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04-08-03 agenda
AGENDA SECTION: Resolution AGENDA ITEM # $ REPORT # $ $ STAFF REPORT CITY COUNCIL MEETING APRIL 8, 2003 REPORT PREPARED BY: STEVEN L. DEVICH ADMINISTRATIVE SERVICES DIRECTOR Nam?, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: Cep ' ~ Gen© ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution amendments to the, Flexible Spending Account Plan Benefit. I. RECOMMENDED ACTION: By Motion: Adopt the attached resolution approving amendments to the Flexible. Spendin Account Plan. II BACKGROUND I The City of Richfield provides Clty employees a Flexible Spending Account Plan benefit that is regulated by federal law. The Flexible Spending Account Plan allows employees to designate and set aside a biweekly deduction that may be used on a pre-tax basis for IRS approved medical, insurance and childcare-related expenditures. The Stanton Group, which administers the City's Flexible Spending Account Plan, ensures strict adherence to current federal law. The changes included here for consideration are needed to comply with the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act (HIPPA) on or before April 14, 2003. In order to incorporate these changes into the City's Plan Document, it is necessary for the City Council to adopt a resolution formally modifying the Plan. 0408 Flex Plan The resolution attached authorizes the appropriate amendments to the City's Plan Document and the execution of the following related document: • Business Associate Agreement III. BASIS OF RECOMMENDATION A. POLICY • The City offers a Flexible Spending Account Plan to eligible City employees. • The Plan must comply with federal regulations for such plans. • Provisions of HIPPA are applicable to the City's plan. • The Stanton Group, the City's plan administrator, has prepared the necessary documentation to ensure compliance with provisions of HIPPA. B. CRITICAL ISSUES • HIPPA provisions ensure a greater amount of privacy for participant medical data as well as the portability of plan coverages. • The City must make any changes on or before April 14, 2003 to ensure compliance with the provisions of HIPPA. C. FINANCIAL • There is no immediate cost to the City for the Plan modifications. However, procedural changes needed in the future will likely require additional costs to the plan. D. LEGAL • The proposed changes conform to federal law for such plans. IV. ALTERNATIVE RECOMMENDATION~S~ • None V . ATTACHMENTS • Plan amendment resolution • HIPPA Business Associate Addendum VI. PRINCIPAL PARTIES EXPECTED AT MEETING None. RESOLUTION NO. RESOLUTION AMENDING CITY OF RICHFIELD FLEXIBLE SPENDING ACCOUNT PLAN The undersigned, constituting all the members of the Board of Directors of the City of Richfield, (the "City"), duly organized and existing under the laws of the State of Minnesota, do hereby adopt the following resolution in writing: WHEREAS, the City currently maintains the Flexible Spending Account Plan (the "Plan"), in order to allow employees to pay for, and to be reimbursed for, certain medical and dependent care expenses on a pre-tax basis; and WHEREAS, the Plan is required to comply with regulations promulgated by the Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) relating to certain privacy requirements, codified at 45 C.F.R. Part 164 (the "Privacy Rule"; and WHEREAS, Section 164.504(f)(2) of the Privacy Rule requires the Plan to be amended by April 14, 2003 in certain respects to be in compliance with HIPAA; and WHEREAS, the City wishes to amend the Plan to comply with HIPAA and the Privacy Rule, effective April 14, 2003. NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the City hereby adopt this Amendment to the Plan, such Amendment to be in the form presented to the Board, a copy is attached hereto as an exhibit and is, by this reference, incorporated herein, and to be effective April 14, 2003. BE IT FURTHER RESOLVED that appropriate officers of this City are hereby authorized and directed to execute and deliver all documents necessary for the proper implementation of the Amendment of the Plan to ensure that the Amendment hereby approved is in effect as of April 14, 2003. Adopted by the City Council of the City of Richfield, Minnesota this 8th day of April, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk ~~ The Stanton Group, Inc. HIPAA Business Associate Addendum This HIPAA Business Associate Addendum ("Addendum") supplements and is made a part of the administrative services agreement and as modified by any future amendment or restatement of such contract ("Agreement") by and between on behalf of and in its capacity as Plan Administrator of the Covered Entity ("CE") and Stanton Group, Inc. ("Stanton"). This Addendum is effective as of April 14, 2003. RECITALS. A. CE wishes to disclose certain information ("Information") to STANTON pursuant to the terms of the Addendum, some of which may constitute Protected Health Information ("PHI"). B. CE and STANTON intend to protect the privacy and provide for the security of PHI disclosed to STANTON pursuant to the Addendum in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA") and regulations promulgated thereunder by the U.S. Department of Health and Human Services (the "HIPAA Regulations") and other applicable laws. C. The purpose of this Addendum is to satisfy certain standards and requirements of the Privacy Rule, including, but not limited to, Title 45, Section 164.504(e) of the Code of Federated Regulations ("CFR"), as the same may be amended from time to time. In consideration of the mutual promises below and. the exchange of information pursuant to this Addendum, the parties agree as follows: AGREEMENT. The parties identified above agree as follows: 1. Definitions. a. "CF' or "Covered meaning given under th CFR Section 160.103. Entity' for the purpose of this Addendum shall mean [name of health plan] and the term shall have the e HIPAA Regulations, including, but not limited to, 45 b. "Stanton Group, Inc.." or "STANTON" is a business associate of the CE as that term is defined under the Privacy Rule, including, but not limited to, the Privacy Rule found at 45 CFR Section 160.103. c. "IndividuaP' shall have the same meaning as given in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 502(g). 1514541v4 A-1 d. "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and 164, subparts A and E, as set forth in HIPAA and the HIPAA Regulations. e. "Protected Health Information" or "PHP' means any information, whether oral or recorded in any form or medium: (i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual, and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual, (iii) which is limited to the information created or received by STANTON from or on behalf of Covered Entity, and shall have the meaning given to such term under the Privacy Rule, including, but not limited to 45 CFR Section 164.501. f. "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR 164.501. . g. "Secretary' shall mean the Secretary of the U.S. Department of Health and Human Services or his designee. 2. Obligations of STANTON. a. Permitted Uses and Disclosures. STANTON may use and/or disclose PHI received by STANTON pursuant to this Addendum ("CE's PHI") solely in accordance with the specifications set forth in the administrative services agreement in effect, as set forth in the Agreement, which is incorporated herein by reference. In the event of any. conflict between this Addendum and the Agreement with respect to an issue regarding compliance with the Privacy Rule, this Addendum shall control b. Nondisclosure. STANTON shall not use or further disclose CE's PHI otherwise than as .permitted or required by this Addendum or as Required By Law. c. Safeguards. STANTON shall use appropriate .safeguards to prevent use or disclosure of CE's PHI otherwise than as provided for by this Addendum. d. Reporting of Disclosures. STANTON shall report to CE any use or disclosure of CE's PHI otherwise than as provided for by this Addendum of which STANTON becomes aware. e. STANTON's Agents. STANTON shall ensure that any agents and/or subcontractors, to whom it provides PHI received from (or created or received by STANTON on behalf of) CE agree to the same restrictions and conditions that apply to STANTON with respect to such PHI. 1514541 v4 A-2 f. Access to and Accountings of PHI. STANTON shall make available to CE's Plan Participants such information as required to fulfill the Plan's obligations to provide access to, provide a copy of, and account for disclosures with respect to PHI pursuant to HIPAA and the HIPAA Regulations, including, but not limited to, 45 CFR Sections 164.524 and 164.528. STANTON shall also retain a copy of its list of disclosures of PHI and provide such list to CE upon request and/or upon termination of this Agreement g. Amendment of PHI. STANTON shall make the PHI of a Plan Participant available to that Participant and also shall receive, review and respond to requests-for amendment or correction of the PHI of a requesting Plan Participant as required to fulfill the Plan's obligations to amend PHI pursuant to HIPAA and the HIPAA Regulations, including, but not limited to, 45 CFR Section 164.526 and STANTON shall incorporate any amendments to the Plan's PHI into copies of such PHI maintained by Business Associate h. Internal Practices. STANTON shall make its internal practices, books and records relating to the use and disclosure of PHI received from CE (or created or received by STANTON on behalf of CE) available to the Secretary for purposes of determining STANTON's compliance with the Privacy Rule. i. Notification of Breach. During the term of this Addendum, STANTON shall notify CE within forty-eight (48) hours or if later, by the end of the next business day of any suspected or actual breach of security, intrusion or unauthorized use - or disclosure of PHI and/or any actual or suspected use or disclosure of data in .violation of any applicable, federal or state laws or regulations. STANTON shall take (i) prompt corrective action to cure any such deficiencies and (ii) any action pertaining to such unauthorized disclosure required by applicable federal and state laws and regulations. j. Document Retention. STANTON shall maintain PHI for a period of six years from the date received or transmitted,, unless CE agrees to receive. and store the PHI itself. 3. Obligations of CE. a. Disclosure of PHI in accordance with Privacy Rule. Pursuant to the terms of this Addendum and the Privacy Rule, CE shall disclose PHI to STANTON in accordance with the Privacy Rule and this Addendum. Disclosure under this Addendum may also include disclosure directly to STANTON from CE's agents or subcontractors, or another covered entity or business associate of the CE (besides the health plan, which may include but is not limited to a claims administrator, insurer, third party administrator or health care provider or clearinghouse) which maintains and has access to the CE's PHI, provided that such disclosure is in accordance with the Privacy Rule and any contracts regarding disclosures of PHI .entered into between the CE and the agent, subcontractor, other covered entity or business associate of the CE. 1514541v4 A-3 b: Safeguards. CE shall be responsible for using appropriate safeguards to maintain and ensure the confidentiality, privacy and security of PHI transmitted to STANTON pursuant to this Addendum, in accordance with the standards and requirements of HIPAA and the HIPAA Regulations, until such PHI is received by STANTON. c. Notice of Privacy Practices. CE shall provide STANTON with the notice of privacy practices in accordance with the Privacy Rule that CE produces. in accordance with 45 CFR 164.520, as well as any changes or updates to such notice. d. Notice of Changes in Authorizations or Consents. CE shall provide STANTON with any changes in, or revocation of, permission by Individual to use or disclose PHI, if such changes affect STANTON's permitted or required uses and disclosures. e. Notice of Restrictions. CE shall notify STANTON of any restriction to the use or disclosure of PHI that CE has agreed to in accordance with 45 CFR 164.522. 4. Audits, Inspection and Enforcement. From time to time upon reasonable notice, upon a reasonable determination by CE that STANTON has breached this Addendum, CE may inspect the facilities, systems, books and records of STANTON to monitor compliance with this Addendum. STANTON shall promptly remedy any violation of any term of this Addendum and shall certify the same to CE in writing. The fact that CE inspects, or fails to inspect, or has the right to inspect, STANTON's facilities, systems and procedures does not relieve STANTON of its responsibility to comply with this Addendum, nor does CE's (i} failure to detect or (ii) detection, but failure to notify STANTON or require STANTON's remediation of any unsatisfactory practices, constitute acceptance of such practice or a waiver of CE's enforcement rights under this Addendum. 5. Termination. a. Material Breach. A material breach by STANTON or CE of any provision of this Addendum shall provide grounds for immediate. termination of the Agreement under written notice to STANTON by CE. b. Reasonable Steps to Cure Breach. If CE knows of a pattern of activity or practice of STANTON that constitutes a material breach or violation of STANTON's obligations under the provisions of this Addendum or another arrangement and does not terminate this Addendum pursuant to Section 4(a), then CE shall take reasonable steps to cure such breach or end such violation, as applicable. If CE's efforts to cure such breach or end such violation are 1514541v4 A-4 unsuccessful, CE shall either (i) terminate this Addendum, if feasible or (ii) if termination of this Addendum is not feasible, CE shall report STANTON's breach or violation to the Secretary. c. Judicial or Administrative Proceedings. Either party may terminate this Addendum, effective immediately, if (i) the other party is named as a defendant in a criminal proceeding for a violation of HIPAA or (ii) a finding or stipulation that the other party has violated any standard or requirement of HIPAA or other security or privacy laws is made in any administrative or civil proceeding in which the party has been joined. d. Effect of Termination. Upon termination of this Addendum for any reason, STANTON shall return and/or destroy (unless subject to a court order prohibiting destruction or requiring production) all PHI received from CE (or created or received by STANTON on behalf of CE) that STANTON still maintains in any form, and shall retain no copies of such PHI or, if return or destruction is not feasible, it shall continue to extend the protections of this Addendum to such information, and limit further use of such .PHI to those purposes that make the retum or destruction of such PHI infeasible. 6. Indemnification. Each party will indemnify, hold harmless and defend the other party to this Addendum from and against any and all claims, losses, liabilities, costs and other expenses incurred as a result of, or arising directly or indirectly out of or in connection with: (i) any misrepresentation, breach of warranty or partial- fulfillment or non-fulfillment of any undertaking on the part of the party under this Addendum; and (ii) any claims, demands, awards, judgments, actions and proceedings made by any person or organization arising out of or in any way connection with the party's performance under this Addendum. 7. Disclaimer. CE makes no warranty or representation that compliance by STANTON with this Addendum, HIPAA or the HIPAA Regulations will be adequate or satisfactory for STANTON's own purposes or that any information in STANTON's possession or control, or transmitted or received by STANTON, is or will be secure from unauthorized use or disclosure. STANTON is solely responsible for all decisions made by STANTON regarding the safeguarding of PHI. 8. Certification. To the extent that CE determines that such examination is necessary to comply with CE's legal obligations pursuant to HIPAA relating to certification of its security practices, CE or its authorized agents and/or subcontractors, may, at CE's expense, examine STANTON's facilities, systems, procedures and records as may be necessary for such agents or subcontractors to certify to CE the 1514541v4 A-rJ extent to which STANTON's security safeguards comply with HIPAA, the HIPAA Regulations or this Addendum. 9. Amendment. a. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Addendum may be required to provide for procedures to ensure compliance with such developments in the Privacy Rule and other applicable law. The parties specifically agree .to take.such. action as is necessary to implement the standards and requirements of HIPAA, the HIPAA Regulations and other applicable laws relating to the security or confidentiality of PHI. The parties understand and agree that CE must receive satisfactory written assurance from STANTON that STANTON will adequately safeguard all PHI that it receives or creates pursuant to this Addendum. Upon CE's request, STANTON agrees to promptly enter into negotiations with CE concerning the terms of an amendment to this Addendum embodying written assurances consistent with the standards and requirements of HIPAA, the HIPAA Regulations or other applicable laws. CE may terminate this Addendum upon 60 days written notice in the event that (i) STANTON does not promptly enter into negotiations to amend this Addendum when requested by CE pursuant to this Section or (ii) STANTON does not enter into an amendment to this Addendum providing assurances regarding the safeguarding of PHI that CE, in its sole discretion, deems sufficient to satisfy the standards and requirements of the Privacy Rule. b. Amendment of the Agreement. The Agreement may be modified or amended by mutual agreement- of the parties at any time without amendment of this Addendum. To the extent that the permitted uses and disclosures of PHI stated in the Agreement are modified, the uses and disclosures discussed in Section 2(a) of this Addendum shall be modified to reflect the current provisions of the Agreement. 10. Assistance in Litigation or Administrative Proceedings. STANTON shall make itself, and any subcontractors, employees or agents assisting STANTON in the performance of its obligations under this Addendum, available to CE, to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against CE, its directors, officers, or employees based upon claimed violation of HIPAA, the HIPAA Regulations or other laws relating to security and privacy, except where STANTON or its subcontractor, employee or agent is a named adverse party. 11. No Third-Party Beneficiaries. Nothing express or implied in this Addendum is intended to confer, nor shall anything herein confer, upon any person other than CE, STANTON and their 1514541 v4 A-6 respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever. 12. Effect on Agreement. Except as specifically required to implement the purposes of this Addendum, or to the extent inconsistent with this Addendum, all other terms of the Agreement shall remain in force and effect. This Addendum shall govern with respect to terms required for compliance with the Privacy Rule. 13. Interpretation. This Addendum and the Agreement shall be interpreted as broadly as necessary to implement and comply with HIPAA, HIPAA Regulations and applicable state laws. All references in this Addendum to a section in the Privacy Rule means the section as in effect or as amended, and for which compliance is required. The parties agree that any ambiguity in this Addendum shall be resolved in favor of a meaning that complies and is consistent with the Privacy Rule. IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum as of the Addendum Effective Date. CE: By Print Name: Title: Name of Plan Administrator Date: STANTON GROUP, INC. By Print Name: Title: Date: i 1514541 v4 A-7 AGENDA SECTION: AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING APRIL 8, 2003 Resolution 7 87 REPORT PREPARED BY: COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: CHRIS REGIS, FINANCE MANAGER NAME, TITLE ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution to transfer $300,000 from 2002 General Fund -Fund Balance to the Government Buildings fund for reconstruction of the City Hall roof effective December 31, 2002. I. RECOMMENDED ACTION: By Motion: Adopt the attached resolution providing authorization to transfer $300,000 from the 2002 General Fund -Fund Balance to the Government Buildings fund to fund the reconstruction of the City Hall roof effective December 31, 2002. III. BACKGROUND ~ III. BASIS OF RECOMMENDATION A. POLICY The existing City Hall roof is at least 20 years old. The roof membrane has experienced splitting, which has resulted in wet insulation and leaks into City Hall work areas. 0408fundtransfer • The engineering firm Short Elliot Hendrickson (SEH) has performed a cursory review of the roof and is recommending that re-roofing be _ performed as soon as funding is provided. B. CRITICAL ISSUES • The roof has already experienced serious leaks in City Hall this past winter and early spring. Re-roofing is necessary before spring and summer rains begin. • The building already has some issues regarding mold. The failure to quickly fix the roof will likely make the mold problem worse. C. FINANCIAL • Funding for the roof repair is to be provided from 2002 General Fund - Fund Balance in the amount of $300,000. • This roof repair funding-was not included in the Special Revenue Funds discussed by the City Council at their March 25, 2003 meeting. • Adequate year-end fund balance exists to make this needed repair. D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION~S~ • The City Council could decide to not use General Fund -Fund Balance and seek other City funding sources to pay for the re-roofing of City Hall. V. ATTACHMENTS • Resolution VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None. RESOLUTION NO. v RESOLUTION AUTHORING TRANSFER OF 2002 GENERAL FUND YEAR-END FUND BALANCE FOR CITY HALL ROOF REPAIR WHEREAS, the roof on City Hall is in excess of 20 years old and is now experiencing serious leakage into the building, and WHEREAS, the leaks have repeatedly caused water seepage and damage in several work areas of City Hall, and WHEREAS, the roof has been inspected by the engineering firm of Short Elliot Hendrickson (SEH) and have recommended that re-roofing be performed as soon as funds are available, and WHEREAS, the cost of the re-roofing project is estimated at $300,000; and WHEREAS, there is sufficient year-end fund balance from the 2002 General Fund available to pay for the re-roofing project, and WHEREAS, the re-roofing should be completed before the spring and summer rains cause further damage to the building. NOW THEREFORE, BE IT RESOLVED that the City Council authorize the City Manager to transfer $300,000 of 2002 General Fund year-end fund balance to the Government Buildings fund to pay for the City Hall roof repair effective December 31, 2002. Adopted by the City Council of the City of Richfield, Minnesota this 8th day of April, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk AGENDA SECTION: Consent AGENDA ITEM # 5D REPORT # $ 6 J REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: STAFF REPORT CITY COUNCIL MEETING APRIL 8, 2003 DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: NAME, t ITEM FOR COUNCIL CONSIDERATION: Consideration of a request for a new multi-animal residential license for Lorie Valley, 7220 Penn Avenue. I. RECOMMENDED ACTION: By Motion: Approve a request for a new multi-animal residential license for Lorie Valle , 7220 Penn Avenue. II. BACKGROUND On February 28, 2003, Lorie Valley submitted an application for a new multi-animal residential license. She owns three dogs and three cats. Ms. Valley's application contains the signatures of three contiguous property owners. A Community Service Officer conducted an inspection of the property on March 14, 2003. There were no apparent problems found at that time. Both the exterior and the interior of the home were found to be very clean and free of any feces or odors. Staff received one phone call in response to this multi-animal residential license request. The caller indicated that she did not have any problems with the issuance of the requested license. 0408Valley Multi-Animal Residential Environmental Health staff received one complaint for this address in the past year. The complaint was regarding the number of animals in the home and the condition of the interior of the home. The applicant was notified of the need to reduce the number of animals she had from nine to six and to obtain amulti-animal residential license. The applicant is now in compliance with the City Ordinance and is requesting the appropriate license. An inspection of the interior of the home was also conducted. There appeared to be no problems. The. Public_Safety.Department-has-.not-received any other- complaintsfor this address. III. BASIS OF RECOMMENDATION A. POLICY • The City has adopted a policy that staff notifies neighbors surrounding the area of the residential kennel license. A response was received from one neighbor who was in favor of issuing the requested license. B• CRITICAL ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Deny the request by Ms. Valley for a new multi-animal residential license. This would mean that the applicant would have to decrease the number of animals she has from six to two; however, the Public Safety Department has not found any basis for a denial. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Lorie Valley ~~ AGENDA SECTION: Consent AGENDA ITEM # 5 C REPORT # $ 5 J REPORT PREPARED BY: COUNCIL PRESENTER: STAFF REPORT CITY COUNCIL MEETING DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: APRIL 8, 2003 LIEUTENANT JAY HENTHORNE NAME, °'~. (~ „~ ITEM FOR COUNCIL CONSIDERATION: Consideration of the renewal of a contract with Auction Broadcasting Company for auctioning of forfeited vehicles from Public Safetv. I. RECOMMENDED ACTION: By Motion: Approve the renewal of the attached auction service contract between the City of Richfield and Auction Broadcasting Company of Minneapolis for auctioning of forfeited vehicles from Public Safety. II. BACKGROUND The City currently has a contract with the Auction Broadcasting Company (hereinafter referred to as "ABC") to transport, store, repair, maintain, and sell its forfeiture vehicles. "ABC" was awarded the contract for the past year and would like to renew the contract for the year 2003/2004 as the contract expires on April 9, 2003. "ABC's" performance during the contract period was satisfactory. They auction forfeiture vehicles for many cities, including the City of Bloomington. 0803 ABC Contract Renewal III. BASIS OF RECOMMENDATION A. POLICY • "ABC" notified the City that they wish to renew the contract. • The Public Safety Department wishes to renew the contract with "ABC." • The contract has numerous conditions that must be met. "ABC" is a reputable, established auction company that meets all contract -.requirements. B. CRITICAL ISSUES • A 30-day notice must be given by either party in writing to terminate the contract. • Public Safety must have a company to store and auction forfeited vehicles by April 9, 2003. • Adequate space is not available in the City to store forfeited vehicles. C. FINANCIAL • The attached contract with "ABC" reflects rates for 2003/2004. The rates will change in two services offered by "ABC;" otherwise, the rates will stay the same. Towing of vehicles to "ABC" has increased from $75 to $85. Complete detail of vehicles has increased from $75 to $85. • Public Safety receives monies from the sale of forfeited vehicles after appropriate fees are taken out. D. LEGAL • The City Attorney has reviewed and approved the past contract with "ABC." IV. ALTERNATIVE RECOMMENDATION(S~ • Do not approve the renewal of the contract. However, Public Safety would need to find other means to auction forfeited vehicles. V. ATTACHMENTS • ABC contract. Fee Schedule for 2003/2004. I VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGREEMENT BETWEEN THE CITY OF RICHFIELD AND AUCTION BROADCASTING COMPANY MINNEAPOLIS THIS AGREEMENT is made and entered into this 8th day of April, 2003 by and between the City of Richfield, a Minnesota municipal corporation located at 6700 Portland Ave. S., Richfield, Minnesota 55423 (hereinafter referred to as the "City"), and Auction Broadcasting Company Minneapolis, a limited, liability corporation with its principle .business-offices Jocated at 18270 Territorial Road, Dayton,_ Minnesota .55369 (hereinafter referred to as "ABC") WITNESSETH WHEREAS, the City comes into possession of and is authorized to retain various motor vehicles which are identified as potentially being subject to forfeiture or other civil processes under the laws of the State of Minnesota as a result of their having been used in the connection with a criminal act (hereinafter referred to as "Forfeiture Vehicles") and upon successful completion of the forfeiture or civil process the City is authorized to dispose of said vehicles in accordance with Section 315 of the Richfield City Code; and WHEREAS, ABC represents that it has the professional expertise and knowledge to perform its duties as an automobile dealer, and is licensed by the State of Minnesota in that capacity; and WHEREAS, the City desires to hire ABC to transport, store, repair, maintain and sell its Forfeiture Vehicles; NOW, THEREFORE, in consideration of the terms and conditions expressed herein, the parties agree as follows: I. TERM OF AGREEMENT The term of this Agreement shall begin April 9, 2003 and shall continue until April 9, 2004; subject to termination as provided in Article IV. II. DUTIES OF ABC A. Upon specific authorization from the City, ABC agrees to drive or transport those vehicles identified by the City as one of its Forfeiture Vehicles to a secure location to !~ be determined and managed by ABC. B. Upon receipt of a City Forteiture Vehicle, ABC accepts full responsibility for it and agrees to exercise due diligence in its care, maintenance and storage of said vehicle until the time that it is sold or released; so as to avoid waste and obtain a reasonable sale price at auction. C. Upon specific authorization from the City, ABC agrees to pertorm such minor repair work on the City's Forfeiture Vehicles so as to prepare them for auction and maximize the City's return at auction, but in no event shall such repair work exceed the cost of TWO HUNDRED AND NO/100 DOLLARS ($200.00) without prior, written authorization by the Richfield City Manager or his/her designee. D. Upon specific authorization from the City, ABC agrees to release the City's Forfeiture Vehicles prior to auction on such terms and conditions as the City may direct. E. ABC agrees to box and store personal property that is not affixed to, but located within, the City's Forfeiture vehicles and upon specific authorization from the City to release such property on such terms and conditions as the City may direct. F. Upon specific authorization from the City, ABC agrees to promptly sell the City's Forfeiture Vehicles in a commercially reasonable manner by an open and competitive automobile dealer or salvage auction. G. ABC agrees to defend, indemnify and hold harmless the City, its officials, employees and agents from any and all claims, causes of action, lawsuits, damages, losses, or expenses, including attorney fees, arising out of or resulting from ABC's (including its officials, agents or employees) performance of the duties required under this Agreement, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, diseases or death or to injury to or destruction of property including the loss of use resulting therefrom and is caused in whole or in part by any negligent act or omission or willful misconduct of ABC. H. ,During the term of this Agreement ABC agrees to maintain general comprehensive liability insurance in the amount of $1,000,000 for any damage to property, theft, loss or other claims as a result of ABC's negligence or malfeasance in pertorming this Agreement. In addition, ABC agrees to maintain such motor vehicle liability insurance as required by state and federal laws. I. ABC shall be licensed and bonded in the State of Minnesota to perform its duties under this Agreement and shall provide a certificate of licensure, bonding and insurance to the City. J. ABC agrees to comply with all applicable local, state and federal laws, rules and regulations in the performance of the duties of this Agreement. K. It is agreed that nothing herein contained is intended or should be construed in any.manner as creating-or establishing the-.relationship of-copartners between the parties hereto or as constituting ABC's staff as the agents, representatives or employees of the City for any purpose in any manner whatsoever. ABC and its staff are to be and shall remain an independent contractor with respect to all .services pertormed under this Agreement. ABC represents that it has, or will secure at its own expense, all personnel required in performing services under this Agreement. Any and all personnel of ABC or other persons, while engaged in the performance of any work or services required by ABC under this Agreement, shall have no contractual relationship with the City and shall not be considered employees of the City, and any and all claims that may or might arise under the Workers' Compensation Act of the State of Minnesota on behalf of said personnel or other persons while so engaged, and any and all claims whatsoever on behalf of any such person or personnel arising out of employment or alleged employment including, without limitation, claims of discrimination against ABC, its officers, agents, contractors or employees shall in no way be the responsibility of the City; and ABC shall defend, indemnify and hold the City, its officers, agents and employees harmless from any and all such claims regardless of any determination of any pertinent tribunal, agency, board, commission or court. Such personnel or other persons shall not require nor be entitled to any compensation, rights or benefits of any kind whatsoever from the City, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Unemployment Compensation, disability, severance pay and PERA. L. The books, records, documents, and accounting procedures of the Contractor, relevant to this Agreement, are subject to examination by the City, and either the legislative or state auditor as appropriate, pursuant to Minnesota Statutes, Section 16C.05, Subdivision 5. M. ABC agrees to comply with the Americans With Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 and not discriminate on the basis of disability in the admission or access to, or treatment of employment in its services, programs, or activities. ABC agrees to hold harmless and indemnify the City from, costs, including but not limited to damages, attorney's fees and staff time, in any action or proceeding brought alleging a violation of ADA and/or Section 504 caused by the ABC. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all services, programs and activities. The City has designated coordinators to facilitate compliance with the Americans With Disabilities Act of 1990, as required by Section 35.107 of the U.S. Department of Justice regulations, and to coordinate compliance with Section 504 of the Rehabilitation Act of 1973, as mandated by Section 8.53 of the U.S. Department of Housing and Urban Development regulations. fV. The Contractor will comply with all applicable provisions of the Minnesota Government Data Practices Act, Chapter 13 of the Minnesota Statutes. 0. Any Forfeiture Vehicles which ABC has been authorized and directed to sell but was unable to under the terms of this Agreement shall be returned to the City at a site designated by it as soon as reasonably practicable but in no event more than sixty (60) days from the occurrence of the event making sale under this Agreement impossible. III. DUTIES OF THE CITY A. The City shall consign specifically identified Forfeiture Vehicles to ABC to sell to the highest bidder at public dealer or salvage auctions. B. The City shall certify that it has good title and right to sell those of its Forfeiture Vehicles which it directs and specifically authorizes ABC to sell at public dealer or salvage auctions and shall provide and deliver merchantable title to the purchaser upon notification from ABC. C. The City shall defend, indemnify and hold harmless the ABC, its officials, employees and agents, from any and all claims, causes of action, lawsuits, damages, losses or expenses, including attorney fees, arising out of or resulting from the City's performance of the duties required under this Agreement, provided that any such claim, damages, loss or expense is attributable to bodily injury, sickness, diseases or death or to injury to or destruction of property including the loss of use resulting therefrom and is caused in whole or in part by any negligent act or omission or willful misconduct of City. D. The City shall pay to ABC the following amounts as and for its services properly authorized and provided pursuant to this Agreement: 1. Transportation of an operable Forteiture Vehicle to or from the City of Richfield to ABC's designated storage site:. $35.00. 2. Tow of an inoperable Forfeiture Vehicle (tow or trailer) to or from the City of Richfield to ABC's designated storage site: $85.00. 3. -Basic cleaning of a Forfeiture Vehicle: $25.00. 4. Complete detail of a Forteiture Vehicle (vacuum and shampoo carpets, detail interior, etc.): $85.00. 5. Repair of a Forfeiture Vehicle prior to auction: Shop Rates. 6. Sale by auction of a Forfeiture Vehicle: $110.00. 7. Release of a Forfeiture Vehicle prior to auction: $50.00 redemption fee plus any charges (i.e., transportation). 8. Storage fee if car is not sold within 90 days: $3.00/day. 9. Inventory fee for release of personal property: $15.00. IV. TERMINATION Either party may terminate this Agreement for any reason upon thirty (30) days advance written notice to the other party. The City reserves the right to cancel this Agreement at any time in event of default or violation by ABC of any provision of this Agreement. The City may take whatever action at lava or in equity that may appear necessary or desirable to collect damages arising from a default or violation or to enforce performance of this Agreement. V. MISCELLANEOUS A. Any material alterations, variations, modifications or waivers of provisions of this Agreement shall be valid only when they have been reduced to writing as an amendment to this Agreement and signed by both parties. B. This Agreement shall not be assignable except at the written consent of the City. C. This Agreement represents the entire Agreement between ABC and the City and supersedes and cancels any and all prior agreements or proposals, written or oral, between the parties relating to the subject matter hereof; and amendments, addenda, alterations, or modifications to the terms and conditions of this Agreement shall be in writing and signed by both parties. D. .The parties agree to comply with the Minnesota State Human Rights Act, Minnesota Statutes, Section 363. E. The parties hereto agree to comply with Section 504 of the Rehabilitation Act of 1973/31 CFR Part 51. This Act states in part that, "...all recipients of federal funds, whether in the form of a grant or a contract, review, and if necessary modify, their programs and activities so that discrimination based on handicap is eliminated." F. The terms and conditions. of this Agreement shall be binding on ABC's successors and assigns and to the extent any assignee of ABC. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. CITY OF RICHFIELD DATED: BY: Its Mayor DATED: BY: Its Manager AUCTION BROADCASTING COMPANY MINNEAPOLIS DATED: BY: Its Attachment - 0408 ABC Contract Renewal FEE SCHEDULE A rICTIO~V SALE FEE - ~110.OD Sale fee includes the following services: • Professional condition report • Complete after sale reporting • Individual folder made for -each -car kept for min S years. • 24 hr security ~zECO.~Dxrro~vxN~ SE.~ vxcES COM.1'LE7'E DETA.I.L - $8S. DO Includes: Hand wash, buff and wax, vacuu~z and shampoo carpets, detail interior, clean windows, power wash e~tgine, clean trunk, Arrizorall tires and.clean wheel rims. ~xx~x CLEAN- ~ss.oo Includes: Hand wash, buff and wax, wipe and vacuum interior, clean windows, AYM40j°all tires and clean wheel rims. BASxC CLEAN" ~' -$~Si o0 Includes: Hand wash, vacuum interior; clean windows and Armorall tires. TYanspoYtatxon LOCAL -Arty unit that is safe to drive will be picked up by ABC t3-ansportation (see transportation rates slzeet) Aray unit that does not run or is unsafe to drive will be towed in; tows average 8'75.00 to X85.00. J AGENDA SECTION: AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING APRIL $, 2003 REPORT PREPARED BY: COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: • ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution regarding an appointment to the Richfield Tourism Promotion Board. I. RECOMMENDED ACTION:. By Motion: Adopt a resolution appointing Russ Susag to the Richfield Tourism Promotion Board for athree-year term ending December 31, 2005. ~ II. BACKGROUND un rune Z5, 1990 the City Council approved an ordinance to levy a 3% tax on gross receipts of lodging from Richfield Hotels and Motels pursuant to Minnesota Statutes. The establishment of the Richfield Tourism Promotion Board, Inc. (RTPB) and the appointment of directors were also a part of the resolution. Currently there are five director positions on the Board. The term of each appointment is for three years and terms are staggered to maintain Board continuity. The current appointments to the Tourism Board and the ending dates of their terms are as follows: CONSENT 5B 84 STEVEN L. DEVICH ADMINISTRATIVE SERVICES DIRECTOR NA,t~ TITLE 0408tourism 1. Catherine (Sulla) Reller, representing the Richfield Chamber of Commerce, term ending December 31, 2002. 2. Rebecca Ortega, General Manager of Candlewood Suites, term ending December 31, 2003. 3. Paul Skaiem General Manager of Americlnn, term ending December 31, 2003. 4. Robyn Goolsbey, Hampton Inn, term ending December 31, 2003. 5. Jerod Endersbe, General Manager of Motel 6, December 31, 2004. Catherine (Sulla) Reller is the current Chamber of Commerce representative to the RTPB. Ms. Reller was appointed to the Board in January 2000 for athree-year term. Her term has now expired and Ms. Reller has indicated that she does not wish-to be-reappointed to the Boardas-the-Chamber-of-Commer-ce-.representative for another three-year term. Russ Susag is a current member of the Chamber of Commerce and former City Council Member. Mr. Susag has expressed an interest in representing the Chamber of Commerce on the Tourism Board. He has been endorsed by the Chamber Board of Directors and they have forwarded a letter to the City requesting his appointment to the RTPB as their representative. III. BASIS OF RECOMMENDATION A. POLICY • The City Council has the authority to make appointments to the RTPB. • Since inception, the RTPB has included a Chamber of Commerce representative. • Ms. Reller is not interested in re-appointment to the RTPB. • The Chamber of Commerce has submitted a letter requesting Mr. Susag's appointment as the Chamber representative. B. CRITICAL ISSUES • A vacancy on the RTPB exists as of December 31, 2002 and should be filled as soon as possible. C. FINANCIAL • There is no cost to the City. D. LEGAL • The appointment conforms to City Ordinance and bylaws of the RTPB. TERNATIVE • i ne t;ity (:ouncil could decide not to appoint Mr. Susag to the RTPB. • The City Council could choose to review this matter at a future date. ~ V . ATTACHMENTS • Letter from Chamber of Commerce. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None. RESOLUTION NO. RESOLUTION APPOINTING A REPRESENTATIVE TO THE BOARD OF DIRECTORS TO THE RICHFIELD TOURISM PROMOTION BOARD, INC. WHEREAS, the City of Richfield has levied a 3% tax on the gross receipts of lodging from hotels and motels in the City pursuant to Minnesota Statute Section 169.190; and WHEREAS, Minnesota Statute Section 169.190 authorizes the proceeds of the tax to fund a Tourism Promotion Board for the purpose of marketing and promoting the City as a tourist or convention center; and WHEREAS, the articles and bylaws of the Richfield Tourism Promotion Board, Inc. provide the City Council of the City of Richfield appoint five-(5) directors to the Board representing the Richfield hotel-motel properties and the Richfield Chamber of Commerce; and WHEREAS, each director shall serve as a director until his or her successor has been appointed and has qualified, or until his or her earlier disqualification, death, resignation, or removal; and WHEREAS, the term of Catherine (Sulla) Reller, the representative for the Chamber of Commerce, expired on December 31, 2002; and WHEREAS, Ms. Reller has indicated she is not interested in re-appointment to another three-year term; and WHEREAS, the Richfield Chamber of Commerce has submitted a written request that Mr. Susag be appointed as their representative to the RTPB. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield, Minnesota, that the Richfield Tourism Promotion Board directors be modified as follows: Appoint. Russ Susag, Richfield Chamber of Commerce, to the Richfield Tourism Promotion Board for athree-year term ending December 31, 2005. Adopted by the City Council of the City of Richfield, Minnesota this 8th day of April 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk ichfield CHA~rIBER OF COMMERCE March 3, 2003 The Honorable Mayor of Richfield Martin J. Kirsch 6700 Portland Avenue South Richfield, MN 55423 Dear Mayor Kirsch: The Richfield Tourism Promotion Board (RTPB) has been fortunate the past three years to have Cathy Sulla serving as President. In fact, the Richfield Chamber of Commerce has been most ably represented on the RTPB first by Larry Zielke for .nine years and Cathy Sulla these past three years. We believe the RTPB has served an extremely valuable service to the community of Richfield. Due to the decision by Cathy to not seek another term on the RTPB, the Chamber Board of Directors has considered this matter with great care. Fortunately, Dr. Russ Susag has agreed to serve a term on the board should the Richfield City Council see fit to appoint him to a three year term. Please accept this letter as a recommendation for this anointment of Russ to the Richfield Tourism Promotion Board. PRESIDENT SL:cs cc: Mr. Marv Bjugan Mrs. Cathy Reller "Serving Richfield Since 1955" 6601 LYNDALE AVENUE SOUTH, SUITE 106 RICHFIELD, MN 55423 • TELEPHONE: (612) 866-5100 www. RichfieldChamberCVB.org AGENDA SECTION: Consent AGENDA ITEM # 5A REPORT # g 3 STAFF REPORT CITY COUNCIL MEETING APRIL 8, 2003 REPORT PREPARED BY: GEORGE L. ATKINSON, ENGINEERING SUPERVISOR Nanrc, Tirl,c COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: ~ ~ '~ ~L'"~ ~ ~~~ SIGNA~ RL~%' REVIEWED BY CITY MANAGER: ~ e ~~~ ~ ITEM FOR COUNCIL CONSIDERATION: Consideration of a resolution authorizing the Minnesota Department of Transportation to acce t federal funds for trans ortation construction ro'ects on behalf of the Cit . I. RECOMMENDED ACTION: By Motion: Adopt the attached resolution which allows the Minnesota Department of Transportation to act as the City's agent in accepting federal funds in connection with a variety of transportation related construction II. BACKGROUND The Minnesota Department of Transportation (MnDOT) has developed a new process called the Delegated Contract Process that all cities and counties will be required to follow in administering road projects using federal funds. The new procedure places additional responsibility on cities but increases local control of project administration from start to finish. The attached Agency Agreement describes the responsibilities of both MnDOT and the City in carrying out the Delegated Contract Process. It also authorizes the Minnesota Department of Transportation (MnDOT) to act as the City's agent in accepting federal funds for future construction projects. The process will be used on 0408AgencyAgrmnt the reconstruction of the 7600 block of Lyndale Avenue; however, it will not be used to build the new Lyndale Avenue Bridge over I-494. Projects on the National Highway System, such as I-494, will be administered by MnDOT. III. BASIS OF RECOMMENDATION A. POLICY • Minnesota Statutes Section 161.36 allows the City to have MnDOT act as its agent in accepting federal funds in its behalf for the design and construction of transportation improvements financed either in whole or in part by federal funds. B. CRITICAL ISSUES • The new Delegated Contract Process places increased responsibility on the City to follow state and federal requirements on road projects. The experience of St. Paul, Hennepin County and Washington County has shown that the process is easier than the previous one and improves local control of construction activities. • The City must front the cost of paying construction contractors while awaiting reimbursement of federal funds. C. FINANCIAL • The Delegated Contract Process requires cities to front the cost of construction payments until federal funds are received. • Other cities and counties have found that they can complete final payments faster and easier under the new process than they could under the traditional one. D. LEGAL • There are no legal issues known at this time ~ I V . ALTERNATIVE RECOMMENDATION(Sl • Vouncu could decline to authorize the attached agreement. However, the City could not use federal funds for local road improvements, e.g. the 7600 block of Lyndale Avenue. I V . ATTACHMENTS I • rcesoiution accepting State of Minnesota Agency Agreement 84213 and authorizing the Mayor and City Manager to execute the agreement on behalf of the City of Richfield. • State of Minnesota Agency Agreement 84213 between the Department of Transportation and the City of Richfield for Federal Participation in Construction. ~ V 1. PRINCIPAL PARTIES EXPECTED AT MEETING ~ • None RESOLUTION NO. RESOLUTION AUTHORIZING ACCEPTANCE OF STATE OF MINNESOTA AGENCY AGREEMENT NO. 84213 BETWEEN THE DEPARTMENT OF TRANSPORTATION AND THE CITY OF RICHFIELD FOR FEDERAL PARTICIPATION IN CONSTRUCTION. WHEREAS, The City of Richfield is proposing to use federal funds for the construction, improvement, or enhancement of transportation projects; and WHEREAS, The City of Richfield has worked since 1989 to reconstruct the 77th Street corridor. That project has included reconstructing 77th Street, 76th Street, Penn Avenue, the I- 35W off-ramp at 76th Street and the Humboldt Avenue storm sewer. The-next phases of the project include the Lyndale Avenue Bridge consisting of Lyndale Avenue :from 79th Street to 77th Street and the 7600 block of Lyndale Avenue, and the 77th Street Underpass of Highway 77 from 17th Avenue to Longfellow Avenue. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Richfield that pursuant to Minnesota Stat. Sec. 161.36, the Commissioner of Transportation be appointed as Agent of the City of Richfield to accept as its agent, federal aid funds which may be made available for eligible transportation related projects. BE IT FURTHER RESOLVED by the City Council of the City of Richfield that the Mayor and City Manager are hereby authorized and directed for and on behalf of the City of Richfield 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. 84213," 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 Richfield, Minnesota this 8th day of April, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk Mn/DOT Agreement No. 84213 STATE OF MINNESOTA AGENCY AGREEMENT BETWEEN DEPARTMENT OF TRANSPORTATION AND CITY OF RICHFIELD FOR FEDERAL PARTICIPATION IN CONSTRUCTION This agreement is entered into by and between the City of Richfield ("City") and the State of Minnesota acting through its Commissioner of Transportation ("Mn/DOT"), Pursuant to Minnesota Statutes Section 161.36, the City desires Mn/DOT to act as the City's agent in accepting federal funds on the City's behalf for the construction, improvement, or enhancement of transportation financed either in whole or in part by federal funds, hereinafter referred to as the "Project(s)"; and Mn/DOT requires that the terms and conditions of this agency be set forth in an agreement. THE PARTIES AGREE AS FOLLOWS: I. DUTIES OF THE CITY. A. DESIGNATION. The City designates Mn/DOT to act as its agent in accepting federal funds in its behalf made available for the Project(s). B. STAFFING. The City will furnish and assign a publicly employed registered 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 City elects to use a private consultant for construction engineering services, the City will provide a qualified, full-time public employee of the City, to be in responsible charge of the Project(s). The services of the City to be performed hereunder may not be assigned, sublet, or transferred unless the City is notified in writing by Mn/DOT that such action is permitted under 23 CFR 1.33 and 23 CFR 635.105 and state law. This written consent will in no way relieve the City from its primary responsibility for performance of the work. (Mn/DOT Asreement No. 84213) N:~FedAidlDCP~DCP Aeency Asreement & Letter-Cvlerse Template.doc 2!27/03 ~ Page 1 2. During the progress of the work on the Project(s), the City authorizes its Project Engineer to request in writing specific engineering and/or technical services from Mn/DOT, pursuant to Minnesota Statutes Section 161.39. Such services maybe covered by other technical service agreements. If Mn/DOT furnishes the services requested, and if Mn/DOT requests reimbursement, then the City will promptly pay Mn/DOT 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 Mn/DOT 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 Mn/DOT a principal or co-principal with respect to the Project(s). C. LETTING. The City will prepare construction contracts in .accordance with Minnesota law and applicable Federal laws and regulations. 1. The City will solicit bids after obtaining written notification from Mn/DOT that the Federal Highway Administration ("FHWA") has authorized the Projects}. Any Project(s) advertised prior to authorization will not be eligible for federal reimbursement. 2. The City will prepare the Proposal for Highway Construction for the construction contract, which will include all of the federal-aid provisions supplied by Mn/DOT. 3. The City will prepare and publish the bid solicitation for the Project(s) as required by state and federal laws. The City will include in the solicitation the required language for federal-aid construction contracts as supplied by Mn/DOT. The solicitation will state where the proposals, plans, and specifications are available for the inspection of prospective bidders, and where the City will receive the sealed bids. 4. The City may not include other work in the construction contract for the authorized Project(s) without obtaining prior notification from Mn/DOT 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). 5. The City will prepare and sell the plan and proposal packages and prepare and distribute any addendums, if needed. 6. The City will receive and open bids. 7. After the bids are opened, the City Council 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, the City will not award the bid until it has received certification of the Disadvantaged Business (MnrDOT Agreement No. 84213) N:`~FedAid'~DCP'~DCP Asenc~~ Agreement & Letter-Merle Template.doc 2, 27.0= Page 2 Enterprise participation from the Mn/DOT Equal Employment Opportunity Office. D. CONTRACT ADMINISTRATION. 1. The City will prepare and execute a construction contract with the Contractor, in accordance with the special provisions and the latest edition of Mn/DOT's Standard Specifications for Construction. 2. The Project(s) will be constructed in accordance with plans, special provisions, and standard specifications of each Project. The standard specifications will be the latest edition of Mn/DOT Standard Specifications for Highway Construction, and all amendments thereto. The plans, special provisions, and standard specifications will be on file at the City Engineer's Office. The plans, special provisions, and specifications are incorporated into this agreement by reference as though fully set forth herein. 3. The City 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 City to be performed hereunder may not be assigned, sublet, or transferred unless the City is notified in writing by Mn/DOT that such action is permitted under 23 CFR 1.33 and 23 CFR 635.105 and state law. This written consent will in no way relieve the City from its primary responsibility for performance of the work. 4. The City will document quantities in accordance with the guidelines set forth in the Mn/DOT Contract Administration Manual Sections 410 and 420 that were in effect at the time the work was performed. 5. The City will test materials in accordance with the Mn/DOT Schedule of Materials Control in effect at the time each Project was let. The City will notify Mn/DOT when work is in progress on the Project(s) that requires observation by the Independent Assurance Inspector as required by the Independent Assurance Schedule. 6. The City may make changes in the plans or the character of the work, as maybe necessary to complete the Project(s), and may enter into supplemental agreement(s) with the individual, firm, or corporation contracting for and undertaking prosecution of the prescribed work (hereinafter "Contractor"). The City will not be reimbursed for any costs of any work performed under a supplemental agreement unless Mn/DOT has notified the City that the subject work is eligible for federal funds and sufficient federal funds are available. 7. The City will request approval from Mn/DOT for all costs in excess of the amount of federal funds previously approved for the Project(s) prior to incurring (Mn/DOT Agreement No. 84213) N:`FedAid`:DCP`.DCP Asency Agreement & Letter-Merge Template.doc 227.03 Page 3 .. . , i = ;,.~ such costs. Failure to obtain such approval may result in such costs being disallowed for reimbursement. E. F 8. The City will prepare reports, keep records, and perform work so as to enable Mn/DOT to collect the federal aid sought by the City. Required reports are listed in the Mn/DOT State Aid Manual, Delegated Contract Process Checklist, available from Mn/DOT's authorized representative. The City will retain all records and reports in accordance with Mn/DOT's record retention schedule for federal aid projects. 9. Upon completion of the Project(s), the Project Engineer will determine whether the work will be accepted. PAYMENTS. 1. 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 City. The City will pay any part of the cost or expense of the Project(s) that is not paid by federal funds. 2. The City 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 City will make partial payments to the Contractor in accordance with the terms of the construction contract for the Project(s). 3. Following certification of the partial estimate, the City may request reimbursement for costs eligible for federal funds. The City's request will be made to Mn/DOT and will include a copy of the certified partial estimate. 4. Upon completion of the Project(s), the City 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 City will make the final payment to the Contractor in accordance with the terms of the construction contract for the Project(s). 5. Following certification of the final estimate, the City may request reimbursement for costs eligible for federal funds. The City's request will be made to Mn/DOT and will include a copy of the certified final estimate along with the required records. LIMITATIONS. 1. The City will comply with all applicable Federal, State, and local laws, ordinances, and regulations. (Mn/DOT Agreement No. 84Z 13) NaFedAid'~.DCP'DCP Agency Aereement & Letter-Merle Template.doc 2%27'03 Pase 4 2. Nondiscrimination. It is the policy of the Federal Highway Administration and the State of Minnesota that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance (42 U.S.C. 2000d). Through expansion of the mandate for nondiscrimination in Title VI and through parallel legislation, the prescribed bases of discrimination include race, color, sex, national origin, age, and disability. In addition, the Title VI program has been extended to cover all programs, activities and services of an entity receiving Federal financial assistance, whether such programs and activities are Federally assisted or not. Even in the absence of prior discriminatory practice or usage, a recipient in administering a program or activity to which this part applies, is expected to take affirmative action to assure that no person is excluded from participation in, or is denied the benefits of, the program or activity on the grounds of race, color, national origin, sex, age, or disability. It is the responsibility of the City to carry out the above requirements. G H 3. Workers' Compensation. Any and all employees of the City or other persons while engaged in the performance of any work or services required or permitted by the City under this agreement will not be considered employees of Mn/DOT, and any and all claims that may arise under the Workers' Compensation Act of Minnesota on behalf of said employees, or other persons while so engaged, will in no way be the obligation or responsibility of Mn/DOT. The City will require proof of Workers' Compensation Insurance from any contractor and sub- contractor. 4. Utilities. The City will treat all public, private or cooperatively owned utility facilities which directly or indirectly serve the public and which occupy highway rights of way in conformance with 23 CFR 645. "Utilities" which is incorporated herein by reference. AUDIT. 1. The City will comply with the Single Audit Act of 1984 and Office of Management and Budget (OMB) circular A-133, which are incorporated herein by reference. 2. As provided under Minnesota Statutes Section 16C.05, subdivision 5, all books, records, documents, and accounting procedures and practices of the City are subject to examination by the United States Government, Mn/DOT, and either the Legislative Auditor or the State Auditor as appropriate, for a minimum of seven years. The City will be responsible for any costs associated with the performance of the audit. MAINTENANCE. The City assumes full responsibility for the operation and maintenance of any facility constructed or improved under this Agreement. (MniDOT Asreement No. 84213) N:.FedAid.DCP'.DCP Agency Asreement & Letter-Meree Template.doc 2.'27.03 ~ Page I. CLAIMS. The City will pay any and all lawful claims arising out of or incidental to the performance of the Project(s) work. The City acknowledges that Mn/DOT is acting only as the City's agent for receipt and disbursement of federal funds, and not as a principal or co-principal with respect to the Project(s). In all events, the City will indemnify Mn/DOT and hold Mn/DOT harmless from any claims arising out of the Project(s). II. DUTIES OF Mn/DOT. A. ACCEPTANCE. Mn1DOT accepts designation as Agent of the City for the receipt and disbursement of federal funds and will act in accordance herewith. B. PROJECT ACTNITIES. 1. Mn/DOT 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. 2. Mn/DOT will provide to the City 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. Mn/DOT will review and certify the DBE participation and notify the City when certification is complete. 4. Mn/DOT will provide the required labor postings. C. PAYMENTS. 1. Mn/DOT will receive the federal funds to be paid by the FHWA for the Project(s), pursuant to Minnesota Statutes § 161.36, Subdivision 2. 2. Mn/DOT will reimburse the City, from said federal funds made available to each Project, for each partial payment request, subject to the availability and limits of those funds. 3. Upon completion of the Project(s), Mn/DOT will perform a final inspection and verify the federal and state eligibility of all the payment requests. If the Project is found to have been completed in accordance with the plans and specifications, Mn/DOT will promptly release any remaining federal funds due the City for the Project(s). 4. In the event Mn/DOT 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 City may (Mn; DOT Agreement No. 84213) N: FedAid•DCP UCP Asency Agreement & Letter-Meroe Template.doc 2:27%03 Page 6 continue the work with local funds only, until such time as Mrv'DOT is able to process the federal aid reimbursement requests. D. AUTHORITY. Mn/DOT may withhold federal funds, where Mn/DOT or the FHWA determines that the Project(s) was not completed in compliance with federal requirements. E. INSPECTION. Mn/DOT, the FHWA, or duly authorized representatives ofthe state and federal government will have the right to audit, evaluate and monitor the work performed under this agreement. The City will make available all books, records, and documents pertaining to the work hereunder, for a minimum ofseven years following the closing of the construction contract. III. 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 Mn/DOT liability. IV. ASSIGNMENT. Neither party will assign or transfer any rights or obligations under this agreement without prior written approval of the other party. V. AMENDMENTS. Any amendments/supplements to this Agreement will. be in writing and executed by the same parties who executed the original agreement, or their successors in office. VI. AGREEMENT EFFECTIVE DATE. This agreement is effective upon execution by the appropriate State officials pursuant to Minnesota Statutes Section 16C.05. VII. CANCELLATION. This agreement may be canceled by the City or Mn/DOT at any time, with or without cause, upon ninety (90) days written notice to the other party. Such termination will not remove any unfulfilled financial obligations of the City as set forth in this Agreement. Iri the event of such a cancellation the City will be entitled to reimbursement for Mn/DOT-approved federally eligible expenses incurred for work satisfactorily performed on the Project to the date of cancellation subject to the terms of this agreement. (MniDOT Agreement No. 84213) N:'Fed.Aid`,DCP\DCP Aeency Agreement & Letter-Merle Template.doc 2%27.03 Page 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby 1. C[TY 2. DEPARTMENT OF TRANSPORTATION City certifies that the appropriate person(s) have executed the contract on behalf of the City as By: required by applicable articles, bylaws, resolutions, or ordinances By: Title: Director, State Aid for Local Transportation Title: D t a e. 3. COMMISSIONER OF ADMINISTRATION Date: By: Date: By: 4. ATTORNEY GENERAL As to form and execution Title: By: Date: Date: N:`.FedAid\DCP'~DCP Aeency Agreement & Letter-Mere Template.doc 2127/03 (Mn/DOT Agreement No. 84213) Page 8