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IV.2. Approve Agency Agreement Between City of Hopkins and Minnesota Department of Transportation for Federal Participation in Construction; Klingbeil CITY OF HOPKINS City Council Report 2023-013 To: Honorable Mayor and Council Members Mike Mornson, City Manager From: Eric Klingbeil, City Engineer Date: January 17, 2023 Subject: Approve Agency Agreement Between City of Hopkins and Minnesota Department of Transportation for Federal Participation in Construction _____________________________________________________________________ RECOMMENDED ACTION MOTION TO Adopt Resolution 2023-004, Approving Agency Agreement No. 1052097 between Minnesota Department of Transportation and City of Hopkins for Federal Participation in Construction. OVERVIEW The Minnesota Department of Transportation (MNDOT) issues a general agreement to cities that are eligible to participate in federally funded construction projects. The agreement is not project specific, and covers all projects that have federal funding in whole or in part. Periodically, changes are made to the agreement, which requires the document to be reapproved by cities; this version of the agreement is the most recent update. The terms of the agreement specify that Hopkins must manage and administer project design and construction, and that it must comply with all federal rules. The agreement also specifies that MNDOT act as the City’s agent for accepting federal funds, and will reimburse the City for eligible costs. The reimbursement process is almost identical to the State Aid process, which Hopkins participates in frequently. The City Attorney and City Engineer have reviewed the agreement and find it acceptable. SUPPORTING INFORMATION MnDOT Agreement no. 1052097 Resolution 2023-004 Engineering CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA RESOLUTION 2023-004 RESOLUTION APPROVING AGENCY AGREEMENT NO. 1052097 BETWEEN MINNESOTA DEPARTMENT OF TRANSPORTATION AND CITY OF HOPKINS FOR FEDERAL PARTICIPATION IN CONSTRUCTION WHEREAS, it is recommended that the City of Hopkins and the Minnesota Department of Transportation (MnDOT) enter into an agreement authorizing MnDOT to act as the City’s agent in accepting federal funding for any transportation project financed in whole or in part by federal funds; and WHEREAS,the City Council of Hopkins deems it proper and in the public interest to enter into an agreement with the Minnesota Department of Transportation for federal participation in construction, ; and NOW THEREFORE BE IT RESOLVED, that pursuant to Minnesota Stat. Sec. 161.36, the Commissioner of Transportation be appointed as Agent of the City of Hopkins to accept as its agent, federal aid funds which may be made available for eligible transportation related projects; and BE IT FURTHER RESOLVED, The Mayor and City Manager 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. 1052097”, a copy of which said agreement was before the City Council and which is made a part hereof by reference. Adopted by the City Council of the City of Hopkins this 17th day of January, 2023. By:___________________________ Patrick Hanlon, Mayor ATTEST: _______________________________ Amy Domeier, City Clerk MnDOT Contract No. 1052097 Updated November 7, 2022 1 STATE OF MINNESOTA AGENCY AGREEMENT for FEDERAL PARTICIPATION IN CONSTRUCTION This Agreement is entered into by and between City of Hopkins (“Local Government”) and the State of Minnesota acting through its Commissioner of Transportation (“MnDOT”). RECITALS 1. Pursuant to Minnesota Statutes Section 161.36, the Local Government desires MnDOT to act as the Local Government’s agent in accepting federal funds on the Local Government’s behalf for the construction, improvement, or enhancement of transportation financed either in whole or in part by Federal Highway Administration (“FHWA”) federal funds, hereinafter referred to as the “Project(s)”; and 2. This Agreement is intended to cover all federal aid projects initiated by the Local Government and therefore has no specific State Project number associated with it, and 2.1. The Assistance Listing Number (ALN) is 20.205, 20.224, 20.933 or another Department of Transportation ALN as listed on SAM.gov and 2.2. This project is for construction, not research and development. 2.3. MnDOT requires that the terms and conditions of this agency be set forth in an agreement. AGREEMENT TERMS 1. Term of Agreement; Prior Agreement 1.1. Effective Date. This Agreement will be effective on the date that MnDOT obtains all required signatures under Minn. Stat. §16C.05, Subd. 2. This Agreement will remain effective until it is superseded or terminated pursuant to section 14. 1.2. Prior Agreement. This Agreement supersedes the prior agreement between the parties, MnDOT Contract Number 1029956. 2. Local Government’s Duties 2.1. Designation. The Local Government designates MnDOT to act as its agent in accepting federal funds on its behalf made available for the Project(s). Details on the required processes and procedures are available on the State Aid Website. 2.2. Staffing. 2.2.1. The Local Government will furnish and assign a publicly employed and licensed engineer, (“Project Engineer"), to be in responsible charge of the Project(s) and to supervise and direct the work to be performed under any construction contract let for the Project(s). In the alternative, where the Local Government elects to use a private consultant for construction engineering services, the Local Government will provide a qualified, full‐time public employee of the Local Government to be in responsible charge of the Project(s). The services of the Local Government to be performed hereunder may not be assigned, sublet, or transferred unless the Local Government is notified in writing by MnDOT that such action is permitted under 23 CFR 1.33 and 23 CFR 635.105 and state law. This MnDOT Contract No. 1052097 2 written consent will in no way relieve the Local Government from its primary responsibility for performance of the work. 2.2.2. During the progress of the work on the Project(s), the Local Government authorizes its Project Engineer to request in writing specific engineering and/or technical services from MnDOT, pursuant to Minnesota Statutes Section 161.39. Such services may be covered by other technical service agreements. If MnDOT furnishes the services requested, and if MnDOT requests reimbursement, then the Local Government will promptly pay MnDOT to reimburse the state trunk highway fund for the full cost and expense of furnishing such services. The costs and expenses will include the current MnDOT labor additives and overhead rates, subject to adjustment based on actual direct costs that have been verified by audit. Provision of such services will not be deemed to make MnDOT a principal or co‐ principal with respect to the Project(s). 2.3. Pre‐letting. The Local Government will prepare construction contracts in accordance with Minnesota law and applicable Federal laws and regulations. 2.3.1. The Local Government will solicit bids after obtaining written notification from MnDOT that the FHWA has authorized the Project(s). Any Project(s) advertised prior to authorization without permission will not be eligible for federal reimbursement. 2.3.2. The Local Government will prepare the Proposal for Highway Construction for the construction contract, which will include all federal‐aid provisions supplied by MnDOT. 2.3.3. The Local Government will prepare and publish the bid solicitation for the Project(s) as required by state and federal laws. The Local Government will include in the solicitation the required language for federal‐aid construction contracts as supplied by MnDOT. The solicitation will state where the proposals, plans, and specifications are available for the inspection of prospective bidders and where the Local Government will receive the sealed bids. 2.3.4. The Local Government may not include other work in the construction contract for the authorized Project(s) without obtaining prior notification from MnDOT that such work is allowed by FHWA. Failure to obtain such notification may result in the loss of some or all of the federal funds for the Project(s). All work included in a federal contract is subject to the same federal requirements as the federal project. 2.3.5. The Local Government will prepare and sell the plan and proposal packages and prepare and distribute any addenda, if needed. 2.3.6. The Local Government will receive and open bids. 2.3.7. After the bids are opened, the Local Government will consider the bids and will award the bid to the lowest responsible bidder or reject all bids. If the construction contract contains a goal for Disadvantaged Business Enterprises (DBEs), the Local Government will not award the bid until it has received certification of the Disadvantaged Business Enterprise participation from the MnDOT Office of Civil Rights. 2.3.8. The Local Government must disclose in writing any potential conflict of interest to the Federal awarding agency or MnDOT in accordance with applicable FHWA policy. 2.4. Contract Administration. 2.4.1. The Local Government will prepare and execute a construction contract with the lowest responsible bidder, hereinafter referred to as the “Contractor,” in accordance with the special provisions and the latest edition of MnDOT’s Standard Specifications for Construction when the contract is awarded and all amendments thereto. All contracts between the Local Government and third parties or subcontractors must contain all applicable provisions of this Agreement, including the applicable MnDOT Contract No. 1052097 3 federal contract clauses, which are identified in Appendix II of 2 CFR 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, and as identified in Section 18 of this Agreement. 2.4.2. The Project(s) will be constructed in accordance with the plans, special provisions, and standard specifications of each Project. The standard specifications will be the latest edition of MnDOT Standard Specifications for Highway Construction and all amendments thereto. The plans, special provisions, and standard specifications will be on file at the Local Government Engineer’s Office. The plans, special provisions, and specifications are incorporated into this Agreement by reference as though fully set forth herein. 2.4.3. The Local Government will furnish the personnel, services, supplies, and equipment necessary to properly supervise, inspect, and document the work for the Project(s). The services of the Local Government to be performed hereunder may not be assigned, sublet, or transferred unless the Local Government is notified in writing by MnDOT that such action is permitted under 23 CFR 1.33 and 23 CFR 635.105 and state law. This written consent will in no way relieve the Local Government from its primary responsibility for performance of the work. 2.4.4. The Local Government will document quantities in accordance with the guidelines set forth in the Construction Section of the Electronic State Aid Manual that are in effect at the time the work was performed. 2.4.5. The Local Government will test materials in accordance with the Schedule of Materials Control in effect at the time each Project was let. The Local Government will notify MnDOT when work is in progress on the Project(s) that requires observation by the Independent Assurance Inspector, as required by the Independent Assurance Schedule. 2.4.6. The Local Government may make changes in the plans or the character of the work, as may be necessary to complete the Project(s), and may enter into Change Order(s) with the Contractor. The Local Government will not be reimbursed for any costs of any work performed under a change order unless MnDOT has notified the Local Government that the subject work is eligible for federal funds and sufficient federal funds are available. 2.4.7. The Local Government will request approval from MnDOT for all costs in excess of the amount of federal funds previously approved for the Project(s) prior to incurring such costs. Failure to obtain such approval may result in such costs being disallowed for reimbursement. 2.4.8. The Local Government will prepare reports, keep records, and perform work so as to meet federal requirements and to enable MnDOT to collect the federal aid sought by the Local Government. Required reports are listed in the MnDOT State Aid Manual, Delegated Contract Process Checklist, available from MnDOT’s authorized representative. The Local Government will retain all records and reports and allow MnDOT or the FHWA access to such records and reports for six years. 2.4.9. Upon completion of the Project(s), the Project Engineer will determine whether the work will be accepted. 2.5. Limitations. 2.5.1. The Local Government will comply with all applicable Federal, State, and local laws, ordinances, and regulations. 2.5.2. 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 MnDOT Contract No. 1052097 4 for nondiscrimination in Title VI and through parallel legislation, the proscribed bases of discrimination include race, color, sex, national origin, age, and disability. In addition, the Title VI program has been extended to cover all programs, activities and services of an entity receiving Federal financial assistance, whether such programs and activities are Federally assisted or not. Even in the absence of prior discriminatory practice or usage, a recipient in administering a program or activity to which this part applies is expected to take affirmative action to assure that no person is excluded from participation in, or is denied the benefits of, the program or activity on the grounds of race, color, national origin, sex, age, or disability. It is the responsibility of the Local Government to carry out the above requirements. 2.5.3. Utilities. The Local Government 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 23 CFR 645 “Utilities”, which is incorporated herein by reference. 2.6. Maintenance. The Local Government assumes full responsibility for the operation and maintenance of any facility constructed or improved under this Agreement. 3. MnDOT’s Duties 3.1. Acceptance. MnDOT accepts designation as Agent of the Local Government for the receipt and disbursement of federal funds and will act in accordance herewith. 3.2. Project Activities. 3.2.1. MnDOT will make the necessary requests to the FHWA for authorization to use federal funds for the Project(s) and for reimbursement of eligible costs pursuant to the terms of this Agreement. 3.2.2. MnDOT will provide to the Local Government copies of the required Federal‐aid clauses to be included in the bid solicitation and will provide the required Federal‐aid provisions to be included in the Proposal for Highway Construction. 3.2.3. MnDOT will review and certify the DBE participation and notify the Local Government when certification is complete. If certification of DBE participation (or good faith efforts to achieve such participation) cannot be obtained, then Local Government must decide whether to proceed with awarding the contract. Failure to obtain such certification will result in the Project becoming ineligible for federal assistance, and the Local Government must make up any shortfall. 3.2.4. MnDOT will provide the required labor postings. 3.3. Authority. MnDOT may withhold federal funds, where MnDOT or the FHWA determines that the Project(s) was not completed in compliance with federal requirements. 3.4. Inspection. MnDOT, the FHWA, or duly authorized representatives of the state and federal government will have the right to audit, evaluate and monitor the work performed under this Agreement. The Local Government will make all books, records, and documents pertaining to the work hereunder available for a minimum of six years following the closing of the construction contract. 4. Time 4.1. The Local Government must comply with all time requirements described in this Agreement. In the performance of this Agreement, time is of the essence. 4.2. The period of performance is defined as beginning on the date of federal authorization and ending on the date defined in the federal financial system or federal agreement (“end date”). No work completed after the end date will be eligible for federal funding. Local Government must submit all contract close out paperwork to MnDOT at least twenty‐four months prior to the end date. MnDOT Contract No. 1052097 5 5. Payment 5.1. Cost. The entire cost of the Project(s) is to be paid from federal funds made available by the FHWA and by other funds provided by the Local Government. The Local Government will pay any part of the cost or expense of the Project(s) that is not paid by federal funds. MnDOT will receive the federal funds to be paid by the FHWA for the Project(s), pursuant to Minnesota Statutes § 161.36, Subdivision 2. MnDOT will reimburse the Local Government, from said federal funds made available to each Project, for each partial payment request, subject to the availability and limits of those funds. 5.2. Indirect Cost Rate Proposal/Cost Allocation Plan. If the Local Government seeks reimbursement for indirect costs and has submitted to MnDOT an indirect cost rate proposal or a cost allocation plan, the rate proposed will be used on a provisional basis. At any time during the period of performance or the final audit of a Project, MnDOT may audit and adjust the indirect cost rate according to the cost principles in 2 CFR Part 200. MnDOT may adjust associated reimbursements accordingly. 5.3. Reimbursement. The Local Government will prepare partial estimates in accordance with the terms of the construction contract for the Project(s). The Project Engineer will certify each partial estimate. Following certification of the partial estimate, the Local Government will make partial payments to the Contractor in accordance with the terms of the construction contract for the Project(s). 5.3.1. Following certification of the partial estimate, the Local Government may request reimbursement for costs eligible for federal funds. The Local Government’s request will be made to MnDOT and will include a copy of the certified partial estimate. 5.3.2. Upon completion of the Project(s), the Local Government will prepare a final estimate in accordance with the terms of the construction contract for the Project(s). The Project Engineer will certify the final estimate. Following certification of the final estimate, the Local Government will make the final payment to the Contractor in accordance with the terms of the construction contract for the Project(s). 5.3.3. Following certification of the final estimate, the Local Government may request reimbursement for costs eligible for federal funds. The Local Government’s request will be made to MnDOT and will include a copy of the certified final estimate along with the required records. 5.3.4. Upon completion of the Project(s), MnDOT will perform a final inspection and verify the federal and state eligibility of all payment requests. If the Project is found to have been completed in accordance with the plans and specifications, MnDOT will promptly release any remaining federal funds due the Local Government for the Project(s). If MnDOT finds that the Local Government has been overpaid, the Local Government must promptly return any excess funds. 5.3.5. In the event MnDOT does not obtain funding from the Minnesota Legislature or other funding source, or funding cannot be continued at a sufficient level to allow for the processing of the federal aid reimbursement requests, the Local Government may continue the work with local funds only, until such time as MnDOT is able to process the federal aid reimbursement requests. 5.4. Matching Funds. Any cost sharing or matching funds required of the Local Government in this Agreement must comply with 2 CFR 200.306. 5.5. Federal Funds. Payments under this Agreement will be made from federal funds. The Local Government is responsible for compliance with all federal requirements imposed on these funds and accepts full financial responsibility for failure to comply with any federal requirements including, but not limited to, 2 CFR Part 200. If, for any reason, the federal government fails to pay part of the cost or expense incurred by the Local Government, or in the event the total amount of federal funds is not available, the Local Government will be responsible for any and all costs or expenses incurred under this Agreement. The Local Government further MnDOT Contract No. 1052097 6 agrees to pay any and all lawful claims arising out of or incidental to the performance of the work covered by this Agreement in the event the federal government does not pay the same. 5.6. Closeout. The Local Government must liquidate all obligations incurred under this Agreement for each Project and submit all financial, performance, and other reports as required by the terms of this Agreement and the Federal award at least twenty‐four months prior to the end date of the period of performance for each Project. MnDOT will determine, at its sole discretion, whether a closeout audit is required prior to final payment approval. If a closeout audit is required, final payment will be held until the audit has been completed. Monitoring of any capital assets acquired with funds will continue following project closeout. 6. Conditions of Payment. All services provided by Local Government under this Agreement must be performed to MnDOT’s satisfaction, as determined at the sole discretion of MnDOT’s Authorized Representative, and in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations. The Local Government will not receive payment for work found by MnDOT to be unsatisfactory or performed in violation of federal, state, or local law. 7. Authorized Representatives 7.1. MnDOT's Authorized Representative is: Name: Kristine Elwood, or her successor. Title: State Aid Engineer Phone: 651‐366‐4831 Email: Kristine.elwood@state.mn.us MnDOT’s Authorized Representative has the responsibility to monitor Local Government’s performance and the authority to accept the services provided under this Agreement. If the services are satisfactory, MnDOT's Authorized Representative will certify acceptance on each invoice submitted for payment. 7.2. The Local Government’s Authorized Representative is: Name: Eric Klingbeil or their successor. Title: Hopkins City City Engineer Phone: 952‐548‐6357 Email: eklingbeil@hopkinsmn.com If the Local Government’s Authorized Representative changes at any time during this Agreement, the Local Government will immediately notify MnDOT. 8. Assignment Amendments, Waiver, and Agreement Complete 8.1. Assignment. The Local Government may neither assign nor transfer any rights or obligations under this Agreement without the prior written consent of MnDOT and a fully executed Assignment Agreement, executed and approved by the same parties who executed and approved this Agreement, or their successors in office. 8.2. Amendments. Any amendment to this Agreement must be in writing and will not be effective until it has been executed and approved by the same parties who executed and approved the original agreement, or their successors in office. 8.3. Waiver. If MnDOT fails to enforce any provision of this Agreement, that failure does not waive the provision or MnDOT’s right to subsequently enforce it. 8.4. Agreement Complete. This Agreement contains all negotiations and agreements between MnDOT and the MnDOT Contract No. 1052097 7 Local Government. No other understanding regarding this Agreement, whether written or oral, may be used to bind either party. 8.5. Severability. If any provision of this Agreement, or the application thereof, is found to be invalid or unenforceable to any extent, the remainder of the Agreement, including all material provisions and the application of such provisions, will not be affected and will be enforceable to the greatest extent permitted by the law. 8.6. Electronic Records and Signatures. The parties agree to contract by electronic means. This includes using electronic signatures and converting original documents to electronic records. 8.7. Certification. By signing this Agreement, the Local Government certifies that it is not suspended or debarred from receiving federal or state awards. 9. Liability and Claims 9.1. Tort Liability. Each party is responsible for its own acts and omissions and the results thereof to the extent authorized by law and will not be responsible for the acts and omissions of any others and the results thereof. The Minnesota Tort Claims Act, Minnesota Statutes Section 3.736, governs MnDOT liability. 9.2. Claims. The Local Government acknowledges that MnDOT is acting only as the Local Government’s agent for acceptance and disbursement of federal funds, and not as a principal or co‐principal with respect to the Project. The Local Government will pay any and all lawful claims arising out of or incidental to the Project including, without limitation, claims related to contractor selection (including the solicitation, evaluation, and acceptance or rejection of bids or proposals), acts or omissions in performing the Project work, and any ultra vires acts. To the extent permitted by law, the Local Government will indemnify, defend (to the extent permitted by the Minnesota Attorney General), and hold MnDOT harmless from any claims or costs arising out of or incidental to the Project(s), including reasonable attorney fees incurred by MnDOT. The Local Government’s indemnification obligation extends to any actions related to the certification of DBE participation, even if such actions are recommended by MnDOT. 10. Audits 10.1. Under Minn. Stat. § 16C.05, Subd.5, the books, records, documents, and accounting procedures and practices of the Local Government, or any other party relevant to this Agreement or transaction, are subject to examination by MnDOT and/or the State Auditor or Legislative Auditor, as appropriate, for a minimum of six years from the end of this Agreement, receipt and approval of all final reports, or the required period of time to satisfy all state and program retention requirements, whichever is later. The Local Government will take timely and appropriate action on all deficiencies identified by an audit. 10.2. All requests for reimbursement are subject to audit, at MnDOT’s discretion. The cost principles outlined in 2 CFR 200.400‐.476 will be used to determine whether costs are eligible for reimbursement under this Agreement. 10.3. If Local Government expends $750,000 or more in Federal Funds during the Local Government’s fiscal year, the Local Government must have a single audit or program specific audit conducted in accordance with 2 CFR Part 200. 11. Government Data Practices. The Local Government and MnDOT must comply with the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, as it applies to all data provided by MnDOT under this Agreement, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Local Government under this Agreement. The civil remedies of Minn. Stat. §13.08 apply to the release of the data referred to in this clause by either the Local Government or MnDOT. 12. Workers Compensation. The Local Government certifies that it is in compliance with Minn. Stat. §176.181, Subd. 2, pertaining to workers’ compensation insurance coverage. The Local Government’s employees and agents will MnDOT Contract No. 1052097 8 not be considered MnDOT employees. Any claims that may arise under the Minnesota Workers’ Compensation Act on behalf of these employees and any claims made by any third party as a consequence of any act or omission on the part of these employees are in no way MnDOT’s obligation or responsibility. 13. Governing Law, Jurisdiction, and Venue. Minnesota law, without regard to its choice‐of‐law provisions, governs this Agreement. Venue for all legal proceedings out of this Agreement, or its breach, must be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. 14. Termination; Suspension 14.1. Termination by MnDOT. MnDOT may terminate this Agreement with or without cause, upon 30 days written notice to the Local Government. Upon termination, the Local Government will be entitled to payment, determined on a pro rata basis, for services satisfactorily performed. 14.2. Termination for Cause. MnDOT may immediately terminate this Agreement if MnDOT finds that there has been a failure to comply with the provisions of this Agreement, that reasonable progress has not been made, that fraudulent or wasteful activity has occurred, that the Local Government has been convicted of a criminal offense relating to a state agreement, or that the purposes for which the funds were granted have not been or will not be fulfilled. MnDOT may take action to protect the interests of MnDOT of Minnesota, including the refusal to disburse additional funds and/or requiring the return of all or part of the funds already disbursed. 14.3. Termination for Insufficient Funding. MnDOT may immediately terminate this Agreement if: 14.3.1. It does not obtain funding from the Minnesota Legislature; or 14.3.2. If funding cannot be continued at a level sufficient to allow for the payment of the services covered here. Termination must be by written or fax notice to the Local Government. MnDOT is not obligated to pay for any services that are provided after notice and effective date of termination. However, the Local Government will be entitled to payment, determined on a pro rata basis, for services satisfactorily performed to the extent that funds are available. MnDOT will not be assessed any penalty if the Agreement is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. MnDOT will provide the Local Government notice of the lack of funding within a reasonable time of MnDOT’s receiving that notice. 14.4. Suspension. MnDOT may immediately suspend this Agreement in the event of a total or partial government shutdown due to the failure to have an approved budget by the legal deadline. Work performed by the Local Government during a period of suspension will be deemed unauthorized and undertaken at risk of non‐payment. 15. Data Disclosure. Under Minn. Stat. § 270C.65, Subd. 3, and other applicable law, the Local Government consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number, already provided to MnDOT, to federal and state tax agencies and state personnel involved in the payment of state obligations. These identification numbers may be used in the enforcement of federal and state tax laws which could result in action requiring the Local Government to file state tax returns and pay delinquent state tax liabilities, if any. 16. Fund Use Prohibited. The Local Government will not utilize any funds received pursuant to this Agreement to compensate, either directly or indirectly, any contractor, corporation, partnership, or business, however organized, which is disqualified or debarred from entering into or receiving a State contract. This restriction applies regardless of whether the disqualified or debarred party acts in the capacity of a general contractor, a subcontractor, or as an equipment or material supplier. This restriction does not prevent the Local Government from utilizing these funds to pay any party who might be disqualified or debarred after the Local Government’s contract award on this Project. MnDOT Contract No. 1052097 9 17. Discrimination Prohibited by Minnesota Statutes §181.59. The Local Government will comply with the provisions of Minnesota Statutes §181.59 which requires that every contract for or on behalf of the State of Minnesota, or any county, city, town, township, school, school district or any other district in the state, for materials, supplies or construction will contain provisions by which Contractor agrees: 1) That, in the hiring of common or skilled labor for the performance of any work under any contract, or any subcontract, no Contractor, material supplier or vendor, will, by reason of race, creed or color, discriminate against the person or persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; 2) That no Contractor, material supplier, or vendor, will, in any manner, discriminate against, or intimidate, or prevent the employment of any person or persons identified in clause 1 of this section, or on being hired, prevent or conspire to prevent, the person or persons from the performance of work under any contract on account of race, creed or color; 3) That a violation of this section is a misdemeanor; and 4) That this contract may be canceled or terminated by the state of Minnesota, or any county, city, town, township, school, school district or any other person authorized to contracts for employment, and all money due, or to become due under the contract, may be forfeited for a second or any subsequent violation of the terms or conditions of this Agreement. 18. Federal Contract Clauses 18.1. Appendix II 2 CFR Part 200. The Local Government agrees to comply with the following federal requirements as identified in 2 CFR 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, and agrees to pass through these requirements to its subcontractors and third‐party contractors, as applicable. In addition, the Local Government shall have the same meaning as “Contractor” in the federal requirements listed below. 18.1.1. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. 18.1.2. All contracts in excess of $10,000 must address termination for cause and for convenience by the non‐Federal entity including the manner by which it will be effected and the basis for settlement. 18.1.3. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60‐1.3 must include the equal opportunity clause provided under 41 CFR 60‐1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964‐1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” 18.1.4. Davis‐Bacon Act, as amended (40 U.S.C. 3141‐3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non‐Federal entities must include a provision for compliance with the Davis‐Bacon Act (40 U.S.C. 3141‐3144, and 3146‐3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non‐Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non‐Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision MnDOT Contract No. 1052097 10 for compliance with the Copeland “Anti‐Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non‐Federal entity must report all suspected or reported violations to the Federal awarding agency. 18.1.5. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701‐3708). Where applicable, all contracts awarded by the non‐Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 18.1.6. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. 18.1.7. Clean Air Act (42 U.S.C. 7401‐7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251‐ 1387), as amended ‐ Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non‐Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401‐7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251‐1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 18.1.8. Debarment and Suspension (Executive Orders 12549 and 12689) ‐ A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. 18.1.9. Byrd Anti‐Lobbying Amendment (31 U.S.C. 1352) ‐ Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must MnDOT Contract No. 1052097 11 also disclose any lobbying with non‐Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non‐Federal award. 18.1.10. Local Government will comply with 2 CFR § 200.323. 18.1.11. Local Government will comply with 2 CFR § 200.216. 18.1.12. Local Government will comply with 2 CFR § 200.322. 18.2. Drug‐Free Workplace. The Local Government will comply with the Drug‐Free Workplace requirements under subpart B of 49 C.F.R. Part 32. 18.3. Title VI/Non‐discrimination Assurances. The Local Government hereby agrees that, as a condition of receiving any Federal financial assistance under this Agreement, it will comply with Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. § 2000d), related nondiscrimination statutes (i.e., 23 U.S.C. § 324, Section 504 of the Rehabilitation Act of 1973 as amended, and the Age Discrimination Act of 1975), and applicable regulatory requirements to the end that no person in the United States shall, on the grounds of race, color, national origin, sex, disability, or age be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity for which the Local Government receives Federal financial assistance. The Local Government hereby agrees to comply with all applicable US DOT Standard Title VI/Non‐ Discrimination Assurances contained in DOT Order No. 1050.2A, and in particular Appendices A and E, which can be found at: https://edocs‐ public.dot.state.mn.us/edocs_public/DMResultSet/download?docId=11149035. If federal funds are included in any contract, the Local Government will ensure the appendices and solicitation language within the assurances are inserted into contracts as required. State may conduct a review of the Local Government’s compliance with this provision. The Local Government must cooperate with State throughout the review process by supplying all requested information and documentation to State, making Local Government staff and officials available for meetings as requested, and correcting any areas of non‐ compliance as determined by State. 18.4. Buy America. The Local Government must comply with the Buy America domestic preferences contained in the Build America, Buy America Act (Sections 70901‐52 of the Infrastructure Investment and Jobs Act, Public Law 117‐58) and as implemented by US DOT operating agencies. 18.5. Federal Funding Accountability and Transparency Act (FFATA) 18.5.1. This Agreement requires the Local Government to provide supplies and/or services that are funded in whole or in part by federal funds that are subject to FFATA. The Local Government is responsible for ensuring that all applicable requirements, including but not limited to those set forth herein, of FFATA are met and that the Local Government provides information to the MnDOT as required. a. Reporting of Total Compensation of the Local Government’s Executives. b. The Local Government shall report the names and total compensation of each of its five most highly compensated executives for the Local Government’s preceding completed fiscal year, if in the Local Government’s preceding fiscal year it received: i. 80 percent or more of the Local Government’s annual gross revenues from Federal procurement contracts and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and ii. $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and MnDOT Contract No. 1052097 12 iii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at https://www.sec.gov/answers/execomp.htm). Executive means officers, managing partners, or any other employees in management positions. c. Total compensation means the cash and noncash dollar value earned by the executive during the Local Government’s preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)): i. Salary and bonus. ii. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments. iii. Earnings for services under non‐equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees. iv. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans. v. Above‐market earnings on deferred compensation which is not tax qualified. 18.5.2. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000. 18.5.3. The Local Government must report executive total compensation described above to the MnDOT by the end of the month during which this Agreement is awarded. 18.5.4. The Local Government will obtain a Unique Entity Identifier number and maintain this number for the term of this Agreement. This number shall be provided to MnDOT on the plan review checklist submitted with the plans for each Project. 18.5.5. The Local Government’s failure to comply with the above requirements is a material breach of this Agreement for which the MnDOT may terminate this Agreement for cause. The MnDOT will not be obligated to pay any outstanding invoice received from the Local Government unless and until the Local Government is in full compliance with the above requirements. [THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.] MnDOT Contract No. 1052097 13 City of Hopkins Local Government certifies that the appropriate person(s) have executed the contract on behalf of the Local Government as required by applicable articles, bylaws, resolutions or ordinances. By: Title: Date: By: Title: Date: DEPARTMENT OF TRANSPORTATION By: Title: Date: COMMISSIONER OF ADMINISTRATION By: Date: