2.1 Master Funding Agreement/Locally-Requested Capital Improvements
Planning & Economic
Development
MEMORANDUM
TO:
Honorable Mayor and Hopkins City Council Members
FROM:
Kersten Elverum, Director of Planning & Development
DATE:
October 9, 2014
SUBJECT:
Master Funding Agreement/Locally-Requested Capital Improvements
The Southwest LRT project will move from 30% design to completion under an engineering
contract anticipated to begin in January 2015. In order to advance design work as soon as
possible under this new team, the SPO has asked the five cities to approve a Master Funding
Agreement (MFA). The purpose of the MFA is to allow for the following:
The City may be involved in certain activities or possibly provide materials in connection
with and in support of the Project and the Met Council may desire to pass through
federal, state, CTIB or other local funds to the City for costs associated with such Project
activities and/or materials
The City may provide funding for certain Project components or non-FFGA components,
including Locally Requested Capital Investments, through the transfer of City funds to
the Council
The MFA is entered into between the Parties to provide a mechanism for the transfer of Project
funds from the Council to the City for activities undertaken by the City for the Project, and for
the transfer of City funds to the Council for features related to, but not currently part of, the
Project. In addition, this Agreement establishes general provisions applicable to transfers from
either party to the other.
The Master Funding Agreement is scheduled to be considered at the November 5, 2014, City
Council meeting. Staff will provide an overview of the terms and the comments from the City
Attorney and staff at the October 14, 2014, City Council work session.
Once the MFA is executed, Subordinate Funding Agreements (SFA) will be negotiated that
detail how specific elements, including any Locally-Requested Capital Improvements (LRCI),
will be designed and funded. Those agreements will be brought to the City Council for
consideration in December/January timeframe. In anticipation of those agreements, staff will
lead a discussion on improvements beyond the current project scope and how those desired
improvements could be funded, including through the LRCI process, the City’s CIP and other
sources including grants.
As background for this discussion, please consider the following:
In the City of Hopkins resolution granting municipal consent, the following were identified as
LRCIs:
Conversion of the surface parking lot at the Shady Oak Station to a structure
Evaluate the intersection design of 5th Avenue and Excelsior Boulevard for accessibility
improvements
Evaluate a higher level of design and treatment of the plaza area at the Downtown
Hopkins
The Hopkins Cooperation Agreement approved by the Metropolitan Council identified the
following items as improvements outside of the project scope that would be supported by the
Project through the scope deferral process and as a high priority use for the initial release of
SWLRT Project contingency funds:
Conversion of the Shady Oak Station surface park-and-ride design to structured parking
Additional landscaping, streetscaping and enhanced public art at the proposed civic plaza
at the Downtown Hopkins Station
Design stormwater management at the Blake Station to accommodate the structured
parking, access road and a fully-developed remnant parcel
Improve the access road to City street standards if redevelopment of the adjacent parcel
immediately to the west of the park-and-ride occurs
The Cooperation Agreement also commits the City of Hopkins to explore stubbing-in utilities to
support potential future redevelopment on the remnant parcels at the Shady Oak Station.
Finally, the Transitional Station Area Action Plan (TSAAP) outlines numerous improvements
that fall out of the base project scope that the City may want to consider including as a LRCI and
advanced through a SFA. Staff will be prepared to discuss this list of improvements and provide
a recommendation regarding what improvements should be advanced through the project design.
Attachment: Draft Master Funding Agreement
Reference Numbers:
SWLRT Project: 61001
Metropolitan Council:
City of Hopkins:
PROJECT: SOUTHWEST LIGHT RAIL TRANSIT PROJECT
AGREEMENT NAME: Master Funding Agreement – City of Hopkins
PARTIES: Metropolitan Council
City of Hopkins, Minnesota
This Master Funding Agreement (“Agreement”) is entered into by and between the Metropolitan
Council (“Council”), a public corporation and political subdivision of the State of Minnesota,
and the City of Hopkins (“City”), a Minnesota municipal corporation, herein collectively referred
to as the “Parties” and individually as a “Party”. This Agreement pertains to the Council’s
proposed Southwest Light Rail Transit (“SWLRT”) Project, referred to hereafter as the
“Project”.
WHEREAS:
1.The Council, metropolitan area cities, public agencies, and transit funders are engaged in
activities to develop the SWLRT Project (METRO Green Line Extension), an
approximately 16 mile proposed extension of the METRO Green Line which will operation
from downtown Minneapolis through the communities of St. Louis Park, Hopkins,
Minnetonka, and Eden Prairie.
2.The Council has received appropriations from the State of Minnesota for the purpose of
conducting environmental studies, completing project development, and designing the
Project. The Council also expects to receive future appropriations from the State of
Minnesota for engineering and construction of the Project.
3.The Council anticipates receiving grants from the Federal Transit Administration (“FTA”)
for engineering and construction for the Project under a Full Funding Grant Agreement
(“FFGA”) with the FTA.
4.The Council has received a grant from the Counties Transit Improvement Board (“CTIB”)
for project development for the Project. The Council also expects to receive future grants
from the CTIB for engineering and construction of the Project.
5.The Council is a party to a Cooperative Funding Agreement for project development with
the Hennepin County Regional Railroad Authority (“HCRRA”) for the Project. The
Council expects to enter into future Cooperative Funding Agreement(s) with HCRRA for
engineering and construction of the Project.
6.The City may be involved in certain activities or possibly provide materials in connection
with and in support of the Project and the Council desires to pass through federal, state,
CTIB or other local funds to the City for costs associated with such Project activities and/or
materials.
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7.In addition, the City may provide funding for certain Project components or non-FFGA
components, including Locally Requested Capital Investments, through the transfer of City
funds to the Council.
8.This Agreement is entered into between the Parties to provide a mechanism for the transfer
of Project funds from the Council to the City for activities undertaken by the City for the
Project (Part One), and for the transfer of City funds to the Council for features related to,
but not currently part of, the Project (Part Two). In addition, this Agreement establishes
general provisions applicable to transfers from either Party to the other (Part Three).
9.This Agreement is authorized by Minnesota Statutes section 473.3994.
NOW, THEREFORE
, the Parties hereby agree as follows:
PART ONE
ARTICLE 1. PURPOSE
The purpose of Part One of this Agreement is to provide:
a.A method for the transfer of funds from the Council to the City for activities
performed or materials supplied by the City in connection with and in support of the
Project; and
b.Contractual provisions that address compliance with federal and state laws and
regulations as well as Council procedures including, without limitation, federal
requirements for the monitoring of the City's Project activities using federal grant
funds.
ARTICLE 2. SUBORDINATE FUNDING AGREEMENTS TRANSFERRING FUNDS
FROM COUNCIL TO CITY
2.01 Transfer of Funds from Council to City.
The Council will transfer Project
funds to the City for the Project activities performed by the City. The transfer of funds from the
Council to the City shall be in accordance with Subordinate Funding Agreements executed
pursuant to this Article 2, each of which shall state the specific purpose for the funds, the City’s
responsibility with respect to those funds, and establish who will own any assets constructed or
remaining upon completion of the work. Each such Subordinate Funding Agreement, in
conjunction with this Agreement, shall be determined by the Council to constitute a subrecipient
or vendor agreement with the Council for the purposes of any federal grant funds transferred to
the City. The Council shall bear no responsibility for any costs incurred by the City for the
Project that exceeds the amounts committed by Subordinate Funding Agreements as such
agreements may from time to time be amended.
2.02 Subordinate Funding Agreements.
In accordance with section 2.01, the Parties
shall enter into Subordinate Funding Agreements in order to facilitate the funding by the Council
of Project activities to be performed by the City. The Parties anticipate there may be multiple
such Subordinate Funding Agreements between them in connection with the Project. Each
Subordinate Funding Agreement shall be in a form substantially similar to that attached as
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Exhibit A and shall follow and be subject to the terms of Part One and Part Three of this
Agreement, unless expressly agreed to in writing otherwise. Notwithstanding any other
provisions of this Agreement, this Agreement itself is not intended to create a specific financial
obligation for either Party or to require either Party to enter into any specific Subordinate
Funding Agreements, and no liability shall attach to either Party under this Agreement for
refusing to enter into one or more subsequent Subordinate Funding Agreements.
2.03 Implementation of Subordinate Funding Agreements.
The City shall not
incur any reimbursable costs for Project activities that are not the subject of a Subordinate
Funding Agreement, and the only local, state or federal funds available to the City for the Project
are those which are approved through Subordinate Funding Agreements or available to the City
through direct state appropriation or from City funds. Prior to entering into a contract with any
third party (including the acquisition of property rights) to accomplish the City’s reimbursable
activities in connection with and in support of the Project, or prior to authorizing any City
employees to proceed with any reimbursable activities in that regard, the City shall present to the
Council for prior review and approval, and to arrange for the execution of a Subordinate Funding
Agreement, a work scope (including a work schedule), staffing plan, and detailed budget for
such services or expenditures.
2.04 Council Determination of Vendor or Subrecipient Relationship.
The Council
shall determine whether each Subordinate Funding Agreement is a subrecipient or vendor
agreement under United States Office of Management and Budget (“OMB”) Circular A-133,
Audits of States, Local Governments and Non-Profit Organizations. For subrecipient
agreements, the City will be responsible to FTA for compliance with applicable federal laws,
regulations, and deliverables. For vendor agreements, the Council will be responsible for
compliance with applicable federal laws, regulations, and deliverables.
2.05 Modifications of Subordinate Funding Agreements.
The following provisions
apply to modifications of any Subordinate Funding Agreement:
a.Rebudgeting within an approved budget is allowable as long as the budget is within
the overall authorized expenditure amount.
b.Modifications in work scope, if within the approved budget, are authorized when
approved in writing by the Project Director.
c.Any other modifications to a Subordinate Funding Agreement, including any increase
in the authorized expenditure amount or any change to a project activity period, shall
require a written amendment of the Subordinate Funding Agreement executed by the
Parties.
d.Modification requests should be sent to the Council’s Project Director.
2.06 Transfer of Project Funds to the City Under Subordinate Funding
Agreements.
The Council shall pay the City under Subordinate Funding Agreements as
follows:
a.Unless specifically agreed to by the Parties in and for a particular Subordinate
Funding Agreement, payment to the City for Project costs under each Subordinate
Funding Agreement shall be on a reimbursement basis based upon the submittal of
invoices evidencing the expenditure of funds by the City for the Project.
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b.Unless specifically agreed to otherwise by the Parties in and for a particular
Subordinate Funding Agreement, the City shall submit separate monthly invoices for
each outstanding Subordinate Funding Agreement to the following address:
Attn: Accounts Payable
Southwest LRT Project Office
6465 Wayzata Blvd, Suite 500
St. Louis Park, MN 55426
or to such other address or person as the Council may designate by notice in writing.
c.Each invoice shall reference the sequential number of the Subordinate Funding
Agreement under which the invoice is to be paid.
d.Each invoice shall include the following if the corresponding Subordinate Funding
Agreement was determined by the Council to create a subrecipient relationship:
i.Subrecipient Payment Request Form (Form C-22A-SPO) as shown in Exhibit B,
ii.Subrecipient Monthly Progress Report (Form SPO P1) as shown in Exhibit B,
and
iii.Itemization of the expenditures for which payment is requested using the
Subrecipient Invoice Detail (Form SPO F1) as shown in Exhibit B, along with
supporting documentation.
e.Each invoice shall include the following if the corresponding Subordinate Funding
Agreement was determined by the Council to create a vendor relationship:
i.SPO Payment Request Form (either Engineering-Consultant or Construction)
1)Engineering-Consultant Payment Request Form (Form C22A-SPO) as
shown in Exhibit 2 for engineering related expenses, or
2)Construction Payment Request Form (Form C22A-SPO) as shown in
Exhibit 2 for construction related expenses,
ii.A description of activities undertaken in accordance with the Subordinate
Funding Agreement,
iii.An itemized list of the expenditures for which payment is requested, along with
any supporting documentation, and
f.If a Disadvantaged Business Enterprise (“DBE”) goal applies to the work performed
under a Subordinate Funding Agreement, invoices shall include a DBE Reporting
Form as shown in Exhibit B, or such other format as may be prescribed by the
Council, and shall include the information required by section 4.06(e) of this
Agreement.
g.After receipt of an invoice, the Council may request additional information from the
City regarding the invoice in order to verify the accuracy and appropriateness of the
expenditures for which reimbursement is requested or as required by the FTA for
reporting purposes.
h.Upon receipt of an invoice, the Council will make prompt payment of undisputed
amounts as required by Minnesota Statutes, section 471.425, and shall expedite such
distribution as necessary for right of way acquisition. Pursuant to 49 C.F.R. Part 18,
Section 22, the Council may dispute or deny part or all of any invoice payment
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request if it reasonably believes that the requested payment does not conform to the
terms of this Agreement and the applicable Subordinate Funding Agreement. The
Parties will promptly meet to review and discuss any disputed or denied payment
requests and the dispute resolution process outlined in Section 6.12 of this Agreement
will ensue if the Parties cannot agree.
i.No invoice payment shall be made which would cause distribution of Project funds to
exceed, cumulatively through such payment, the authorized expenditure amount
under the applicable Subordinate Funding Agreement.
j.Distribution of any funds to the City pursuant to an invoice, or approval of any report,
shall not be construed as a Council waiver of any City noncompliance with this
Agreement or the applicable Subordinate Funding Agreement.
2.07 Repayment of Unauthorized Use of Project Funds.
Upon a finding by the
Council that the City has made an unauthorized or undocumented use of Project funds, and upon
a demand for repayment issued by the Council and supported by the reason for the finding, if the
City agrees, the City shall promptly repay such amounts to the Council. If the City disagrees, the
Parties will promptly meet to review and discuss any challenged use of funds already paid and
dispute resolution will ensue if the Parties cannot agree Neither Party shall be deemed to have
waived any rights or remedies available under state law, federal law, common law, or otherwise.
ARTICLE 3. REQUIREMENTS FOR PROJECT FUNDED WORK
3.01 Allowable Costs; Unspent Funds.
The City is authorized to use funds provided
by the Council under this Agreement only for allowable costs directly incurred for the Project.
Allowable costs will be determined in accordance with OMB Circular A-87. Funds provided by
the Council in Subordinate Funding Agreements may only be used for costs directly incurred:
a.within the authorized work scope,
b.during the project activity period, and
c.in accordance with the approved budget for the funds.
Any funds provided to the City under this Agreement and applicable Subordinate Funding
Agreements which remain unspent after completion of the relevant Project activity shall be
promptly repaid to the Council.
3.02Documentation of Project Costs.
All costs charged to the Project by the City
must be supported by proper documentation, including properly executed payrolls, time records,
invoices, contracts, receipts for expenses, or vouchers, evidencing in detail the nature and
propriety of the charges per the requirements of section 4.02 of this Agreement.
3.03Establishment of Capital Assets
. If Capital Assets, as defined by FTA and
determined by the Council in a Subordinate Funding Agreement, are procured by or provided to
the City under a Subordinate Funding Agreement, invoices shall include an Asset Tracking Log
as shown in Exhibit B, or such other format as may be prescribed by the Council.
3.04Establishment and Maintenance of Project Information.
The City agrees to
establish and maintain accurate, detailed, complete, and separate books, accounts, financial
records, documentation, and inspection and quality assurance reports produced by City staff
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and/or contractors, and other evidence relating to the receipt and expenditure of all Project funds.
These documents shall include the property records required by section 4.10. All such Project
information shall be established and maintained in accordance with generally accepted
government accounting principles and practices and shall be retained intact by the City until the
latest of:
a.complete performance of this Agreement and all Subordinate Funding Agreements
entered into pursuant thereto;
b.six years following the term of the this Agreement and all Subordinate Funding
Agreements entered into pursuant thereto;
c.six years following the close out of the Southwest LRT Project by the Council and the
FTA; or
d.if any litigation, claim, or audit is commenced during any such periods, when all such
litigation, claims or audits have been resolved.
If the City engages any contractors to perform any part of the Project activities, the City agrees
that the contract for such services shall include provisions requiring the contractor to establish
and maintain Project information in accordance with the provisions of this section and to allow
audit of such information in the same manner provided with respect to the City in section 3.05.
The provisions of this section 3.04 shall survive termination of this Agreement.
3.05Reimbursed Costs Audit.
The accounts and records of the City relating to the
reimbursable costs for the Project shall be audited in the same manner as all other accounts and
records of the City are audited. A Single Audit is required as defined in OMB Circular A-133,
Audits of States, Local Governments and Non-Profit Organizations, when the federal threshold is
met. Audits must be submitted to the Council upon execution of this Agreement and annually
within forty-five (45) days of completion. Additionally, during the time of maintenance of
information under section 3.04, authorized representatives of the Council, the Legislative
Auditor and/or State Auditor in accordance with Minnesota Statutes, section 16C.05, subdivision
5, the United States Secretary of Transportation, the FTA Administrator, and the United States
Comptroller General in accordance with 49 U.S.C. Section 5325(g) will have access to all such
books, records, documents, accounting practices and procedures, and other information for the
purpose of inspection, audit, and copying during normal business hours. Proper facilities for
such access and inspection shall be provided by the City.
The provisions of this section 3.05 shall survive termination of this Agreement.
3.06Subcontractor Provisions.
In addition to the requirements of section 4.06, if the
City engages any contractors to perform any part of the Project activities, the City agrees that the
contract for such services shall include all of the following provisions. (Note: these requirements
are in addition to other requirements for such contracts set forth in this Agreement.)
a.The contractor must maintain all records and provide all reporting as required by this
Agreement.
b.The contractor must defend, indemnify, and save harmless the Council from all
claims, suits, demands, damages, judgments, costs, interest, and expenses arising out
of or by reason of the performance of the contracted work, caused in whole or in part
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by any act or omission of the contractor, including acts or omissions by any of its
employees, subcontractors, or anyone for whose acts any of them may be liable.
c.The contractor must provide and maintain insurance in amounts and types of
coverage appropriate to the contracted work and naming the Council, the Counties
Transit Improvement Board, and other funding partners as requested by the Council,
as additional insureds, and shall provide to the City prior to commencement of the
contracted work a certificate of insurance evidencing such insurance coverage.
d.The contractor must be an independent contractor for the purposes of completing the
contracted work.
e.The contractor must acknowledge that the contract between the City and the
contractor does not create any contractual relationship between the Council and the
contractor.
f.The contractor shall perform and complete the contracted work in full compliance
with this Agreement and all applicable laws, statutes, rules, ordinances, and
regulations issued by any federal, state, or local political subdivisions having
jurisdiction over the contracted work.
3.07Contract Information.
The City shall, in connection with any contract entered
into for the Project:
a.Keep the Council informed as to the progress of such contract;
b.Allow authorized representatives of the Council access to all meetings and
documentation related to such contract; and
c.Upon request, promptly provide the Council with copies of correspondence between
the City and the contractor related to such contract.
ARTICLE 4.FEDERAL REQUIREMENTS
4.01 Federal Requirements.
Monies that may be provided to the City by the Council
pursuant to this Agreement may be funded in whole or in part by the FTA. The requirements in
this Article 4 are in addition to and, unless inconsistent and irreconcilable, do not supplant
requirements found elsewhere in this Agreement. If any requirement in this article is
inconsistent with a provision found elsewhere in this Agreement and is irreconcilable with such
provision, the requirement in this Article 4 shall prevail.
4.02 Incorporation of Federal Grant.
As the Council receives federal grants,
including a potential Full Funding Grant Agreement, with respect to the Project, the Council will
provide the City with a copy of each grant. The terms of each grant and any amendments shall
be automatically incorporated by reference into this Agreement without further action by the
Parties. These grants are collectively referred to in this Agreement as the “Federal Grants.”
When performing work or expending funds for Project activities, the City agrees to comply with
all applicable terms and conditions of the Federal Grants received by the Council with respect to
the Project.
4.03Incorporation of Specific Federal Requirements.
Specifically, and without
limitation, the City agrees to comply with the federal requirements set forth in Exhibit C and
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agrees to require, unless specifically exempted, third party contractors at every tier to comply
with the same.
4.04 Federal Certifications and Assurances; Execution and Incorporation.
The
City agrees to comply with and to certify compliance with the most recent version of the federal
Annual List of Certifications and Assurances for Federal Transit Administration Grants and
Cooperative Agreements attached to and incorporated into this Agreement as Exhibit D. The
City must certify compliance with the applicable provisions by signing the appropriate
certification(s) and returning the signed certification(s) as part of the execution of this
Agreement. During the term of this Agreement, the Council shall provide to the City the annual
Federal Certifications and Assurances document, which the City shall execute and return to the
Council.
4.05 Compliance with Federal Requirements; Incorporation of Specific
Documents by Reference.
The City agrees to comply with all federal statutes, rules, FTA
Circulars, Executive Orders, guidance, and other requirements which may be applicable to the
Federal Grants. In particular, and without limitation, the City agrees to comply with the terms
and conditions of the current version of the following documents when performing work or
expending funds for Project activities:
a.FTA Master Agreement
b.Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, 49 C.F.R. Part 18
c.Grant Management Requirements, FTA Circular 5010.1D
d.Full-Funding Grant Agreements Guidance, FTA Circular 5200.1A
e.Third Party Contracting Requirements, FTA Circular 4220.1F
f.Cost Principles for State, Local and Indian Tribal Governments, OMB Circular A-87
g.Audits of States, Local Governments, and Non-Profit Organizations, OMB Circular
A-133
as such statutes, rules, circulars, executive orders, guidance and other requirements may hereafter
be amended or modified. The listed documents are incorporated by reference into this
Agreement. Copies of these documents are available on the FTA website or, upon request by the
City, from the Council.
4.06 Third Party Contracts.
If the City decides to fulfill any of its obligations or
duties under a Subordinate Funding Agreement through a third party contract to be paid for by
funds received under this Agreement, the City agrees to the following provisions. (Note: these
requirements are in addition to other requirements for such contracts set forth in this Agreement.)
Compliance with Federal Procurement Requirements.
a. The City will comply with
all applicable federal law, rules, and guidance relating to such procurement including,
without limitation, the provisions of the most current version of the Third Party
Contracting Requirements, FTA Circular 4220.1F, which document is incorporated
by reference into this Agreement. A copy of this document is available on the FTA
website or, upon request by the City, from the Council.
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Certification of City’s Procurement System.
b. The City certifies that its procurement
system complies with the standards described in the previous paragraph.
Council Approval of Contracts.
c. The City shall not execute any third party contract
or otherwise enter into a binding agreement until it has first received written approval
from the Council. The Council’s approval of any such third party contract is solely
for the benefit of the Council and shall not relieve the City of the responsibility to
ensure that such contracts are in the proper form and include all state and federal
requirements. Additionally, a Subrecipient Contract Initiation Memo, as shown in
Exhibit B, is required to be executed prior to any procurement over $50,000.
Requests to enter into agreements should be sent to the Council’s Project Director.
Inclusion of Provisions in Lower Tier Contracts.
d. The City agrees to include
adequate provisions to ensure compliance with applicable federal requirements in
each lower tier subcontract financed in whole or in part with monies from the Project
provided under this Agreement including all applicable provisions of this Agreement.
Provisions to be included in such subcontracts include, at a minimum, the provisions
in Exhibit C.
Disadvantaged Business Enterprise Requirements.
e. For all work performed under
Part One of this Agreement, the City will comply with the Council's DBE Program.
In particular, the City agrees to comply with the requirements of the Council's
"Disadvantaged Business Enterprise Pass Through Agreement and Program"
document which is attached to and made a part of this Agreement as Exhibit E. For
the purpose of Exhibit E, the following provisions apply:
i.The Metropolitan Council DBE Liaison Officer, or designated staff, shall act
as the City DBE Liaison Officer for the purposes of work under Part One of
this funding Agreement.
ii.The City agrees to submit to the Council for review, approval, and
establishment of the appropriate DBE goal a Subrecipient Contract Initiation
Memo, as shown in Exhibit B, for all procurements in excess of $50,000.
Noncompliance with DBE requirements may result in sanctions, including
ineligibility for reimbursement pursuant to 49 C.F.R. Part 18, Section 22.
iii.The City will provide reports to the Council reflecting all invoices paid on
procurements for which a DBE goal has been established and identifying all
DBE activity on such procurements.
iv.The City will report DBE activity, on the Disadvantage Business Enterprise
Reporting Form, to the Council on other purchase orders and invoices not
included above with each Request for Payment.
v.DBE eligibility will be based on the most recent DBE Directory from the
Minnesota Unified Certification Program.
Federal Procurement Basics.
f.Exhibit B entitled “Managing Federally Funded
Projects” is attached and made a part of this Agreement. This exhibit contains an
outline of federal procurement requirements for the convenience of the City. The
exhibit does not contain all federal requirements to which the City may be subject to
as a recipient of federal grant funds under this Agreement and specific Subordinate
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Funding Agreements issued pursuant thereto. The City remains responsible for
conforming its procurement processes to all applicable federal requirements for funds
received from the Council under this Agreement, notwithstanding the summary of
requirements in the attached exhibit.
4.07 Provisions Subject to Change.
The City acknowledges that federal requirements
in this Article 4 are subject to change and agrees that the most recent of these requirements shall
govern this Agreement at any particular time.
4.08 No Federal Obligation.
Monies provided under this Agreement may be financed
in whole or in part by federal funds. However, payments to the City will be made by the
Council. Pursuant to the Federal Transit Administration Master Agreement Section 2(f), the
United States is not a party to this Agreement and no reference in this Agreement to the United
States, the United States Department of Transportation, the FTA, or any representatives of the
federal government makes the United States a party to this Agreement. The City shall include
this clause in any contracts or Agreements entered into pursuant to this Agreement.
4.09Special Reporting Requirements.
The Council is required to report to the FTA
regarding the Project activities. Accordingly, the City agrees to provide the Council with any
additional or follow-up information reasonably requested by the Council, in order to meet the
Council’s FTA reporting requirements.
4.10Property Management.
The City acknowledges and agrees that title,
acquisition, use, management, and disposition of all property acquired or constructed with
Project funds under this Agreement shall be governed by applicable federal law, rule, and
guidance including, without limitation, the most current versions of the following provisions:
a.FTA Master Agreement
b.Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, 49 C.F.R. Parts 18.31, 18.32, and 18.33
c.Grant Management Requirements, FTA Circular 5010.1D
as such laws, rules, and guidance may hereafter be amended or modified. The listed documents
are incorporated by reference into this Agreement. Copies of these documents are available on
the Federal Register or FTA websites or, upon request by the City, from the Council.
Disposition of property purchased with Project funds requires prior written approval from the
Council.
The provisions of this section 4.10 shall survive termination of this Agreement.
PART TWO
ARTICLE 5. SUBORDINATE FUNDING AGREEMENT TRANSFERRING FUNDS
FROM CITY TO COUNCIL
5.01 Purpose.
The purpose of Part Two of this Agreement is to provide a method for
the transfer of City funds to the Council for features related to but currently not part of the
Project, should any such payment be authorized by the City.
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5.02 Transfer of Funds Requires Subordinate Funding Agreement.
The City may
provide funding for features related to but not part of the Project through the transfer of funds to
the Council. Each such transfer of funds to the Council from the City shall be in accordance
with one or more duly executed Subordinate Funding Agreements, each of which shall define the
amount of funds committed by the City to the Council, specify the purpose for the funds, and
establish who will own the asset constructed or remaining upon completion of the work.
5.03 Subordinate Funding Agreements.
To facilitate funding by the City in
accordance with section 5.01, the Parties shall enter into Subordinate Funding Agreements.
Subordinate Funding Agreements shall be in a form similar to Exhibit A and shall follow and be
subject to the terms of Parts Two and Three of this Agreement, unless expressly agreed to in
writing otherwise. Notwithstanding any other provisions of this Agreement, this Agreement
itself is not intended to create a specific financial obligation for either Party or to require either
Party to enter into any specific Subordinate Funding Agreements, and no liability shall attach to
either Party under this Agreement for refusing to enter into one or more subsequent Subordinate
Funding Agreements.
5.04 Implementation of Subordinate Funding Agreements.
The Council shall not
incur any obligations reimbursable by the City that are not the subject of a Subordinate Funding
Agreement, and the only City funds available to the Council for features related to the Project are
those which are approved through Subordinate Funding Agreements. Prior to entering into a
contractual obligation with any third party (including the acquisition of property rights) to
accomplish the Council’s obligations reimbursable by the City, or prior to authorizing any
Council employees to proceed with any reimbursable actions in that regard, the Council shall
present to the City for review and approval, and to arrange for the execution of a Subordinate
Funding Agreement, a work scope (including a work schedule), staffing plan, and detailed
budget for such services or expenditures.
5.05 Modifications of Subordinate Funding Agreements.
The following provisions
apply to any modifications in a particular Subordinate Funding Agreement:
a.Rebudgeting within an approved budget is allowable as long as the budget is within
the overall authorized expenditure amount.
b.Modifications in work scope, if within the approved budget, are authorized when
approved in writing by the City’s (TITLE), or such other person as the City may
designate by notice to the Council.
c.Any other modifications in a particular Subordinate Funding Agreement, including
any increase in the authorized expenditure amount or changes in the applicable
activity period, shall require a formal amendment of the Subordinate Funding
Agreement executed by the Parties.
5.06 Transfer of Funds to the Council Under Subordinate Funding Agreements.
The City shall pay the Council under Subordinate Funding Agreements as follows:
a.Unless specifically agreed to otherwise by the Parties in and for a particular
Subordinate Funding Agreement, payment to the Council for costs under each
Subordinate Funding Agreement shall be on a reimbursement basis after the submittal
of invoices evidencing the expenditure of funds by the Council.
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b.The Council shall submit separate monthly invoices for each outstanding
Subordinate Funding Agreement to the following address:
(NAME)
(TITLE)
City of Hopkins
st
1010 1 Street S.
Hopkins, MN 55343
or to such other City address or person as the City may designate in writing.
c.Unless the Parties otherwise agree, the Council shall submit each invoice to the City
in the standard Council format and shall reference the sequential number of the
Subordinate Funding Agreement under which the invoice is to be funded.
d.Each invoice must include:
i.A description of activities undertaken in accordance with the Subordinate
Funding Agreement;
ii.An itemized list of the expenditures for which payment is requested; and
iii.Any supporting documentation.
e.The Council shall add an administrative fee to each invoice to be paid by the City at
the rate of seven percent (7%) for design and environmental services and eight
percent (8%) for construction services. The administrative fee will be applied to the
total amount charged for each type of service (design, environmental, or construction)
requested by the City and performed by the Council during the invoice period. The
administrative fee(s) will be itemized on the invoice.
f.After receipt of an invoice, the City may request additional information from the
Council regarding the invoice in order to verify the accuracy and appropriateness of
the expenditures for which reimbursement is requested.
g.The City shall pay the Council the approved invoice amount within 30 days of its
receipt. The City may dispute all of or any part of an invoice if it reasonably believes
that the requested payment does not conform to the terms of this Agreement or the
applicable Subordinate Funding Agreement. If disputed, the Parties will promptly
meet to review and discuss the disputed or denied payment requests and the dispute
resolution process outlined in Section 6.12 of this Agreement will ensue if the Parties
cannot agree. Unless the City has disputed the payment of an invoice, if the City does
not pay the invoiced amount within 30 days of its receipt, the Council shall charge
and the City shall pay interest on the non-disputed amount at the rate of 1-1/2 percent
per month.
h.In addition to any interest applied for late payments, the City shall also be liable for
other interest charges, costs, or other penalties incurred by the Council due to the
City’s delay in paying the invoice.
i.The City’s payment of any invoices or approval of any reports shall not constitute a
waiver of any Council noncompliance with this Agreement or the applicable
Subordinate Funding Agreement.
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5.07 Repayment of Unauthorized Use of Funds.
Upon a finding by the City that the
Council has made an unauthorized or undocumented use of City funds, and upon a demand for
repayment issued by the City and supported by the reason for the finding, if the Council agrees,
the Council shall promptly repay such amounts to the City. If the Council disagrees, the Parties
will promptly meet to review and discuss any challenged use of funds already paid and dispute
resolution will ensue if the Parties cannot agree. Neither Party shall be deemed to have waived
any rights or remedies available under state law, federal law, common law or otherwise.
5.08 Use of Funds; Allowable Costs.
The Council is authorized to use funds provided
by the City under this Agreement only for costs directly incurred under a specific Subordinate
Funding Agreement. Funds provided by the City under Subordinate Funding Agreements may
only be used for costs directly incurred:
a.Within the authorized work scope;
b.During the specified activity period; and
c.In accordance with the approved budget for the funds.
5.09 Documentation of Costs.
All reimbursable costs charged to the City by the
Council must be supported by proper documentation, including properly executed payrolls, time
records, invoices, contracts, receipts for expenses, or vouchers, evidencing in detail the nature
and propriety of the charges.
5.10 Establishment and Maintenance of Information.
The Council agrees to
establish and maintain accurate, detailed, complete, and separate books, accounts, financial
records, documentation, and other evidence relating to the receipt and expenditure of all funds
from the City. All such information shall be established and maintained in accordance with
generally accepted government accounting principles and practices and shall be retained intact
by the Council until the latest of:
a.Complete performance of this Agreement and all Subordinate Funding Agreements
entered into pursuant thereto;
b.Six years following the term of the this Agreement and all Subordinate Funding
Agreements entered into pursuant thereto;
c.Six years following the close out of the Project by the Council and the FTA; or
d.If any litigation, claim, or audit is commenced during any such periods, when all such
litigation, claims or audits have been resolved.
If the Council engages any contractors to perform any part of the activities reimbursable by the
City, the Council agrees that the contract for such services shall include provisions requiring the
contractor to establish and maintain information in accordance with the provisions of this section
and to allow audit of such information in the same manner provided with respect to the Council
in this section 5.10.
The provisions of this section 5.10 shall survive termination of this Agreement.
5.11 Audit.
The accounts and records of the Council relating to costs reimbursable by
the City shall be audited in the same manner as all other accounts and records of the Council are
audited. During the time of maintenance of information under section 5.10, authorized
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representatives of the City; the Legislative Auditor and/or State Auditor in accordance with
Minnesota Statutes, section 16C.05, subdivision 5; the United States Secretary of Transportation;
the FTA Administrator, and the United States Comptroller General in accordance with 49 U.S.C.
Section 5325(g); will have access to all such books, records, documents, accounting practices
and procedures, and other information for the purpose of inspection, audit, and copying during
normal business hours. Proper facilities for such access and inspection shall be provided by the
Council.
The provisions of this section 5.11 shall survive termination of this Agreement.
5.12 Use of Contractors.
If the Council engages any contractors to perform any
activities reimbursable by the City under Part Two of this Agreement, the Council agrees that the
contract for such services shall include all of the following provisions. (Note: these requirements
are in addition to other requirements for such contracts set forth in this Agreement.)
a.The contractor must maintain all records and provide all reporting as required by this
Agreement.
b.The contractor must defend, indemnify, and save harmless the City from all claims,
suits, demands, damages, judgments, costs, interest, and expenses arising out of or by
reason of the performance of the contracted work, caused in whole or in part by any
negligent act or omission of the contractor, including negligent acts or omissions of
its employees, subcontractors, or anyone for whose acts any of them may be liable.
c.The contractor must provide and maintain insurance in amounts and types of
coverage appropriate to the contracted work and naming the City as an additional
insured, and provide to the Council prior to commencement of the contracted work a
certificate of insurance evidencing such insurance coverage.
d.The contractor must be an independent contractor for the purposes of completing the
contracted work.
e.The contractor must acknowledge that the contract between the Council and the
contractor does not create any contractual relationship between the City and the
contractor.
f.The contractor shall perform and complete the contracted work in full compliance
with this Agreement and all applicable laws, statutes, rules, ordinances, and
regulations issued by any federal, state, or local political subdivisions having
jurisdiction over the contracted work.
5.13 Contract Information.
The Council shall, in connection with any contract
entered into for reimbursable work under Part Two of this Agreement:
a.keep the City informed as to the progress of such contract;
b.allow authorized representatives of the City access to all meetings and documentation
related to such contract; and
c.upon request, promptly provide the City with copies of correspondence between the
Council and the contractor related to any such contract.
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PART THREE
ARTICLE 6. GENERAL PROVISIONS
6.01 Purpose.
The purpose of Part Three of this Agreement is to establish the general
provisions that apply to this Agreement and each Subordinate Funding Agreement executed by
the Parties hereafter.
6.02 Independent Contractors.
The Parties agree that any and all persons employed
by or on behalf of a Party to perform any work or duties as an agent of a Party under this
Agreement shall not be considered employees of the other Party. Any and all claims that may or
might arise under the Workers Compensation Act of Minnesota on behalf of said employees or
persons while so engaged, and any and all claims made by any third person as a consequence of
any act or omission on the part of said employees or persons while so engaged in any of the work
contemplated in this Agreement, shall not be the obligation or responsibility of the other Party.
This Agreement is not intended to constitute an interchange of government employees within the
meaning of Minnesota Statutes, section 15.51, et seq.
6.03 Entire Agreement.
This Agreement constitutes the entire agreement between
the Parties and supersedes all oral agreements and negotiations between the Parties relating to the
subject matter of this Agreement. As stated herein, this Agreement depends upon one or more
Subordinate Funding Agreements for the actual authorization or transfer of any reimbursements
and the terms of any subsequent Subordinate Funding Agreements shall be considered together
with this Agreement.
6.04 Non-Waiver of Immunity and Limits.
Nothing in this Agreement shall be
construed to waive the immunities or liability limits provided in Minnesota Statutes, section
3.736, or Minnesota Statutes, Chapter 466, or other applicable state or federal law. The
provisions of Minnesota Statutes, section 471.59, subdivision 1a, specifically apply to this
Agreement.
6.05 Amendments.
The terms of this Agreement may be changed only by mutual
agreement of the Parties. Such changes shall be effective only upon the execution of written
amendments signed by authorized officers of the Parties to this Agreement.
6.06 Non-Waiver.
The failure of either Party at any time to insist upon the strict
performance of any or all of the terms, conditions, and covenants in this Agreement shall not be
deemed a waiver by that Party of any subsequent breach or default in the said terms, conditions,
or covenants by the other Party.
6.07 Severability.
The provisions of this Agreement shall be deemed severable. If
any part of this Agreement is rendered void, invalid or unenforceable, such rendering shall not
affect the validity and enforceability of the remainder of this Agreement unless the part or parts
which are void, invalid or otherwise unenforceable shall substantially impair the value of the
entire Agreement with respect to either Party.
6.08 Assignment Prohibited.
Neither Party shall assign their obligations under this
Agreement without receiving the express written consent of the other Party.
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6.09 Time.
The Parties agree that all obligations undertaken under this Agreement,
and with respect to any subsequent Subordinate Funding Agreements entered into by the Parties,
will be diligently performed in a manner consistent with the proper exercise of professional care
and with due consideration to project timelines and constraints.
6.10 Notices.
Except as otherwise expressly provided in this Agreement, all requests,
notices, demands, authorizations, directions, consents, waivers or other communications required
or permitted under this Agreement shall be in writing and shall either be:
a.Delivered in person;
b.Deposited postage prepaid in the certified mails of the United States, return receipt
requested;
c.Delivered by a nationally recognized overnight or same-day courier service that
obtains receipts; or
d.Delivered via email attachment.
Such communications shall be directed to the individuals specified below or to such other
persons and at such other addresses as either Party may at any time or from time to time
designate for itself by notice in accordance with this section. Each such request, notice, demand,
authorization, direction, consent, waiver or other document shall be deemed to be delivered to a
Party when received at its address set forth or designated as above provided.
For the Council:
Project Director
Southwest LRT Project Office
6465 Wayzata Blvd, Suite 500
St. Louis Park, MN 55426
Phone: 612-373-3820
For the City:
(TITLE)
City of Hopkins
st
1010 1 Street S.
Hopkins, MN 55343
Phone: (PHONE NUMBER)
6.12 Dispute Resolution.
A dispute resolution process shall be used for any
unresolved issue, dispute or controversy between the parties before any legal remedies are
exercised. The dispute resolution process contains a three level dispute resolution ladder that
escalates a dispute from the project management level through the executive management level.
The City is represented from Level 1 to 3 in the following order: (TITLE 1, TITLE 2, and TITLE
3). The Council is represented from Level 1 to 3 in the following order: Deputy General
Manager, General Manager, and Regional Administrator. At each level, representatives of the
parties shall meet and continue to explore resolution until either party determines, in good faith,
that effective resolution is not possible at the current level, and notifies the other party that the
process is elevated to the next level. If either or both parties make such a determination at any
point during issue resolution at Level 3, then the dispute resolution process has been exhausted.
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6.13 Project Director.
The Council's Project Director for purposes of administration
of this Agreement, and any Subordinate Funding Agreements entered into pursuant to this
Agreement, is the person whose title is listed in section 6.11, or such other person designated in
writing by the Council's Regional Administrator. The City's Project Director for purposes of
administration of this Agreement and any Subordinate Funding Agreements entered into
pursuant to this Agreement is the person whose title is listed in section 6.10, or such other person
designated in writing by the City. The City's Project Director shall:
a.Coordinate the carrying out of the City's obligations under this Agreement;
b.Coordinate Subordinate Funding Agreement work scope activities with the Council's
Project Director;
c.Attend meetings called by the Council's Project Director for Southwest Light Rail
Project staff; and
d.Complete training to be provided by the Council with respect to Council and federal
requirements under this Agreement and any Subordinate Funding Agreements entered
into pursuant to this Agreement.
6.14 Applicable Law and Venue.
This Agreement shall be interpreted in accordance
with the laws of the State of Minnesota. Venue for all legal proceedings arising out of or relating
to this Agreement or any associated Subordinate Funding Agreements, or breach thereof, shall be
in the state or federal court with competent jurisdiction in Hennepin County, Minnesota.
6.15 Effective Date and Termination.
This Agreement shall be effective upon
execution by, and delivery to, both Parties. This Agreement shall terminate upon the earliest of:
a.Completion of construction of the Project and reimbursement of all costs provided for
in this Agreement and all Subordinate Funding Agreements entered into pursuant
thereto;
b.A determination by the Council that the Project cannot proceed; or
c.A determination by the Council that sufficient funds do not exist, or are not
reasonably projected to exist, in order to complete the Project.
The City agrees that Project closeout or termination of this Agreement or any particular
Subordinate Funding Agreement does not invalidate continuing obligations imposed on the City
by this Agreement or such Subordinate Funding Agreements. Project closeout or termination of
this Agreement does not alter the Council's authority to disallow costs and recover funds on the
basis of a later audit or other review, and does not alter the City's obligation to return any funds
determined to be due to the Council.
The Council agrees that Project closeout or termination of this Agreement or any particular
Subordinate Funding Agreement does not invalidate continuing obligations imposed on the
Council by this Agreement or such Subordinate Funding Agreements. Project closeout or
termination of this Agreement does not alter the City’s authority to disallow costs and recover
funds on the basis of a later audit or other review, and does not alter the Council's obligation to
return any funds determined to be due to the City.
6.16 Exhibits.
All attached exhibits are deemed to be incorporated into this
Agreement.
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\[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE TO FOLLOW.\]
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IN WITNESS WHEREOF,
the Parties have caused this Agreement to be executed by
their duly authorized representatives on the dates indicated below. Furthermore, this Agreement
may be executed in counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
CITY OF HOPKINS METROPOLITAN COUNCIL
By: ________________________________ By:
Its _____________________________
Date: ______________________________ Its:
Date: ___________________
And by: ________________________________
Its: _____________________________
Date: ______________________________
And By: ________________________________
Its:_____________________________
Date: ______________________________
ATTEST:
________________________________
Reviewed by City Attorney’s Office
Date:____________________
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LIST OF EXHIBITS
Exhibit Description
A Form of Subordinate Funding Agreement
B Managing Federally Funded Projects
C Specific Federal Clauses
D Federal Certifications and Assurances
E Disadvantaged Business Enterprise Pass Through Agreement and
Program
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