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HomeMy WebLinkAbout5.c. MnDot Agency Agreement/J FU DATE: FEBRUARY 26, 1987 • � r rr � •- r I have received a written response from our City Attorney, Dave Grannis, which I have attached. As you can see from Dawes' response, the agreement is as we suspected, that being very one sided towards MnDot. I would still recommend that Council enter into the Agency Agreement because I do not feel the four points that Dave sent us in his letter are that critical. For example, it would be extremely difficult for either the City or the Comatissicner of Transportation to reject bids if the bid was submitted by the lowest responsible bidder. As for item #2, FAU funds do not provide for engineering services. The only cost FAU covers are for construction only. As for item #3, any plans and specifications the City would have to prepare for an FAU job would have to be in accordance with the FAU guidelines and undoubtedly MnDot guidelines. Also finally, for the City to find unsatisfactory work, we would have to have sufficient documentation of defective work or materials. FAU projects require an inordinate amount of documentation. Therefore I do not feel this would be a problem either. If the City should ever wish to use FAU funds on any project eligible for those funds, then we must have entered into this agreement to obtain the FAU funds. Although we technically would not have to enter into this agreement until we have a FAU project, I would not want to jeopardize future funding for such a project by waiting. I will be available at the March 3, 1987 Council meeting to answer any questions which may arise regarding this agreement. 1987 05 Mr. Richard M. Hefti, P.E. City Engineer/Public Works Director City of Rosemount 2875 - 145th St. W. Rosemount, MN 55068 Re Dear Rich: At your request I have reviewed the proposed Minnesota Depart- ment of Transportation Agency Agreement and make the following comments: The Agreement is in my opinion defective for a number of reasons, some of which are as follows: 1. The Commissioner can accept or reject bids despite what the City Council wants. (Pages 2 and 7) 2. The City has to furnish such personnel as the Commis- sioner wants without charge. (Page 3) 3. The Commissioner can change plans and specifications without City Council approval. (Page 3) 4. If the City finds the completed work unsatisfactory, the Commissioner can reject that determination. (Page 8) As drafted the Agreement is heavy-handed and totally one- sided. If such an agreement is necessary, I recommend that it be redrafted. - Very truly yours, GRANNIS, GRANNIS, FARRELL & KNUTSON By: �\ David L. Grannis, III DLGIII/kd �s 19 8 7 0 5 LAW OFFICES GRANNIS, GRANNIS, FARRELL & KNUTSON DAVID L. GRANNIS - 1874-1961 PROFESSIONAL ASSOCIATION TELECOPIER: DAVID L. GRANNIS, JR. - 1910-1980 POST OFFICE BOX 57 (612) 455-2359 DAVID L. HARMEYER VANCE B. GRANNIS 403 NORWEST BANK BUILDING M. CECILIA RAY VANCE B. GRANNIS, JR. 161 NORTH CONCORD EXCHANGE ELLIOTT B. KNETSCH PATRICK A. FARRELL DAVID L. GRANNIS, III SOUTH ST. PAUL, MINNESOTA 55075 MICHAEL J. MAYER ROGER N. KNUTSON TELEPHONE: (612) 455-1661 February 12, 1987 Mr. Richard M. Hefti, P.E. City Engineer/Public Works Director City of Rosemount 2875 - 145th St. W. Rosemount, MN 55068 Re Dear Rich: At your request I have reviewed the proposed Minnesota Depart- ment of Transportation Agency Agreement and make the following comments: The Agreement is in my opinion defective for a number of reasons, some of which are as follows: 1. The Commissioner can accept or reject bids despite what the City Council wants. (Pages 2 and 7) 2. The City has to furnish such personnel as the Commis- sioner wants without charge. (Page 3) 3. The Commissioner can change plans and specifications without City Council approval. (Page 3) 4. If the City finds the completed work unsatisfactory, the Commissioner can reject that determination. (Page 8) As drafted the Agreement is heavy-handed and totally one- sided. If such an agreement is necessary, I recommend that it be redrafted. - Very truly yours, GRANNIS, GRANNIS, FARRELL & KNUTSON By: �\ David L. Grannis, III DLGIII/kd FILExs 198 0 5 Revised 11/1986 Office of State Aid MINNESOTA DEPARTMENT OF TRANSPORTATION AGENCY AGREEMENT This Agreement made and entered into by and between the City of Rosemount herein after referred to as the "City" and the Commissioner of Transportation of the State of Minnesota hereinafter referred to as the "Commissioner", WITNESSETH: WHEREAS, pursuant to M.S. 161.36 the City of Rosemount desires the Commissioner to act as its agent in accepting federal aid on the City's behalf, for road and bridge construction and in contracting for the construction, improvement or maintenance of roads or bridges financed either in whole or part with federal moneys: and WHEREAS, M.S. 161.36, Subdivision 2, requires that the terms and condition of the agency be set forth in an agreement: NOW, THEN, IT IS AGREED: - 1 - That pursuant to M.S. 161.36, the City does hereby appoint the Commissioner its agent with respect to all federally funded projects, to accept and receive all federal funds made available for said projects and to let contracts pursuant to law for the construction and improvement of local roads and bridges. Each contract will be in accordance with plans and special provisions for said projects on file in the Department of Transportation, State Transportation Building, St. Paul, Minnesota Page No. 1 55155, and the latest edition of "Standard Specifications for Highway Construction" and all amendments thereof, which said plans, special provisions and specifications are made a part of this agreement by reference as though fully set forth herein. In the letting of said contract, it is hereby agreed that the following procedures shall be followed, to -wit: (a) The Commissioner shall cause the advertisements calling for bids on said work to be published in the Construction Bulletin. He shall also cause advertisements for bids to be published in the officially designated newspaper of the City. Said advertisement or call for bids shall specify that sealed proposals or bids will be received by the City Purchasing Agent on behalf of the Commissioner as agent of said City. Proposals, plans and specifications shall be available for the inspection of prospective bidders at the Department of Transportation, St. Paul, Minnesota 55155, and at the office of said City Purchasing Agent and the advertisement shall so state. The bids received in response to said advertisements for bids shall ,be opened for and on behalf of the Commissioner by a District Director of the Department of Transportation or such other engineer of the Department of Transportation as may be from time to time selected by the Commissioner. After said bids shallhavebeen opened, the City Council shall first consider the same and thereupon transmit to the Commissioner all bids received together with its recommendation that the lowest bid submitted by a.responsible bidder be accepted or that all bids be rejected. Upon receipt of Page No. 2 1987 `�� 05 all said bids, the Commissioner shall duly cause all of said bids to be tabulated and shall thereupon determine who is the lowest responsible bidder and shall award the contract to the lowest responsible bidder or shall reject all bids. (b) The Commissioner shall supervise and have charge of the construction of said projects after the same has been let. The City agrees to furnish its City Engineer or other registered engineer and.assign him to the active supervision and direction of the work to be performed under any contract let for the aforesaid projects. Said engineer so assigned shall act under the supervision and direction of the Commissioner. The City further agrees to furnish such other personnel, services, supplies and equipment as shall be necessary in order to properly supervise and carry on said work. (c) The Commissioner may make changes in the plans or the character of the work as shall be recommended by the engineer in charge of the work. If he concurs in such recommendations, the Commissioner may enter into, for and on behalf of the City, supplemental agreements with the contractor for the performance of any extra work or work occasioned by any necessary, advantageous, or desirable change in plans or construction. It is understood by the City that the Commissioner cannot personally investigate and pass judgment on the various items of extra work and plan changes necessary and desirable during the construction of the projects but that he must delegate such duties to engineers under his supervision and control that Page No. 3 • r . are employed by the Minnesota Department of Transportation. The City does hereby authorize these engineers, so delegated by the Commissioner, to enter into, for and on behalf of the City, the supplemental agreements specified in the preceding paragraph hereof, (d) The City hereby authorizes its City Engineer, for and on behalf of the City, from time to time, during the progress of the work on said projects, to request the Commissioner to furnish for use on said projects specific engineering services to be performed by skilled employees of the Minnesota Department of Transportation. The Commissioner may but is not obligated to furnish the services so requested. If the Commissioner in compliance with such request shall furnish for the use of the City on said project the services of any Minnesota Department of Transportation employee, then and in that event, the City agrees to reimburse the Trunk Highway Fund for the full cost and expense of the furnishing of such services including all costs and expenses of any kind or nature whatsoever arising out of, connected with, or incidental to the furnishing of such services. (e) The Commissioner shall receive the funds to be paid by the City and the funds to be paid by the United States as federal aid funds, for said projects and to pay therefrom when due any and all sums that may become due the contractor to whom the contract is awarded, and upon final completion and acceptance of the work, to pay from said funds the final estimate to said contractor for said work. Page No. 4 CUR 'S 1987 05 HLE (f) The Commissioner shall perform on behalf of the City all other acts and things necessary to cause said projects to be completed in a satisfactory manner. (g) The Commissioner may enter into any agreement for and on behalf of the City with the United States or any officer or agent thereof that may be required or necessary for the purpose of procuring and actually causing to be paid the federal aid funds available for said projects and to that end to bind and commit the City in such agreement to the performance of any and all things required by any law of the United States or of any rule and regulation issued by federal authority pertaining thereto necessary for the purpose of procuring and having paid the federal aid available for said projects. (h) It is the policy of the United States Department of Transportation and the Minnesota Department of Transportation that Disadvantaged Business Enterprises and Women Business Enterprises as defined in 49 CFR, Part 23, shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with federal funds. Consequently, the requirements of 49 CFR, Part 23, apply to this agreement. In this regard, the Commissioner and the City shall take all necessary and reasonable steps in accordance with 49 CFR, Part 23, to insure that Disadvantaged Business Enterprises and Women Enterprises have the maximum opportunity to compete for and perform on contracts and subcontracts. The Commissioner and the City shall not discriminate on the basis of race, color, national origin, or sex Page No. 5 in the award and performance of federally funded contracts. Failure to carry out the above requirements shall constitute a breach of this agreement andmay result in termination of the agreement or other such remedy that the Commissioner deems appropriate. (i) The Commissioner may perform on behalf of the City any other and further acts as may be necessary or required under any law of the United States or of any rule or regulation issued by proper federal authority in order to cause said projects to be completed and to obtain and receive the federal aid made available therefor. 2 - The City agrees that it will from time to time, after the execution of this agreement, make such reports, keep such records and perform such work in such manner and time as the Commissioner shall from time to time request and direct so as to enable the Commissioner as its agent to collect for it the federal aid sought. Said records and reports shall be retained by the City in accordance with the Commissioner's record_ retention schedule for federal aid projects. - 3 It is anticipated that the United States will pay to the Commissioner as the agent of the City, the federal aid funds available to said City toward the construction of said projects. It is further anticipated that the contracts to be let by the Commissioner as the agent of the City, for the construction of Page No. 6 tU 1987 05 said projects shall provide that the contractor, as the work , progresses, shall, from time to time, be paid partial payments designated in said contract as partial estimates and on the completion and acceptance of said work to be paid a final payment designated in said contract as a final estimate for all work performed. The City further agrees that any City funds and/or Municipal State Aid funds to be applied to any contract covered by this agreement shall be deposited with the Commissioner in accordance with Minnesota Rules Chapter 8820.1500 Subp. 3. At regular monthly intervals after contractors shall have started work under contracts let by the Commissioner as agent for the City for the construction of said projects, the engineer assigned to and in charge of said work shall prepare partial estimates in accordance with the terms of said contracts let for said projects and the procedures established by the Office of Contract Administration and Maintenance, Minnesota Department of Transportation. The said engineer in charge of said work shall immediately after preparing each partial estimate, transmit the same to the Commissioner in duplicate. Each such partial estimate, shall be certified by the engineer in charge and by the contractor performing such work. The said engineer assigned to and in charge of said work',shall also prepare and submit to the Commissioner the final estimate data, together with the required project records in accordance with the terms of said contracts let for said projects. Quantities listed on said partial and final Page No. 7 estimates shall be documented in accordance with the guidelines set forth in the applicable documentation manual. After the approved final estimate has been submitted to the Commissioner, the City will pay to the Commissioner any additional amount which together with the federal funds received for that project will be sufficient to pay all the contract costs of the project - 4 When the contractor shall have completed the work on said projects, the City agrees to inspect the same and forthwith upon the completion of said inspection advise the Commissioner whether or not the work performed should be, by the Commissioner as its agent, accepted as being performed in a satisfactory manner. In the event the City should, after said inspection, recommend to the Commissioner that he should not accept said work, then the City shall at the time such recommendation is made specify in particularity the defects in said work and the reasons why the work should not be accepted. It is further agreed that any recommendations made by the City, are not binding on the Commissioner but that he shall have the right to determine whether or not the work has been acceptably performed and to accept or reject the work performed under any said contract. 5 - It is further agreed that the decision of the Commissioner on the several matters herein set forth shall be final, binding and conclusive on the parties hereto. Page No. 8 aws - 6 - It is anticipated that the entire cost of said projects is to be paid from funds made available by the United States, by way of federal aid, and by the City. If for any reason the United States fails to pay any part of the cost or expense of said projects, then and in that event the City agrees to pay the same. The City further agrees to 'pay any and all lawful claims or demands of any kind or nature whatsoever arising out of or incidental to the performance of the work under any contract let for said projects in the event that the United States does not pay the same, and in all events, agrees to save the State of Minnesota and the Commissioner harmless from said claims and from any claims arising out of this agreement and to pay any and all expenses and costs connected with said projects or the construction thereof which the United States does not pay. - 7 The City further agrees that: 1) All right-of-way acquisition and relocation will be conducted in accordance with 49 CFR Part 25. Procedures implementing their regulation are contained in Mn/DOT State Aid Manual, Chapter 5-892.310.(Additional guidance may be obtained by referring to the FHWA's'Real Estate Acquisition Guide for Local Public Agencies). 2) If the City receives total direct and indirect federal assistance of: Page No. 9 A. $100,000 or more per year, the City agrees to obtain a financial and compliance audit made in accordance with the Single Audit Act of 1984 (P.L. 98-502) and Office of Management and Budget (OMB) Circular A-128. The law and circular provide that the audit shall cover the entire operations of the City government or, at the option of the City government, it may cover departments, agencies or establishments that received, expended, or otherwise administered federal financial assistance during the year. However, if the City government receives $25,000 or more in General Revenue Sharing Funds in a fiscal year, it shall have an audit of its entire operations. B. Between $25,000 and $100,000 per year, the City agrees to obtain either: 1. a financial and compliance audit made in accordance with the Single Audit Act of 1984 and OMB Circular A-128, or 2. a financial and compliance audit of all federal funds. The audit must determine whether the subrecipient spent federal assistance funds in accordance with applicable laws- and regulations and the audit must be made, in accordance with any federal laws and regulations governing the federal programs the subrecipient participates in. Audits shall be made annually unless the state or local government has, by January 1,1987 a constitutional or statutory requirement for less frequent audits." For those governments, the cognizant agency shall permit biennial audits, Page No. 10 FS 1987 0 5 covering both years, if the government so requests. It shall also honor requests for biennial audits by governments that have an administrative policy calling for audits less frequent than annual, but only for fiscal years beginning before January 1, 1987. The audit shall be made by an independent auditor. An independent auditor is a state or local government auditor or a public accountant who meets the independence standards specified in the General Accounting Office's Standards for Audit of Governmental Organizations, Programs, Activities, and Functions. The audit report shall state that the audit was performed in accordance with the provisions of OMB Circular A-128 (or A-110 as applicable). The audit report shall include: A. The auditor's report on financial statements and on a schedule of federal assistance; the financial statements; and a schedule of federal assistance, showing the total expenditures for each federal assistance program as identified in the Catalog of Federal Domestic Assistance. Federal programs or grants that have not been assigned a catalog number shall be identified under the caption "other federal assistance". B. The auditor's report on the study and. evaluation of internal control systems must identify the organization's significantinternal accounting controls, and those controls designed to provide reasonable assurance that federal programs are being managed in compliance with laws and Page No. 11 regulations. It must also identify the controls that were evaluated, the controls that were not evaluated, and the material weaknesses identified as a result of the evaluation. C. The auditor's report on compliance containing: 1. a statement of positive assurance with respect to those items tested for compliance, including compliance with law and regulations pertaining to financial reports and claims for advances and reimbursements; 2. negative assurance on those items not tested; 3. a summary of all instances of noncompliance; 4. an identification of total amounts questioned, if any, for each federal assistance awarded, as a result of noncompliance; and 5. a statement on the status of corrective action taken on prior findings. 6. refer to the use of the standards required by the Minnesota Legal Compliance AuditGuidefor Local Governments, prepared by the Office of the State Auditor. The purpose of this guide is to establish compliance guidelines for verification by auditors auditing political subdivisions of the state. In addition to the audit report, the recipient shall provide comments on the findings and recommendations in the report, including a plan for corrective action taken or planned Page No. 12 ' 1987 05 FILE and comments on the status of corrective action taken on prior findings. If corrective action is not necessary, a statement describing the reason it is not should accompany the audit report. The City agrees that the grantor, the Legislative Auditor, and any independent auditor designated by the grantor shall have such access to grantee's records and financial statements as may be necessary for the grantor to comply with the Single Audit Act and OMB Circular A-128. Required audit reports must be filed with the Office of the State Auditor, Single Audit Division and state agencies providing federal assistance, within six months of the City's fiscal year end. If a federal cognizant audit agency has been assigned for the City, copies of required audit reports will be filed with that agency also. Recipients of more than $100,000 in federal assistance must also submit one copy of the audit report within 30 days after issuance to the central clearinghouse. Audit reports should be sent to: Bureau of Census Data Preparation Division 1201 East 10th Street Jeffersonville, Indiana 47132 Attn: Single Audit Clearinghouse Page No. 13 8 - All references to statutes and rules ,shall be construed to refer to the statutes and rules as they may be amended from year to year. - 9 - The Commissioner accepts this said appointment as agent of the City and agrees to act in accordance herewith. Page No. 14 CE's 19 8 7FILp 5 CITY OF ROSEMOUNT RECOMMENDED FOR APPROVAL BY„�� Mayor Director, Office of State Aid Attest: (;// Date City erk 611 Date March 3, 1987 APPROVED AS TO FORM AND EXECUTION: STATE OF MINNESOTA BY Commissioner of Transportation DATE DATE (Seal) (Submit in Duplicate) Page No. 15 a flit 1987 05 DATE: FEBRUARY 26, 1987 TO: ADMINISTRATOR JILK FROM: PUBLIC WORKS DIRECIOR H= RE: MnDDT AGENCY AGREEMENT I have received a written response from our City Attorney, Dave Grannis, which I have attached. As you can see frau Daves' response, the agreement is as we suspected, that being very one sided towards MnDot. I would still recommend that Council enter into the Agency Agreement because I do not feel the four points that Dave sent us in his letter are that critical. For example, it would be extremely difficult for either the City or the Commissioner of Transportation to reject bids if the bid was submitted by the lowest responsible bidder. As for item #2, FAU funds do not provide for engineering services. The only cost FAU covers are for construction only. As for item #3, any plans and specifications the City would have to prepare for an FAU job would have to be in accordance with the FAU guidelines and undoubtedly MnDot guidelines. Also finally, for the City to find unsatisfactory work, we would have to have sufficient documentation of defective work or materials. FAU projects require an inordinate amount of documentation. Therefore I do not feel this would be a problem either. If the City should ever wish to use FAU funds on any project eligible for those funds, then we must have entered into this agreement to obtain the FAU funds. Although we technically would not have to enter into this agreement until we have a PAU project, I would not want to jeopardize future funding for such a project by waiting. I will be available at the March 3, 1987 Council meeting to answer any questions which may arise regarding this agreement. MINNESOTA DEPARTMENT OF TRANSPORTATION FEDERAL AID FORM NO. III Be it resolved that pursuant to Section 161.36, Subdivision 1 through 6, Minnesota Statutes, the Commissioner of Transportation be appointed as agent of the City of Rosemount to let as its agent, contracts for the construction of local roads and bridges, and the Mayor and the clerk are hereby authorized and directed for and on behalf of the City to execute and enter into a contract with the Commisioner of Transportation prescribing the terms and conditions of such contracts in the form as set forth and contained in "Minnesota Department of Transportation Agency Agreement" a copy of which said agreement was before the Council, - assuming on behalf of the City all of the obligations therein contained. (SEAL) (Submit in duplicate) Note: Attach certification by City Clerk with each copy of resolution Page No. 16