03 Staff Report - PPW Job #04-63~o \ of MEETING DATE: 9/5/06
ITEM NO:
!ps GASES COUNCIL AGENDA REPORT
DATE: AUGUST 22, 2006
TO: MAYOR AND TOWN COUNCIL
FROM: DEBRA J. FIGONE, TOWN MANAGER
RESURFACING AND STREETSCAPE AND LOS GATOS ALMADEN ROAD
RESURFACING
ADOPT RESOLUTION AUTHORIZING THE TOWN MANAGER TO
EXECUTE A PROGRAM SUPPLEMENT AGREEMENT UNDER THE
MASTER AGREEMENT WITH THE STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
RECOMMENDATION:
Adopt resolution (Attachment 1) authorizing the Town Manager to execute a Program
Supplement Agreement (Exhibit A) under the Master Agreement with the State of California
-Department of Transportation.
BACKGROUND:
On July 28, 1998, the Town Council adopted .a resolution ratifying the Town Manager's
signature on a Master Agreement (Attachment 2) with the California Department of
Transportation for Federal-aid Projects. With this agreement the Town is eligible to apply for
Intermodal Surface Transportation Efficiency Act (ISTEA) funds, Regional Surface
Transportation Program (RSTP) funds, Congestion Mitigation and Air Quality Improvement
Program (CMAQ) funds, Transportation Enhancement Activities Program (TEA) funds, and
Bridge Replacement and Rehabilitation Program (HBRR) funds.
PREPARED BY: ()OHN E. CURTIS_
irector of Parks and :Public. Works
NAB&E\COUNCIL REPORTS\04-63.main.str.1g.almaden:approval'of master program supplement.doc
Reviewed by: Assistant Town Manager l'~Town Attorney
Clerk Adnunistrator Finance Community Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: PPW JOB #04-63 - FEDERAL PROJECT STPL-5067(009) - MAIN STREET
REURFACING AND STREETSCAPE AND LOS GATOS ALMADEN ROAD
RESURFACING
AUGUST 22, 2006
DISCUSSION:
With each Federal-aid project, a Program Supplement specific to the project is required to
engage the terms of the Master Agreement.
T lie Main Street Resurf r and S*- and X11 r r n a yr n1\. Resurfacing
acing an «eetscape anu It-11 Los `Taws Alm ad en oaua has
been completed and will be funded in part through the State's Surface Transportation Program
The release of Federal funds can only take place upon signing of the Program Supplement
Agreement by an authorized official. The authorized official and the Federal project must be
clearly identified in the Resolution. The Department of Transportation has notified the Town
that it will not accept the Town Manager's signature until a Resolution is presented, authorizing
the Town Manager to be the official for signing the Program Supplement. Funds will be released
once the resolution is presented. This can be done by signing the Master Agreement to apply
toward the Program Supplement on PPW Job #04-63 - Federal Project STPL-5067(009). A letter
from the Department of Transportation includes the program supplement, special covenants or
remarks, and Finance Letter.
CONCLUSION:
Staff recommends the approval of the program supplement agreement (Exhibit A) under the
Master Agreement with the State of California Department of Transportation.
ENVIRONMENTAL ASSESSMENT:
Council approval of the attached resolution is not a project defined under CEQA, and no further
action is required.
FISCAL IMPACT:
The signing of this Resolution will allow the Town to obtain $394,000 in total grant funding
from the Surface Transportation-Program (STP) grant program, as approved in the FY2006-07
Capital Improvement Plan which was allocated approximately $116K to the Main Street
Reconstruction project and $278K to the Los Gatos Almaden Road Street Improvements project
budget. This agreement will provide documentation to STP staff that the Town has designated
funding to provide a match and further secure the grant funding as awarded.
Attachments:
1. Resolution authorizing the Town Manager to execute a Program Supplement Agreement (Exhibit A)
2. Master Agreement dated August 25, 1998
Distribution:
RESOLUTION
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER
=TO EXECUTE A PROGRAM SUPPLEMENT AGREEMENT
UNDER THE MASTER AGREEMENT
WITH THE STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
FOR PPW JOB #04-63 - FEDERAL PROJECT STPL-5067(009)
MAIN STREET REURFAC]NG AND STREETSCAPE
AND LOS GATOS ALMADEN ROAD RESURFACING
WHEREAS, the Town of Los Gatos (Town) is eligible to receive Federal funding for
certain Transportation projects, through the California Department of Transportation; and
WHEREAS, Master Agreements, Program Supplemental Agreements, Fund Exchange
Agreements, and/or Transfer Agreements need to be executed with the California Department of
Transportation before such funds can be claimed, and
WHEREAS, the Town wishes to delegate authorization to execute this program
supplement agreement and any amendment thereto to the Debra J. Figone, Town Manager; and
NOW, THEREFORE BE IT RESOLVED that Debra J. Figone, Town Manager be
authorized to execute all Master Agreements, Program Supplemental Agreements, Fund
Exchange Agreements, Fund Transfer Agreements and any amendment thereto with the
California Department of Transportation.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Los Gatos, California, held on the 5th day of September, 2006, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED: MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THETOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTACHMENT 1
STATE OF CALIFORNIA. BUSINESS,TRANSPORTATION AND HOUSING AGENCY
DEPARTMENT OF TRANSPORTATION
Division of Local Assistance
1120 N STREET
P.O. BOX 942874, MS# 1
Sacramento, CA 94274-0001
TDD (916) 654-4014
(916) 654-3151
Fax (916) 653-7621 .
August 15, 2006
John Curtis
Parks & Public Works Director
City of Los Gatos
P.O. Box 949
Los Gatos, CA 95031
Attn: Ms. Ellen Ellsworth
Dear Curtis:
Amold Schwarzenegger, Govemor
File : 04-SCL-0-LGTS
STPL-5067(009)
Various Streets incl.Los Gatos-
Almaden Rd (Los Gatos Blvd till
Camino Del Cerro) and Main Street
Enclosed are two originals of the Program Supplement Agreement No. 003-M to Administering Agency-State
Agreement No. 04-5067 and an approved Finance Letter for the subject project. Please retain the signed Finance
Letter for your records.
We have included two new special covenants that allow any funding for future phases of this project be encumbered
upon approval of the "Request for Authorization and Finance Letter. The Program Supplement Agreement need not be
revised for that purpose. However, please note that federal funding will be lost if you proceed with future
phase(s) of the project prior to getting the "Authorization to Proceed" with that phase.
Please review the covenants and sign both copies of this Agreement and return both to this office, Office of Project
Implementation - MS1 within 60 days from the date of this letter. If the signed Agreements are not received back in this
office within 60 days, funds will be disencumbered and/or deobligated. Alterations should not be made to the
agreement language or funding. Attach your local agency's certified authorizing resolution that clearly identifies the
project and the official authorized to execute the agreement. A fully executed copy of the agreement will be returned to
you upon ratification by Caltrans. No invoices for reimbursement can be processed until the agreement is fully
executed.
In accordance to Government Code 16304, Federal funds appropriated by the State budget are available for liquidation
only for seven years and the State funds are available only for five years. The attached Finance Letter shows these
deadlines as the "Reversion Date Please ensure that your invoices are submitted at least 60 days prior to the
reversion date to avoid any lapse of funds. If your agency is unable to seek reimbursement by this date you may
request an extension through a Cooperative Work Agreement (CWA). A CWA is subject to the final approval of the
State Department of Finance. If approved, the CWA may extend the deadline for up to one year for federal funds and
up to three years for State fund's.
Please note that Government Code 16304 does not supersede any other more restrictive expenditure deadlines.
Your prompt action is requested. If you have questions, please contact your District Local Assistance Engineer.
Siin~ce/rely,
(/1O
DENIX ANBIAH, Chief
Office of Project Implementation
Division of Local Assistance
Enclosure
EXHIBIT A
c: DLA AE Project Files
(04) DLAE - Muhaned Aljabiry
PROGRAM SUPPLEMENT NO. M003
to
ADMINISTERING AGENCY-STATE AGREEMENT
FOR FEDERAL-AID PROJECTS NO. 04-5067
Date:August 07,2006
Location: 04-SCL-0-LGTS
Project Number:STPL-5067(009)
E.A. Number: 04-924400
This Program Supplement hereby incorporates the Administering Agency-State Agreement for Federal Aid which was entered into
between the Administering Agency and the State on 08/25/98 and is subject to all the terms and conditions thereof. This Program
Supplement is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No.
, approved by the Administering Agency on (See copy attached).
The Administering Agency further stipulates that as a condition to the payment by State of any funds derived from sources noted
below obligated to this project, the Administering Agency accepts and will comply with the Special covenants or Remarks setforth
on the following pages.
PROJECT LOCATION:
Various Streets incl.Los Gatos-Almaden Rd (Los Gatos Blvd till Camino Del Cerro) and Main Street (College Ave till Loma Alta Ave)
TYPE OF WORK: Road Rehabilitation LENGTH: 0 (MILES)
Estimated Cost
Federal Funds
Matching Funds
$630,918.00
H230 $394,000.00
LOCAL
$236,918.00
$0.00
OTHER
$0.00
TOWN OF LOS GATOS
STATE OF CALIFORNIA
Department of Transportation
By
Date
Attest
By
Chief, Office of Project Implementation
Division of Local Assistance
Date
Title
I hereby certify upon my persona`l' knowledgethat budgeted funds are available for this encumbrance:
Accounting Officer Date ' w U $394,000.00
Chapter Statutes Item Year rogram. BC Category Pond Source AMOUNT
38 2005 2660-102-890 2005-2006 20.30.010.810 C 262040 892-F 394,000.00
Program Supplement 04-5067-M003- ISTEA Page 1 of 5
04-SCL-0-LGTS
STPL-5067(009)
08/07/2006
SPECIAL COVENANTS OR REMARKS
1. All project repair, replacement and maintenance involving the
physical condition and the operation of project improvements
referred to in Article III MAINTENANCE, of the aforementioned
Master Agreement will be the responsibility of the ADMINISTERING
AGENCY and shall be performed at regular intervals and as
required for efficient operation of the completed project
i tnprnye_ments .
2. The ADMINISTERING AGENCY will reimburse the STATE for the
ADMINISTERING AGENCY share of costs for work requested to be
performed by the STATE.
3. The ADMINISTERING AGENCY agrees that payment of Federal funds
will be limited to the amounts approved by the Federal Highway
Administration (FHWA) in the Federal-Aid Project .
Authorization/Agreement or Amendment/Modification (E-76) and
accepts any resultant increases in ADMINISTERING AGENCY funds as
shown on the Finance Letter, any modification thereof as approved
by the Division of.Local Assistance, Office of Project
Implementation.
4. Any State and Federal.funds that may have been encumbered for
this project are only available for disbursement for a period of
five (5) years and seven (7) years, respectively, from the start
of the fiscal year(s) that those funds were appropriated within
,the State Budget Act. All project funds not liquidated within
these periods will revert unless an executed Cooperative Work
Agreement extending these dates is requested and is approved by
the California Department of Finance per Government Code Section
16304. The exact date of each fund reversion will be reflected
in the approved finance letter(s) issued for this.project.
Notwithstanding the unliquidated sums of project specific State
and Federal funding remaining and available to fund project work,
any invoice for reimbursement that is not submitted to the
Department on or before 60 days after that applicable fixed fund
reversion date will not be paid from that fiscal year's
encumbered funds because all of these unexpended funds will be
irrevocably reverted by the IIepartment's Division of Accounting
on that date.
Pursuant to a directive from the - State Controller's Office and
Program Supplement 04-5067-M.003- ISTEA Page 2 of 5
04-SCL-0-LGTS
STPL-5067(009)
SPECIAL COVENANTS OR REMARKS
08/07/2006
the Department of Finance, the.last date to submit invoices for
reimbursed work in each fiscal year is May 15th in order for
payment to he made out of those then current appropriations .
Project work performed and invoiced after May 15th will be
reimbursed only out of available funding that might be encumbered
in the subsequent fiscal year, and then only when those funds are
enc it hared as author; "nA 1--, a-US Cal 'r
actually allocated and ?z ..j X44 %,Q 1.LJ orn1a
Transportation Commission and the Department's Accounting Office.
-5-.-STATE-and- ADMINISTERING-AGENCY agree that any addstional funds
which might be made available for new phase(s) of work by.future
Federal obligations will be encumbered on this PROJECT by use of
a STATE approved "Authorization to Proceed" and Finance Letter.
ADMINISTERING AGENCY agrees that Federal funds available for
reimbursement will be limited to,the amounts obligated by the
Federal Highway Administration.
6. ADMINISTERING AGENCY agrees that it will only proceed with work
authorized for specific phase(s) with an "Authorization to
Proceed" and will not proceed with future phase(s) of this
project prior to receiving an "Authorization to Proceed" from the
STATE for that phase(s) unless no further State or Federal funds
are.needed for those future phase(s).
7. The ADMINISTERING AGENCY will advertise, award and administer
this project in accordance with the most current published Local
Assistance Procedures Manual.
8. Award information shall be submitted by the ADMINISTERING AGENCY
to the District Local Assistance Engineer immediately after the
project contract award. A copy of the award package shall also
be included with the submittal of the ADMINISTERING AGENCY's
first invoice for the construction contract to:
Department of Transportation
Division of Accounting
Local Programs Accounting Branch, MS#33
P. O. Box 942874
Sacramento, CA 94274-0001
Failure to do so will cause~a delay 'in the State processing
Program Supplement04-5067-MO03- ISTEA Page 3 of 5
04-SCL-O-LGTS
STPL-5067(009)
SPECIAL COVENANTS OR REMARKS
08/07/2006
invoices for the construction phase. Please refer to Section
15.7 "Award Package" of the Local Assistance Procedures Manual
and LPP 01-0,6.
9. "ADMINISTERING AGENCY certifies that neither the ADMINISTERING
AGENCY nor its principals are suspended or debarred at the time
of the execution of this agreement. ADMINISTERING AGENCY agrees
that it will notify the STATE immediately, in the event a
suspension or a debarment happened after the execution of this
agreement . " - - - - -
10.The Administering Agency shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance
of any DOT -assisted contract or in the administration of its DBE
Program or the requirements of 49 CFR Part 26. The Administering
Agency shall take all necessary and reasonable steps under 49 CFR
Part 26 to ensure nondiscrimination in the award and
administration of DOT -assisted contracts. The administrating
Agency's DBE Race-Neutral Implementation Agreement is
incorporated by reference in this agreement. implementation of
this program is a legal obligation and failure to carry out its
terms shall be treated as a violation of this agreement. Upon
notification to the recepient of its failure to carry out its
approved DBE Race-Neutral Implementation Agreement, Caltrans may
impose sanctions as provided for under Part 26 and may, in
appropriate cases, refer the matter.for enforcement under 18
U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986
(31 U.S.C. 3801 et seq.).
11. Billing Cycle
ADMINISTERING AGENCY.agrees to submit invoices in arrears for
reimbursement of participating PROJECT costs at least once every
six months commencing after the funds are encumbered for each
phase by the execution of this PROJECT PROGRAM SUPPLEMENT or by
STATE's future approval of an applicable Finance Letter. The
total of all invoiced amounts claimed, plus~any required matching
funds, must not exceed the actual total cost allowable under this
PROGRAM SUPPLEMENT for all authorized and.completed PROJECT
engineering work, right of way acquisition, and construction.
If no costs have been invoiced for a six-month period,
Program Supplement04-5067-MO03- ISTEA Page 4 of 5
04-SCL-0-LGTS
STPL-5067(009)
SPECIAL COVENANTS OR REMARKS
08/07/2006
ADMINISTERING AGENCY shall submit a written explanation (with
target billing date and target billing amount) of the absence of
PROJECT activity.
Should ADMINSTERING AGENCY fail to invoice for participating
PROJECT costs incurred (including a written explanation when no
invoice is submitted) within one year of the issuance of the
PROJECT authorization to proceed by STATE or from the next
invoice due dale following-the --1ast__P_ROJECT --invoice-,-S-T-ATE-may
de-obligate and reassign to another party any unexpended Federal
funds without notice to ADMINSTERING AGENCY. STATE may also not
process any future request for authorization to proceed submitted
by the ADMINSTERING AGENCY.
Final Billing
ADMINISTERING AGENCY agrees that it shall submit the Final
Invoice and Final Detail Estimate within 180 days of PROJECT
completion. ADMINISTERING AGENCY's failure to submit these
documents will result in sanctions imposed upon-ADMINISTERING
AGENCY by STATE in accordance with Chapter 17.6, "Consequences
For Non-Compliance", of the Local Assistance Procedures Manual.
De-obligate Federal Funds for Construction Phase
ADMINISTERING AGENCY agrees that if the estimated PROJECT
construction cost is.less than the obligated amount for
construction by more than $50,000, that excess amount of federal
funds initially,obligated is subject to de-obligation by STATE
once the project has been awarded by ADMINSTERING AGENCY.
12.The ADMINISTERING AGENCY is required to have an audit in
accordance with the Single Audit Act and OMB A-133 if it receives
a total of $500,000 or more in-federal funds in a single fiscal
year. The federal funds received under ths.project area part
of the Catalogue of Federal Domestic Assistance (CFDA) 20.205,
Highway Planning & Research.--;OMB'A-133 superceded OMB A-128 in
1996. A reference to OMB A-12.8-.in,a Master Agreement (if any) is
superceded by this covenant,,.to conform to OMB A-133.
Program Supplement04-5067-MO03- ISTEA Page 5 of 5
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MASTER AGREEMENT :~tll
ADMINISTERING AGENCY-STATE AGREEME13®
FOR
FEDERAL-AID PROJECTS
04 Cif of Los Gatos
District Administering Agency
Agreement No. 04-5067
254
This AGREEMENT, made effective this . , day of Lw5 . 1998 is by and between.
the City of Los Gatos, hereinafter referred to as "ADMINISTE6 AGENCY, " and the State of
California, acting by and through the California Department of Transportation (Caltrans), hereinafter
referred to as "STATE."
WITNESSETH:
WHEREAS, the Congress of the United States has enacted the Intermodal Surface Transportation
Efficiency Act of 1991 to fund programs which include, but are not limited to, the Surface Transportation
Program (RSTP), the Congestion Mitigation and Air Quality Improvement Program (CMAQ), the
Transportation Enhancement Activities Program (TEA), and the Bridge Replacement and Rehabilitation
Program (HBRR) (collectively the "Programs"); and
WHEREAS, the.Legislature of the State of California has enacted legislation by which certain
Federal funds (RSTP and CMAQ) may be made available'for use on local transportation facilities of public
entities qualified to act as recipients of these federal funds in accordance with the intent of Federal law; and
WHEREAS, before Federal-aid will.be made available for a specific Program project,
ADMINISTERING AGENCY and STATE are required to enter into an agreement relative to.prosecution
of said project and maintenance of the completed facility.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I - PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any Program project
unless and until a project-specific Program Supplement to this AGREEMENT for Federal-aid Projects,
hereinafter referred to as "PROGRAM SUPPLEMENT;" has beef executed.
2. The term "PROJECT," as used herein, means that authorized project financed in part with
Federal funds as further described in an "Authorization to Proceed" document executed by STATE, in the
subsequent specific PROGRAM SUPPLEMENT, and.in a Federal-aid Project Agreement (PR-2).
3. The Financial comrnitmenf of STATE administered federal funds will occur only upon the
execution of this AGREEMENT, and the execution of each project-specific PROGRAM SUPPLEMENT
and PR-2:
ATTACHMENT 2
4. ADMINISTERING AGENCY further agrees, as a condition to payment of funds obligated
to a PROJECT, to comply with all the agreed-upon Special Covenants or Remarks attached to the
PROGRAM SUPPLEMENT identifying and defining the nature of the specific PROJECT. .
5. The PROGRAM SUPPLEMENT shall designate the party responsible for implementing
the various phases of the PROJECT, the Federal funds requested, and the matching funds to be provided
by ADMINISTERING AGENCY and/or STATE. Adoption of the PROGRAM SUPPLEMENT by
ADMINISTERING AGENCY and approval by STATE shall cause such PROGRAM SUPPLEMENT to
be executed and be a part of this AGREEMENT as though fully set forth herein. Unless otherwise
expressly delegated in a resolution by the ADMINISTERING AGENCY's governing body, the
„ , a and a A Tlr iTATrL+TCD TATr'! A r-s~lrv~
PROGRAM SUPPLEMEI- i shad C5e approved and managed by e ~ riu~ta i~:a.., ~v nvrE .C Y s
governing body.
6. ADMINISTERING AGENCY shall conform to all State statutes,regulations and- -
procedures (including those set forth in LPP 95-07, "Reengineering," and subsequent approved revisions
and Local Programs Manual updates, hereafter referred to as REENGINEERED PROCEDURES) relating
to the Federal-aid Program, all Title 23 Federal requirements, and all applicable Federal laws, regulations,
and policy and procedural or instructional memoranda, unless otherwise designated in the approved
PROGRAM SUPPLEMENT.
.7. If PROJECT involves work on the State highway system, it shall also be the subject of a
separate standard form of encroachment permit and, where appropriate, a cooperative agreement between
STATE and ADMINISTERING AGENCY to determine how the PROJECT is to be constructed.
8. If PROJECT is not on STATE-owned right of way, PROJECT shall be constructed in
accordance with REENGINEERED PROCEDURES. The REENGINEERED PROCEDURES describe
minimum statewide design standards for local agency streets and roads. The REENGINEERED
PROCEDURES for projects off the National Highway System (NHS) allow the STATE to accept either
the minimum statewide design standards or ADMINISTERING AGENCY-approved geometric design
standards. Also, for projects off the NHS, STATE will accept ADMINISTERING AGENCY-approved
standard specifications, standard plans, and materials sampling and testing quality assurance programs that
meet the conditions described in the REENGINEERED PROCEDURES.
9. When PROJECT is not on the State highway system but includes work to be performed by
a railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY or by STATE,
as the parties may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an
agreement with the railroad providing for future maintenance of protective devices or other facilities
installed under the contract.
10. ..ADMINISTERING AGENCY shall provide or arrange for adequate supervision and
inspection of each PROJECT. As provided in the REENGINEERED PROCEDURES, work may be
performed by a consultant(s), provided a fully qualified and licensed employee of ADMINISTERING
AGENCY is in responsible charge.
11. The Congress of the United States, the Legislature of the State of California, and the
Governor of the State of California, each within their respective jurisdiction, have prescribed certain
employment practices with respect to work financed with Federal or State funds. ADMINISTERING
AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES
ADDENDUM.(Exhibit A attached hereto) whenever, State funds finance part of the PROJECT, and the
NONDISCRIMINATION ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGENCY
further agrees that any agreement entered-into by ADMINISTERING AGENCY with a third party for
2 11/29/95
performance of work connected with the PROJECT shall incorporate Exhibits A (whenever State funds
finance part of the PROJECT) and Exhibit B (with third party's name replacing ADMINISTERING
AGENCY) as parts of such agreement..
ARTICLE H RIGHTS OF WAY
1. No contract for the construction of a Federal-aid PROJECT shall be awarded until the
necessary rights of way have been secured. Prior to the advertising for construction of the PROJECT,
ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence that
r ' 7_L7.. ~.-...a:...., oa '111, -1.11
1av +1a *~>rv'nf a: of
necessary rights of way are avaiiauie ful consuucuvu piiiyoor wi" w° availble by t1he ,.aaaa~. of award vi
the construction contract.
- - - - - -
2. ADMINISTERING AGENCY agrees to indemnify and hold-STATE-harmless from any - - - -
liability which may result in the event the right of way for a PROJECT is not clear as certified. The
furnishing of right of way as provided for herein includes, in addition to all real property required for. the
PROJECT, title free and clear of obstructions and encumbrances affecting PROJECT and the payment, as
required by applicable law, of damages to real property not actually taken but injuriously affected by
PROJECT. ADMINISTERING AGENCY shall pay, from its own non-matching funds, any costs which
arise out of delays to the construction of the PROJECT because utility facilities have not been removed or
relocated, or because rights of way have not been made available to ADMINISTERING AGENCY for the
orderly prosecution of PROJECT work.
3. Subject to STATE approval and such supervision as is required in REENGINEERED
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedures,
ADMINISTERING AGENCY may claim reimbursement from Federal funds for expenditures to purchase
only necessary rights of way included in PROJECT after crediting PROJECT with the fair market value of
any excess property retained and not disposed of by ADMINISTERING AGENCY.
4. When real properly rights are to be acquired by ADMINISTERING AGENCY for a
PROJECT, said ADMINISTERING AGENCY must carry out that acquisition in compliance with the
Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. .
5. Whether or not Federal-aid is to be requested for right of way, should ADMINISTERING
AGENCY, in-acquiring right of way for PROJECT, displace an individual, family, business, farm
operation, or non-profit organization, relocation payments and services will be provided as set forth in
Chapter 5 of Title 23, U.S. Code. The public will be adequately informed of the relocation payments and
services which will be available; and, to the greatest extent practicable, no person lawfully occupying real
property shall be required to move from his/her dwelling or to move his/her business or farm operation
without at least 90-days written.notice from ADMINISTERING AGENCY. ADMINISTERING
AGENCY will provide STATE with specific assurances, on each portion of the-PROJECT, that no person
will be displaced until comparable decent, safe and sanitary replacement housing is available within a
reasonable period of time prior to displacement, and that ADMINISTERING AGENCY's relocation
program is realistic and adequate to provide orderly, timely and efficient relocation of displaced persons
for the PROJECT as provided in Federal Highway Programs Manual (FHPM 7-5).
6. In all real property transactions acquired for the PROJECT, following recordation of the
deed or such other recorded instrument evidencing title in the name of the ADMINISTERING AGENCY
or their assignee, there shall also be recorded a separate-document which is an "Agreement Declaring
Restrictive Covenants." Said Agreement Declaring Restrictive Covenants will incorporate the assurances
included within Exhibits A and B and Appendices A, B, C and D, as appropriate, when executed by
ADMINISTERING AGENCY.
3 11/29/95
ARTICLE III - MANAGEMENT AND MAINTENANCE OF PROPERTY
1. ADMINISTERING AGENCY will maintain and operate the PROJECT property acquired,
developed, rehabilitated, or restored for its intended public use until such time as the parties might amend
this AGREEMENT to otherwise provide. With the approval'of STATE, ADMINISTERING AGENCY or
its successors in interest in the property may transfer this obligation and responsibility to maintain and
operate the property to another public entity.
2. Upon ADMINISTERING AGENCY acceptance of the completed Federal-aid construction
contract or upon contractor being relieved of the responsibility for maintaining and protecting a portion of
`e , It maintain the t ~ a work,
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the work, the agency having juiisdiiciioii over ut PROJECT v~i.:t. i aiia
manner satisfactory to the authorized representatives of STATE and the United States. If, within 90 days
_after receipt of notice from STATE that a PROJECT, or any portion thereof, under ADMINISTERING
AGENCy's jurisdiction is not being properly maintained and ADMINISTERING AGENCY has not -
satisfactorily remedied the conditions complained of, the approval of future Federal-aid projects of
ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of
maintenance satisfactory to STATE and the Federal Highway Administration.' The provisions of this
section shall not apply to a PROJECT which has been vacated through due process of law.
3. The maintenance referred to in. paragraph 2, above, includes not only the physical condition
of the PROJECT but its operation as well. PROJECT shall be maintained by an adequate and well-trained
staff of engineers and/or such other professionals and technicians as the project requires. Said
maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or a
contractor under agreement with ADMINISTERING AGENCY. All maintenance will be performed at
regular intervals or as required for efficient operation of the complete PROJECT improvements.
ARTICLE IV - FISCAL PROVISIONS
1. The PROJECT, or portions thereof, must be included in a Federally-approved Statewide
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submittal of the
"Request for Authorization."
2. State and Federal funds will not participate in PROTECT work performed in advance of
approval of the "Authorization to Proceed." The parties shall *execute a PROGRAM SUPPLEMENT
between STATE and ADMINISTERING AGENCY subsequently incorporating the "Authorization to
Proceed."
3. ADMINISTERING AGENCY may submit invoices in arrears for reimbursement of
participating PROJECT costs on a monthly or quarterly progress basis once the PROJECT PROGRAM
SUPPLEMENT has been executed by STATE and the PR-2 has been executed by FHWA. The total of all
amounts claimed, plus any required matching funds, must not exceed the actual total allowable costs of all
completed engineering work, right of way acquisition, and construction.
4. Invoices shall be submitted on ADMINISTERING AGENCY letterhead and shall include
this AGREEMENT number, Federal-aid project number, and Progress billing number for the PROJECT,
and shall be in accordance with REENGINEERED PROCEDURES.
5. The estimated total cost of PROJECT, the amounts of Federal-aid programmed, and the
matching amounts agreed upon may be adjusted by7mutual consent of the parties hereto in a Finance
Letter/Detail Estimate and a PR-2 document which are to be considered as part of this AGREEMENT.
Federal-aid program amounts may be increased to cover PROJECT cost increases only if such funds are
available and FHWA concurs with that increase.
11/29/95
6. When additional federal-aid funds are not available, the ADMIlyISTERING AGENCY
agrees that the payment of Federal funds will be limited to the amounts approved by the PR-2, or its
modification (PR-2A), and agrees that any increases in PROJECT costs must be defrayed with
ADMINISTERING AGENCY funds.
7. ADMINISTERING AGENCY shall use its own nonfederal-aid funds to finance the local
share of eligible costs and all expenditures ruled ineligible for financing with Federal funds. STATE shall
make the determination of ADMINISTERING AGENCY cost eligibility for Federal fund financing.
8. Any overpayment to ADMINISTERING AGENCY of amounts invoiced shall be returned
to STATE by ADMINISTERING AGENCY upon written demand.
9. Should ADMINISTERING AGENCY fail to refund all moneys due STATE as provided
- - - ---hereunder-or should ADMINISTERING AGENCY- breach-this-Agreement by failing-to-complete---- - - -
PROJECT, then, within 30 days of demand, or within such other period as may be agreed to in writing
between the parties hereto, STATE, acting through the State Controller, the State Treasurer, or any other
public agency, may withhold or demand a transfer of an amount equal to the amount owed to STATE from.
future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users
Tax Fund or any other funds and/or may withhold approval of future ADMINISTERING AGENCY
Federal-aid projects.
10. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or
otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint
powers authority, special district, or any other public.entity not directly receiving funds through the State
Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are available,
including the withholding or transfer of funds, pursuant to Article IV - 9, from those constituent entities
comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY or
its constituent member entities, to recover all funds provided by STATE hereunder.
ARTICLE V - RETENTION .OF RECORDS/AUDITS
1. For the purpose of determining compliance with Public Contract Code Section 10115, et.
seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et, seq., when applicable, and
other matters connected with the performance of the Agreement pursuant to Government Code
Section 10532, ADMINISTERING AGENCY and any third party under contract with ADMINISTERING
AGENCY shall retain all original records to the project financed with Federal funds and shall make records
available upon request by Federal and State representatives. Following final settlement of the project costs
with FHWA the records/documents may be microfilmed by the ADMINISTERING AGENCY, but in any
event shall be retained for a period of three years from STATE payment of the final voucher, or a four-year
period from the date of the final payment under the contract, whichever is longer.- ADMINISTERING
AGENCY shall retain records/documents longer if required in writing by STATE.
2. Per the Single Audit Act of 1984, any ADMINISTERING AGENCY that receives.
$100,000.00 or more per fiscal year in Federal Financial Assistance shall have an audit performed by an
independent audit firm per the Single Audit Act - (see OMB-AlZ8, "Audits of State and Local
Governments"). :
ARTICLE VI - FEDERAL LOBB-YING ACTIVITIES CERTIFICATION
1. By execution of this AGREEMENT, ADMINISTERING AGENCY certifies, to the best of
the signatory officer's knowledge and belief, that:
11/29/95
A. No STATE or Federal appropriated funds have been paid or will be paid, by or on
behalf of ADMINISTERING AGENCY, to any person for influencing or attempting to influence an
officer or employee of any STATE or Federal agency, a Member of the State Legislature or United States
Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the
Legislature or Congress in connection with the awarding of any STATE or Federal contract including this
Agreement, the making of any STATE or Federal loan, the entering into of any cooperative contract, and
the extension, continuation, renewal, amendment, or modification of any STATE or Federal contract,
grant, loan, or cooperative contract.
B . If any funds other than Federal appropriated funds have been paid, or will be paid,
l- - enn;n or attempting to influence an officer or employee of any Federal"'.,. agency, a
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to any person LVl
member of Congress, an officer or employee of Congress or an employee of a member of Congress in
connection with this Agreement, grant, local, or cooperative contract, ADMINISTERING AGENCY shall
complete and submit-Standard Form-LLL,-"Disclosure Form to Rep Lobbying;' iri accordance-with the
form instructions.
C. This certification is a material representation of fact upon which reliance was placed
when this Agreement was made or entered into. Submission of this certification is a prerequisite for
making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code. Any party who
fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than$100,000 for each such failure.
2. ADMINISTERING AGENCY also agrees by signing this document that the language of
this certification will be included in all lower tier sub-agreements which exceed $100,000 and that all such
sub-recipients shall certify and disclose accordingly.
ARTICLE VII - MISCELLANEOUS PROVISIONS
1. Neither STATE nor any officer or employee thereof shall be responsible for any damage or
liability occurring by reason of anything done, or omitted to be done, by ADMINISTERING AGENCY
under, or in connection with, any work, authority or jurisdiction delegated to ADMINISTERING
AGENCY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code
Section 895.4, ADMINISTERING AGENCY shall fully defend, indemnify and save.harmless STATE,
its officers, and employees from all claims, suits or actions of every name; kind and description brought
for, or on account of, injury (as defined in Government Code Section 810.8) occurring by reason of
anything done, or omitted to be done, by ADMINISTERING AGENCY under, or in connection with, any
work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. STATE
reserves the right to represent itself in any litigation in which STATE's interests are at stake.
2. Neither ADMINISTERING AGENCY nor any officer or employee thereof, shall be
responsible for any damage or liability occurring by reason of anything done, or omitted to be done, by
STATE under, or in connection, with any work, authority, or jurisdiction delegated to STATE under this
AGREEMENT. It is. also understood and agreed that, pursuant to Government Code Section 895.4,
STATE shall fully indemnify and hold ADMINISTERING AGENCY harmless from any liability imposed
for injury (as defined by Government Code Section 810.8) occurring by reason of anything done, or
omitted to be done, by STATE under, or in connection with, any work, authority, or jurisdiction delegated
to STATE under this Agreement. ADMINISTERING AGENCY "reserves the right to represent itself in
any litigation in which ADMINISTERING AGENCY's interests are at stake.
3. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING
AGENCY, when engaged in the performance of this Agreement, shall act in an independent capacity and
not as officers, employees or agents of STATE.
6 11/29/95
4.. STATE may terminate this AGREEMENT with ADMINISTERING AGENCY should
ADMINISTERING AGENCY fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, STATE may proceed with the PROJECT work in any
manner deemed proper by STATE. If STATE terminates this AGREEMENT with ADMINISTERING
AGENCY, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY
under this AGREEMENT prior to termination, provided, however, that the cost of PROJECT completion
to STATE shall first be deducted from any sum due ADMINISTERING AGENCY under this.
AGREEMENT, and the balance, if any, shall then be paid ADMINISTERING AGENCY upon demand.
7~ ~5 . Without the written consent of STATE, this AGREEMENT is not assignable by
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6. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in
writing and signed-by the parties hereto, and no oral-understanding-or-Agreement-not incorporated-herein
shall be binding on any of the parties hereto.
. 7. ADMINISTERING AGENCY warrants, by execution of this AGREEMENT, that no
person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an
agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona
fide employees or bona fide established commercial or selling agencies maintained by ADMINISTERING,
AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the
right to annul this AGREEMENT without liability, pay only for the value of the work actually performed,
or in STATE's discretion, to deduct from the price of consideration, or otherwise recover, the full amount
of such commission, percentage, brokerage, or contingent fee.
8. In accordance with Public Contract Code Section 10296, ADMINISTERING AGENCY
hereby certifies under penalty of perjury that no more than one final unappealable finding of contempt of
court by. a Federal court has been issued against ADMINISTERING AGENCY within the immediate
preceding two-year period because of ADMINISTERING AGENCY's failure to comply with an order of
a Federal court that- orders ADMINISTERING AGENCY to comply with an order of the National Labor
Relations Board.
. 9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship
with STATE or the FHWA that may have an impact upon the outcome of this AGREEMENT.
ADMINISTERING AGENCY shall also list current contractors who may have a financial interest in the
outcome of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not now have nor shall it
acquire any financial or business interest that would conflict with the performance of PROJECT under this
AGREEMENT.
11. ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or
secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE
employee. For breach or violation of this warranty, STATE shall have the right, in its discretion, to
terminate this AGREEMENT without liability, to pay only for the work actually performed, or to deduct
from the PROGRAM SUPPLEMENT price or otherwise recover-:the full amount of such rebate, kickback,
or other unlawful consideration.
12. - This Agreement is subject to=any additional restrictions, limitations, conditions, or any
statute enacted by the State Legislature that-may affect the provisions, terms, or funding of this
AGREEMENT in any manner.
7 11/29/95
ARTICLE VIII - TERMINATION OF AGREEMENT
1. This Agreement and any PROGRAM SUPPLEMENT(s) executed under this
AGREEMENT shall terminate upon 60 days' prior written notice by STATE.
2. Each separate PROGRAM SUPPLEMENT shall separately establish the term and funding
limits for each described PROJECT funded under this Federal-aid program. No STATE or FHWA funds
are obligated against this AGREEMENT.
- - IN WITNESS WHEREOF, the parties-have-executed-this AGREEMENT by their duly-authorized-
officers.
STATE OF CALIFORNIA CITY OF LOS GATOS
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B ~L/Z~ B L.~J 'ti
Y -
Chief, Office of Local Programs
Project Implementation
Date 8 /2 s 9 ,
ADMINISTERING AGENCY
Representative Name & Title
(Authorized Governing Body Representative)
Date
APPROVED AS TO FORM:
TOWN ATTORNEY
ATTEST:
..,4,
MAR . C ROY , TOWN CLERK
8 11/29/95