by virtue of any breach of this Agreement by the Contractor and the City may withhold any payments to the Contractor for the purpose of set off until such time as the exact amount of damages due the City from the Contractor are determined. 13.2 TERMINATION OF AGREEMENT ON OTHER GROUNDS. Either party, upon 30 days written notice, may terminate this Agreement in whole or in part. Written notice must state the effective date of the termination. A partial termination shall also be specified in writing and shall not be effective unless and until the other party has given its written concurrence. 13.3 EXPIRATION OF CONTRACT TERM. This Agreement shall extend until December 31, 2006. If the parties do not have a negotiated renewal Agreement completed on or before that date, this Agreement shall continue under the last agreed terms on a month-to-month basis. ARTICLE 14: NOTIFICATION. Any formal notice required or permitted under this Agreement shall be deemed sufficiently given if in writing and delivered by public or private carrier, personal delivery, registered or certified mail (return receipt requested) or by means of telefacsimile or telecopier. Notices delivered in person or sent via telefacsimile or telecopier shall be effective as of the date the notice is delivered or sent. Notices sent by registered or certified mail (return receipt requested) shall be deemed to be effective forty-eight hours after the date said notice is postmarked to the addressee. Contractor: City of Wichita - Wichita Transit Attn: General Manager Address: 777 E. Waterman Phone: (316) 352-4802 Fax: (316) 337-9287 Vendor: Contractor Name: Attn: Address: Phone: Fax: ARTICLE 15: MISCELLANEOUS. 15.1 The failure of either party to insist upon the strict performance of any of the terms or conditions of this Agreement or to exercise any option, right or remedy provide by this Agreement, shall not be construed as a future waiver or relinquishment of such term, provision, option, right or remedy. A waiver by either party of any term or provision of this Agreement shall not be deemed to have been made unless submitted in writing and signed by the waiving party. 15.2 This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and to their permitted successors and assigns. 15.3 In the event that any provision in this Agreement shall be adjudicated invalid under applicable laws, the invalid provision shall automatically be considered amended so as to conform to all applicable legal requirements. If the invalidity cannot be cured by amendment, the invalid provision shall be considered stricken and deleted. In either case, the validity or enforceability of the remaining provision of this Agreement shall remain intact. 15.4 Both parties to this Agreement represent and agree that: (i) they have reviewed all aspects of this Agreement; (ii) they have been given the opportunity to review this Agreement with counsel; and (iii) they have carefully read and fully understand all provisions of this Agreement. MONTHLY REPORTING FORM Reporting Period: ________________ ON-TIME PERFORMANCE AND TRIP LENGTH COMPLIANCE: What was your on-time performance for the reporting period? Early Arrival % On Time % Late Arrival % What % of trips provided involved a client being on the van for more than 90 minutes? _______________ PEAK HOUR RIDES: How many rides were provided to eligible passengers during the following times? 6:00 AM and 10:00 AM 2:00 PM and 6:00 PM WHEELCHAIR / AMBULATORY RIDES: How many rides were provided to eligible passengers who use a wheelchair or similar mobility device and how may rides where provided to eligible passengers who are ambulatory. TOTAL RIDES PROVIDED NUMBER OF AMBULATORY RIDES NUMBER OF WHEELCHAIR RIDES ACCESS TO JOBS RIDES: How many rides were provided to eligible passengers under the Access to Jobs Program? ____________ NEW FREEDOM RIDES: How many rides were provided to eligible passengers under the New Freedom Program? ____________ MISSED TRIP INFORMATION: NAME OF PERSON # OF MISSED TRIPS MISSED TRIP DATES NO SHOW INFORMATION: NAME OF PERSON # OF NO-SHOWS NO-SHOW DATES COMPLAINT REPORTING: REASON FOR COMPLAINT NUMBER OF INCIDENTS DURING REPORTING PERIOD Late Arrival Early Arrival Length of time on van Driver rudeness Other Any Actions Taken on Complaints: NAME OF CLIENT: _______________________________________ Nature of Complaint: __________________________________ Actions taken: ________________________________________ APPENDIX B FEDERAL AND STATE REGULATIONS U. S. FEDERAL 1. ENERGY CONSERVATION REQUIREMENTS The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 2. CLEAN WATER REQUIREMENTS 1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. 2. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 3. LOBBYING Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the (Purchaser). 4. ACCESS TO RECORDS Contracts exceeding $100,000. 1. The Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. 2. Where the Purchaser enters into a negotiated contract for other than a small purchase or under a simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. 3. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 4. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 5. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). 6. FTA does not require the inclusion of these requirements in subcontracts. 5. FEDERAL CHANGES Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Agreement (Form FTA MA (2) dated October, 1995) between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 6. CLEAN AIR REQUIREMENTS 1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. 2. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 7. NO GOVERNMENT OBLIGATION TO THIRD PARTIES 1. The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. 2. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 8. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 1. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § § 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. 2. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. 3. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 9. TERMINATION Contracts with non-profit organizations and institutions of higher education in excess of $100,000 and all other contracts in excess of $10,000. 1. Termination for Convenience (General Provision) The (Purchaser) may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to (Purchaser) to be paid the Contractor. If the Contractor has any property in its possession belonging to the (Purchaser), the Contractor will account for the same, and dispose of it in the manner the (Purchaser) directs. 2. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the (Purchaser) may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the (Purchaser) that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the (Purchaser), after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. 3. Opportunity to Cure (General Provision) The (Purchaser) in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to (Purchaser)'s satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from (Purchaser) setting forth the nature of said breach or default, (Purchaser) shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude (Purchaser) from also pursuing all available remedies against Contractor and its sureties for said breach or default. 4. Waiver of Remedies for any Breach In the event that (Purchaser) elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by (Purchaser) shall not limit (Purchaser)'s remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. 5. Termination for Convenience (Professional or Transit Service Contracts) The (Purchaser), by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. 6. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the (Purchaser) may terminate this contract for default. The (Purchaser) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the (Purchaser). 7. Termination for Default (Transportation Services) If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the (Purchaser) may terminate this contract for default. The (Purchaser) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract. If this contract is terminated while the Contractor has possession of (Purchaser)'s goods, the Contractor shall, upon direction of the (Purchaser), protect and preserve the goods until surrendered to the (Purchaser) or its agent. The Contractor and (Purchaser) shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the (Purchaser). 8. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provisions of this contract, the (Purchaser) may terminate this contract for default. The (Purchaser) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the (Purchaser) may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the (Purchaser) resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the (Purchaser) in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- A. The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the (Purchaser), acts of another Contractor in the performance of a contract with the (Purchaser), epidemics, quarantine restrictions, strikes, freight embargoes; and B. The contractor, within [10] days from the beginning of any delay, notifies the (Purchaser) in writing of the causes of delay. If in the judgment of the (Purchaser), the delay is excusable, the time for completing the work shall be extended. The judgment of the (Purchaser) shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the (Purchaser). 9. Termination for Convenience or Default (Architect and Engineering) The (Purchaser) may terminate this contract in whole or in part, for the (Purchaser)'s convenience or because of the failure of the Contractor to fulfill the contract obligations. The (Purchaser) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the (Purchaser), the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the (Purchaser) may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the (Purchaser). If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the (Purchaser). 10. Termination for Convenience of Default (Cost-Type Contracts) The (Purchaser) may terminate this contract, or any portion of it, by serving a notice or termination on the Contractor. The notice shall state whether the termination is for convenience of the (Purchaser) or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the (Purchaser), or property supplied to the Contractor by the (Purchaser). If the termination is for default, the (Purchaser) may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the (Purchaser) and the parties shall negotiate the termination settlement to be paid the Contractor. If the termination is for the convenience of the (Purchaser), the Contractor shall be paid its contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination. If, after serving a notice of termination for default, the (Purchaser) determines that the Contractor has an excusable reason for not performing, such as strike, fire, flood, events which are not the fault of and are beyond the control of the contractor, the (Purchaser), after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a termination of convenience. 10. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION Certification Regarding Debarment, Suspension, and Other Responsibilities Matters Lower Tier Covered Transactions (Third Party Contracts over $100,000). Instructions for Certification By signing and submitting this bid or proposal, the prospective lower tier participant is providing the signed certification set out below. 1. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, (Purchaser) may pursue available remedies, including suspension and/or debarment. 2. The prospective lower tier participant shall provide immediate written notice to (Purchaser) if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 3. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," :"participant," "persons," "lower tier covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact (Purchaser) for assistance in obtaining a copy of those regulations. 4. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by (Purchaser). 5. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration. 6. Nothing contained in the foregoing shall be construed to require establishment of system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 7. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, (Purchaser) may pursue available remedies including suspension and/or debarment. "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction" 1. The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 C.F.R. § 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. When the prospective lower tier participant is unable to certify to the statements in this certification, such prospective participant shall attach an explanation to this proposal. 11. CIVIL RIGHTS REQUIREMENTS The following requirements apply to the underlying contract: 1. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. 2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: a. Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. b. Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. c. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 3. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 12. BREACHES AND DISPUTE RESOLUTION Contracts exceeding $100,000. Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Purchaser)'s [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by (Purchaser), Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the (Purchaser) and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the (Purchaser) is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the (Purchaser), (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 13. DISADVANTAGES BUSINESS ENTERPRISES (DBE) 1. The Federal Fiscal Year goal has been set by the (Purchaser) in an attempt to match projected procurements with available qualified disadvantaged businesses. The (Purchaser)'s goals for budgeted service contracts, bus parts, and other materials and supplies for Disadvantaged Business Enterprises have been established by the (Purchaser) as set forth by the Department of Transportation Regulations 49 C.F.R. Part 23, March 31, 1980, and amended by Section 106(c) of the Surface Transportation Assistance Act of 1987, and is considered pertinent to any contract resulting from this request for proposal. If a specified DBE goal is assigned to this contract, it will be clearly stated in the Special Specifications, and if the contractor is found to have failed to exert sufficient, reasonable, and good faith efforts to involve DBE's in the work provided, the (Purchaser) may declare the Contractor noncompliant and in breach of contract. If a goal is not stated in the Special Specifications, it will be understood that no specific goal is assigned to this contract. This section is being developed to reflect the new rule in 49 CFR Part 26. a. Policy - It is the policy of the Department of Transportation and the City of Wichita / Wichita Transit that Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, and as amended in Section 106c of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURRA), shall have the maximum opportunity to participate in the performance of Contract financed in whole or in part with federal funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 23 and Section 106c of the STURAA of 1987, apply to this contract. The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 23 and Section 106c of the STURRA of 1987, have the maximum opportunity to participate in the whole or in part with federal funds provided under this Agreement. In this regard, the Contractor shall take all necessary and reasonable steps in accordance with the regulations to ensure that DBEs have the maximum opportunity to compete for and perform subcontracts. The Contractor shall not discriminate on the basis of race, color, national origin, religion, sex, age or physical handicap in the award and performance of subcontracts. It is further the policy of the (Purchaser) to promote the development and increase the participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of the (Purchaser)'s procurement activities are encouraged. b. DBE Obligation - The Contractor and its subcontractors agree to ensure that disadvantaged businesses have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds provided under the Agreement. In that regard, all Contractors and subcontractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 as amended, to ensure that minority business enterprises have the maximum opportunity to compete for and perform contracts. c. Where the Contractor is found to have failed to exert sufficient reasonable and good faith efforts to involve DBE's in the work provided, the (Purchaser) may declare the contractor noncompliance and in breach of contract. d. The contractor will keep records and documents for a reasonable time following performance of this contract to indicate compliance with the (Purchaser)'s DBE program. These records and documents will be made available at reasonable times and places for inspection by an authorized representative of the (Purchaser) and will be submitted to the state upon request. e. The (Purchaser) will provide affirmative assistance as may be reasonable and necessary to assist the prime contractor in implementing their programs for DBE participation. The assistance may include the following upon request: ? Identification of qualified DBE ? Available listing of Minority Assistance Agencies ? Holding bid conferences to emphasize requirements iv. DBE Program Definitions, as used in the contract: v. Disadvantage business "means a small business concern": vi. Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and vii. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. viii. Which is at least 51 percent owned by one or more women individuals, or in the case of any publicly owned business, at least 51% of the stock of which is owned by one or more women individuals; and j ix. Whose management and daily business operations are controlled by one or more women individuals who own it. x. "Small business concern" means a small business as defined by Section 3 of the Small Business Act and Appendix B - (Section 106(c)) Determinations of Business Size. xi. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and States (or lawfully admitted permanent residents) and who are black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, or women, and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to section 8(a) of the Small Business Act. xii. "Black Americans", which includes persons having origins in any of the Black racial groups of Africa; xiii. "Hispanic Americans", which includes persons of Mexican, Puerto Rican, Cuba, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; xiv. "Native Americans", which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; xv. "Asian-Pacific Americans", which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of Pacific, and the Northern Marianas; xvi. "Asian-Indian Americans", which includes persons whose origins are from India, Pakistan, and Bangladesh. 14. STATE AND LOCAL LAW DISCLAIMER The use of many of the suggested clauses are not governed by Federal law, but are significantly affected by State law. The language of the suggested clauses may need to be modified depending on state law, and that before the suggested clauses are used in the (Purchaser)'s procurement documents, the grantees should consult with their local attorney. 15. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (Purchaser) requests which would cause the (Purchaser) to be in violation of the FTA terms and conditions. 16. FLY AMERICA Applies ONLY to contracts involving international air transportation of persons or material. The Contractor understands and agrees that the Federal Government will not participate in the costs of international air transportation of any persons involved in or property acquired for the Project unless that air transportation is provided by U.S. flag carriers to extend services by U.S. flag carriers is available, consistent with the requirements of the International Air Transportation Fair Competitive Practices Act of 1974f. as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations "Use of United States Flag Air Carriers." 41 C.F.R. §§ 301.131 through 301.143. 17. ENVIRONMENTAL PROTECTION The Contractor agrees to comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 et seq. consistent with Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements on environmental matters at 49 U.S.C. § 5324(b); Council on Environmental Quality regulations on compliance with the National Environmental Policy Act of 1969, as amended, 40 C.F.R. Part 1500 et seq.; And joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622. 18. ACCESS REQUIREMENTS FOR PERSONS WITH DISABILITIES (ADA) The Contractor agrees to comply with the requirements of 49 U.S.C. § 5301(d) which expresses the Federal policy that the elderly and persons with disabilities have the same right as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement those policies. The Contractor also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, and with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires the provision of accessible facilities and services, and with the following Federal regulations, including any amendments thereto: 1. U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; 2. U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Assistance," 49 C.F.R. Part 27; 3. Joint U.S. Architectural and Transportation Barriers Compliance Board/U.S. DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; 4. U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; 5. U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; 6. U.S. GSA regulations, "Accommodations for the Physically Handicapped'" 41 C.F.R. Subpart 101-19; 7. U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; 8. U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; and 9. FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and 10. Any implementing requirements FTA may issue. 19. NOTIFICATION OF FEDERAL PARTICIPATION Applies ONLY to contracts for goods and services, including construction, valued at over $500,000. In the announcement of any third party contract award for goods or services (including construction services) having aggregate value of $500,000 or more, the Contractor agrees to specify the amount of Federal assistance to be used in financing that acquisition of goods and services and to the expressed amount of that Federal assistance as a percentage of that total cost of that third party contract. STATE OF KANSAS A. AGREEMENT WITH KANSAS LAW. All contractual agreements shall be subject to, governed by, and construed according to the laws of the State of Kansas. B. DISCLAIMER OF LIABILITY. Neither the State of Kansas nor any agency thereof, nor the City, shall hold harmless or indemnify any Contractor beyond that for any liability or damage except for those occasioned by the acts or omissions of its own employees, and then only up to the limits of liability designated under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.). C. RESPONSIBILITY FOR TAXES. Neither the State of Kansas, nor the City, shall be responsible for, nor indemnify a Contractor for, any federal, state or local taxes that may be imposed or levied upon the subject matter of this contract. Agenda Item No. 9a. City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1010 TO: Mayor and City Council Members SUBJECT: Change Order: Central Corridor Railroad Improvement (District VI) INITIATED BY: Department of Public Works AGENDA: Consent Recommendation: Approve the Change Order. Background: On March 8, 2005, the City Council approved a construction contract with Dondlinger & Sons, Inc. to construct Central Corridor Railroad Improvements. A number of work items have developed since the project was designed and let that should be addressed by a change order: Reimbursement for lost salvage because existing rails that were to have been salvaged and retained by the contractor are needed for reuse by the Great Plains Railroad Museum. $25,306 Ballast needed for the Railroad Museum that was to have been delivered by BNSF rail cars has been made impractical because of the construction sequencing and confined work space. Ballast salvaged from a previous railroad project has been made available by the contractor for this project. $22,092 A ballast screen system is needed to prevent ballast from entering area drainage inlets. $9,600 Additional storm sewer and sanitary sewer relocation and reconstruction is needed. $1,940 Analysis: A Change Order has been prepared for the additional work. Funding is available within the project budget. Financial Considerations: The cost of the additional work is $58,938, with the total paid by a combination of City-at-Large funds, Federal grants administered by the Kansas Department of Transportation and railroad funds. The original contract is $57,444,085. This Change Order plus a previous change order represent .39% of the original contract amount. Legal Considerations: The Law Department has approved the Change Order as to legal form. This Change Order plus previous change orders is within the 25% of construction contract cost limit set by City Council policy. Recommendation/Action: It is recommended that the City Council approve the Change Order and authorize the necessary signatures. November 2, 2004 PUBLIC WORKS-ENGINEERING CHANGE ORDER To: Cornejo & Sons, Inc. Project: Rock Rd. from 21st N. to 29th N. Change Order No.: 4 Project No.: 87N-0197-01 / 472-83889 Purchase Order No.: 400706 OCA No.: 706874 CHARGE TO OCA No.: 706874 PPN: 204340 Please perform the following extra work at a cost not to exceed $71,967.92 Over-Run: 19 - Retaining Wall 7.47 m @ $151.00 / m = $1,127.97 Add: Fescue Sod 9,000 sm @ $2.9265 / sm = $26,338.50 4" Conc. median surfacing (Northpark Apts.) 1 LS @ $153.00 = $153.00 Irrigation repairs for new sidewalk 1 LS @ $23,897.50 = $23,897.50 4" Irrigation sleeve in median at 11+480 1 LS @ $1,380.00 = $1,380.00 Top Soil for Medians 455 CM @ $32.00 = $14,560.00 Thermal Crack Repair 106.14 sm @ $42.50 = $4,510.95 21 Calendar Days related to utility conflicts (Revised Completion Date of November 30, 2004) 28 Working Days beyond November 30, 2004 for completion of sidewalk and site restoration work. TOTAL $71,967.92 Recommended By: Approved: ______________________ ______ ________________________ ______ Larry Schaller, P.E. Date Jim Armour, P.E. Date Construction Engineer Acting City Engineer Approved: Approved: ______________________ ______ ________________________ ______ Contractor Date Chris Carrier, P.E. Date Acting Director of Public Works Approved as to Form: By Order of the City Council: ______________________ ______ ________________________ ______ Gary Rebenstorf Date Carlos Mayans Date Director of Law Mayor Approved: Attest: ____________________________ ______________________ ______ City Clerk KDOT Metro Engineer Date Agenda Item No. 9b City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1011 TO: Mayor and City Council Members SUBJECT: Change Order: Sand Plum Addition Improvements (West of Webb, at 43rd St. North) (District II) INITIATED BY: Department of Public Works AGENDA: Consent Recommendation: Approve the Change Order. Background: On February 15, 2005, the City Council approved a contract with Cornejo & Sons, Inc for paving improvements in Sand Plum Addition. It has since been determined that additional site grading is necessary to direct storm water runoff away from adjacent properties. In addition, a storm sewer manhole needs to be lowered. Analysis: A Change Order has been prepared for the cost of the additional work. Funding is available within the project budget. Financial Considerations: The cost of the additional work is $15,908 with the total paid by special assessments. The original contract amount is $149,468. This Change Order represents 10.64% of the original contract amount. Legal Considerations: The Law Department has approved the Change Order as to legal form. The Change Order amount is within 25% of the construction contract cost limit set by the City Council policy. Recommendation/Action: It is recommended that the City Council approve the Change Order and authorize the necessary signatures. November 24, 2004 PUBLIC WORKS-ENGINEERING CHANGE ORDER To: Nowak Construction Co., Inc. Project: Lateral 91, Main 1, Southwest Interceptor Sewer to serve Hidden Glen Addition Change Order No.: 1 Project No.: 468-83484 Purchase Order No.: 401004 OCA No.: 744064 CHARGE TO OCA No.: 744064 - $16,500.00 PPN: 480752 620421 - $10,000.00 706877 - $8,500.00 Please perform the following extra work at a cost not to exceed $35,000.00 ADD: Replace defective stub 1 LS @ 35,000.00 = 35,000.00 TOTAL $35,000.00 Recommended By: Approved: ______________________ ______ ________________________ ______ Lawrence Schaller, P.E. Date James Armour, P.E. Date Construction Engineer Acting City Engineer Approved: Approved: ______________________ ______ ________________________ ______ Contractor Date Chris Carrier, P.E. Date Acting Director of Public Works Approved as to Form: By Order of the City Council: ______________________ ______ ________________________ ______ Gary Rebenstorf Date Carlos Mayans Date Director of Law Mayor Attest: ____________________________ City Clerk Agenda Item No. 10 CITY OF WICHITA City Council Meeting November 8, 2005 Agenda Report No. 05-1012 TO: Mayor and City Council Members SUBJECT: Acquisition of Temporary Easement for Integrated Local Water Supply Plan INITIATED BY: Office of Property Management AGENDA: Consent Recommendation: Approve the acquisition. Background: On August 3, 1993 the City Council approved the Water Supply Plan prepared by Burns & McDonnell/MKEC Engineering Consultants. The Plan identified cost-effective water resource projects to meet the City's future water needs. On October 10, 2000 City Council approved the projects and implementation of the plan. One portion of the Water Supply Plan is the groundwater recharge project which includes the capture of above base flow water (water which is generated from rainfall runoff above the base river flow) in the Little Arkansas River, the transfer to and storage of captured water in the aquifer, and the recovery and use of this water to meet future demands for the City of Wichita. Analysis: Twenty-two sites were identified as necessary for the location of a twenty-four inch water line to serve recharge/recovery wells, recharge well, or recharge basins. Fourteen of the twenty-two have been secured. One additional landowner (Koehn) of the identified sites have agreed to provide a temporary construction easements to the City of Wichita for a respective $1,390, or the equivalent to $1,500 per acre. Financial Considerations: A budget of $1,590 is requested; this includes $1,390 for acquisition and $200 for title work, title insurance and closing costs. Funding for this project is included in the CIP in W-549, Water Supply Plan Phase III, which has an available funding of over $7.6 million Legal Considerations: The Law Department has approved the contracts as to form. Recommendation/Action: It is recommended that the City Council; 1) Approve the Budget; 2) Approve the permanent easement; and 3) Authorize all necessary signatures. Agenda Item No. 12 CITY OF WICHITA City Council Meeting November 8, 2005 Agenda Report No. 05-1013 TO: Mayor and City Council Members SUBJECT: Transportation Enhancement Application - Brooks/Buckner Bike Trail Addition (District I) INITIATED BY: Department of Park and Recreation AGENDA: Consent ____________________________________________________________________________________ Recommendation: Approve the grant application. Background: Recently, the newest addition to the K-96 Bike trail was completed for an area reaching from Oliver to Hillside and into Grove Park. Located nearby the new pathway are adjacent school sites; Brooks Middle School and Buckner Elementary school. The Park and Recreation Department, in cooperation with USD 259, wishes to create a trail connection to the new pathway. This trail link can play an important role in developing outreach programming for environmental education within the school curriculums, as well as increase awareness for healthy behavior in reducing the national epidemic of childhood obesity. Analysis: The current path creates an open loop which follows Chisholm Creek. The proposed trail link will close this loop, allowing direct pathway access for youth in the local communities who wish to commute by bicycle. This pathway connection will also provide a direct link for local field trips without having to backtrack around the loop to return to campus. This new path extension and path loop provides economies of time promoting exercise activities and scientific awareness through nature field studies with the natural flora and fauna found around the Chisholm Creek Greenway. It will also provide additional contact with the real, natural world, containing the next century's challenges. Financial Considerations: The cost of the pathway is estimated to be $93,340 in 2008 dollars. If the application were granted to the City, the City would be responsible to fund a total a local match of $28,002, or 30% of the total project amount. The City will not know if the application has been awarded funding until May 2008. A total of $400,000 has been allocated each year in the CIP to support Transportation Enhancement projects. Legal Considerations: All projects must be approved by the Wichita Area Metropolitan Planning Organization (WAMPO) for conformity with long-range transportation plans. The Wichita City Council must also approve the filing of the application through a resolution that also states that the City accepts responsibility for coordination of these projects and is committed to funding 30% of the total project cost as a local match contribution. Recommendation/Action: It is recommended that the City Council approve the resolution of support and authorization for application submittal to KDOT. Agenda Item No. 13 CITY OF WICHITA City Council Meeting November 8, 2005 Agenda Report No. 05-1014 TO: Mayor and City Council Members SUBJECT: Transportation Enhancement Application: Scenic & Environmental - Rest Station and Beautification project: Bluff Street to Fountain Street (District I) INITIATED BY: Department of Park and Recreation AGENDA: Consent ______________________________________________________________________________ Recommendation: Approve the grant application. Background: The K-96 Bike trail, completed in 2005, is located directly south of the K-96 Highway and extends from Oliver to Grove Park. The citizens of the Northeast Heights Neighborhood Association (NHNA) wish to partner with the City of Wichita to develop a rest station within their neighborhood to be located along the new trail between Bluff and Fountain Streets. This section of the K-96 Bike Path was completed in 2005 with no increased scenic area component to beautify the natural area of the path. The NHNA proposes to develop a rest area for pedestrians and cyclists and will include a sitting area, drinking fountain, and landscaping using native trees, shrubs, wildflowers and grasses. Analysis: The scenic enhancement is important to the community, encouraging increased usage by local neighborhood residents in the Northeast Heights Neighborhood Association and visitors to the area as a whole. The rest station will provide a place for quiet enjoyment of nature, conversation, relaxation, and a social area for walkers and cyclists that encourages additional exercise use in the community. It will also promote the use of native landscaping principles that will serve to be environmentally beneficial. Financial Considerations: The cost of the rest station is estimated to cost a total of $111,760 in 2008 dollars. If the application were granted to the City, the City would be responsible to fund a total local match of $33,528, or 30% of the total project amount. The City will not know if the application has been awarded funding until May 2008. A total of $400,000 has been allocated each year in the CIP to support Transportation Enhancement projects. Minimal additional operating costs of less than $1,000 per year will be incurred for trash service and maintenance of improvements. Legal Considerations: All projects must be approved by the Wichita Area Metropolitan Planning Organization (WAMPO) for conformity with long-range transportation plans. The Wichita City Council must also approve the filing of the application through a resolution that also states that the City accepts responsibility for coordination of these projects and is committed to funding 30% of the total project cost as a local match contribution. Recommendation/Action: It is recommended that the City Council adopt the resolution of support and authorization for application submittal to KDOT. Agenda Item No. 14 City of Wichita City Council Meeting Agenda Report No. 05-1015 TO: Mayor and City Council SUBJECT: Budget Adjustment INITIATED BY: Wichita Transit AGENDA: Consent Agenda - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Recommendation: Approve the Budget Adjustment request to activate contingency funds to support fuel costs. Background: With the continuing increases in fuel costs, it is necessary to activate the contingency funds dedicated for those activities. Current local fuel budgets have been depleted for both diesel fuel and for gasoline. KDOT funding has been secured for purchasing fuel through the end of the year once the local fuel budgets have been exhausted. Analysis: Fuel price increases have resulted in our local transit fund budget being able to cover less than three quarters of the year's operating requirements. KDOT funding has been used to cover the remaining fuel costs for the past three years. KDOT funds are intended to supplement our local budgets and cannot be used to substitute them. Financial Considerations: Activating the diesel fuel contingency would result in increasing the diesel fuel budget from $352,960 to $395,960 (a $43,000 increase). The gasoline budget would increase from $133,000 to $156,430 (a $23,430 increase). Legal Consideration: Budget Adjustments over $10,000 must have City Council approval. Recommendations/Actions: It is recommended that the City Council approve the Budget Adjustment request to activate the contingency funds for the purchase of diesel fuel and gasoline. Agenda Item NO. 15. City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1016 TO: Mayor and City Council SUBJECT: Security Enhancements INITIATED BY: Water & Sewer Department AGENDA: Consent Recommendation: Approve the expenditure for security enhancements. Background: The security enhancement project is included in the ten-year Capital Improvement Program and is intended to provide enhancements for the Water Utility. During the process of conducting a Vulnerability Assessment for the Water & Sewer Department and a Buffer Zone Protection Plan for the water treatment plant, needed enhancements were identified. Analysis: Primary requirements include fencing along the buffer zone for the water treatment plant and Hess pump station. Recommendations include electronic security improvements at the Water Utility facilities and providing backup power generation capability at key Water Utility facilities. Financial Considerations: Water System Security Improvements (CIP W-903) has a budget of $6 million in 2005. It will be funded from future revenue bonds and/or Water Utility cash reserves. Legal Considerations: The Resolution has been approved as to form by the Law Department. Recommendations/Actions: It is recommended that the City Council: 1) approve the security enhancements for 2005; 2) adopt the Resolution; and 3) authorize the necessary signatures. Agenda Item No. 16 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1017 TO: Mayor and City Council SUBJECT: 20-inch Water Main in 135th West from Central to 1/3 mile South of Central (District V) INITIATED BY: Water & Sewer Department AGENDA: Consent Recommendation: Approve the expenditure. Background: The 1999 Water Master Plan identified potential water pressure problems in portions of the west Wichita water distribution system, and in growth areas in west Sedgwick County identified by the Metropolitan Area Planning Department. Analysis: On April 8, 2003, the City Council approved a Water Master Plan Update. In the process of updating the water distribution water model and analyzing the water distribution system, including the latest growth predictions, the Water Master Plan recommended a 20-inch water main to be located in 135th Street West, from Central Avenue to 1/3 mile south of Central Avenue. The water main will also be part of a water system loop in the west portion of the City and will allow for future development of the area. Financial Considerations: The Capital Improvement Program CIP W-864 is included in the 2006 approved CIP. The budget for the project is $150,000 and will be funded from Water Utility revenues and reserves, and/or a future revenue bond issue. Legal Considerations: The Law Department has approved the Resolution as to form. Recommendations/Actions: It is recommended that the City Council approve the expenditure and adopt the Resolution. . Agenda Item No. 17 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1018 TO: Mayor and City Council SUBJECT: Contract with HUMATEC INITIATED BY: Law Department AGENDA: Consent ------------------------------------------------------------------------------------------------------------------------------ Recommendation: Authorize contract amendment for additional consultant services. Background: The City has retained the engineering firm of NS Ventures, Ltd. d/b/a Humatec, through its employees, William N. Nelson, Stephan P. Buckley and Mark A. Hedebrecht, to provide professional advice and expert witness services for the city in pending civil rights litigation involving the Wichita Police Department. Analysis: The current contract provided for compensation not to exceed $20,000. The additional amount is necessary for continued professional examination of the engineering aspects of the case, in preparation for trial and for services related to testimony as expert witnesses. This will be the first amendment to the contract. The Law Department recommends acceptance of the contract. The additional sums are necessary for the representation in city litigation matters and are reasonable in amount. Financial Considerations: Funding for this contract is from the Tort Claims Fund. Legal Considerations: The Amendment to the Agreement has been prepared and approved as to form by the Department of Law. Recommendations/Actions: Approve the amendment to the agreement between the City and NS Ventures, Ltd. d/b/a Humatec to authorize payment of an additional sum of $25,000 for the provision of additional consulting services in 2005 and 2006, together with any necessary fund transfers and authorize the Mayor to execute the contract. Agenda Item No. 19 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1019 TO: Mayor and City Council SUBJECT: Review of Angle Parking: Eaton Block INITIATED BY: City Manager's Office AGENDA: Old Business Recommendation: Permanently approve angle parking in the 500 block of East Douglas. Background: MetroPlains Development,the Eaton Place developer, requested that the City implement one-hour restricted angle parking along the south side of the 500 block of East Douglas Avenue in 2001. The purpose was to provide more parking spaces than were currently available with parallel parking to serve commercial businesses located in the renovated Eaton Hotel block. The angle parking configuration produced 22 spaces in lieu of the 9 parallel stalls. The City Council approved MetroPlains' request on a six-month trial basis beginning on January 2001. The Council's action annually in 2001, 2002, 2003 and 2004 was to continue angle parking in this block (south side) another 12-months to fully evaluate the impact of having the commercial/retail space fully leased and served, OR, until such time as additional parking in this area becomes available. Analysis: Ninety-four percent of the commercial space in the development is currently leased. This includes the Eaton Hotel lobby and ballroom which are leased to Larkspur for banquet/event facilities. Additional leases are being negotiated for tenant occupancy of the vacant space in the near future. According to MetroPlains Development, access to these parking spaces continues to be critical both as a leasing tool and a service to customers of the commercial spaces in Eaton Place. This amenity, which is usually only possible in small centers such as Eaton Place, is a requirement of prospective tenants. The Eaton Place Manager has indicated that the restricted angle parking is being well enforced by the Wichita Ambassadors. This is keeping the spaces turning over on a regular basis and available for customers. This strict enforcement is forcing the Eaton Place residential tenants who were inclined to take advantage of the convenient free parking spaces to use parking in the lot/garage which was constructed for residential tenant parking south of the Eaton block. According to the Wichita Police Department, there has been no significant change in the number of traffic accidents in the 500 block of East Douglas Avenue that can be directly attributed to the angle parking. The area analyzed included the 400 and 500 blocks of East Douglas including the intersections of Douglas/Emporia and Douglas/St. Francis. The 400 block was included in the analysis as this is the block where eastbound traffic merges into the center lane in order to avoid vehicles parked in the angle parking stalls. Accident summaries were compiled for the years 1998 through 2005. Total accidents in these areas for 1998 were 24; 1999 were 15; 2000 were 11 (no parallel parking was available due to Eaton block construction); for 2001 were 20; 2002 were seven; 2003 were four. Total accidents in 2004 were 19 and 2005 year to date accidents have been 17. If the Council chooses to permanently approve the angle parking in this area, staff will continue to monitor accidents. If an increase in accidents occurs and is attributable to the angle parking, staff will return the item to the City Council for additional consideration. Financial Considerations: None. Legal Considerations: The City Council has the legal authority to determine parking configurations in the city. Recommendation/Actions: It is recommended that the one-hour restricted angle parking on the south side of Douglas be permanently approved. Agenda Item No. 20 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1020 TO: Mayor and Council Members SUBJECT: Extended Special Assessment Financing Pilot Project INITIATED BY: City Manager's Office AGENDA: Old Business ______________________________________________________________________________ Recommendation: Permanently approve the option to use 20-year special assessment financing for developments with extraordinary development costs. Background: Two years ago, the Wichita Area Builders Association (WABA) requested the City Council consider extending the bond terms for special assessment debt from its current fifteen (15) years to twenty (20) years, matching a proposed change in the collection of special assessments from property owners. The goal of WABA was an extension of the term to lower monthly/annual special assessment payments especially for entry-level subdivisions with unique and extraordinary development costs and as incentives for existing neighborhoods without standard municipal improvements (i.e. paving, water/sewers, drainage, etc.). The City Council approved a one-year extended special assessment pilot project in November 2003 and approved a subsequent one-year extension in November 2004. To date, in 2005, the City hasn't received any applications for projects that meet the program criteria. Each application submitted for the extended 20-year special assessment financing project is reviewed by a permanent committee appointed by the City Council. The committee includes two City Council members, city staff, and representatives of the development community. Analysis: To date this year, the City received three applications for 20 year special assessment financing. None of the special assessments exceeded the threshold of acceptable special assessment costs for the price range of the houses in the subdivisions. Mortgage rates, which are still favorable, are increasing as historically has been the case with the cyclical nature of the real estate market. In addition, due to the impact of the hurricanes on the construction industry, materials costs have increased and the availability and costs are unpredictable. For that reason, staff, in concurrence with WABA, recommends that the City Council permanently approve this financing option for residential subdivisions. This will ensure that the marketability of new entry level homes won't be compromised. Likewise, the 20-year financing structure will be in place for infrastructure projects in existing and infill projects. Even though the program may be permanently implemented, there are no assurances that developers will be guaranteed the 20-year vs. 15 year special assessments. Use of the extended term financing is contingent upon the project meeting the eligibility criteria, being approved by the review committee and there being a sufficient number of projects in the bond sale for 20 year financing to ensure that the bonds will be sold. Financial Considerations: Special assessment debt is a component of City General Obligation debt repaid by taxing specific benefit districts. Special assessment debt (meeting the criteria) will be spread over twenty years to property owners and will be payable at the same time as property taxes. The effect of extending the term will increase the aggregate amount of debt (new debt will be added faster than old debt will be retired) and, as can be seen from the most recent bond sale, will increase the interest cost to both property owners and the City of Wichita (longer maturity debt typically carries a higher interest rate). Legal Considerations: K.S.A. 12-6a10 permits the issuance of special assessment bonds for a 20-year period. The governing body has the authority to permit the issuance of 20-year bonds and may establish a policy establishing criteria for determining when such bonds shall be issued. Recommendation/Action: It is recommended that the City Council permanently approve the 20-year special assessment program so that in the future as interest rates and construction prices escalate, this tool will be available to ensure the affordability of homes especially for first time homebuyers. Agenda Item No. 21 City of Wichita City Council Meeting November 8, 2005 Agenda Report No. 05-1021 TO: Mayor and City Council Members SUBJECT: Continuation of Public Hearing on proposed assessment for Water Distribution System to serve part of Nice's Addition (1439 N. Joann) (District VI) INITIATED BY: Department of Public Works Department of Water and Sewer AGENDA: Unfinished Business Recommendation: Apply special assessment for a water line to the property. Background: Scott McColm appeared before the City Council on October 18, 2005 to protest the assessment of a water main extension for his property at 1439 N. Joann. Mr. McColm claims that the Department of Water and Sewer Staff initially told him that there was water service available to the property. Later he found out water was not extended across that property. Mr. McColm claims Staff gave him an estimate for the work of $900 to $1,000. The actual assessment came to $2,466. Mr. McColm wants the City Council to direct that the Water and Sewer Department bear the cost of the water line installation due to the error in the availability of water to the lot or that the assessment amount not exceed the original estimate. The following are facts related to this issue: · Mr. McColm acquired the property from Lawrence Turner on January 12, 2004. · 1439 N. Joann was created by a lot split of Lot 11 of Nice's Addition (1452 N High). The lot split applicant was Lawrence Turner. The lot split was approved on February 20, 2004. · One of several conditions of the lot split approval was a petition for the extension of water. · Mr. McColm signed a petition for the water service extension in the amount of $3,500 on February 13, 2004. · The building permit for construction of the house on this lot was issued on December 8, 2004 at which time the water tap and plant equity fees were paid. · The work to install the water line was done by Water and Sewer Department Staff at a cost for labor, overhead, equipment and materials of $2,221.40. An additional amount of approximately $244.60 in the assessed amount is for administrative, legal publication, abstract and financing charges. Public Works Engineering did not charge for engineering or inspection services on this project. · In lieu of assessment amount at the time Mr. McColm first inquired about cost was $26.50/front foot. For a lot with 70 feet of frontage, the in lieu of amount would have been $1,855. Had the water line existed, as Mr. McColm said he was told, he would have been required to pay this amount at the time of connection. · In lieu of assessment amounts are payable in cash at the time water service is requested and cannot be financed by special assessments. · Special assessments are financed at the City's interest rate for tax-exempt debt instruments over a period of 15 years. The current SA interest rate is 3.86294%. The monthly payments into an escrow account for the $2,466 assessment would be approximate