RES 2011-58 - 14874RESOLUTION NO. 2011 - 58
RESOLUTION TO APPROVE AN AGREEMENT WITH THE
MINNESOTA DEPARTMENT OF TRANSPORTATION
TO PROVIDE FOR A DELEGATED CONTRACT PROCESS
WHEREAS, the City of Fridley and the Minnesota Department of Transportation (MnDOT) entered into
an agency agreement in 2004 to establish a delegated contract process to administer transportation
projects that included federal funds, and
WHEREAS, MnDOT from time to time updates language in this otherwise ongoing delegated contract
process agreement, and
WHEREAS, MnDOT has proposed revisions to the existing delegated contract process agreement
(MnDOT Agreement No. 87354) currently in farce with the City of Fridley, and
WHEREAS, the proposed agreement (MnDOT Agreement No. 99892) allows the City to work directly
with MnDOT on administrative matters relating to federally funded transportation projects and allows
more expeditious and responsive contract administration when federal monies are involved in projects,
NOW THEREFORE BE IT RESOLVED, that pursuant to Minnesota Stat Sec. 161.36, the Commissioner
of Transportation be appointed as Agent of the City of Fridley to accept as its agent, federal aid funds
which may be made available for eligible transportation related projects, and
BE IT FURTHER RESOLVED, the City Manager and the Director of Public Works of the City of
Fridley, Anoka County, Minnesota, are hereby authorized and directed for and on behalf of the City to
execute and enter into an agreement with the Commissioner of Transportation prescribing the terms and
conditions of said federal aid participation as set forth and contained in "Minnesota Department of
Transportation Agency Agreement No. 99892 ", a copy of which said agreement was before the City
Council and which is made a part hereof by reference.
PASSSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 7th DAY of
NOVEMBER, 2011.
ATTESTED
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DEBRA A. SKOGE - CITY CLERK
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SCOTT J. LUND - MAYOR
Minnesota Department of Transportation
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State Aid for Local Transportation
a 395 John Ireland Boulevard, MS 500
;,4, OF TR4'�y¢o Saint Paul, MN 55155
October 28, 2011
Jim Kosluchar
Fridley City Engineer
6431 University Avenue NE
Fridley MN 55432
SUBJECT: Agency Delegated Contracting Process Agreement
Agency Agreement No. 99892
Dear Mr. Kosluchar:
Attached are three copies of the agency agreement between the City of Fridley 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 Fridley 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 federal law and must be included 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 person /title 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,
Lynnette Roshell, PE
Project Development Engineer
Enclosures
cc: Greg Coughlin DSAE
File
An Equal Opportunity Employer
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MnDOT Agreement No. 99892
STATE OF MINNESOTA AGENCY AGREEMENT
BETWEEN
DEPARTMENT OF TRANSPORTATION
AND
THE CITY OF FRIDLEY
FOR FEDERAL PARTICIPATION IN CONSTRUCTION
This agreement is entered into by and between the City of Fridley and the State of
Minnesota acting through its Commissioner of Transportation ( "MnDOT "),
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 the "Project(s) "; and
This agreement is intended to cover all federal aid projects initiated by the City and
therefore has not specific State Project number tied to it, and
The Catalog of Federal Domestic Assistance number or CFDA number is 20.205, and
This agreement supersedes agreement number 87355 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
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.
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, 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
635.105 and state law. This written consent will in no way relieve the City
(MnDOT Agreement No 99892)
Page 1
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 specific engineering and /or technical
services from MnDOT, pursuant to Minnesota Statutes Section 161.39. Such
services may be covered by other technical service agreements. If MnDOT
furnishes 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 include the current MnDOT labor additives and overhead rates,
subject to adjustment based on actual direct costs that have been verified by
audit. Provision of such services will not be deemed 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.
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.
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
required language for federal -aid construction contracts as supplied by
MnDOT. The solicitation will state where the 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
such work is allowed 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.
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 certification of
the Disadvantaged Business Enterprise participation from the MnDOT Equal
Employment Opportunity Office.
D. CONTRACT ADMINISTRATION.
(MnDOT Agreement No, 99892)
Page 2
The City will prepare and execute construction contract with the lowest
responsible bidder, hereinafter referred to as the "Contractor," in
accordance with the special provisions and the latest edition ofW1nDOT's
Standard Specifications for Construction and all amendments thereto.
2. The P will be constructed in accordance with pbns, special
provek>ns, and standard specifications of each Project. The standard
specifications will be the latest edition ofMnDOTStandard Specifications
for Highway Construction, and all amendments thereto. The plans, Sp9Ci8|
proviaiono, and standard specifications will be on file at the City Engineer's
(}0ioe. The p|ana, special provisions, and specifications are incorporated
into this agreement by reference as though fully set forth herein.
3. The City will furnish the personnel, aen/ioee, euonieo, and equipment
necessary to properly aupemiao, inspect, and document the work for the
Project(s). The services of the City tnbm performed hereunder may not be
aesigned, sub|mt, or transferred unless the City is notified in vvhUng by
yNnD(]Tthat such action is permitted under 23 CFR 1.33 and 23 CFR
035.105 and state law. This written consent will in noway 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 that were in
effect at the time the work was performed.
The City will teat materials in accordance with the Schedule of Materials
Control in effect at the time each Project was let. The City will notify
K8nD(JT when work is in progress on the Project(s) that requires
observation by the Independent Assurance Inspector as required by the
Independent Assurance Schedule.
O. The City may make changes in the plans or the character of the vvork, as
may be necessary to complete the P . and may enter into
supplemental agreement(s) with the Contractor. The City will not be
reimbursed for any costs of any work performed under a supplemental
agreement unless K8nD(}T has notified the City that the Subject work is
eligible for federal funds and sufficient federal funds are available.
7. The City will request approval from K8nDDT 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 n*eu|t in such
costs being disallowed for reimbursement.
8. The City will prepare naporto, keep reoondn, and perform work en as to
enable MnD[)T to collect the federal aid aVught by the City. Required
r8pndn are listed in the K8nD{)T State Aid yW8nVe|. Delegated Contract
Process Checklist, available from K8nD(}T'aauthorized representative. The
City will retain all records and reports in accordance with K8n[)0T`o record
retention schedule for federal aid projects.
9. Upon completion of the Project(s), the Project Engineer will determine
whether the work will baaccepted.
(MnDoAgreementm^99892)
Page 3
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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
federal funds.
2. The City will prepare partial estimates in accordance with the terms of the
construction contract for the Project(s). The Project Engineer will certify each
partial estimate. Following certification of the partial estimate, the City will
make partial payments to the Contractor in accordance with the terms of the
construction contract for the Project(s).
3. Following certification of the partial estimate, the City may request
reimbursement for costs eligible for federal funds. The City's request will be
made to MnDOT and will include a copy of the certified partial estimate.
4. Upon completion of the Project(s), the City will prepare a final estimate in
accordance with the terms of the construction contract for the Project(s). The
Project Engineer will certify the final estimate. Following certification of the
final estimate, the City will make the final payment to the Contractor in
accordance with the terms of the construction contract for the Project(s).
5. Following certification of the final estimate, the City may request
reimbursement for costs eligible for federal funds. The City's request will be
made to MnDOT and will include a copy of the 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.
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 excluded from participation in, be
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
parallel legislation, the proscribed bases of discrimination include race, color,
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 financial 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
this part applies, is expected to take affirmative action to assure that no
person is excluded from participation in, or is denied the benefits of, the
program or activity on the grounds of race, color, national origin, sex, age, or
disability. It is the responsibility of the City to carry out the above
requirements.
(MnDOT Agreement No 99892)
Page 4
G.
H
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 may 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,
facilities which directly or indirectly
highway rights of way in conformanc e
incorporated herein by reference.
AUDIT.
private or cooperatively owned utility
serve the public and which occupy
with 23 CFR 645 "Utilities" which is
1. The City will comply with the Single Audit Act of 1984 and Office of
Management and Budget (OMB) circular A -133, which are incorporated
herein by reference.
2. As provided under Minnesota Statutes 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,
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.
MAINTENANCE. The City assumes full responsibility for the operation and
maintenance of any facility constructed or improved under this Agreement.
CLAIMS. The City acknowledges that MnDOT is acting only as the City's agent
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 limitation, claims
related to contractor selection (including the solicitation, evaluation, and
acceptance or rejection of bids or proposals), acts or omissions in performing the
Project work, and any ultra vires acts. The City will indemnify, defend (to the
extent permitted by the Minnesota Attorney General), and hold MnDOT
harmless from any claims or costs arising out of or incidental to the Project(s),
including reasonable attorney fees incurred by MnDOT. The City's
indemnification obligation extends to any actions related to the certification 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, including 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.
(MnDOT Agreement No. 99892)
Page 5
a, The City shall report the names and total compensation of each of
its five most highly compensated executives for the City's
preceding completed fiscal year, if in the City's preceding fiscal
year it received:
i. 80 percent or more of the City's annual gross revenues
from Federal procurement contracts and Federal financial
assistance subject to the Transparency Act, as defined at 2
CFR 170.320 (and subawards); and
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
compensation of the executives through periodic reports
filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or
section 6104 of the Internal Revenue Code of 1986, (To
determine if the public has access to the compensation
information, see the U.S. Security and Exchange
Commission total compensation filings at
http://www.sec.gov/answers/execomp.htm.).
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
and includes 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 fiscal year
in accordance with the Statement of Financial Accounting
Standards No. 123 (Revised 2004) (FAS 123R), Shared
Based Payments.
iii. Earnings for services under non - equity incentive plans.
This does not include group life, health, hospitalization or
medical reimbursement 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 plans.
V. Above - market earnings on deferred compensation which is
not tax qualified.
vi. Other compensation, if the aggregate value of all such
other compensation (e.g. severance, termination
payments, value of life insurance paid on behalf of the
employee, perquisites or property) for the executive
exceeds $10,000.
(MnDOT Agreement No. 99892)
Page 6
The City must report executive total compensation described above to the
MnDOT by the end of the month during which this agreement is awarded.
The City will obtain a Data Universal Numbering System (DUNS) number
and maintain its DUNS number for the term of this 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: / /fedgov.dnb.com /webform/
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 requirements.
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.
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.
MnDOT will review and certify the DBE participation and notify the City
when certification is complete. If certification of DBE participation (or good
faith efforts to achieve such participation) cannot be obtained, then City
must decide whether to proceed with awarding the contract. Failure to
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.
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 payment request, subject to the availability and
limits of those funds.
3. Upon completion of the Project(s), MnDOT will perform a final inspection and
verify the federal and state eligibility of all the payment requests. If the Project
is found to have been completed in accordance with the plans and
(MnDOT Agreement No 99892)
Page 7
specifications, MnDOT will promptly release any remaining 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 funding cannot be continued at a sufficient level to
allow for the processing of the federal aid reimbursement requests, the City
may continue the work with local funds only, until such time 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
requirements.
E. INSPECTION. MnDOT, the FHWA, or duly authorized representatives of the
state and federal government will have the right to audit, evaluate and monitor
the work performed under this 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.
III. TORT LIABILITY. Each party is responsible for its own acts and omissions and the
results thereof to the extent authorized by law and will not be responsible for the acts
and omissions of any others and the results thereof. The 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
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.
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
termination will not remove any unfulfilled financial obligations 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 terms of
this agreement.
VIII. DATA PRACTICES ACT. The parties will comply with the provisions of the Minnesota
Government Data Practices Act (Minnesota Statutes chapter 13) as it applies to all data
gathered, collected, created, or disseminated related to this Agreement.
Remainder of this page left intentionally blank
(MnDOT Agreement No. 99892)
Page 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
intending to be bound thereby.
CITY OF FRIDLEY
City certifies that the appropriate person(s)
have executed the contract on behalf of the
City as required by applicable articles,
bylaws, resolutions or ordinances
11111 0
Date:
Title:
Date:
2. DEPARTMENT OF TRANSPORTATION
Title: Director
State Aid for Local Transportation
Date:
3. COMMISSIONER OF ADMINISTRATION
Date:
(MnDOT Agreement No. 99892)
Page 9