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HomeMy WebLinkAbout140-94 RESOLUTION• • RESOLUTION NO. 140-94 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENTS OF UNDERSTANDING WITH ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT TO PROVIDE ISTEA FUNDING FOR: ANTI) #040195, FAYETTEVILLE BIKE TRAILS PROJECT; AHTD #040198, RAILROAD CORRIDOR PRESERVATION; AHTD #040197, ENTRY CORRIDOR ENHANCEMENT. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. The Council hereby authorizes the Mayor and City Clerk to execute the Agreements of Understanding with Arkansas Highway and Transportation Department to provide ISTEA funding for: AHTD #040195, Fayetteville Bike Trails Project; AHTD #040198, Railroad Corridor Preservation; AHTD #040197, Entry Corridor Enhancement. A copy of the agreements are attached hereto and made a part hereof. PASSED AND APPROVED this 20th day of December 1994. ATTEST:2� By: (LPL Traci Paul, City Clerk APPROVED: By: red Hanna, Mayor • AGREEMENT OF UNDERSTANDING BETWEEN THE CITY OF FAYETTEVILLE AND THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT In Cooperation with the U. S. Department of Transportation Federal Highway Administration RELATIVE TO The implementation of Job 040195, Fayetteville Bicycle Trails (ATEP-94) (S), (hereinafter called "the project") as a transportation enhancement project. WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 provides 804io Federal -aid funds to be matched with 20% non-federal funds (cash match) for certain transportation enhancement projects, and WHEREAS, the City of Fayetteville (hereinafter called "Sponsor") has expressed its desire to use Federal -aid funds for an eligible project and to provide necessary matching cash share for such funds, and WHEREAS, funding participation for each phase of the project will be as follows: Federal ° o Sponsor % Project Design: 80 20 Project Review: 80 20 Right -of -Way: 80 20 Utilities: 80 20 Project Implementation: 80 20 Project Inspection: 80 20 , and WHEREAS, the Sponsor knows of no legal impediments to the completion of the project, and WHEREAS, it is specifically agreed between the parties executing this agreement that it is not intended by any of the provisions of any part of the agreement to create the public or any member thereof a third party beneficiary hereunder or to authorize anyone not a party to this agreement to maintain a suit or action for injuries or damage of any nature pursuant to the terms or provisions of this agreement, and WHEREAS, the Sponsor understands that the Arkansas State Highway and Transportation Department (hereinafter called "Department") will adhere to the General Requirements for Recipients and Sub -Recipients Concerning Minority Business Enterprises (see attached). IT IS IIEREBY AGREED that the Sponsor and the Department, in cooperation with the Federal Highway Administration, will participate in a cooperative program for implemet.ation of the project and will accept the responsibilities and assigned duties as described hereinafter. THE SPONSOR WILL: 1. Indemnify and save harmless the Department from all suits, actions, or claims of any character brought because of any damage sustained on account of the operations or actions of the said Sponsor; or because of any act of omission, neglect, or misconduct of said Sponsor; or from any claims or amounts arising or recovered under any law, ordinance, order, or decree. Nothing contained herein shall be construed in any manner as a waiver of statutory tort immunity as provided under Arkansas Code Ann. § 21-9-301. 2. Assure that its policies and practices with regard to its employees, any part of whose compensation is reimbursed from federal funds, will be without regard to race, color, religion, sex, disability, or national origin in compliance with the Civil Rights Act of 1964 and 49 CFR Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation. 3_ Be responsible for its portion of the total project cost, which will include project design, construction inspection services, appraisal and acquisition of right-of-way, relocation services (when required), and adjustment of all man-made improvements, including utilities. 4. Grant the right of access to the Sponsor's records pertinent to this project and the right to audit by the Department and Federal Highway Administration officials. Such records shall be retained in accordance with the requirements of 23 CFR Part 17 - Recordkeeping and Retention Requirements for Federal -aid Highway, Records of State Highway Agencies (copy attached). 5. Where appropriate, contact the Arkansas Historic Preservation Program (AHPP) to execute a Deed of Conservation Easement for enhancement projects involving certified historic properties or obtain a waiver from the AHPP 6. If the Sponsor requests the Department to be responsible for project engineering, submit to the Department five percent of the estimated total project cost before engineering by the Department begins. 7. If the Sponsor proposes to be responsible for project engineering, submit a copy of the contract for engineering services to the Department for approval prior to contract execution -2- • 8. Submit a letter to the Right -of -Way Division of the Department which either (1) stipulates the services relative to right-of-way acquisition, appraisal, relocation, and utilities that the sponsor will assume or (2) requests that the Department handle some or all of these services. Acquisition of property, where federal funds are involved, must be accomplished in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (commonly referred to as the "Uniform Act"). NOTE: Failure to notify the Department prior to initiating this phase of work may result in any expenditures being declared non -participating in federal funds. 9. Submit to the Department the local i.,atching share, when applicable, of the estimated cost of each project phase before project implementation begins or before a contract for that portion of the project is awarded. 10. Where appropriate, provide a copy of the registered deed or an appropriate certification, showing the Sponsor's clear and unencumbered title to any right-of-way to be used for the project. 11. Enter into a Supplemental Agreement with the Department for the project, or for separate project phases, which details the responsibilities of the Sponsor and/or its representative regarding notifications, routine inspections, certification of materials, payroll and wage rate records, and other documentation as necessitated by the scope of the project. 12 Be responsible for 100% of all project design, right-of-way, and any other costs incurred should the Sponsor not complete the construction phase of the project. 13. Be responsible for 100% of any additional cost above the construction contract amount, unless prior written approval is obtained from the Department. 14: Be responsible for 100% of any and all expenditures which are declared non -participating in federal funds, including awards by the State Claims Commission. 15. Retain total, direct control over the project throughout the life of the improvements and not, without prior approval from the Department: • sell, transfer, or otherwise abandon any portion of the project; • change the intended use of the project as stated in the approved project application; • make significant alterations to any improvements constructed with Federal -aid funds; or • cease maintenance or operation of the project due to the project's obsolescence. 16. Be responsible for satisfactory maintenance and operation of all improvements and for adopting regulations and ordinances as necessary to ensure this. Failure to adequately maintain and operate the project in accordance with Federal -aid requirements may result in the Sponsor's repayment of federal funds and will result in withholding future Federal -aid. 17. Promptly notify the Department if the project is rendered unfit for continued use by an act of God or other cause. THE DEPARTMENT WILL: 1. Be responsible for administering Federal -aid funds and for project approval and acceptance. 2. When requested, provide the necessary services relative to right-of-way acquisition, appraisal, relocation, and utility adjustments in accordance with the Uniform Act and will be reimbursed for costs involved in performing these services. 3 Reimburse the Sponsor for all legitimate, documented costs in accordance with the Supplemental Agreement for routine inspection and documentation. IT IS FURTHER AGREED that should the Sponsor fail to fulfill its responsibilities and assigned duties as related in this Agreement, such failure could disqualify the Sponsor from receiving future Federal -aid funds administered by the Department. IT IS FURTHER AGREED that should the Sponsor fail to pay to the Department any required funds due for project implementation or fail to complete the project as specified in this Agreement or fail to adeqbately maintain or operate the project, the Sponsor will be responsible for all costs of the project. In such cases, the Department may cause funds as may be required to be withheld from the Sponsor's gasoline tax allotment. IN WITNESS WHEREOF, the parties thereto have executed this Agreement on this day of�' ✓ 199 RECOMLMENDED. sistant Chief Engin y or Planning ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPAR NT CITY OF FAYETTEVILLE Dan F .wer, Director of Highwa_ yand Transportatio Fred Hanna Mayor GENERAL REQUIREMENTS FOR RECIPIENTS AND SUB -RECIPIENTS CONCERNING MINORITY BUSINESS ENTERPRISES It is the policy of the U. S. Department of Transportation that minority business enterprises (MBEs) as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this Agreement. Consequently, the MBE requirements of 49 CFR Part 23 apply to this Agreement. The recipient or its contractor agrees to ensure that MBEs as defined in 49 CFR Part 23 have the maximum opportunity to participate in the perfomtance of contracts and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that MBEs have the maximum opport,mity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT -assisted contracts. If as 1 condition of assistance the recipient has submitted and the Department has approved a minority business enterprise affirmative action program which the recipient agrees to carry out, this program is incorporated into this financial assistance agreement by reference. This program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement. Upon notification to the recipient of its failure to carry out the approved program, the Department shall impose such sanctions as noted in 49 CFR Part 23, Subpart E, which sanctions many include termination of the Agreement or other measures that may affect the ability of the recipient to obtain future DOT financial assistance. The recipient shall advise each sub -recipient, contractor or subcontractor that failure to carry out the requirements set forth in Subsection 23.43(a) shall substitute a breach of contract and after the notification of the Department, may result in termination of the agreement or contract by the recipient or such remedy as the recipient deems appropriate. (NOTE: Where appropriate, the term "recipient" may be modified to mean "sub -recipient", and the term ' contractor" modified to include "subcontractor"_) 23 CFR Part 17 RECORDKEEPING AND RETENTION REQUIREMEN TS FOR FEDERAL -AID HIGHWAY, RECORDS OF STATE HIGHWAY AGENCIES §17.1 Purpose. This regulation prescribes the recordkceping and retention requirements for the Federal -aid highway program. §17.3 Definitions. As used in this regulation: (a) Records. Includes all accounts, papers, maps, photographs, or other documentary materials regardless of physical form or characteristics, made or received by any agency, firm or individual in connection with the transaction of Federal -aid highway business. This includes, but is not limited to, financial records, supporting documents, statistical records, and other records pertinent to Federal -aid highway projects. . (b) Retention period. The minimum period of time records are required to be held by the Federal Highway Administration (FHWA). Other governmental (Federal as well as State. municipal, eta) or private entities may require or choose longer periods. (c) Federal -aid highway program. All activity undertaken by a non -Federal governmental agency, business firm, or individual in connection with Federal grants-in-aid related to title 23. United States Code. §17.5 Requirements. (a) State record systems and requirements for maintaining documentation concerned with the Federal -aid highway program will meet applicable requirements of Federal and State laws and regulations establish a sound basis for auditing the State program, and be consistent with generally accepted records management and accounting practices. (b) Records pertaining to the Federal -aid highway program shall be retained for a minimum period of 3 years with the foltcwing exceptions: (1) If any litigation, claim, or audit is started before the expiration of the 3 -year period, the records shall be retained until all litigations, claims, or audit findings involving the records have been resolved. (2) Records for nonexpendable property acquired with Federal funds shall be retained for 3 years after the final disposition of the property. (3) Records which have been transferred to the Federal Highway Administration for retention. (4) Toll facility records shall be retained for 3 years subsequent to the date when the facility became operable on a toll-free basis. (c) The start of retention periods for State and third parties is as follows: (1) State records. (1) For project oriented records, the 3 -year retention period starts when the final voucher is submitted. (ii) For cost accounting and fiscal records which usually relate to more than one project and are not project oriented, the 3 -year retention period starts at the end of the State's fiscal year in which an entry is made. (2) Third parry records. For third party records, the 3-vear retention period starts when the third party receives final payment (d) FHWA may, from time to time, request transfer of records from State and local governments when it is determined that these records possess long-term retention value. However. to avoid duplicate recordkeeping, the Division Administrator may make arrangements with State and local governments to retain any records which are continuously needed for joint use. (e) State or third parties should not limit access to Federal -aid highway records on the basis of this regulation_ Federal -aid highway records need be kept confidential only when FHWA can demonstrate that such records must be kept confidential and would be exempted from disclosure under the Freedom of Information Act (5 U.S.C. 552) if the records were FH\VA records. (f) All records shall be available at all reasonable times for inspection by any authorized representative of the federal Government and copies thereof shall be furnished when requested. §17.7 Authorization to microfilm records. Microfilmed copies may be used in lieu of original records subject to the following requirements: (a) Copies must be legible and contain all the significant record detail shown on the onginals. (b) Copies shall be so arranged, identified and indexed so that any individual document or component of the records can be located with reasonable facility. (c) Copies shall be adequate substitutes for the original records and serve the purposes for which such records were created or maintained. §17.9 Waiver, The granting of a waiver to the provisions of this regulation is expressly reserved to the Federal Highway Administrator subject to: (a) Full written justilcauon demonstrating unusual circumstances by the requesting party. (b) An indication that compliance would be an unreasonable burden upon the State or contractor, and (c) A determination by FHWA that the waiver is in the public interest. AGREEMENT OF UNDERSTANDING BETWEEN THE CITY OF FAYETTEVILLE AND THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT In Cooperation with the U. S. Department of Transportation Federal Highway Administration RELATIVE TO Implementation of Job 040197, Fayetteville Entrance Corridor Landscaping (ATEP-94) (S), (hereinafter called "the project") as a transportation enhancement project. WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 provides 80% Federal -aid funds to be matched with 20% non-federal funds (cash match) for certain transportation enhancement projects, and WHEREAS, the City of Fayetteville (hereinafter called "Sponsor") has expressed its desire to use Federal -aid funds for an eligible project and to provide necessary matching cash share for such funds, and WHEREAS, funding participation for each phase of the project will be as follows: Right -of -Way: Project Implementation: Federal % Sponsor % 80 20 80 20 , and WHEREAS, the Sponsor knows of no legal impediments to the completion of the project, and WHEREAS, it is specifically agreed between the parties executing this agreement that it is not intended by any of the provisions of any part of the agreement to create the public or any member thereof a third party beneficiary hereunder or to authorize anyone not a party to this agreement to maintain a suit or action for injuries or damage of any nature pursuant to the terms or provisions of this agreement, and WHEREAS, the Sponsor understands that the Arkansas State Highway and Transportation Department (hereinafter called "Department") will adhere to the General Requirements for Recipients and Sub -Recipients Concerning Minority Business Enterprises (see attached). • IT IS HEREBY AGREED that the Sponsor and the Department, in cooperation with the Federal Highway Administration, will participate in a cooperative program for implementation of the project and will accept the responsibilities and assigned duties as described hereinafter THE SPONSOR WILL: Indemnify and save harmless the Department from all suits, actions, or claims of any character brought because of any damage sustained on account of the operations or actions of the said Sponsor; or because of any act of omission, neglect, or misconduct of said Sponsor; or from any claims or amounts arising or recovered under any law, ordinance, order, or decree_ Nothing contained herein shall be construed in any manner as a waiver of statutory tort immunity as provided under Arkansas Code Ann_ § 21-9-301. 2. Assure that its policies and practices with regard to its employees, any part of whose compensation is reimbursed from federal funds, will be without regard to race, color, religion, sex, disability, or national oris in in compliance with the Civil Rights Act of 1964 and 49 CFR Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation. 3. Be responsible for its portion of the total project cost, which will include project design, construction inspection services, appraisal and acquisition of right-of-way, relocation services (when required), and adjustment of all man-made improvements, including utilities. 4. Grant the right of access to the Sponsor's records pertinent to this project and the right to audit by the Department and Federal Highway Administration officials. Such records shall be retained in accordance with the requirements of 23 CFR Part 17 - Recordkeeping and Retention requirements for Federal -aid Highway, Records of State Highway Agencies (copy attached). 5_ Where appropriate, contact the Arkansas Historic Preservation Program (AHPP) to execute a Deed of Conservation Easement for enhancement projects involving certified historic properties or obtain a waiver from the AHPP. 6_ When applicable, submit to the Department five percent of the estimated total project cost before engineering by the Department begins 7. Submit a letter to the Right -of -Way Division of the Department which either (1) stipulates the services relative to right-of-way acquisition, appraisal, relocation, and utilities that the sponsor will assume or (2) requests that the Department handle some or all of these services. Acquisition of property, where federal funds are involved, must be accomplished in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (commonly referred to as the "Uniform Act"). NOTE: Failure to notify the Department prior to initiating this phase of work may result in any expenditures being declared non -participating in federal funds. -2- 8. Submit to the Department the local matching share, when applicable, of the estimated cost of each project phase before project implementation begins or before a contract for that portion of the project is awarded. 9. Where appropriate, provide a copy of the registered deed or an appropriate certification, showing the Sponsor's clear and unencumbered title to any right-of-way to be used for the project. 10. Enter into a Supplemental Agreement with the Department for the project, or for separate project phases, which details the responsibilities of the Sponsor and/or its representative regarding notifications, routine inspections, certification of materials, payroll and wage rate records, and other documentation as necessitated by the scope of the project. 11. Be responsible for 100% of all project design, right-of-way, and any other costs incurred should the Sponsor not complete the construction phase of the project. 12_ Be responsible for 100% of any additional cost above the construction contract amount, unless prior written approval is obtained from the Department. 13. Be responsible for 100% of any and all expenditures which are non -participating in federal funds, including awards by the State Claims Commission. 14_ Retain total, direct control over the project throughout the life of the improvements and not, without prior approval from the Department • sell, transfer, or otherwise abandon any portion of the project; • change the intended use of the project as stated in the approved project application; • make significant alterations to any improvements constructed with Federal -aid funds; or • cease maintenance or operation of the project due to the project's obsolescence. 15. Be responsible for satisfactory maintenance and operation of all improvements and for adopting regulations and ordinances as necessary to ensure this. Failure to adequately maintain and operate the project in accordance with Federal -aid requirements may result in the Sponsor's repayment of federal funds and will result in withholding future Federal -aid. 16. Promptly notify the Department if the project is rendered unfit for continued use by an act of God or other cause. THE DEPARTMENT WILL: L Be responsible for administering Federal -aid funds and for project approval and acceptance. 2. When requested, provide the necessary services relative to right-of-way acquisition, appraisal, relocation, and utility adjustments in accordance with the Uniform Act and will be reimbursed for costs involved in performing these services. 3 Reimburse the Sponsor for all legitimate, documented costs in accordance with the Supplemental Agreement for routine inspection and documentation. IT IS FURTHER AGREED that should the Sponsor fail to fulfill its responsibilities and assigned duties as related in this Agreement, such failure could disqualify the Sponsor from receiving future Federal -aid funds administered by the Department IT IS FURTHER AGREED that should the Sponsor fail to pay to the Department any required funds due for project implementation or fail to complete the project as specified in this Agreement or fail to adequately maintain or operate the project, the Sponsor will be responsible for all costs of the project. In such cases, the Department may cause funds as may be required to be withheld from the Sponsor's gasoline tax allotment. IN WITNESS WHEREOF, the parties thereto have executed this Agreement on this day of i }" 1995 RECOMMENDED. Assistant Chief Engin ' for Planning ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPATMENT Dan F ewers Di ector of Highwa and Transportat OA - CITY OF FAYETTEVILLE Fred Hanna Mayor GENERAL REQUIREMENTS FOR RECIPIENTS AND SUB -RECIPIENTS CONCERNING ;MINORITY BUSINESS ENTERPRISES It is the policy of the U. S. Department of Transportation that minority business enterprises (MHEs) as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this Agreement. Consequently, the MBE requirements of 49 CFR Part 23 apply to this Agreement. The recipient or its contractor agrees to ensure that MBEs as defined in 49 CFR Part 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that MBEs have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT -assisted contracts. If as a condition of assistance the recipient has submitted and the Department has approved a minority business enterprise affirmative action program which the recipient agrees to carry out, this program is incorporated into this financial assistance agreement by reference. This program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement. Upon notification to the recipient of its failure to carry out the approved program, the Department shall impose such sanctions as noted in 49 CFR Part 23, Subpart E, which sanctions many include termination of the Agreement or other measures that may affect the ability of the recipient to obtain future DOT financial assistance. The recipient shall advise each sub -recipient, contractor or subcontractor that failure to carry out the requirements set forth in Subsection 23.43(a) shall substitute a breach of contract and after the notification of the Department, may result in termination of the agreement or contract by the recipient or such remedy as the recipient deems appropriate. (NOTE. Where appropriate, the term "recipient" may be modified to mean "sub -recipient", and the term "contractor" modified to include "subcontractor".) 23 CFR Part 17 RECORDKEEPING AND RETENTION REQUIREMENTS FOR FEDERAL -AID HIGHWAY, RECORDS OF STATE HIGHWAY AGENCIES §17.1 Purpose. This regulation prescribes the recordkeeping and retention requirements for the Federal -aid highway program. §17.3 Definitions. As used in this regulation: (a) Records. Includes all accounts, papers, maps, photographs, or other documentary materials regardless of physical form or characteristics, made or received by any agency, firm or individual in connection with the transaction of Federal -aid highway business. This includes, but is not limited to, fimutcial records, supporting documents, statistical records. and other records pertinent to Federal -aid highway projects. (b) Retention period.. The minimum period of time records are required to be held by the Federal Highway Administration (FHWA). Other governmental (Federal as well as State, municipal, etc.) or private entities may require or choose longer periods. (c) l adcrol-aid highway program. All activity undertaken by a non -Federal governmental agency, business firm, or individual in connection with Federal grants-in-aid related to title 23. United States Code. §17.5 Requirements. (a) State record systems and requirements for maintaining documentation concerned with the Federal -aid highway program will meet applicable requirements of Federal and State laws and regulations, establish a sound basis for auditing the State program, and be consistent with generally accepted records management and accounting practices. (b) Records pertaining to the Federal -aid highway program shall be retained for a rninimwu period of 3 years with the following exceptions: (1) If any litigation, claim, or audit is started before the expiration of the 3 -year period, the records shall be retained until all litigations, claims, or audit findings involving the records have been resolved. (2) Records for nonexpendable property acquired with Federal funds shall be retained for 3 years after the final disposition of the property. (3) Records which have been transferred to the Federal Highway Administration for retention. (4) Toll facility records shall be retained for 3 years subsequent to the date when the facility became operable on a toll-free basis. (c) The start of retention periods for State and third parties is as follows: (1) State records (i) For project oriented records, the i-vear retention period starts when the final voucher is submitted. (ii) For cost accounting and fiscal records which usually relate to more than one project and are not project oriented, the 3 -year retention period starts at the end of the State's Oscal year in which an entry is made. (2) Third party records_ For third party records, the 3 -}ear retention period starts when the third patty receives final payment. (d) FI -WA may, from time to time, request transfer of records from State and local governments when it is determined that these records possess long-term retention value. However, to avoid duplicate recordkeepmg, the Division Administrator may make arrangements with State and local governments to retain any records which are continuously needed for joint use. (e) State or third parties should not limit access to Federal -aid highway records on the basis of this regulation. Federal -aid highway records need be kept confidential only when FHWA can demonstrate that such records must be kept confidential and would be exempted from disclosure under the Freedom If Information Act (5 U S.C. 552) if the records were FHWA records. (f) All records shall be available at all reasonable times for inspection by any authorized representative of the federal Government and copies thereof shall be furnished when requested. §17.7 Authorization to microfilm records. Microfilmed copies may be usrd in lieu of original records subject to the following requirements: (a) Copies must be legible and contain all the significant record detail shown on the originals. (b) Copies shall be so arranged, identified and indexed so that any individual document or component of the records can be located with reasonable facility. (c) Copies shall be adequate substitutes for the original records and serve the purposes for which such records were created or maintained. §17.9 Waiver. The granting of a waiver to the provisions of this regulation is expressly reserved to the Federal Highway Administrator subject to: (a) Full written justification demonstrating unusual circumstances by the requesting party. (b) An indication that compliance would be an unreasonable burden upon the State or contractor, and (c) A determination by FHWA that the waiver is in the public interest AGREEMENT OF UNDERSTANDING BETWEEN THE CITY OF FAYE'I'TEVILLE AND THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT In Cooperation with the U. S. Department of Transportation Federal Highway Administration RELATIVE TO Implementation of Job 040198, Fayetteville Railroad Corridor Preservation (ATEP-94) (S), (hereinafter called "the project") as a transportation enhancement project. WHEREAS, the Intermodal Surface Transportation Efficiency Act of 1991 provides SO% Federal -aid funds to be matched with 20% non-federal funds (cash match) for certain transportation enhancement projects, and WHEREAS, the City of Fayetteville (hereinafter called "Sponsor") has expressed its desire to use Federal -aid funds for an eligible project and to provide necessary matching cash share for such funds, and WHEREAS, funding participation for each phase of the project will be as follows: Right -of -Way: Federal % Sponsor °A 80 20 , and WHEREAS, the Sponsor knows of no legal impediments to the completion of the project, and WHEREAS, it is specifically agreed between the parties executing this agreement that it is not intended by any of the provisions of any part of the agreement to create the public or any member thereof a third party beneficiary hereunder or to authorize anyone not a party to this agreement to maintain a suit or action for injuries or damage of any nature pursuant to the terms or provisions of this agreement, and WHEREAS, the Sponsor understands that the Arkansas State Highway and Transportation Department (hereinafter called "Department") will adhere to the General Requirements for Recipients and Sub -Recipients Concerning Minority Business Enterprises (see attached). IT IS HEREBY AGREED that the Sponsor and the Department, m cooperation with the Federal Highway Administration, will participate in a cooperative program for implementation of the project and will accept the responsibilities and assigned duties as described hereinafter. THE SPONSOR WILL: Indemnify and save harmless the Department from all suits, actions, or claims of any character brought because of any damage sustained on account of the operations or actions of the said Sponsor; or because of any act of omission, neglect, or misconduct of said Sponsor; or from any claims or amounts arising or recovered under any law, ordinance, order, or decree. Nothing contained herein shall be construed in any manner as a waiver of statutory tort immunity as provided under Arkansas Code Ann. § 21-9-301. 2. Assure that its policies and practices with regard to its employees, any part of whose compensation is reimbursed from federal funds, will be without regard to race, color, religion, sex, disability, or national origin in compliance with the Civil Rights Act of 1964 and 49 CFR Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation. 3 Be responsible for its portion of the total project cost, which will include appraisal and acquisition of right-of-way, relocation services (when required), and adjustment of all man- made improvements, including utilities. 4. Grant the right of access to the Sponsor's records pertinent to this project and the right to audit by the Department and Federal Highway Administration officials. Such records shall be retained in accordance with the requirements of 23 CFR Part 17 - Recordkeeping and Retention Requirements for Federal -aid I{ighway, Records of State Highway Agencies (copy attached). 5. . If appropriate, contact the Arkansas Historic Preservation Program (AHPP) to execute a Deed of Conservation Easement for enhancement projects involving certified historic properties or obtain a waiver from the AI IPP. 6- Submit a letter to the Right -of -Way Division of the Department which requests that the Department handle the services relative to right-of-way acquisition, appraisal, relocation, and utilities. Acquisition of property, where federal funds are involved, must be accomplished in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (commonly referred to as the "Uniform Act"). NOTE: Failure to notify the Department prior to initiating this phase of work may result in any expenditures being declared non -participating in federal funds. 7. Submit to the Department the local matching share, when applicable, of the estimated cost of each project phase before project implementation begins or before a contract for that portion of the project is awarded. 8. Be responsible for 100% of any and all expenditures which are declared non -participating in federal funds, including awards by the State Claims Commission. 9. Retain total, direct control over the project throughout the life of the improvements and not, without prior approval from the Department: • sell, transfer, or otherwise abandon any portion of the project; • change the intended use of the project as stated in the approved project application; • cease maintenance of the project. 10. Be responsible for satisfactory maintenance and operation of all improvements and for adopting regulations and ordinances as necessary to ensure this. Failure to adequately maintain and operate the project in accordance with Federal -aid requirements may result in the Sponsor's repayment of federal funds and will result in withholding future Federal -aid. 11 Promptly notify the Department if the project is rendered unfit for continued use by an act of God or other cause. THE DEPARTMENT WILL: Be responsible for administering Federal -aid finds and frr project approval and acceptance. 2. Provide the necessary services relative to right-of-way acquisition and appraisal in accordance with the Uniform Act and will be reimbursed for costs involved in performing these services. IT IS FURTHER AGREED that should the Sponsor fail to fulfill its responsibilities and assigned duties as related in this Agreement, such failure could disqualify the Sponsor from receiving future Federal -aid funds administered by the Department. IT IS FURTHER AGREED that should the Sponsor fail to pay to the Department any required funds due for project implementation or fail to complete the project as specified in this Agreement or fail to adequately maintain or operate the project, the Sponsor will be responsible for all costs of the project. In such cases, the Department may cause funds as may be required to be withheld from the Sponsor's gasoline tax allotment. IN WITNESS WHEREOF, the parties thereto have executed this Agreement on this +�1 day ofL(4211,1.a. , 1995 RECOMMENDED: Assistant Chief E or Planning ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT CITY OF FAYETTEVILLE Dan F swcrs Director of Highwa_ , and Transportation Fred Hanna Mayor • GENERAL REQUIREMENTS FOR RECIPIENTS AND SUB -RECIPIENTS CONCERNING MINORITY BUSLNESS ENTERPRISES It is the policy of the U. S. Department of Transportation that minority business enterprises (MBEs) as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal fitnds under this Agreement. Consequently, the MBE requirements of 49 CFR Part 23 apply to this Agreement The recipient or its contractor agrees to ensure that MBEs as defined in 49 CFR Part 23 have the maximum opportunity to participate in tLc performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that MBEs have the maximum opportunity to compete for and perform contracts. Recipients and 'their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT -assisted contracts. If as a condition of assistance the recipient has submitted and the Department has approved a minority business enterprise affirmative action program which the recipient agrees to can -y out, this program is incorporated into this financial assistance agreement by reference. This program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement. Upon notification to the recipient of its failure to carry out the approved program, the Department shall impose such sanctions as noted in 49 CFR Part 23, Subpart E, which sanctions many include termination of the Agreement or other measures that may affect the ability of the recipient to obtain future DOT financial assistance. The recipient shall advise each sub -recipient, contractor or subcontractor that failure to carry out the requirements set forth in Subsection 23.43(a) shall substitute a breach of contract and after the notification of the Department, may result in termination of the agreement or contract by the recipient or such remedy as the recipient deems appropriate. (NOTE: Where appropriate, the term "recipient" may be modified to mean "sub -recipient", and the term "contractor" moc' fled to include "subcontractor".) • • 23 CFR Part 17 • RECORDKEEPING AND RETENTION REQUIREMENTS FOR FEDERAL -AID HIGHWAY, RECORDS OF SIA FE HIGHWAY AGENCIES §17.1 Purpose. This regulation prescribes the recordkeeping and retention requirements for the Federal -aid highway program. §17.3 Definitions. As used in this regulation: (a) Records. Includes all accounts. papers. maps, photographs. or other documentary materials regardless of physical form or characteristics, made or received by any agency, firm or individual in connection with the transaction of Federal -aid highway business. This includes, but is not limited to, financial records, supporting documents. statistical records. and other records pertinent to Federal -aid highway projects. (b) Retention period. • The minimum period of time records are required to be held by thc Federal Highway Administration (FHWA). Other governmental (Federal as well as State. municipal, etc_) or private entities may require or choose longer periods. (c) Federa!-aid hfghwav program_ A11 activity undertaken by a non -Federal governmental agency, business firm, or individual in connection with Federal grants-in-aid related to title 23, United States Code. §17.5 Requirements. (a) State record systems and requirements for maintaining documentation concerned with the Federal -aid highway program will meet applicable requirements of Federal and State laws and regulations, establish a sound basis for auditing the State program, and be consistent with generally accepted records management and accounting practices. (b) Records pertaining to the Federal -aid highway program shall be retained for a minimum period of 3 years with the following exceptions: (1) If any litigation, claim, or audit is started before the expiration of the 3 -year period, the records shall be retained until all litigations, claims, or audit findings involving thc records have been resolved. (2) Records for nonexpendable property acquired with Federal funds shall be retained for 3 years after the final disposition of the property. (3) Records which have been transferred to the Federal Highway Administration for retention. (4) Toll facility records shall be retained for 3 years subsequent to the date when the facility became operable on a toll-free hasis. (c) The start of retention periods for State and third parties is as follows: (1) Stale records. (i) For project oriented records, the 3 -year retention period starts when the final voucher is submitted. (ii) For cost accounting and fiscal records which usually relate to more than one project and arc not p roject oriented_ the 3 -year retention period starts at the end of the State's fiscal year in which an entry is made. (2) "Bard party records For third party records, the 3 -year retention period starts when the third party receives final payment. (d) FHWA may, from time to time, request transfer of records from State and local governments when it is determined that these records possess long-term retention value_ However, to avoid duplicate recordkeeping, the Division Administrator may make arrangements with State and local governments to retain any records which are continuously needed for joint use. (c) State or third parties should not limit access to Federal -aid highway records on the basis of this regulation Federal -aid highway records need be kept confidential only when FHWA can demonstrate that such records must be kept confidential and would be exempted from disclosure unier the Freedom of Information Act (5 U.S.C. 552) if the records were FHWA records. (f) All records shall be available at all reasonable times for inspection by any authorized representative of the federal Government and copies thereof shall be furnished when requested. §17.7 Authorization to microfilm records. Microfilmed copies may be used in lieu of original records subject to the following requirements: (a) Copies must be legible and contain all the significant record detail shown on the originals. (b) Copies shall be so arranged, identified and indexed so that any individual document or component of the records can be located with reasonable facility. (c) Copies shall be adequate substitutes for the original records and serve the purposes for which such records were created or maintained. §17.9 Waiver. The granting of a waiver to the provisions of this regulation is expressly reserved to the Federal Highway Administrator subject to' (a) Full written justification demonstrating unusual circumstances by the requesting party. (b) An indication that compliance would be an unreasonable burden upon the State or contractor, and (c) A determination by FHWA that the waiver is in the public interest.