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Home My WebLink About5.D.1. Approve Agreement with the Minnesota Department of Transportation for Federal Participation in Construction �- � � i , , CITY OF SHAKOPEE , Memorandum r^ P, q � ,A TO: Mayor & City Council � �%" �+ �< ., . _ �,; � Mark McNeill, City Administrator FROM: Bruce Loney, Public Works Director SUBJECT: Approval of State of Minnesota Agency Agreement between Department of Transportation and the City Qf Shakopee fQr , Federal Participation in Construction DATE: November 15, 2011 � INTRODUCTION: � Attached is an agreement and resolution between the State of Minnesota and the City to execute Mn/DOT Agreement No. 99924. � i BACKGROUND: The State of Minnesota has prepared and reviewed the agreement between the State and City for I Federal Participation in Construction. Essentially, MNlDOT would act as the City's ageat in I accepting Federal funds for any City project that uses Federal funds. , The City did previously approve a similaz agreement and this agreement supersedes that previous � agreement. The Resolution has been prepared which authorizes the execution of Agreement No. 99924 on behalf of the City. I � ALTERNATIVES: I 1. Approve a motion approving Resolution No. 7135, a resolution authorizing the I appropriate City officials Yo execute Mn/DOT Agreement No. 99924. I 2. Do not adopt Resolution No. 7135. I , 3. Table for a specific reason. I RECOMMENDATION: �� I Staff recommends Alternative No. 1. I I I ACTION REOUESTED: Approve a motion approving Resolution No. 7135, A Resolution Authorizing the Appropriate City Officials to Execute Mn/DOT Agreement No. 99924. B �:E. I Public Works Director E�'GR/2011-PROIGCTS2011-0OUNCMIEMI US -AGREEME6T9992q I l I � �i I , I � , � I i i � Minnesota Department of Transportation ` NNESp f , F State Aid for Local Transportation q 395 John Irelantl Boulevard, MS 500 ��`¢ Saint Paul, MN 55155 OF TP�` October 28, 2011 Bruce Loney Shakopee City Engineer 129 Holmes Street S Shakopee MN 55379-1351 SUBJECT: Agency Delegated Contracting Process Agreement Agency Agreement No. 99924 Dear Mr. Loney: Attached are three copies of the agency agreement between the City of Shakopee and MnDOT, which allows for MnDOT to act as the City's agent in accepting federal aid. This agreement is intended to cover all federally funded projects that the City of Shakopee is awarded funds for until revisions are needed to the agreement. It supersedes the agreement executed in or about 2003, which is referenced in this agreement. There are not substantial changes to the agreement. There is a more clear reference to the DCP checklist as well as requirements and references to other State Aid policies and procedures rather than MnDOT's. I also get frequent calls questioning the CFDA number for the projects so I added that information. While I do not anticipate that the requirements in Section I.J.1 will apply to you, the language required by federai law and must be inciuded in all federally funded project agreements as of October 1, 2010. Please review the agreement and if approved, have all three copies signed. A Council resolution similar to the attached example must be passed. The certified resolution should then be placed as the last page in each of the three copies of the agreement. Please verify that the persoNtitle authorized to sign as stated in the resolution, corresponds to the signature (person/title) on the signature page. Please return all three copies of the agreement to � me for MnDOT signatures. A fully executed copy will be returned to you. If you have any questions or need any revisions, please feel free to contact me at 651.366.3822. Sincerely, � , � ��:n�,l ��-_. Lynnette Roshell, PE Project Development Engineer Enclosures cc: Greg Coughlin DSAE i File � An Equal Opportunity Employer O � � � � °�° O � I RESOLUTION NO. 7135 A RESOLUTION AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE MN/DOT AGREEII�NT NO. 99924 I BE IT I2ESOLVED, that pursuant to Mii�nesota Stat. Sea 16136, Yhe Conunissioner of Transportation be appointed as Agent of the City of Shakopee to accept as its agent, federal aid funds which may be made available for eligible b•ansportation related projects. I BE IT FURTH�R RESOLVED, the Mayor, the City Admiiustrator and the City Clerk are hereby aucl�orized and directed fox and on behalf of the City to execute aud entex into an agreenlent willl the Co1m11issioner of fraztsportation prescribing the terms azid conditions of said , federal and parcicipation as set forth and contained in `Minnesota Deparirnent of Truisportarion Agency Ageement No. 99924", a copy of which said agreement was before the City Council and wluch is made a part hereof by reference. I Adopted in session of the City Council of the City of I Shakopee, Minnesota, held this day of , 2011. I Mayor of the City of Shakopee I � ATTEST: � Cify Clerk E�JG W2�1 l �PAOJECTS/3011-COINCNRES'1135--AGREEMEV i99924 , I I I I I I I i I I I . , . . MnDOT Agreement No. 99924 STATE OF MINNESOTA AGENCY AGREEMENT BETWEEN DEPARTMENT OF TRANSPORTATION AND THE CITY OF SHAKOPEE � FOR FEDERAL PARTICIPATION IN CONSTRUCTION i This agreement is entered into by and between the City of Shakopee and the State of Minnesota acting through its Commissioner of Transportation ("MnDOT"), i Pursuant to Minnesota Statutes Section 161.36, the City desires MnDOT to act as the City agent in accepting federal funds on the City behalf for the construction, � improvement, or enhancement of transportation financed either in whole or in part by federal funds, hereinafter referred to as ihe "Project(s)"; and This agreement is intended to cover all federal aid projects initiated by the City and iherefore has not specific State Projert number tied tu it, and The Catalog of Federal Domestic Assistance number or CFDA number is 20205, and i This agreement supersedes agreement number 95402 and; ' MnDOT requires that the terms and conditions of this agency be set forth in an agreement. � THE PARTIES AGREE AS FOLLOWS: I. DUTIES OF THE CITY A. DESIGNATION. The City designates MnDOT to act as its agent in accepting I federal funds in its behalf made available for the Project{s). Details on the ' required processes and procedures are available on the State Aid Website B. STAFFING. i 1. The City will furnish and assign a publicly employed licensed engineer, � ("Project Engineer"), to be in responsible charge of the Project(s) and to supervise and direct the work to be performed under any construction contract let for the Project(s). In the alternative where the City elects to use a private consultant for construction engineering services, the City will provide a qualified, full-time public employee of the City, to be in responsible charge , of the Project(s). The services of the City to be performed hereunder may not be assigned, subfet, or transferred unfess the City is notified in wrifing by MnDOT that such action is permitted under 23 CFR 1.33 and 23 CFR 635.105 and state law. This written consent will in no way relieve the City I (MnDOT Agrccmcnt No_ 99924) Page 1 f I I from its primary responsibility for performance of the work. 2. During the progress of the work on the Project(s), the City authorizes its Project Engineer to request in writing specifc engineeri�g and/or technical services from MnDOT, pursuant to Minnesota Statutes Section 161.39. Such I services may be covered by other technical service agreements. If MnDOT fumishes the services requested, and if MnDOT requests reimbursement, then the City will promptly pay MnDOT to reimburse the state trunk highway fund for the full cost and expense of furnishing such services. The costs and expenses will indude the current MnDOT labor additives and overhead rates, I subject to adjustinent based on actual direct costs that have been verified by audit. Provision of such services will not be deeined to make MnDOT a principal or co-principal with respect to the Project(s). C. LETTING. The City will prepare construction contracts in accordance with Minnesota law and applicable Federal laws and regulations. I 1. The City will solicit bids after obtaining written notification from MnDOT that the Federal Highway Administration ('FHWA") has authorized the Project(s). Any Project(s) advertised prior to authorization will not be eligible for federal reimbursement. 2. The City will prepare the Proposal for Highway Construction for the � construction contract, which will include all of the federal-aid provisions supplied by MnDOT. 3. The City will prepare and publish the bid solicitation for the Project(s) as required by state and federal laws. The City will include in the solicitation the requiretl language for federal-aid construction contracts as supplied by � I MnDOT. The solicitation will state where ihe proposals, plans, and specifications are available for the inspection of prospective bidders, and where the City will receive the sealed bids. 4. The City may not include other work in the construction contract for the authorized Project(s) without obtaining prior notification from MnDOT that i such work is ailowed by FHWA. Failure to obtain such notification may result in the loss of some or all of the federal funds for the Project(s). 5. The City will prepare and sell the plan and proposal packages and prepare and distribute any addendums, if needed. 6. The City will receive and open bids. I 7. After the bids are opened, the City Council will consider the bids and will � award the bid to the lowest responsible bidder, or reject all bids. If the construction contract contains a goal for Disadvantaged Business Enterprises, the City will not award the bid until it has received certifcation of the Disadvantaged Business Enterprise participation froin the MnDOT Equal Einpfoyment Opportunity Office. D. CONTRAC7ADMINISTRATION. (MnDOT Agreement No. 99924) Page 2 I 1. The City will prepare and execute a construction contract with the lowest responsible bidder, hereinafter referred to as the "Contractor," in accordance with the special provisions and the latest edition of MnDOT's Standard Specifcations for Construction and all amendments thereto. 2. The Project(s) will be constructed in accordance with plans, special provisions, and standard specifcations of each Project. The standard specifications will be the latest edition of MnDOT Standard Specifcations ' for Highway Construction, and all amendments theretu. The plans, special provisions, and standard specifications will be on file at the City Engineer's Offce. The plans, special provisions, and specifcations are incorporated into this agreement by reference as though fully set forth herein. I 3. The City will furnish the personnel, services, supplies, and equipment necessary to properly supervise, inspect, and document the work for the Project(s). The services of the City to be performed hereunder may not be assigned, sublet, or transferred unless the City is notified in writing by MnDOT that such action is permitted under 23 CFR 1.33 and 23 CFR I 635.105 and state law. This written consent will in no way relieve the City from its primary responsibility for performance of the work 4. The City will document quantities in accordance with the guidelines set forth in the Construction Section of the Electronic State Aid Manual ihai were in effect at the time the work was performed. 5. The City will test materials in accordance with the Schedule of Materials � Control in effect at the time each Project was let. The City will notify MnDOT when work is in progress on the Project(s) that requires observation by the Independent Assurance Inspector as required by the Independent Assurance Schedule. 6. The City may inake changes in the plans or the character of the work, as I may be necessary to complete the Project(s), and may enter into I supplemental agreement(s) wiih the Contractor. The City will not be reimbursed for any costs of any work performed under a supplemental agreement u�less MnDOT has notifed the City that the subject work is eligible for federal funds and su�cient federal funds are available. I 7. The City will request approval from MnDOT for all costs in excess of the amount of federal funds previously approved for the Project(s) prior to ' incurring such costs. Failure to obtain such approval may result in such costs being disallowed for reimbursement. 8. The City will prepare reports, keep recortls, and perform work so as to enable MnDOT to collect the federal aid sought by the City. Required reports are listed in the MnDOT State Aid Manual, Delegated Contract Process Checklist, available from MnDOT's authorized representative. The City will retain all records and reports in accordance with MnDOT's record , retention schedule for federal aid projects. 9. Upon completion of the Project(s), the Project Engineer will determine � whether the work will be accepted. I (MnDOT Agrccment No. 99924) Pagc 3 I � , . . � I E. PAYMENTS. 1. The entire cost of the Project(s) is to be paid from federal funds made available by the FHWA and by other funds provided by the City. The City will pay any part of the cost or expense of the Project(s) that is not paid by federalfunds. � 2. The City wi11 prepare partial estimates in accordance with the tenns of the construction contract for the Project(s). The Project Engineer will certify each partial estimate. Following certifcation of the partial estimate, the City will i �i�ake partial payme+its to tlie Contractor in accordance with the tenns of the construction contract for the Project(s). 3. Following certification of ihe partial estimate, the City may request I I reimbursement for costs eligible for federal funds. The City's request will be made to MnDOT and will include a copy of the certifed partial estimate. 4. Upon completion of the Project(s), the City will prepare a final estimate in i accordance with the terms of the construction contract for the Project(s). The Fmjecf Engineer v�ifl �erlify tf�e final estlmate. Follow(nc� certification of ihe fnal estimate, the City will make the fnal payment to the Contractor in accordance with the terms of the construction contract for the Project(s). I 5. Following certification of the fnal estimate, the City may request reimbursement for costs eligible for federal funds. The City's request will be I , made to MnDOT and will include a copy of ihe certified final estimate along with the required records. F. LIMITATIONS. ' 1. The City will comply with all applicable Federal, State, and local laws, ordinances, and regulations. i 2. Nondiscrimination. It is the policy of the Federal Highway Administration and the State of Minnesota that no person in the United States will, on the grounds of race, color, or national origin, be exGuded from participation in, be i denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance (42 U.S.C. 2000d). Through expansion of the mandate for nondiscrimination in Title VI and through paralfel fegislation, the proscribed bases of discrimination inc(ude race, color, i sex, national origin, age, and disability. In addition, the Title VI program has been extended to cover all programs, activities and services of an entity receiving Federal fnancial assistance, whether such programs and activities are Federally assisted or not Even in the absence of prior discriminatory practice or usage, a recipient in administering a program or activity to which j this paR applies, is expected to take affirmative action to assure that no person is excluded from participation in, or is denied the benefts of, the program or activity on the grounds of race, color, national origin, sex, age, or I disability. It is the responsibility of the City to carry out the above requirements. I (MnD07' Ag[eement Na. 99924) Page 4 � i 3. Workers' Compensation. Any and all employees of the City or other persons � while engaged in the performance of any work or services required or � permitted by the City under this agreement will not be considered employees of MnDOT, and any and all claims that inay arise under the Workers' Compensation Act of Minnesota on behalf of said employees, or other � persons while so engaged, will in no way be the obligation or responsibility of MnDOT. The City will require proof of Workers' Compensation Insurance from any contractor and sub-contractor. 4. Utilities. The City will treat all public, private or cooperatively owned utility facilities which directly or indirectly serve the public and which occupy � highway rights of way in conformance with 23 CFR 645 "Utilities" which is incorporated herein by reference. G. AUDIT. t The City will comply with the Single Audit Act of 1984 and O�ce of Management and Budget (OMB) circular A-133, which are incorporated herein by reference. 2. As provided under Minnesota Stafutes SecTion 16C.05, subdivision 5, all books, records, documents, and accounting procedures and practices of the City are subject to examination by the United States Government, MnDOT, I and either the Legislative Auditor or the State Auditor as appropriate, for a minimum of seven years. The City will be responsible for any costs associated with the performance of the audit. H. MAINTENANCE. The City assumes full responsibility for the operation and inaintenance of any facility constructed or improved under ihis Agreement. I. CLAIMS. The City acknowledges that MnDOT is acting only as the Cify's agenf I i for acceptance and disbursement of federal funds, and not as a principal or co- principal with respect to the Project. The City will pay any and all lawful claims arising out of or incidental to the Project including, without frmitation, claims related to contractor selection (including the solicitation, evaluation, and I acceptance or rejection of bids or proposals), acts or omissions in performing the Project work, and any ultra vires acls. The City will indemnify, defend (to the extent permitted by the Minnesota Attorney General), and hold MnDOT harmless froin any claims or costs arising out of or incidental to the Project(s), ' including reasonable atiorney iees incurred by MnDOT. The City's indemnification obligation extends to any actions related to the certifcation of DBE participation, even if such actions are recommended by MnDOT. J. Federal Funding Accountability and Transparency Act (FFATA). This Agreement requires the City to provide supplies and/or services that are funded in whole or in part by federal funds that are subject to FFATA. The City is responsible for , ensuring that all applicable requirements, induding but not limited to those set forth herein, of FFATA are met and that the City provides information to the MnDOT as required. 1. Reporting of Total Compensation of the City's Executives. (MnDO'C Agreomcnt No. 99924) � Page � I I . . � a. The City shall report the names and total compensation of each of its five most highiy compensated executives for the City's preceding completed fiscal year, if in the City's preceding fiscal year it received: I i. 80 percent or more of the City's annual gross revenues from Federal procurement contracts and Federal fnancial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawartls); and I ii. $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and ' Federal financial assistance subject to the Transparency Act (and subawards); and iii_ The public does not have access to information about the coinpensaticn of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities i Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Intemal Revenue Code of 198G. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Comrnission total compensation filings at http //www.sec.qov/answers/execomp.htm.). i Executive means officers, managing partners, or any other employees in management positions. b. Total compensation means the cash and noncash dollar value earned by the executive during the City's preceding fiscal year I ' and indudes the following (for more information see 17 CFR � 229.402(c)(2)): i. Salary and bonus. ii. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fscal year � in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payinents. iii. Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reiinbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees. iv. Change in pension value. This is the change in present value of defined benefit and actuarial pension pians. v. Above-market earnings on deferred compensation which is not tax qualifed. vi. Other compensation, if the aggregate value of all such other compensation (e.g. severance, tennination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000. (�InDOT Agreemcnt No. 99924) Page 6 I I , . � I 2. The City must report executive total compensation described above to the MnDOT by the end of the month during which this agreement is awarded. 3. The City will obtain a Data Universal Numbering System (DUNS) number and ma(niain its DUNS number for the ferm of fhis agreement. This , number shall be provided to MnDOT on the plan review checklist submitted with the plans for each project. More information about obtaining a DUNS Number can be found at: http://fedaov.dnb.comlwebform/ I 4. The City's failure to comply with the above requirements is a material breach of this agreement for which the MnDOT may terminate this agreement for cause. The MnDOT will not be obligated to pay any outstanding invoice received from the City unless and until the City is in full compliance with the above req,uirements. I II. DUTIES OF MnDOT. A. ACCEPTANCE MnDOT accepts designation as Agent of the City for the receipt and disbursement of federal funds and will act in accordance herewith. B. PROJECT ACTIVITIES. i 1. MnDOT will make the necessary requests to the FHWA for authorization to use federal funds for the Project(s), and for reimbursement of eligible costs pursuant to the terms of this agreement. 2. MnDOT will provide to the City copies of the required Federal-aid clauses to � be included in the bid solicitation and will provide the required Federal-aid provisions to be included in the Proposal for Highway Construction. 3. MnDOT will review and certifij the DBE participation and notify the City when certifcation is complete. If certification of DBE participation (or good faith effoRs to achieve such participation) cannot be obtained, then City must decide whether to proceed with awarding the contract. Failure to I obtain such certification will result in the project becoming ineligible for federal assistance, and the City must make up any shortfall. , 4. MnDOT will provide the required labor postings. C. PAYMENTS. I I 1. MnDOT will receive the federal funds to be paid by the FHWA for the Project(s), pursuant to Minnesota Statutes § 161.36, Subdivision 2. 2. MnDOT will reimburse the City, from said federal funds made available to each Project, for each partial payinent request, subject to the availability and limits of those funds. 3. Upon completion of the Project(s), MnDOT will perform a final inspection and I verify the federal and state eligibility of all the paymenf requesfs. If fhe Project is found to have been completed in accordance with the plans and I (MnDOT Agreemen[ No. 99924) Page 7 I specifcations, MnDOT will promptly release any reinaining federal funds due the City for the Project(s). 4. In the event MnDOT does not obtain funding from the Minnesota Legislature or other funding source, or funtling cannot be continued at a sufficient levei to allow for the processing of the federal aid reimburseinent requests, the City i may continue the work with (ocal funds only, untif such fime as MnDOT is able to process the federal aid reimbursement requests. D. AUTHORITY. MnDOT may withhold federal funds, where MnDOT or the FHWA determines that the Project(s) was not completed in compliance with federal I I requirements. ' - E. INSPECTION. MnDOT, lhe FHWA, or duly authorized representatives of the state and iederal government wiil have the right to audii, evaluate and monitor I , the work performed under ihis agreement The City will make available all books, records, and documents pertaining to the work hereunder, for a minimum of seven years following the closing of the construction contract. i III. TORT LIABILITY. Each party is responsible for its own acts and omissions and the I results thereof to the extent authorized by law and will not be responsible for the acts and omissions of any others and the resufts tf�ereof. TF�e Minnesota Tort Claims Act, Minnesota Statutes Section 3.736, governs MnDOT liability. ' IV. ASSIGNMENT. Neither party will assign or transfer any rights or obligations under this I agreement without prior written approval of the other party. V. AMENDMENTS. Any amendments/supplements to this Agreement will be in writing and executed by the same parties who executed the original agreement, or their successors in office. i VI. AGREEMENT EFFECTIVE DATE. This agreement is effective upon execution by the appropriate State officials pursuant to Minnesota Statutes Section 16C.05. , VII. CANCELLATION. This agreement may be canceled by the City or MnDOT at any time, with or without cause, upon ninety (90) days written notice to the other party. Such ! terminatfon wifl not remove any unfulfilfed financial obllgatfons of the City as set forth in this Agreement. In the event of such a cancellation the City will be entitled to reimbursement for MnDOT-approved federally eligible expenses incurred for work ' satisfactorily performed on the Project to the date of cancellation subject to the tenrs of this agreement. I VIII. DATA PRACTICES ACT. The parties will comply with the provisions of the Minnesota Government Dafa Praciices Act (Minnesota Statufes chapter 13) as it applies to all data gathered, collected, created, or disseminated related to this Agreement. Remainder of this page left intentionally blank (hZnDOT Agrcernenl No_ 99924) I'age 8 I IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby. CITY OF SHAKOPEE 2. DEPARTMENT OF TRANSPORTATION City certifies that the appropriate person(s) have executed the contract on behalf of the City as required by applicable articles, By: bylaws, resolutions or ordinances Title: Director By: State Aid for Local Transportation Title: Date: Dat°: 3. COMMISSIONER OF ADMINISTRATION Bv: , By Tiile'. Date: Date: � � (MnDOT Agrecment No. 99924) Page 9