Execute a License Agreement with Flint Hills Area Transportation Agency for Bus Stop Amenities in the City’S Right-Of-Way

CITY COMMISSION AGENDA MEMO January 29, 2018

FROM: Jared Wasinger, Assistant to the City Manager

MEETING: February 6, 2018

SUBJECT: Bus Stop Amenities License Agreement with Flint Hills Area Transportation Agency (FHATA)

PRESENTERS: Jared Wasinger, Assistant to the City Manager Anne Smith, Director, Flint Hills Area Transportation Agency (FHATA)

BACKGROUND

In 2009, the City of Manhattan partnered with the Kansas Department of Transportation (KDOT) to update the 2001 Transit Implementation Plan. The purpose of the planning effort was to review the feasibility of a city-wide fixed-route transit system and to determine the best approach for developing, financing, and managing the service. The consulting team of TranSystems Corporation with HDR Engineering worked with a steering committee composed of representatives from Kansas State University faculty, students, and administration; City Administration; a City Commissioner; Manhattan Area Chamber of Commerce; Flint Hill Area Transportation Agency (FHATA); Fort Riley; Kansas Department of Transportation; Coordinated Transit District #4; and Riley County. On July 20, 2010, the City Commission accepted the Transit Plan Update.

FHATA implemented fixed routes in Manhattan in April 2012, while also pursuing access to the City’s right-of-way for the placement of bus stop amenities, such as route signage, benches, and shelters. At that time, the City Commission was not willing to allow the placement of any bus stop amenities other than signage in the public right-of-way. Therefore, on March 5, 2013, the City Commission authorized City Administration to negotiate and finalize an agreement with FHATA for the placement of fixed-route bus stop signage. The City of Manhattan entered into a license agreement with FHATA on May 21, 2013.

Since that time, FHATA has seen significant growth of service in Manhattan as well as service on the campus of Kansas State University. For the last two years, FHATA and the Flint Hills Metropolitan Planning Organization (MPO) have been working to transform their fixed-route transit system in Manhattan, by implementing a new five-route system that more than doubles the frequency, coverage, and stops. While the new system will create routes and stops in areas of town currently unserved by fixed-route transit, a majority of the stops on the current system will still continue to be served.

During their planning process, FHATA and the MPO conducted stakeholder interviews, public surveys, and made presentations at various organizations and agencies. According to FHATA and the MPO, bus stop amenities were consistently mentioned. Current bus stops consist only of a sign. FHATA has indicated they have seen riders sitting on retaining walls, leaning against traffic cabinets, or sitting on the curb, and during inclement weather, there is no shelter from the elements. With their new fixed-route system beginning in March, FHATA would like to begin the process of installing bus stop amenities to accommodate rider needs as funds and demand allows.

DISCUSSION

In November 2017, FHATA approached City Administration to examine the possibilities of revising the 2013 Revocable Bus Stop Sign License Agreement to include other bus stop amenities. FHATA is requesting the City Commission authorize City Administration enter into a similar license agreement that will allow for additional bus stop amenities, specifically: signs, concrete pads for Americans with Disabilities Act (ADA) compliance, benches, bicycle racks, and trash receptacles. The MPO has been working to develop a bus stop typology to outline which amenities will be appropriate for each stop. The implementation of bus stop amenities would be an on-going process to be completed over several years in coordination with Public Works staff. FHATA would begin installation of bus stop amenities at long established and popular spots. New routes and new stops will be monitored for performance by FHATA before long-term investments of bus stop amenities are pursed.

Staff from the City Manager’s Office, Public Works Department, and City Attorney’s Office met with FHATA and the MPO in December 2017 to examine the current license agreement and examine possible changes. Amending the current agreement would have required many small changes throughout, and some provisions needed updating; therefore, the City Attorney’s Office prepared a new license agreement (attached), that when effective, would terminate the 2013 agreement.

The proposed agreement mirrors the current one, and would allow FHATA to construct the defined bus stop amenities in City’s right-of-way, subject to the final approval of the City prior to installation. FHATA would be responsible for any and all costs associated with installation, repair and removal of all amenities. The exact locations of bus stop amenities will be developed in coordination with City staff to determine the best placement for ADA access, traffic flow, safety, etc. Final approval of all locations and bus stop amenities will be approved by the Public Works Director or his/her designee.

This request and the proposed license agreement does not include bus shelters at this time. FHATA is sponsoring a design studio at the College of Architecture, Planning and Design at K-State. They are creating uniform design standards for bus stop amenities that will be used across the region. Final design of shelters has not been completed, so FHATA has indicated they would like to bring back shelters to the City Commission at a later time for approval. At a later date, the proposed agreement could be amended through City Commission approval to include “bus shelters” within the definition of the bus stop amenities.

FINANCING

Other than the required staff time for reviewing and approving locations for bus stop amenities, there is no fiscal impact associated with this action to the City. FHATA will assume all costs related to the purchase, installation, repair, and removal of bus stop amenities. FHATA anticipates Federal Transit Administration (FTA) funding for this purpose will be available in July 2018.

ALTERNATIVES

It appears the City Commission has the following alternatives concerning the issue at hand. The Commission may:

1. Authorize City Administration to finalize and the Mayor and City Clerk to execute a License Agreement with Flint Hills Area Transportation Agency for bus stop amenities in the city’s right-of-way. 2. Do not authorize City Administration to negotiate and execute the proposed agreement. 3. Modify the proposed agreement to meet the needs of the City Commission. 4. Table the request.

RECOMMENDATION

Authorize City Administration to finalize and the Mayor and City Clerk to execute a License Agreement with Flint Hills Area Transportation Agency (FHATA) for the installation of bus stop amenities in the city’s right-of-way. The agreement stipulates that all costs associated with the purchase, installation, repair and removal of bus stop amenities will be the sole responsibility of FHATA.

POSSIBLE MOTION

Authorize City Administration to finalize and the Mayor and City Clerk to execute a License Agreement with Flint Hills Area Transportation Agency for the placement of bus stop amenities in the city’s right-of-way.

18019 JW

Attachments: 1. Proposed FHATA License Agreement for Bus Stop Amenities 2. 2013 Revocable Bus Stop Sign License Agreement (Current License Agreement) 3. City Commission Agenda Memo 03-04-2013 - Right-of-Way Use Agreement with Flint Hills Area Transportation Agency (ATA)

BUS STOP AMENITIES LICENSE AGREEMENT

THIS Agreement is made and entered into this ____ day of ______, 2018, by and between the City of Manhattan, Kansas, a municipal corporation and body politic hereinafter referred to as “City,” and Flint Hills Area Transportation Agency, a private non-profit organization with primary operations conducted in the State of Kansas, hereinafter referred to as “ATA.”

WITNESSETH:

WHEREAS, the Parties entered into a Revocable Bus Stop Sign License Agreement on the 21st day of May, 2013 (the “Prior Agreement”), which Prior Agreement provided for the placement of notification signs by ATA on right-of-way belonging to the City; and

WHEREAS, the ATA desires to place additional bus stop infrastructure on the City’s right- of-way.

NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto agree as follows:

1. Revocable License Grant. City hereby grants a revocable license to ATA to use portions of the City’s right-of-way, subject to approval by the City and all terms and conditions contained in this License Agreement, for the installation, use and maintenance of bus stop amenities as described herein. City may revoke the grant of this license for any reason or no reason, in its sole discretion.

2. Bus Stop Amenities. For the purposes of this Agreement, “bus stop amenities,” “amenity,” or “amenities” means signs, concrete pads, benches, bicycle racks, and trash receptacles. ATA may, at its sole expense and without contribution by the City, construct bus stop amenities that shall be subject to the final approval of City prior to installation. The City shall have final authority to approve proposed bus stop infrastructure for: location, content, design, markings, lettering, color, illumination, reflectivity, size, shape, material and construction to ensure compliance with the most current version of the Manual on Uniform Traffic Control Devices (MUTCD), and any other City concern. The content of any sign shall be limited to: 1) location of bus stops, 2) route information, and 3) time schedules. The City may approve other types of information and/or content for ATA notification signs upon written request of ATA and written approval of the City.

3. Installation and Removal of Bus Stop Amenities.

A. Approval required. ATA shall submit detailed plans, maps and proposed locations for the installation of amenities to the City’s Director of Public Works or designee. The Director or designee shall review the proposed location(s) and, if necessary, shall conduct site visits of each location in order to determine the most appropriate placement for the amenities. ATA shall make available a representative with proper authority to attend each site visit for establishing the exact location of each amenity. The final location of amenities shall be within the sole discretion of the Director or designee. ATA amenities shall not be installed upon City property, or at or within the City’s right-of-way until final written approval is received from the Director or designee.

B. Installation. Upon receipt of written approval, ATA shall ensure to follow proper “dig-safe” and utility location procedures prior to installation. Any claims, damage and liability attendant to, or as a result of the placement of amenities, shall be the sole responsibility of ATA and ATA shall hold the City harmless from any and all claims, damages and liabilities. ATA shall install the amenities in a proper, professional manner following proper construction standards and where applicable, pursuant to engineered design requirements. ATA shall comply with the most current MUTCD provisions with the installation.

C. City-owned signage. ATA shall not allow additional or third party signage to be placed on or affixed to any ATA amenities, but signs owned by the City and deemed to be appropriate by the Director or designee for right-of-way or other public purpose shall be permitted by ATA so long as such City-owned signage does not interfere with the function of the amenities. Any City sign installed by the City shall be at the sole cost of the City and shall be maintained by the City. The City agrees to comply with the most current MUTCD provisions with the installation of any City-owned sign and shall hold ATA harmless from any claims and liability related to said signs to the extent allowed by the Kansas Tort Claims Act, K.S.A. 75-6101, et. seq.

D. Removal. In the event ATA determines any amenity is no longer required due to modification of bus route(s), abandonment of bus route(s), or any other valid reason, ATA shall remove such amenity after providing the Director or designee no less than thirty (30) days written notice of such removal. In the event the amenity has a City-owned signed affixed to it, ATA will immediately notify the City and the City shall be responsible for removal of the City-owned sign. The Director may provide specific instructions for said removal, and ATA will ensure compliance with all instructions and requirements. ATA will repair any damage attendant to the removal of the amenity, and shall restore the property and right-of-way to as good a condition, less reasonable wear and tear, as existed prior to the execution of this Agreement.

4. Maintenance of Bus Stop Amenities. ATA shall be solely responsible for the maintenance and upkeep of its amenities. In the event of damage to the amenities, ATA shall take all reasonable, expedient measures and act with all deliberate speed to remove and replace the amenities to prevent obstruction(s) and/or unsafe condition(s). In the event the City deems it necessary to act to remove any damaged amenity, it may act in its sole discretion and without liability to ATA.

5. Term. The term of this License Agreement shall commence upon execution and shall terminate upon written notice of revocation issued by the City to ATA. Revocation of this Agreement shall be at the sole discretion of the City.

6. Compensation and Expenses. The City currently has no intention of charging or requesting costs or expenses from ATA arising from the City’s participation in this Agreement, but reserves the right to assess charges in the future if deemed necessary by the City for the continuation of the relationship established pursuant to this Agreement.

7. Maintenance of Records, Reports and Inspection. Except as otherwise authorized by City, ATA shall retain such records and documentation for a period of five (5) years after approval of bus stop amenities and placement thereof within the City’s right-of-way under this License Agreement, unless action, including but not limited to litigation or proceedings, necessitate maintenance of records beyond this five (5) year period.

8. Notification. All notices given under this Agreement shall be in writing and shall be delivered to the addresses specified below. Notices shall be effective upon receipt, and shall be deemed to have been received as follows: (i) if personally delivered, when delivered; (ii) if by certified mail return receipt requested, on the date it is officially recorded as delivered to or refused by the intended recipient by return receipt or equivalent; or, (iii) if by expedited messenger service (e.g. FedEx), when delivered as confirmed by delivery receipt.

City: Ron Fehr, City Manager Attn: Contract Notification 1101 Poyntz Ave. Manhattan, KS 66502

ATA: Flint Hills Area Transportation Agency Attn: Anne Smith, Director 115 N 4th St., 3rd Floor Manhattan, KS 66502

9. Termination of Agreement. Notwithstanding any other provision of this Agreement, City may revoke/terminate this Agreement for any reason if it determines in its sole discretion that such revocation/termination is in its best interest. In such event, City shall provide written notice to ATA and revocation/termination shall be effective no earlier than thirty (30) days from the date and time specified therein. This Agreement shall be revoked/terminated as of that date.

10. Insurance. ATA agrees to maintain the following minimum limits of insurance coverage throughout the term of this License Agreement:

A. Commercial General Liability (CGL) with limits of insurance of not less than $1,000,000 each occurrence and $3,000,000 Annual Aggregate.

B. CGL coverage shall be written on ISO Occurrence form CG00 01 1096 or a substitute form providing equivalent coverage.

C. City of Manhattan, Kansas shall be included as additional insured’s on the CGL. This insurance for the additional insured shall be as broad as the insurance for the named insured. It shall apply as Primary and non-contributory insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured.

D. Vehicle Liability with limits of at least $1,000,000 each accident. • Coverage must include coverage for liability arising out of all owned, leased, hired and non-owned vehicles. • Vehicle owner shall be included as insured on the vehicle liability policy. • Bodily Injury by Accident: $100,000 per accident • Bodily Injury by Disease: $100,000 per employee, $500,000 policy limit E. Workers Compensation and Employers Liability limit of at least: amounts required by Kansas Statutes Annotated.

F. Liability insurance coverage indicated above must be considered as primary and not as excess insurance. ATA shall furnish a certificate evidencing such coverage, with City listed as an additional insured, except for workers compensation. Certificate(s) shall be provided within twenty (20) days of the execution of this License Agreement. Said Certificate(s) shall remain in force during the duration of the Agreement and will not be canceled, reduced, modified, limited, or restricted until thirty (30) days after City receives written notice of such change. All insurance must be with an insurance company with a minimum BEST rating of A-VIII and licensed to do business in the State of Kansas. Certificate(s) shall be provided to City’s Office of Risk Management within the time specified above.

11. Entire Agreement. This Agreement contains all the terms and conditions agreed upon by both parties. The parties agree that this Agreement supersedes the Prior Agreement, and such Prior Agreement is expressly terminated upon the execution of this Agreement. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. Any agreement not contained herein shall not be binding on either party, nor of any force or effect.

12. Indemnification. ATA shall indemnify and hold harmless the City, and its departments, elected officials, officers, and employees from and against all liability, suits, actions, proceedings, judgments, claims, losses, damages, and injuries, (including attorneys’ fees), to the extent the foregoing arise out of ATA’s negligence, willful misconduct, recklessness, errors or omissions in the performance of this Agreement, including performance by ATA’s employees, agents and subcontractors. ATA’s obligation to indemnify and hold harmless shall remain in effect and shall be binding on ATA whether such injury shall accrue, or may be discovered, before or after termination of this Agreement.

13. Standard of Care and Compliance with Applicable Laws. ATA shall exercise the same degree of care, skill and diligence in the performance of construction, installation, and maintenance of the bus stop amenities and all related services to City that is ordinarily possessed and exercised by reasonable, prudent, and experienced professionals in similar circumstances. If ATA fails to possess and exercise such care, skill and diligence in providing services, ATA shall be responsible to City for any resulting loss or damages. A. Traffic ordinances and laws. ATA shall comply with all City of Manhattan Ordinances and Traffic Regulations including, but not limited to, Chapter 31 of the Code of Ordinances, Ordinance No. 6924, and the most current “Standard Traffic Ordinance for Kansas Cities” adopted and as published with exceptions officially taken there from, and Chapter 8 of the Kansas Statutes Annotated. B. Compliance with laws. ATA shall comply with, and cause any sub-contractors to comply with all applicable federal, state and local laws, orders, rules, codes and regulations relating to performance of Agreement. C. Service Standards and Procedures. ATA shall perform the construction, installation and work set forth in this Agreement in compliance with applicable industry standards and procedures specified herein for the specific purpose, goals and objectives of this License Agreement.

14. Licenses and Permits. ATA shall maintain all licenses, permits, certifications, bonds, and insurance required by federal, state or local authority for carrying out this Agreement. ATA shall notify City immediately if any required license, permit, bond or insurance is canceled, suspended or is otherwise ineffective. Such cancellation, suspension, or other ineffectiveness may form the basis for immediate revocation/termination by the City, in its discretion.

15. Assignment. Except as otherwise provided for herein, neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by ATA without the prior written consent of the City.

16. Modification. This License Agreement may not be modified except in writing, and with the signature of the City Manager.

17. Subcontracting. ATA may subcontract the installation of the amenities and related work and services to be conducted hereunder as long as the sub-contractor maintains proper licensing for such construction work. ATA shall be responsible to City for any and all work performed by a subcontractor, as if performed by ATA.

18. Discrimination Prohibited. Pursuant to the provisions of K.S.A. 44-1030, et. seq., and Chapter 10 of the Code of the City of Manhattan, shall not discriminate against any person in hiring or otherwise in the performance of work under this Agreement because of race, religion, color, sex, disability, national origin, ancestry, age, sexual orientation or gender identity. ATA shall be deemed in default of this Agreement and the Agreement may be immediately canceled, terminated, or suspended, in whole or in part, by City if ATA violates the applicable provisions of any of the Federal or State anti-discrimination acts or ordinance.

19. Savings Clause. If any particular provision of the Agreement or any Exhibit that is also attached to said Agreement, or a provision of any document that is referenced by said Agreement, shall be determined to be invalid or unenforceable, that determination shall not affect the other provisions which shall be construed in all respects as if the invalid or unenforceable provision were omitted.

20. Counterparts. This License Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Once fully executed, it shall become effective. Delivery of an executed signature page of this License Agreement by facsimile transmission or electronic photocopy (i.e., “pdf”) shall be equally effective as manual delivery of an original signed counterpart hereof.

21. Authority and Successors. Each party hereto represents and warrants that (i) it has obtained all necessary approvals, consents and authorizations of third parties and governmental authorities to enter into this Agreement and to perform and carry out its obligations hereunder; (ii) the persons executing this License Agreement on its behalf have express authority to do so, and, in so doing, to bind the party thereto; (iii) the execution, delivery, and performance of this Agreement does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party; and (iv) the execution, delivery and performance of this License Agreement has been duly authorized by all necessary corporate or governmental action and this License Agreement is a valid and binding obligation of such party, enforceable in accordance with its terms. In the event of sale, acquisition, assignment or novation by or on behalf of ATA, all duties and obligations set forth in this Agreement shall devolve upon its successor with the successor unqualifiedly bound by all provisions and appendices set forth herein.

22. Governing Law and Jurisdiction. This Agreement shall be subject to and interpreted according to the laws of the state of Kansas. The parties agree that Kansas shall have sole jurisdiction over any cause of action arising from this Agreement, and that venue is proper in Riley County.

CITY OF MANHATTAN FLINT HILLS AREA TRANSPORTATION AGENCY (“ATA”)

Linda Morse Printed Name: Mayor Title:

ATTEST:

Gary S. Fees, MMC City Clerk

REVOCABLE BUS STOP SIGN LICENSE AGREEMENT

by and between: CITY OF MANHATTAN, KANSAS and FLINT HILLS AREA TRANSPORTATION AGENCY

THIS LICENSE AGREEMENT (“License Agreement”) is made and entered into this 21st day of May, 2013 (“Effective Date”), by and between the City of Manhattan, Kansas, a municipal corporation and body politic hereinafter referred to as “City,” and Flint Hills Area Transportation Agency, a private non-profit organization with primary operations conducted in the State of Kansas, hereinafter referred to as “ATA.”

WITNESSETH:

WHEREAS, ATA desires to place certain notification signs to assist riders in knowing the location of bus stops, routes and time schedules for its privately owned buses throughout the City of Manhattan, including but not limited to, areas within the right-of-way of the City, as may be approved by the City pursuant to its municipal authority and law; and

WHEREAS, the City does not object to the placement of notification signs in the right-of- way to assist the public and mass transportation consumers in understanding the location of bus stop areas, routes and time schedules for ATA buses throughout the incorporated limits of the City, as long as ATA fully complies with all requirements set forth in this License Agreement.

1. Revocable License Grant. City hereby grants a revocable license to ATA to use portions of certain described areas identified in Exhibit A for the installation of notification signs within the City’s right-of-way and subject to approval by the City and all terms and conditions contained in this License Agreement. City may revoke the grant of this license for any reason or no reason, in its sole discretion.

2. Notification Signs/Posts. ATA may, at its sole expense and without contribution by the City, construct and mark signs and posts that shall be subject to the final approval of City prior to installation. The City shall have final authority to approve proposed ATA signs for: content, design, markings, lettering, color, illumination, reflectivity, size, shape, material and construction to ensure compliance with the most current version of the Manual on Uniform Traffic Control Devices (MUTCD). The content of the signs shall be limited to: 1) location of bus stops, 2) route information, and 3) time schedules. The City may approve other types of information and/or content for ATA notification signs upon written request of ATA and written approval of the City.

1 20829

3. Installation/Removal of Notification Signs/Posts. ATA shall submit detailed plans, maps and proposed locations for the installation of posts and notification signs to the City’s Director of Public Works or designee. The Director or designee shall review the proposed location(s) and, if necessary, shall conduct site visits of each location in order to determine the most appropriate placement for the posts and attached signs. ATA shall make available a representative with proper authority to attend each site visit for establishing the exact location of each post and sign. The final location of post and sign placement shall be within the sole discretion of the Director or designee. ATA notification signs and posts shall not be installed upon City property, or at or within the City’s right-of-way until final written approval is received from the Director or designee. Upon receipt of written approval, ATA shall ensure to follow proper “dig-safe” and utility location procedures prior to installation. Any claims, damage and liability attend to, or as a result of the post/sign placement, shall be the sole responsibility of ATA and ATA shall hold the City harmless from any and all claims, damages and liabilities. ATA shall install the posts and signs in a proper, professional manner following proper construction standards and where applicable, pursuant to engineered design requirements. ATA shall comply with the most current MUTCD provisions with the installation of the posts and signs.

ATA shall not allow additional or third party signage to be placed on or affixed to any approved sign and/or post, with the exception of signs owned by the City and deemed to be appropriate by the Director or designee for right-of-way or other public purpose. Any City sign installed by the City shall be at the sole cost of the City and shall be maintained by the City. The City agrees to comply with the most current MUTCD provisions with the installation of any City owned sign and shall hold ATA harmless from any claims and liability related to said signs to the extent allowed by the Kansas Tort Claims Act, K.S.A. 75-6101, et. seq.

In the event ATA determines any post/sign is no longer required due to modification of bus route(s), abandonment of bus route(s), or any other valid reason, ATA shall remove any post and/or sign after providing the Director or designee no less than thirty (30) days written notice of such removal. In the event the post/sign has a City owned signed affixed to it, ATA will immediately notify the City and the City shall be responsible for removal of the City owned sign. The Director may provide specific instructions for said removal, and ATA will ensure compliance with all instructions and requirements. ATA will repair any damage attendant to the removal of the post/sign, and shall restore the property and right-of-way to as good a condition, less reasonable wear and tear, as existed prior to the execution of this License Agreement.

4. Maintenance of Signs/Posts. ATA shall be solely responsible for the maintenance and upkeep of its notification signs and posts. In the event of damage to the signs/posts, ATA shall take all reasonable, expedient measures and act with all deliberate speed to remove and replace the signs/posts to prevent obstruction(s) and/or unsafe condition(s). In the event the City deems it necessary to act to remove any damaged sign/post, it may act in its sole discretion and without liability to ATA.

5. Term. The term of this License Agreement shall commence upon execution and shall terminate upon written notice of revocation issued by the City to ATA. Revocation of the License Agreement shall be in the sole discretion of the City.

2 20829

6. Compensation and Expenses. The City currently has no intention of charging or requesting compensation, costs or expenses from ATA for the grant this License Agreement, but reserves the right to assess charges in the future if deemed necessary for the continuation of the license.

7. Maintenance of Records, Reports and Inspection. Except as otherwise authorized by City, ATA shall retain such records and documentation for a period of five (5) years after approval of signage and placement thereof within the City’s right-of-way under this License Agreement, unless action, including but not limited to litigation or proceedings, necessitate maintenance of records beyond this five (5) year period.

8. Notification. All notices given under this License Agreement shall be in writing and shall be delivered to the addresses specified below. Notices shall be effective upon receipt, and shall be deemed to have been received as follows: (i) if personally delivered, when delivered; (ii) if by certified mail return receipt requested, on the date it is officially recorded as delivered to or refused by the intended recipient by return receipt or equivalent; or, (iii) if by expedited messenger service (e.g. FedEx), when delivered as confirmed by delivery receipt.

City: Ron Fehr, City Manager Attn: Contract Notification 1101 Poyntz Ave. Manhattan, KS 66502

and

Bill Raymond, City Attorney Attn: Contract Notification 1101 Poyntz Ave. Manhattan, KS 66502

ATA: Flint Hills Area Transportation Agency Attn: Anne Smith, Director 115 N 4th St., 3rd Floor Manhattan, KS 66502

9. Termination of Agreement. Notwithstanding any other provision of this Agreement, City may revoke/terminate this License Agreement for any reason if it determines in its sole discretion that such revocation/termination is in its best interest. In such event, City shall provide written notice to ATA and revocation/termination shall be effective no earlier than thirty (30) days from the date and time specified therein. This License Agreement shall be revoked/terminated as of that date.

10. Insurance. ATA agrees to maintain the following minimum limits of insurance coverage throughout the term of this License Agreement:

3 20829

. Commercial General Liability (CGL) with limits of insurance of not less than $1,000,000 each occurrence and $3,000,000 Annual Aggregate.  CGL coverage shall be written on ISO Occurrence form CG00 01 1096 or a substitute form providing equivalent coverage.  City of Manhattan, Kansas shall be included as additional insured’s on the CGL. This insurance for the additional insured shall be as broad as the insurance for the named insured. It shall apply as Primary and non-contributory insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured. . Vehicle Liability with limits of at least $1,000,000 each accident.  Coverage must include coverage for liability arising out of all owned, leased, hired and non owned vehicles.  Vehicle owner shall be included as insured on the vehicle liability policy.  Bodily Injury by Accident: $100,000 per accident  Bodily Injury by Disease: $100,000 per employee, $500,000 policy limit . Workers Compensation and Employers Liability limit of at least: amounts required by Kansas Statutes Annotated.

Liability insurance coverage indicated above must be considered as primary and not as excess insurance. ATA shall furnish a certificate evidencing such coverage, with City listed as an additional insured, except for workers compensation. Certificate(s) shall be provided within twenty (20) days of the execution of this License Agreement. Said Certificate(s) shall remain in force during the duration of the Agreement and will not be canceled, reduced, modified, limited, or restricted until thirty (30) days after City receives written notice of such change. All insurance must be with an insurance company with a minimum BEST rating of A-VIII and licensed to do business in the State of Kansas. Certificate(s) shall be provided to City’s Office of Risk Management within the time specified above.

11. Entire Agreement. This License Agreement contains all the terms and conditions agreed upon by both parties. No other understandings, oral or otherwise, regarding the subject matter of this License Agreement shall be deemed to exist or to bind any of the parties hereto. Any agreement not contained herein shall not be binding on either party, nor of any force or effect.

12. Indemnification. ATA shall indemnify and hold harmless the City, and its departments, elected officials, officers, and employees from and against all liability, suits, actions, proceedings, judgments, claims, losses, damages, and injuries, (including attorneys’ fees), to the extent the foregoing arise out of ATA’s negligence, willful misconduct, recklessness, errors or omissions in the performance of this License Agreement, construction and installation of the notification signs and posts, including performance by ATA’s employees, agents and subcontractors. ATA’s obligation to indemnify and hold harmless shall remain in effect and shall be binding on ATA whether such injury shall accrue, or may be discovered, before or after termination of this License Agreement.

13. Standard of Care and Compliance with Applicable Laws. ATA shall exercise the same degree of care, skill and diligence in the performance of construction and installation of the notification signs and all related services to City that is ordinarily possessed and exercised by

4 20829

reasonable, prudent, and experienced professionals in similar circumstances. If ATA fails to possess and exercise such care, skill and diligence in providing services, ATA shall be responsible to City for any resulting loss or damages. A. Traffic Ordinances and Laws. ATA shall comply with all City of Manhattan Ordinances and Traffic Regulations including, but not limited to, Chapter 31 of the Code of Ordinances, Ordinance No. 6924, and the most current “Standard Traffic Ordinance for Kansas Cities” adopted and as published with exceptions officially taken there from, and Chapter 8 of the Kansas Statutes Annotated. B. Compliance with laws. ATA shall comply with, and cause any sub-contractors to comply with all applicable federal, state and local laws, orders, rules, codes and regulations relating to performance of License Agreement. C. Service Standards and Procedures. ATA shall perform the construction, installation and work set forth in this Agreement in compliance with applicable industry standards and procedures specified herein for the specific purpose, goals and objectives of this License Agreement.

D. Governing Law. This License Agreement shall be interpreted under and governed by the laws of the State of Kansas.

14. Authority to Enter Into License Agreement.

A. Affirmation of Legal Authority. ATA assures it possesses legal authority to contract this License Agreement these Services; that resolution, motion or similar action has been duly adopted or passed as an official act of ATA authorizing the signing of this License Agreement, including all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of ATA to act in connection with the License Agreement.

15. Personnel

A. Qualified Personnel. ATA represents that it has, or shall secure at its own expense, all personnel required in performing the sign construction, installation and related services under this License Agreement. All personnel engaged in the work shall be fully qualified according to the laws of the State of Kansas and the provisions of this License Agreement. ATA will have sole discretion and control over assigning personnel to perform the work and services.

B. Minimum Wages. ATA will comply with the minimum wage and maximum hours provisions of the Federal Fair Labor Standards Act.

16. Licenses and Permits. ATA shall maintain all licenses, permits, certifications, bonds, and insurance required by federal, state or local authority for carrying out this Agreement. ATA shall notify City immediately if any required license, permit, bond or insurance is canceled, suspended or is otherwise ineffective. Such cancellation, suspension, or other ineffectiveness may form the basis for immediate revocation/termination by the City, in its discretion.

5 20829

17. Assignment. Except as otherwise provided for herein, neither this License Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by ATA without the prior written consent of the City.

18. Modification. This License Agreement may not be modified except in writing signed by the Mayor. To provide necessary flexibility for the most effective execution of this License Agreement, changes to Exhibit A of the License Agreement may be approved by the Director of Public Works or Designee and effected by placing them in written form and incorporating them into this License Agreement.

19. Subcontracting. ATA may subcontract the installation of the signs and related work and services to be conducted hereunder as long as the sub-contractor maintains proper licensing for such construction work. ATA shall be responsible to City for any and all work performed by subcontractor, as if performed by ATA.

20. Discrimination Prohibited

A. Pursuant to the provisions of K.S.A. 44-1030, which states that every contract for the construction, alteration or repair of any public building or public work or for the acquisition of materials, equipment, supplies or services shall contain such provisions, ATA agrees to the following:

1. ATA shall observe the provisions of the Kansas Act Against Discrimination, and the Kansas Age Discrimination in Employment Act, and shall not discriminate against any person in the performance of work under this Agreement because of race, religion, color, sex, disability, national origin, ancestry, or age.

2. In all solicitations or advertisements for employees, ATA shall include the phrase "equal opportunity employer" or a similar phrase to be approved by the Kansas Human Rights Commission.

3. If ATA fails to comply with the provisions of K.S.A. 44-1031, requiring reports to be submitted to the Kansas Human Rights Commission when requested by that Commission, ATA shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by City.

4. If ATA is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Kansas Human Rights Commission which has become final, ATA shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part by City.

5. ATA shall include the provisions of paragraphs (1) through (4) inclusively of this subsection in every subcontract or purchase order made pursuant to this Agreement, so that such provisions will be binding upon such subcontractor or vendor.

6. The provisions of this section shall not apply to a contract entered into by a contractor or subcontractor who: (1) employs fewer than four employees during the term of this 6 20829

Agreement; or (2) whose contracts with the City cumulatively total $5,000.00 or less during the fiscal year of the City pursuant to K.S.A. 44-1031(c).

B. ATA shall be deemed in default of this Agreement and it may be immediately canceled, terminated, or suspended, in whole or in part, by City if ATA violates the applicable provisions of any of the Federal or State anti-discrimination acts identified in this section upon the rendering of a decision or order of a court or regulatory body having authority over the same which has become final.

21. Survival of Provisions. The parties agree that when any provision expressly provides or where the context of any provision implicitly indicates an intent that it shall survive the term of this Agreement, then it shall survive.

22. No Inferences Regarding Drafter. The parties acknowledge and agree that the terms and provisions of this License Agreement have been negotiated and discussed between the parties and their attorneys, and this License Agreement reflects their mutual agreement regarding the same. Because of such negotiations and discussions, it would be inappropriate to deem any party to be the drafter of this License Agreement, and therefore no presumption for or against validity or as to any interpretation hereto, based upon the identity of the drafter shall be applicable in interpreting or enforcing this License Agreement.

23. Savings Clause. If any particular provision of the License Agreement or any Exhibit that is also attached to said Agreement, or a provision of any document that is referenced by said License Agreement, shall be determined to be invalid or unenforceable, that determination shall not affect the other provisions which shall be construed in all respects as if the invalid or unenforceable provision were omitted.

24. Counterparts. This License Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Once fully executed, it shall become effective as of the Effective Date stated above. Delivery of an executed signature page of this License Agreement by facsimile transmission or electronic photocopy (i.e., “pdf”) shall be equally effective as manual delivery of an original signed counterpart hereof.

25. Authority and Successors. Each party hereto represents and warrants that (i) it has obtained all necessary approvals, consents and authorizations of third parties and governmental authorities to enter into this Agreement and to perform and carry out its obligations hereunder; (ii) the persons executing this License Agreement on its behalf have express authority to do so, and, in so doing, to bind the party thereto; (iii) the execution, delivery, and performance of this Agreement does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party; and (iv) the execution, delivery and performance of this License Agreement has been duly authorized by all necessary corporate or governmental action and this License Agreement is a valid and binding obligation of such party, enforceable in accordance with its terms. In the event of sale, acquisition, assignment or novation by or on behalf of ATA, all duties and obligations set forth in this License Agreement shall devolve upon its successor with the successor unqualifiedly bound by all provisions and appendices set forth herein.

7 20829

EXHIBIT A

(Note: Subject to further modification per the terms of Section 18 of the Agreement)

9 20829 Fixed Route Stop Locations RED ROUTE #2A‐CANDLEWOOD GREEN #2B‐DICKENS BLUE #3A‐BLUEMONT ORANGE #3B‐LEAVENWORTH Every Hour (6:55a.m.‐6:25 p.m.) Every Hour (6:29 a.m.‐6:54 p.m.) Every Hour (6:55 a.m.‐5:55 p.m.) Monday‐Friday Every Hour (6:25 a.m.‐7:20 p.m.) Monday‐Friday Monday‐Friday Monday‐Friday Only Every Hour (7:55 a.m.‐6:55 p.m.) Saturday Only Every Hour (7:55 a.m.‐7:25 p.m.) During the KSU "in class" schedule o During the KSU "in class" schedule only Saturday EASTBOUND EASTBOUND WESTBOUND WESTBOUND CANDLEWOOD&GARY :55 MATC :29 WALTERS/ BUTTERFIELD :55 WALTERS/ BUTTERFIELD :25 CANDLEWOOD&KIMBALL :56 DICKENS COMMONS :32 USD 383 CASEMENT & ALLEN :59 USD 383 CASEMENT & ALLEN :29 UNIVERSITY CROSSING :00 FOUNDER'S HILL :34 BIG LAKES :02 BIG LAKES :32 MERCY REGIONAL HOSP :02 RILEYCOUNTY HEALTH DEPT :36 WAL‐MART ON HOSTETLER :05 WAL‐MART ON HOSTETLER :35 FOUNDER'S HILL :04 EDWARDS HALL :40 HY‐VEE/WALGREENS :07 HY‐VEE/WALGREENS :39 EDWARDS HALL :07 CALL HALL :43 RAY'S APPLE MARKET ON LEAVENWORTH :10 RAY'S APPLE MARKET ON LEAVENWORTH :41 KSU UNION :12 DERBY DINING CENTER :45 FREMONT & N. MANHATTAN :13 KSU UNION :46 MANHATTAN PUBLIC LIBRARY :16 MANHATTAN PUBLIC LIBRARY :51 KSU UNION :15 KSU FOUNDATION :50 MALL @ HOUSTON & 3RD :19 MALL @ HOUSTON & 3RD :54 KSU FOUNDATION :20 DILLONS WEST/PED XING :56 DISCOVERY CENTER :20 DILLONS EASTSIDE :59 TARGET/CAP FED :26 DILLONS EASTSIDE :25 WESTBOUND EASTBOUND EASTBOUND DILLONS EASTSIDE :59 TARGET/CAP FED :26 DILLONS WEST/PED XING :56 WESTBOUND MALL @ HOUSTON & 3RD :03 KSU FOUNDATION :32 ANDERSON/WESTPORT :00 DILLONS EASTSIDE :25 MANHATTAN PUBLIC LIBRARY :05 KSU UNION :37 KSU FOUNDATION :02 DISCOVERY CENTER :30 DERBY DINING CENTER :11 FREMONT & N. MANHATTAN :39 KSU UNION :07 MALL @ HOUSTON & 3RD :31 CALL HALL :14 RAY'S APPLE MARKET ON LEAVENWORTH :44 RAY'S APPLE MARKET ON LEAVENWORTH :13 MANHATTAN PUBLIC LIBRARY :34 EDWARDS HALL :16 WAL‐MART ON HOSTETLER :47 WAL‐MART ON HOSTETLER :18 KSU UNION :38 RILEY COUNTY HEALTH DEPT :21 BIG LAKES :49 BIG LAKES :21 EDWARDS HALL :42 DICKENS COMMONS :25 USD 383 CASEMENT & ALLEN :51 USD 383 CASEMENT & ALLEN :22 FOUNDER'S HILL * MATC :29 WALTERS/ BUTTERFIELD :55 WALTERS/ BUTTERFIELD :25 MERCY REGIONAL HOSP :48 UNIVERSITY CROSSING :51 Indicates multiple services stop at this location CANDLEWOOD&KIMBALL :53 CANDLEWOOD &GARY :55 *Eastbound pickup only Marlatt Ave Walters Dr & Butterfield Rd µ

Candlewood Dr & Gary Ave rfiel Butte d Rd Gary Ave r CITY OF

o MANHATTAN University o Crossing Tuttle Creek Blvd USD w e 383 l

Candlewood Dr d Allen Rd Kimball Ave n

a Kimball Ave

C Edwards

Mercy Hall Ave Denison Casement Rd Casement Regional Manhattan Hosp Area Technical Kerr Dr Dickens College Call Hayes Dr Commons

Hall College Ave Dickens Ave Manhattan N Ave

Dillons Big Lakes (West) Founders Derby Dining Development 113 Ped Hill Claflin Rd Center Center (! Xing THE Riley County K-STATE

Health Department UNION WreathAve

Westport Westport Dr TRANSFER McCall Rd Ave STATION Anderson College Heights Rd Wal-Mart Anderson & Ave Sunset Bluemont Ave KSU 24 Westport Anderson Ave Walgreen/ ¤£ Foundation HyVee Dillons Ray's Apple (East) Fremont St Market (East)

Fremont & N Leavenworth St Manhattan N 4th St S Poyntz Ave

e N 11th St th C Manhattan h i l Manhattan Town Center d N 17th St Public Library R Discovery d Fort Riley Blvd Center (!177 18 18 (! Target & (! Cap Fed S S 3rd St Projected Sign Placement for Disabled Services

Map Picture # Legend Name 628 #35 Eisenhower/Hale/Holton 629 #34 Bluemont/Dickens 630 631 #33 Justin Hall 632 633 #4 Pitman Bldg 634 #15 Ford 635 #17 Boyd 636 #13 West Hall 637 #14 Derby 638 #20 Haymaker 639 #9 Moore 640 #7 Weber 641 #5 Call 642 #6 Dole 643 #23 VanZile and Putman 644 #1 Rec Center 645 #2 Mosier 646 #3 Trotter/Coles 647 #8 Umberger 648 #12 Throckmorton 649 #24 Chalmers/Ackert 650 #27 Ward 651 #28 Leisure 652 #26 Rathbone 653 #39 Natatorium 654 655 #32 English 656 657 658 #37 Seaton 659 #38 Union/Bosco (Upper Circle) 660 #46 Alumni Center 661 #47 Nichols Hall 662 #43 Calvin 663 #45 McCain (North Entrance) 664 #44 McCain (South Entrance w/Assistance when needed) 665 #42 Danforth 666 #29 King Hall Chemistry 667 #16 Leadership Studies 668 #30 Willard 669 #21 Shellenberger 670 #20 Waters 671 #19 Goodnow 672 #18 Marlatt 673 674 #25 Kramer Indicates multiple services stop at this location

Projected Sign Placement for Jardine Picture # Name 675 Tunstall Circle 676 Community Apartments (Claflin) 677 Kramer 678 CDC parking Lot (Z) 637 Derby Indicates multiple services stop at this location

Projected Sign Placement for Safe Ride Picture # Name NORTHWEST ROUTE 680 Northview Elementary 681 Beach Museum

686 Parkwood Apts. 687

WEST ROUTE 681 Beach Museum 682 Union (Lower Circle) 683 College Heights/Dennison 684 Sunset/Claflin 685 Chase Manhattan Apts. 688 Hobbs/College (Baseball Park Ticket Booth) 689 University Crossing Apartments

675 Jardine Apartments (Tunstall Circle)

677 Kramer

EAST ROUTE 682 Union (Lower Circle)

N/A Willies Car Wash

690 11th and Thurston 691 Pioneer/McCain 692 693 N 10th St & Ratone 694 Vattier & Juliette 695 Laramie & Juliette 696 City Park 697 17th and Fairview Indicates multiple services stop at this location CITY COMMISSION AGENDA MEMO February 25, 2013

FROM: Lauren Palmer, Assistant City Manager

MEETING: March 5, 2013

SUBJECT: Right-of-Way Use Agreement with Flint Hills Area Transportation Agency (ATA)

PRESENTERS: Lauren Palmer, Assistant City Manager Anne Smith, Director, Flint Hills Area Transportation Agency (ATA)

BACKGROUND

In 2009, the City of Manhattan partnered with the Kansas Department of Transportation (KDOT) to update the 2001 Transit Implementation Plan. The purpose of the planning effort was to review the feasibility of a city-wide fixed route transit system and to determine the best approach for developing, financing, and managing the service. The consulting team of TranSystems Corporation with HDR Engineering worked with a steering committee composed of representatives from Kansas State University faculty, students, and administration; City Administration; a City Commissioner; Manhattan Area Chamber of Commerce; Flint Hill Area Transportation Agency (ATA); Fort Riley; Kansas Department of Transportation; Coordinated Transit District #4; and Riley County. On July 20, 2010, the City Commission accepted the Transit Plan Update and directed staff to assemble a working group of stakeholders to finalize details for initiating service.

The Transit Service Implementation Working Group was comprised of representatives of Kansas State University (administration and student government), City of Manhattan, Riley County, ATA, and KDOT. Pottawatomie County also participated in several meetings but was not a formal member. Upon recommendation of the Working Group, on June 21, 2011, the City Commission considered adoption of the Manhattan Area Transit Services (MATS) Interlocal Cooperation Agreement and System Operating Plan. In general, the documents established the organizational structure, financing, and operational details by which the parties (K-State, City, Riley County, and ATA) would partner to provide fixed route transit services. Both documents were rejected by the City Commission.

Subsequent to the City’s rejection of the Interlocal Agreement, ATA worked with the remaining partners and announced that it would proceed with fixed route transit service along two routes in Manhattan beginning April 23, 2012. In a letter to then Mayor Jim

Sherow dated February 23, 2012, ATA acknowledged that the City would not be participating financially in the funding partnership for fixed routes but asked for permission to use City right-of-way for the placement of bus stop signage and potentially other passenger amenities (such as benches and shelters) to assist passengers with accessing the service. There was not majority support from the City Commission at that time to formally consider the request.

DISCUSSION

Last fall the City Commissioners expressed a willingness to reconsider the issue of fixed route street signage but first requested additional information from ATA. Responses to some of the Commission’s questions were provided in a memorandum from staff dated November 14, 2012. This memo included information on the City’s potential liability for allowing ATA signage in the right-of-way. Some Commissioners did not believe that ATA had answered all of their questions or provided all of the information requested. Remaining questions were documented to ATA in a letter dated November 21, 2012.

On February 22, 2013, ATA once again requested the ability to use City right-of-way for signage for its fixed route system at no expense to the City. ATA provided additional detailed information about its operations (attached). ATA has requested to place signage at or near 23 stops along its existing fixed routes and 18 stops along the SafeRide routes. Maps for the four fixed routes and three SafeRide routes are attached.

If the City Commission desires to move forward with the request, it should authorize City staff to negotiate a right-of-way use agreement that identifies the locations of signs and documents other provisions regarding installation, cost, removal, maintenance, etc. ATA has provided a similar draft agreement from Riley County that may be used as a template for the City’s agreement.

The exact locations of signs will be developed in coordination with City staff to determine the best placement for ADA access, traffic flow, etc. City staff has not yet invested time to identify these locations since the City Commission has not authorized the use of right-of-way for this purpose. ATA has indicated that it will use private or K- State property for any bus shelters or benches. Therefore, the right-of-way agreement is only anticipated to allow the placement of bus stop signage.

FINANCING

Other than the staff time involved to negotiate the right-of-way agreement and review locations, there is no fiscal impact associated with this action. ATA will assume all costs related to the fabrication and installation of signage. ATA has grant funding available for this purpose that must be expended by June 30, 2013.

ALTERNATIVES

It appears the City Commission has the following alternatives concerning the issue at hand. The Commission may:

1. Authorize City Administration to negotiate and finalize a right-of-way use agreement with Flint Hills Area Transportation Agency for the placement of fixed route bus stop signage. 2. Do not authorize City Administration to negotiate the agreement. 3. Table the item.

RECOMMENDATION

Authorize City Administration to negotiate and finalize a right-of-way use agreement with Flint Hills Area Transportation Agency (ATA) for the placement of fixed route bus stop signage. The agreement will stipulate that all costs associated with the placement and removal of signs will be the sole responsibility of ATA.

POSSIBLE MOTION

Authorize City Administration to negotiate and finalize a right-of-way use agreement with Flint Hills Area Transportation Agency for the placement of fixed route bus stop signage.

13022 LEP

Attachments: 1. ATA Letter with Responses to City Questions – February 22, 2013 2. 2012 Profit and Loss Statements a. Overall b. By Class c. Demand Response d. Fixed Routes e. Regional Demand Response 3. Federal Transit Administration Fact Sheet on 5307 Grants 4. Draft License Agreement (Riley County) 5. Route Maps a. Fixed Routes b. SafeRide West Route c. SafeRide East Route d. SafeRide Northwest Route 6. ATA Financial Statements with Independent Auditor’s Report – 2010 and 2011 7. Management Letter – 2010 and 2011 8. ATA Financial Statements with Independent Auditor’s Report – June 30, 2012 9. Management Letter – June 30, 2012 10. ATA Semi-Annual Report for the 6 Months Ending December 31, 2012 11. Original Request Letter to Mayor Sherow – February 23, 2012 12. Memorandum Regarding Request for Information from ATA – November 14, 2012 13. Request Letter for Additional Information – November 21, 2012