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5.7. SR 05-02-2005 Item 5.7. 13065 Orono Parkway Elk River, MN 55330 April 27, 2005 File #: 800110J-0068 The Honorable Mayor and City Council City of Elk River 13065 Orono Parkway Elk River MN 55330 RE: MNDOT RIGHT OF WAY AGREEMENT FOR TYLER S1REET Dear Council Members: Attached is a MnDOT Agency Agreement for the participation in the purchase of right of way for Tyler Street (Twin Lakes Road). The reason this agreement is coming to you at this late date, several years after Twin Lakes Road has been constructed, is that as we have been trying to complete the federal paperwork and maximize the use of the federal grant for this project, MnDOT has discovered that the right of way agreement previously approved by the City Council has lapsed. Therefore, in order to get the remaining approximately $100,000 of federal money released for the purchase of right of way along the Twin Lakes Road Corridor, the City Council needs to adopt a new agency agreement. Attached for your consideration is a resolution which authorizes the Mayor and the City Administrator to execute the attached agreement. I will be in attendance at your May 2, 2005 City Council meeting should you have any questions regarding this issue. Sincerely, Te2~ City Engineer Phone: 763.635.1000 Fax: 763.635.1090 s: \Engineer\200S Memos \04 27 05 cc MnDOT rowagmt.doc www.cLelk-river.mn.us RESOLUTION 05- A RESOLUTION FOR THE CITY OF ELK RIVER A RESOLUTION ADOPTING MINNESOTA DEPARTMENT OF TRANSPORTATION AGENCY AGREEMENT NO. 86472 FOR FEDERAL PARTICIPATION IN RIGHT OF WAY FOR S.P. 204-133-02 AND 71-613-08 WHEREAS, the City of Elk River has received federal aid funds for the acquisition of right of way and construction of Tyler Street (Twin Lakes Road). NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Elk River, Minnesota: 1. That pursuant to Minnesota Stat. Sec. 161.36, the Commissioner of Transportation be appointed as Agent of the City of Elk River to accept as its agent, federal aid funds which may be made available for eligible transportation related projects. 2. That the Mayor and the City Administrator 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. 86472", a copy of which said agreement was before the City Council Board and which is made a part hereof by reference. Passed and adopted this 2nd day of May, 2005. Stephanie A. Klinzing, Mayor ArrEST: Joan M. Schmidt, City Clerk Mn/DOT Agreement No. 88036 STATE OF MINNESOTA AGENCY AGREEMENT BETWEEN DEPARTMENT OF TRANSPORTATION AND CITY OF ELK RIVER FOR FEDERAL PARTICIPATION IN RIGHT OF WAY FOR S.P. 204-133-02 and 71-613-08; M.P. HPP MN51(001) This agreement is entered into by and between City of Elk River ("City") and the State of Minnesota acting through its Commissioner of Transportation ("Mn/DOT"), Pursuant to Minnesota Statutes Section 161.36, the City desires Mn/DOT to act as the City's agent to accept and disburse federal funds for the construction, improvement, or enhancement of transportation financed in whole or in part by federal funds, hereinafter referred to as the "Project"; and The City has a federal aid project to purchase right of way for the Tyler Street(MSAS 133)from 171 st Avenue NW(MSAS 132) to CSAH 12, hereinafter referred to as the "Right-of- way Acquisition"; and The Right-of-way Acquisition is eligible for the expenditure of federal aid funds, and is identified in Mn/DOT records as State Project 204-133-02 and 71-613-08, and in Federal Highway Administration ("FHW A") records as Minnesota Project HPP MN51(001); and Agreement no. 79058 was written to provide the federal funds for Right-of-way Acquisition, however the agreement expired prior to a bill being submitted. In the meantime, the funds for right-of-way were transferred back and forth to the construction funds. Construction costs were less than anticipated thus there is a desire on the part of the city to use the remaining federal funds to cover eligible right-of -way acquisition costs for the project; and Mn/DOT reqUIres that the terms and conditions of this agency be set forth In an agreement. THE PARTIES AGREE AS FOLLOWS: 1. DUTIES OF THE CITY. A. DESIGNATION. The City designates Mn/DOT to act as its agent to accept and disburse federal funds made available for the Project. Agreement no. 88036 -1- B. ELIGIBILITY / COSTS. The estimated cost of the Right-of-way Acquisition IS $113,778.64. 1. It is anticipated that 80% (capped at $ 91,022.91) of the cost of the Right-of-way Acquisition is to be paid from federal funds made available by the FHW A, and that the remaining 20% will be paid by the City. The City will pay any part of the cost or expense of the work that the Federal Highway Administration does not pay. 2. Any costs incurred by the City prior to authorization, will not be eligible for federal participation. 3. Eligible cost and expense, if approved, may consist of the following: a) The cost of purchasing right-of-way for the project. b) The direct labor charges for City employees for the time that said employees are engaged in the work to be performed by the City pursuant to this agreement. Said labor charges may include the prorata share of "labor additives" applicable to said labor charges. Costs to the City of "labor additives" consisting of holiday pay, vacation, sick leave, retirement, pension, unemployment taxes, compensation and liability insurance, lost time charges and similar costs incidental to labor employment will be reimbursed only when supported by adequate records. c) The applicable equipment rental charges for City owned equipment used by the City and mileage charges for employee owned vehicles used by the City on the work to be performed pursuant to this agreement, at rates reflective of the City actual cost. d) Expenditures for materials, supplies, mechanical data processing and equipment rental, limited to the actual expenditures for the purposes of this agreement. e) The cost incurred by the City to employ outside forces to perform any or all of the work pursuant to this agreement is subject to the provisions of section LD. SUBLETTING. f) Purchase price, appraisal fees incurred by the City, appraisal fees incurred by the property owner ($1500 maximum), condemnation costs, title work, title insurance, recording fees, and closing costs. g) A credit will be required for any building sales or rental income. 4. Expenditures for general administration, supervision, maintenance and other overhead or incidental expenses of the City are not eligible for federal participation. Agreement no. 88036 -2- 5. Acceptability of costs under this agreement will be determined in accordance with the cost principles and procedures set forth in the applicable Federal Acquisition Regulations, Contract Cost Principals and Procedures, 48 Code of Federal Regulations (CFR) 31 which is hereby incorporated by reference and made a part of this agreement. 6. For costs expected to exceed $ 113,778.64, the City must request the preparation and execution of a supplement to this agreement, prior to incurring such costs. C. STAFFING. 1. The City will designate a publicly employed registered engineer or land surveyor, ("Project Engineer"), to be in responsible charge of the Project and to supervise and direct the work to be performed under any construction contract let for the Project. If City elects to use a private consultant for engineering services, the City will provide a qualified, full-time public employee of the City, to be in responsible charge of the Project. The services of the City to be performed pursuant to this agreement may not be assigned, sublet, or transferred unless the City is notified in writing by MnlDOT 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 from its primary responsibility for performance of the work. 2. During the progress of the work on the Project, the City authorizes its Project Engineer to request in writing specific engineering and/or technical services from MnlDOT, pursuant to Minnesota Statutes Section 161.39. Such services may be covered by other technical service agreements. If MnlDOT furnishes the services requested, and if MnlDOTrequests reimbursement, then the City will promptly pay MnlDOT 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 MnlDOT 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 MnlDOT a principal or co-principal with respect to the Project. 3. The City will furnish the personnel, services, supplies, and equipment necessary to properly supervise, inspect, and document the work for the Project. D. SUBLETTING. The City will prepare request for proposals in accordance with Minnesota law and applicable Federal laws and regulations. 1. The City will solicit proposals after obtaining written notification from MnlDOT that the FHW A has authorized the Proj ect. Any Proj ect advertised prior to authorization will not be eligible for federal reimbursement. Agreement no. 88036 -3- 2. This written consent will in no way relieve the City from its primary responsibility for performance of the work. Subcontractor agreements must contain all appropriate terms and conditions of this agreement. E. CONTRACT ADMINISTRATION. 1. The City will request approval from Mn/DOT for all costs in excess of the amount of federal funds previously approved for the Proj ect prior to incurring such costs. Failure to obtain such approval may result in such costs being disallowed for reimbursement. 2. The City will prepare reports, keep records, and perform work so as to enable Mn/DOT to collect the federal aid sought by the City. The City will retain all records and reports in accordance with Mn/DOT's record retention schedule for federal aid projects. 3. Upon completion of the Project, the Project Engineer will determine whether the work will be accepted. F. PAYMENTS. 1. The entire cost of the Project is to be paid from federal funds made available by the FHW A and by other funds provided by the City. The City will pay any part of the cost or expense of the Project that is not paid by federal funds. 2. The City may request partial payments not more than once each thirty (30) days. The Project Engineer will certify the amount of each partial estimate. 3. The invoice and supplements thereto, will contain all details that may be necessary for a proper audit. Such details will consist of at least the following: (a) A breakdown oflabor by individual, classification, dates and hours worked times the applicable rate to arrive at a total dollar amount for each individual. (b) The labor additive may be applied to total labor dollars, not including overtime labor dollars. (c) The equipment charges shall be broken down by type of equipment times the applicable rate and dates used to arrive at total equipment charges. (d) A detailed breakdown of outside services used and supporting invoices. Documentation that costs of outside services have been paid. (e) Detail for materials, supplies, and other items with the description, units, and unit prices included in the invoice. If materials or supplies are purchased from an outside source, a copy of that invoice should be Agreement no. 88036 -4- included. (f) The invoices will include 100% of eligible charges applicable to the Right-of-way Acquisition so that the prorata share of federal and City participation can be applied to the total costs. 4. Following certification, by the Project Engineer, of the final estimate, the City may request reimbursement for costs eligible for federal funds. The City's request will be made to Mn/DOT and will include a copy of the certified final estimate along with the required records. 5. Reimbursement of costs under this agreement will be based on actual costs, but limited to eligible items. G. 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 prescribed 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. 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 Mn/DOT, 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 MnlDOT. The City will require proof of Workers' Compensation Insurance from any contractor and sub- contractor. Agreement no. 88036 -5- H. AUDIT. 1. The City will comply with the Single Audit Act of 1984 and Office of Management and Budget (OMB) circular A-l33 including amendments and successors thereto, 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, MnlDOT, and either the Legislative Auditor or the State Auditor as appropriate, for a minimum of six years. The City will be responsible for any costs associated with the performance of the audit. 1. MAINTENANCE. The City assumes full responsibility for the operation and maintenance of any facility constructed or improved under this Agreement. J. CLAIMS. The City will pay any and all lawful claims arising out of or incidental to the performance of the Project work. The City acknowledges that MnlDOT is acting only as the City's agent for receipt and disbursement of federal funds, and not as a principal or co-principal with respect to the Project. In all events, the City will indemnify MnlDOT and hold MnlDOT harmless from any claims arising out ofthe Project. II. DUTIES OF MnlDOT. A. ACCEPTANCE. MnlDOT accepts designation as Agent of the City for the receipt and disbursement of federal funds and will act in accordance herewith. B. PROJECT ACTIVITIES. MnlDOT will make the necessary requests to the FHW A for authorization to use federal funds for the Proj ect, and for reimbursement of eligible costs pursuant to the terms of this agreement. C. PAYMENTS. 1. MnlDOT will receive the federal funds to be paid by the FHW A for the Project, pursuant to Minnesota Statutes 9 161.36, Subdivision 2. 2. MnlDOT will review and sign each partial pay request. Following certification of the partial estimate, MnlDOT will reimburse the City, from said federal funds made available to the Project, for each partial payment request, subject to the availability and limits of those funds. 3. Upon completion of the Project, the City will prepare a final payment request in accordance with the terms of this agreement. MnlDOT will review and certify the final payment request with a [mal audit. 4. No more than 90% of the reimbursement due under this agreement will be paid until completion of the final audit and approval by MnlDOT's authorized Agreement no. 88036 -6- representative. 5. In the event MnlDOT does not obtain funding from the FHW A 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 Mn!DOT is able to process the federal aid reimbursement requests. D. AUTHORlTY. MnlDOT may withhold federal funds, where MnlDOT or the FHW A determines that the Project was not completed in compliance with federal requirements. E. INSPECTION. MnlDOT, the FHW A, 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. AUTHORIZED REPRESENTATIVES. Each authorized representative will have responsibility to insure that all payments due to the other party are paid pursuant to the terms of this agreement. A. The City authorized representative for the purposes of administration of this agreement is Terry Maurer, City of Elk River, Court International Building, 2550 University Avenue West, Suite 400N, St. Paul, Minnesota 55114 or his successor. B. MnlDOT's authorized representative is Lynnette Roshell, Minnesota Department of Transportation, State Aid for Local Transportation, Mail Stop 500, St Paul, MN 55155, phone 651.282.6479, or her successor. IV. 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 MnlDOT liability. V. ASSIGNMENT. Neither party will assign or transfer any rights or obligations under this agreement without prior written approval ofthe other party. VI. 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. VII. TERM OF AGREEMENT. This agreement is be effective upon execution by appropriate State officials, pursuant to Minnesota Statutes Section 16C.05, and will remain in effect for three (3) years from the effective date or until all obligations set forth in this agreement have been satisfactorily fulfilled, whichever occurs first. Agreement no. 88036 -7- VITI. TERMINATION. This agreement may be terminated by the City or Mn/DOT 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 termination the City will be entitled to reimbursement for Mn/DOT-approved federally eligible expenses incurred for work satisfactorily performed on the Project to the date of termination subject to the terms of this agreement. Agreement no. Sg036 -8- IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intend to be bound thereby. STATE ENCUMBRANCE VERlFICA TION Indi,:,idual)f~es that funds have been encumbered as requrredpY,M . tat. ~ 16A.I~d 16C.05. ( ./ . l ,l /A By: . ; Dat6: t/. 2 rz, 2 tio:J \. CFMS Contract No. A- .5"-- '7 o! 7 DEPARTMENT OF TRANSPORTATION By: Title: Director, State Aid for Local Transportation Date: COMMISSIONER OF ADMINISTRATION CITY By: City certifies that the appropriate person(s) have executed the contract on its behalf as required by Date: applicable resolutions, ordinances, or charter proVISIOns By: Date: Title: By: Date: Title: Agreement no. 88036 -9-