3l. Approve Federal Aid Highway Agency Revised Agreement Utility Accomodation Policy CITY OF
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T. `` __ 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
I (612) 937-1900 p cion
MEMORANDUM . --
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TO: Don Ashworth, City Manager $� �
IFROM: Gary Warren, City Engineer _
DATE: January 4 , 1989 _bill______
1 SUBJ: Approve Federal Aid Highway Agency Revised Agreement
Regarding Utility Accommodation Policy
File No. PW067
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The attached agreement has been provided to us by the State Aid
I office and covers Federal Aid Highway funded projects of which we
currently do not have any. This submittal revises the existing
agreement on record to incorporate by reference "A policy for the
I accommodation of utilities and highway rights-of-way" and is
necessary in order to comply with the Federal Highway program
manual. These policies apply to active projects under develop-
ment or construction, when Federal-Aid funds are being used. The
I policies referenced involve a permitting process which the City
already has in place.
I It is therefore recommended that the attached revised agency
agreement revised 12/19/88 for Federal Aid proceeds be approved
and authorized for execution.
1 Attachment: Agreement.
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Revised 12/1988
Office of State Aid
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MINNESOTA DEPARTMENT OF TRANSPORTATION
AGENCY AGREEMENT ,
This Agreement made and entered into by and between the City
of 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 desires the
Commissioner to act as its agent in accepting federal aid on the I
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 conditions of the agency be set forth in an agreement; 1
NOW, THEN, IT IS AGREED:
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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 I
said projects and to let contracts pursuant to law for the
construction and improvement of local roads and bridges.
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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
55155, and the latest edition of "Standard Specifications for
iConstruction" 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.
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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
Ibids 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
Icall for bids shall specify that sealed proposals or bids will be
1 received by the City Purchasing Agent of 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 office of the Department of
Transportation, St. Paul , Minnesota 55155, and at the office of
said City Purchasing Agent and the advertisement shall so state.
I The bids received in response to said advertisement for bids shall
be opened for and on behalf of the Commissioner by a District
Engineer of the Department of Transportation or such other engineer
Iof the Department of Transportation as may be from time to time
selected by the Commissioner. After said bids shall have been
opened, the City council shall first consider the same and thereupon
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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 I
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.
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H. It is the policy of the United States Department of
Transportation and the Minnesota Department of Transportation that f
Disadvantaged Business Enterprises as defined in 49 CFR, Part 23,
and the Surface Transportation and Uniform Relocation Assistance Act -
for 1987, 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 have the
maximum opportunity to compete for and perform on contracts and
subcontracts. The Commissioner and the City shall not discriminate I
on the basis of race, color, national origin,or sex in the award and
performance of federally funded contracts.
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' Failure to carry out the above requirements shall constitute a
breach of this agreement and may result in termination of the
agreement or other such remedy that the Commissioner deems
appropriate.
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.
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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.
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, 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 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
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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
Construction and Contract Administration 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 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 estimates shall be documented in J
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 '
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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.
-IV-
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.
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' 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.
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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
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and in that event the City agrees to pay the same. The City further ,
agrees to pay any and all 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 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.
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The City further agrees that:
A. All right-of-way acquisition and relocation will be conducted
in accordance with 49 CFR Part 25. Procedures implementing this '
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) . '
B. If the City receives total direct and indirect federal
assistance of:
1. $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, ,
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' 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.
2. Between $25,000 and $100,000 per year, the City agrees
' to obtain either -
' a. a financial and compliance audit made in accordance
with the Single Audit Act of 1984 and OMB Circular A-128, or
' b. 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, 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 independent standards specified in
the General Accounting Office's Standards for Audit of Governmental
Organizations, Programs, Activities, and Functions.
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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:
1) The auditor's report on financial statements and on a I
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".
2) The auditor's report on the study and evaluation of
internal control systems must identify the organization's ,
significant internal accounting controls, and those controls
designed to provide reasonable assurance that federal programs are '
being managed in compliance with laws and 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. '
3) The auditor's report on compliance containing:
a) A statement of positive assurance with respect to 1
those items tested for compliance, including compliance with law and
regulations pertaining to financial reports and claims for advances
and reimbursements; '
b) Negative assurance on those items not tested;
c) A summary of all instances of noncompliance; 1
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Id) An identification of total amounts questioned, if
any, for each federal assistance awarded, as a result of
' noncompliance;
e) A statement on the status of corrective action taken
ton prior findings; and
f) Refer to the use of the standards required by the
' Minnesota Legal Compliance Audit Guide for 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 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
Imay 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.
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Recipients of more than $100,000 in federal ac-i'ctance 1
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 '
C. 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
the attached "A Policy for the Accommodation of Utilities on Highway '
Rights of Way" as approved on April 5, 1988 by the United States
Department of Transportation, Federal Highway Administration, '
Minnesota Division.
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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. J
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The Commissioner accepts this said appointment as agent of
the City and agrees to act in accordance herewith. '
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' City of Recommended f or Approval
' By
Mayor Director, Office of State Aid
Date Date
Attest: Approved as to Form and Execution
City Clerk Special Assistant Attorney General
Date Date
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State of Minnesota
' Commissioner of Transportation
Date
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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 to let as
its agent, contracts for the construction of local roads and bridge,
and the Mayor and the City ckerk are hereby authorized and directed '
for and on behalf of the City to execute and enter into a contract
with the Commissioner 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 City 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.
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