04 Staff Report - Highway 9 Safety ImprovementsDATE:
TO:
FROM:
tOw N 0
~~S G At~s
COUNCIL AGENDA REPORT
SEPTEMBER 28, 2007
MAYOR AND TOWN COUNCIL
MEETING DATE: 10/15/07
ITEM NO:
PAMELA JACOBS, INTERIM TOWN MANAGER P~,
SUBJECT: PPW JOB NO. 05-17 - FEDERAL PROJECT CML-5067 (011) - HIGHWAY 9
SAFETY IMPROVEMENTS - STATE ROUTE 9 THROUGH MONTE
CFRFNn
ADOPT RESOLUTION AUTHORIZING THE INTERIM TOWN MANAGER
TO EXECUTE A PROGRAM SUPPLEMENT AGREEMENT WITH THE
STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION
RECOMMENDATION:
Adopt resolution (Attachment 1) authorizing the Interim Town Manager to execute a Program
Supplement Agreement (Exhibit A) 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.
On August 6, 2007, the Town Council approved a revised Master Agreement (Attachment 3)
which incorporated various changes in regulations and policies. 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, Bridge Replacement and Rehabilitation Program (HBRR) funds, and Highway Safety
Improvement Program (HSIP) funds.
DISCUSSION:
With each Federal-aid project, a Program Supplement specific to the project is required to
engage the terms of the Master Agreement.
PREPARED BY: KEVIN ROHANI
Interim Director of Parks and Public Works
NAENGINEERING\COUNCIL REPORTS\05 -17.highway9.safety. improve. approval. of.federal. program. supplement.doc
Reviewed by: Assistant Town Manager 4-Town Attorney
Clerk Administratorinance Community Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: PPW JOB NO. 05-17 - FEDERAL PROJECT CML-5067 (011) - HIGHWAY 9
SAFETY IMPROVEMENTS - STATE ROUTE 9 THROUGH MONTE
SERENO
SEPTEMBER 28, 2007
The Highway 9 Safety Improvement Project will be funded in part through the State's Federal
Transportation Improvement Grant 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 Program Supplement for PPW Job No. 05-17 - Federal Project CML-5067 (011) Highway 9
Safety Improvements - State Route 9 through Monte Sereno. 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 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 $1,103,173 for the construction
phase of the grant funding from the CMAQ Grant Program, as approved in the FY2007-08
Capital Improvement Project Budget. This agreement will provide documentation to the State
that the Town has designated funding to provide the required match and further secure the grant
funding as awarded.
Attachments:
1. Resolution authorizing the Interim Town Manager to execute a Program Supplement
Agreement (Exhibit A)
2. Master Agreement dated August 25, 1998
3. Revised Master Agreement dated August 28, 2007
Distribution:
Ray Zhang, Chief, Office of Project Implementation, South Division of Local Assistance, State
of California Department of Transportation, Division of Local Assistance, P. 0. Box 942874,
MS #1, Sacramento, CA 94274-0001
RESOLUTION
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE INTERIM TOWN MANAGER
TO EXECUTE A PROGRAM SUPPLEMENT AGREEMENT WITH THE
STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION
FOR PPW JOB NO. 05-17 - FEDERAL PROJECT CML-5067 (011)
HIGHWAY 9 SAFETY IMPROVEMENTS
STATE ROUTE 9 THROUGH MONTE SERENO
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 Pamela Jacobs, Interim Town Manager;
and
NOW, THEREFORE BE IT RESOLVED that Pamela Jacobs, Interim 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 15th day of October, 2007, 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 THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Attachment 1
?ROGRAM SUPPLEMENT NO. M004 Rev. 1
to
%DMIXISTERING AGENCY-STATE AGREEMENT
FOR FEDERAL-AID PROJECTS NO. 04-5067
Date: September 06, 2007
Location: 04-SCL-I-LGTS
Project Number: CML-5067(01 1)
E.A. Number: 04-383508
,his Program Supplement hereby incorporates the Administering Agency-State Agreement for Federal Aid which was entered into
>etween the Administering Agency and the State on 08/25/98 and is subject to all the terms and conditions thereof. This Program
>upplement 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).
'he Administering Agency further stipulates that as a condition to the payment by State of any funds derived from sources noted
)elow obligated to this project, the Administering Agency accepts and will comply with the Special covenants or Remarks setforth
)n the following pages.
?ROJECT LOCATION:
>R 9 thro Monte Sereno, Los Gatos, Saratoga
PYPE OF WORK: Bike/Ped Safety improvments
LENGTH: O(MILES)
Estimated Cost
Federal Funds
Matching Funds
$1,246,104.00
L400 $1,103,173.00
LOCAL
$142,931.00
$0.00
OTHER
$0.00
DOWN OF LOS GATOS STATE OF CALIFORNIA
Department of Transportation
By By
Chief, Office of Project Implementation
Date Division of Local Assistance
Attest
Date
Title
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance:
1
A
ccounting Officers Date ` '7 $1,103,173.00
9
Chapter Statutes Item Year P=gram BC Category Fund Source AMOUNT
47 2006 2660-102-890 2006-2007 20.30.010.820 C 262040 892-F 1,103,173.00
Program Supplement 04-5067-MO04-R1 ISTEA Page 1 of 4
Exhibit A
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
September 19, 2007
Kevin Rohani
Parks & Public Works Director-Interim
City of Los Gatos
41 Miles Avenue
Los Gatos, CA 95031
Attn: Ms. Melissa Huang
Dear Rohani:
Arnold Schwarzenegger, Governor
File : 04-SCL-I-LGTS
CM L-5067(011)
SR 9 thro Monte Sereno, Los
Gatos, Saratoga
Enclosed are two originals of the Program Supplement Agreement No. 004-M1 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.
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 funds.
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.
Enclosure
c: DLA AE Project Files
(04) DLAE - Sylvia Fung
14-SCL-I-L(3'I S
'ML-5067(011)
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
improvements.
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. STATE and ADMINISTERING AGENCY agree that any additional 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.
5. 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).
6. The ADMINISTERING AGENCY will advertise, award and administer
this project in accordance with the current published Local
Assistance Procedures Manual.
7. Award information shall be submitted by the ADMINISTERING AGENCY
to the District Local Assistance Engineer within 60 days after
the project contract award. A copy of the award package shall
Program Supplement 04-5067-M004-R1 ISTEA Page 2 of 4
4-SCL-I-LGTS
'ML-5067(011)
SPECIAL COVENANTS OR REMARKS
UV/UO/L.UU /
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
invoices for the construction phase. Please refer to Section
15.7 "Award Package" of the Local Assistance Procedures Manual.
8. "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."
9. 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.).
10.ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at
least once every six months commencing after the funds are
encumbered for each phase by the execution of this Project
Program Supplement Agreement, or by STATE's approval of an
Program Supplement04-5067-M004-Rl ISTEA Page 3 of 4
V J1 UO1 LUV 1
)4-SC,L-I-LG'1'S
WL-5067(011)
SPECIAL COVENANTS OR REMARKS
applicable Finance Letter. STATE reserves the right to suspend
future authorizations/obligations, and invoice payments for any
on-going or future federal-aid project by ADMINISTERING AGENCY if
PROJECT costs have not been invoiced by ADMINISTERING AGENCY for
a six-month period.
if no costs have been invoiced for a six-month period,
ADMINISTERING AGENCY agrees to submit for each phase a written
explanation of the absence of PROJECT activity along with target
billing date and target billing amount.
ADMINISTERING AGENCY agrees to submit the final report documents
that collectively constitute a "Report of Expenditures" within
one hundred eighty (180) days of PROJECT completion. Failure of
ADMINISTERING AGENCY to submit a "Final Report of Expenditures"
within 180 days of PROJECT completion will result in STATE
imposing sanctions upon ADMINISTERING AGENCY in accordance with
the current Local Assistance Procedures Manual.
11.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 this project are a part
of the Catalogue of Federal Domestic Assistance (CFDA) 20.205,
Highway Planning & Research. OMB A-133 superseded OMB A-128 in
1996. A reference to OMB A-128 in a Master Agreement (if any) is
superseded by this covenant to conform to OMB A-133.
Program Supplement04-5067-MO04-Rl ISTEA Page 4 of 4
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TIN 7L~11
MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREENIENra -
F4R
FEDERAL-AID PROJECTS
04 Citv of Los Gatos
District Administering Agency
Agreement No. 04-5067
This AGREEMENT, made effective this z5 day of /~L)" 0 f 199 is by and between.
the City of Los Gatos, hereinafter referred to as" 5M-: NISTERIN 1GENCY," and the State of
Cahfornia, 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 1997 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 (HI3RR) (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,
ADNNIMSTERING AGENCY and STATE are required to enter into an agreement relative to prosecution
of said project and maintenance of the oompleted 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 been executed.
2. The term "PROJECT," as used herein, means hat 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 commitment 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.
Attacnment 2
?DM- ::FAG AGENCY further agrees, as a onditior. tc pa%men Jf funds . ci at,
tc a PRO ACT, to comply with ail the agr°°d-Loon St}°cial Covenants or R°rnarks attached tc the
PROGR Atr1 SUPPLEN-T ident ying and dtf-hrun g the narare of the sp---isic PRO=.
5. The PROGR_A-M SUPPLEMENT shall designate she pa_n responsi'ole for it plem°ntin
:he various chases of the PROTECT, the Federal funds requested, and the matching funds to be provided
by A.DMINISTER2-~G AGENCY and/or STATE. Adoption of the PROGR_~-,M SUPPLEIN ENT by
ADMINISTERING AGENCY and approval by STATE shall cause such PROGRAM SUP PLEMEN o
be executed and be a part of this AGR.EENaN'T as though fully set forth herein. Unless otherwise
expressly delegated in a resolution by the ADMINISTERING AGENCY's governing body, the
PROGRAM SUPPLEMENT shat be approved and managed by the ADMINISTERING AGENCY's
°ov--=p bodV.
5. ADMLNISTERLNG AGENCY shall conform to all State statutes, regulations and
procedures (including those set forth in LPP 9--07, "Reengine8rint" and subsequent approved revisions
and Local Programs Manual updates, hereafter referred to as REENGDNI ED 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 PROTECT 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 betw-..en
STATE and ADMI!,IISTERING AGENCY to determine how the PROJECT is t:o 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 ADMJhlI=RING AGENCY-approved
standard specifications, standard plans, and materials sampling and testing quality assurance programs Lhat
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 agreti. 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
NONDISCR.MNMMNATION ASSURANCES (Exhibit B attached hereto). AD-MLNISTERMNG AGENCY
fu ther agrees that any agreement entered.into by :gJMZNISTERLNG AGENCY with a third park for
performance of work connected with the PROJECT shat 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 II - 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
necessary rights of way are available for construction purposes or will be available by the time of award of
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 frev 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 property 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 acquirin&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 wrimn.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 TBPM 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
ADMII\IISTERING AGENCY.
3 11/29/95
_4,RTICLE III - MANAGEMENT AND I lAI-TU TENANCE, OF PROPERTY
. ADMLtiZSTT RING AGENCY will main*;. , and operar` the PROJECT property acquire; .
deveoo°d. rehabilitated, or restored for its il"ttended public usL until such time as the parties might amend
this AGRr.EMEhT to oherwise provith the approval of STATE, ADNaNT Rl`'~G AGE'~iCY
its successors in int-rest in the property may transfer his obligation and responsib ii y to maintain and
operate the property to another public entity.
2. Upon ADML~IISTERLNG AGENCY acceptance of the completed Federal-aid coast tic-ion
contact or upon contractor being relieved of the responsibility for maintaining and protecting a portion of
the work, the agency having jurisdiction over the PROJECT shall maintain the completed work in a
manner satisfactory to the authorized representatives of STATE and the United States. If, within yU day s
after receipt of notice from STATE that a PROTECT, or any portion thereof, under ADN2`;1STERLNG
AGENCY's jurisdiction is not being properly maintained and ADNM,tISTERING 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 agmement with ADMINISTERING AGENCY. All maintenance will be performed at
regular intervals or as r°,..quired 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 A.GE.NCY submittal of the
"Request for Authorization."
2. State and Federal fiends will not participate in PROJECT 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. ADNLIINrISTERING 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. lnvoices shall be submitted on ADMIlsTISTEP,'N(-j 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 REENGD,=RED PROCEDURES.
. The estimated total cost of PROJECT, the amounts of Federal-aid programmed, and the
mat~hinQ amounts agreed upon may be adjusted by mursal consent of the parties hereto in a Finance
Lor=.tD .a.ii Es=?-te and a PR-2 document which are to - considered as nar of his AGREEME?`T.
ed re.i-aid program amounts may be in.,r aced to coy.: PROIECT cosi?nc. a.h,s only :i su h lan-'s a;s
avaliabit and FHW,1~oncurs with -at in,:reast.
4 -.'?y'
6. When additional federal-aid funds are not available, the ADMIrv'ISTERING AG ENCY
agrP.,es 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
.,kDM .NISTERING 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
made the determination of ADMINISTERING AGENCY cost eligibility for Federal fund financing.
8. Any overpayment to ADMINISTERING AGENCY of amounts invoiced shall be returnea
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 1994, 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-A128, "Audits of State and Local
Governments").
ARTICLE VI - FEDERAL LOBBYING 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 STA rr or Feder a' appropriated fund` have beer, paid or A~ _x p
_ r.
behalf of A.DMLMZSTERLNG AGENCY, to any person for inrluencing or attempting to influence an
officer or emplovee o` any STATE or Federal agency, a Member of the State Legislature or united States
Congress, an officer or employ of the Legislature or Congress, or any employe„- of a Metn6,_-r of thtl
1. -slature or Congress In connaction .vlth tine awarding of any STATE or Federal contract including t..s
A areemenr the rnal:ina of any STATE or Federal loan, the entering into of any cooperative contract and
the exrension, continuation, renewal, amendment, or modification of any STATE or Federal contract
;rant, loar_, or cooperative conLract.
B . If any funds other than Federal appropriated funds have b- paid, or wil be paid.
to any p°rson for influencing or anempting to influence an offiwr or employee of any Federal ag°.n::y, a
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, ADMLVISTEFdNG AGENCY shall
complete and submit Standard Form-LT.L, "Disclosure Form to Rep Lobbying," in 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 parry 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. ADNENNLSTERING 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 ADMLNiSTERING AGENCY
under, or in connection with, any work, authority or jurisdiction delegated to ADMINISTERLNG
AGENCY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code
Section 895.4, ADMENISTERING AGENCY shall fully defend, indemnify and save harmless STATE,
its officers, and empl6ye-es 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 cannection 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 ADM ,,TISTERLNG 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 delega`wd
to STATE under this Agreement..4,DMINISTERING AGENCY reserves the ri "lit to represent it,P_Y in
any litigation in which AIDMD,;ISTERLNG 'AGENCY's interests are at stake.
_ 3. ,t:.DIv12''ISTERING AGENCY and the officers and tmploye°s of kDMD,;ISTERItiG
_.tr °T C7a t . iT_ unt _-l „ --rat n_ s..a act Ir m.:1°r?:: :G.,:~ . ..._i:.
r
r1Ji av offl: ers, °rriplov°e5 or agent.: Of STATE.
4. STATE may terminate this AGREEMENT with ADML -lSTERING 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 ADM]NISTERLNG AGENCY upon demand.
5. Without the written consent of STATE, this AGREEMENT is not assignable by
ADMINISTERING AGENCY either in whole or in part.
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 AAG)ENCY shall also list current contractors who may have a financial interest in the
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.
e of this AGREEMENT.
1 D. 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.
outcom11. . ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or
i 1/29195
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officer: .
STATE OF C T IFORNIA
CITY OF LOS GATOS
V
Chief, Office of Local Programs
Project Implementation
Date s
ADNIlNISTERLNG AGENCY
Representative Name & Title
Authorized Governing Body Representa6, t,
Date
APPROVED 45 TD FDPV:
1
')WN ATTOF'I'll =v
~,T -ST:
SOWN CLERK
NAB I EH NUKtLIVIIzN
ADMINISTERING AGENCY-STATE AGREEMENT FOR
FEDERAL-AID PROJECTS
04 City of Los Gatos
District Administering Agency
Agreement No. 04-5067R
This AGREEMENT, is entered into effective this 2 6 day of ~V9 2007, by and
between the City of Los Gatos, hereinafter referred to as "ADMINISTERING AGENCY," and the
State of California, acting by and through its Department of Transportation (Caltrans), hereinafter
referred to as "STATE, and together referred to as "PARTIES" or individually as a "PARTY."
RECITALS:
1. WHEREAS, the Congress of the United States has enacted the Intermodal Surface
Transportation Efficiency Act (ISTEA) of 1991 and subsequent Transportation Authorization Bills
to fund transportation programs. These transportation programs include, but are not limited to, the
Surface Transportation Program (STP), the Congestion Mitigation and Air Quality Improvement
Program (CMAQ), the Transportation Enhancement Program (TE), Highway Safety Improvement
Program (HSIP) and the Highway Bridge Program (HBP) (collectively the "PROGRAMS"); and
2. WHEREAS, the Legislature of the State of California has enacted legislation by which certain
federal-aid funds may be made available for use on local transportation related projects of public
entities qualified to act as recipients of these federal-aid funds in accordance with the intent of
federal law; and
3. WHEREAS, before federal-funds will be made available for a specific program project,
ADMINISTERING AGENCY and STATE are required to enter into an agreement to establish
terms and conditions applicable to the ADMINISTERING AGENCY when receiving federal funds
for a designated PROJECT facility and to the subsequent operation and maintenance of that
completed facility.
NOW, THEREFORE, the PARTIES agree as follows:
Page 1 of 26 Attacnment 3
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 been fully executed by both STATE
and ADMINISTERING AGENCY.
2. The term "PROJECT", as used herein, means that authorized transportation related project and
related activities financed in part with federal-aid funds as more fully-described in an
"Authorization/ Agreement Summary" or "Amendment/Modification Summary", herein referred to
as "E-76" or "E-76 (AMOD)" document authorized by STATE or the Federal Highway
Administration (FHWA).
3. The E-76/E-76(AMOD) shall designate the party responsible for implementing PROJECT, type
of work and location of PROJECT.
4. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the
ADMINISTERING AGENCY to receive federal-aid funds from/through STATE for designated
PROJECT. The PROGRAM SUPPLEMENT shall also show these Federal Funds that have been
initially encumbered for PROJECT along with the matching funds to be provided by
ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by the
PARTIES shall cause ADMINISTERING AGENCY to adopt all of the terms of this AGREEMENT
as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expressly
delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with written
concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by the
governing body of ADMINISTERING AGENCY.
5. ADMINISTERING AGENCY agrees to execute and return each project-specific PROGRAM
SUPPLEMENT within ninety (90) days of receipt. The PARTIES agree that STATE may suspend
future authorizations/obligations and invoice payments for any on-going or future federal-aid
project performed by ADMINISTERING AGENCY if any project-specific PROGRAM
SUPPLEMENT is not returned within that ninety (90) day period unless otherwise agreed by
STATE in writing.
6. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of
Federal Funds encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to
comply with the terms and conditions of this AGREEMENT and all of the agreed-upon Special
Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and
Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of the
specific PROJECT.
7. Federal, State and matching funds will not participate in PROJECT work performed in advance
of the approval of the E-76 or E-76 (AMOD), unless otherwise stated in the executed project-
specific PROGRAM SUPPLEMENT. ADMINISTERING AGENCY agrees that it will only proceed
with the work authorized for that specific phase(s) on the project-specific E-76 or E-76 (AMOD).
ADMINISTERING AGENCY further agrees to not proceed with future phases of PROJECT prior to
receiving an E-76 (AMOD) from STATE for that phase(s) unless no Further Federal funds are
needed or for those future phase(s).
Page 2 of 26
0
8. That PROJECT or portions thereof, must be included in a federally approved Federal Statewide
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submitting the
"Request for Authorization".
9. ADMINISTERING AGENCY shall conform to all State statutes, regulations and procedures
(including those set forth in the Local Assistance Procedures Manual and the Local Assistance
Program Guidelines, hereafter collectively referred to as "LOCAL ASSISTANCE 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
specifically waived as designated in the executed project-specific PROGRAM SUPPLEMENT.
10. If PROJECT is not on STATE-owned right of way, PROJECT shall be constructed in
accordance with LOCAL ASSISTANCE PROCEDURES that describes minimum statewide design
standards for local agency streets and roads. LOCAL ASSISTANCE PROCEDURES for projects
off the National Highway System (NHS) allow STATE to accept either the STATE's minimum
statewide design standards or the approved geometric design standards of ADMINISTERING
AGENCY. Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGENCY-
approved standard specifications, standard plans, materials sampling and testing quality
assurance programs that meet the conditions described in the then current LOCAL ASSISTANCE
PROCEDURES.
11. If PROJECT involves work within or partially within STATE-owned right-of-way, that
PROJECT shall also be subject to compliance with the policies, procedures and standards of the
STATE Project Development Procedures Manual and Highway Design Manual and where
appropriate, an executed cooperative agreement between STATE and ADMINISTERING
AGENCY that outlines the PROJECT responsibilities and respective obligations of the PARTIES.
ADMINISTERING AGENCY and its' contractors shall each obtain an encroachment permit
through STATE prior to commencing any work within STATE rights of way or work which affects
STATE facilities.
12. 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.
13. If PROJECT is using STATE funds, the Department of General Services, Division of the State
Architect, or its designee, shall review the contract PS&E for the construction of buildings,
structures, sidewalks, curbs and related facilities for accessibility and usability. ADMINISTERING
AGENCY shall not award a PROJECT construction contract for these types of improvements until
the State Architect has issued written approval stating that the PROJECT plans and specifications
comply with the provisions of sections 4450 and 4454 of the California Government Code, if
applicable. Further requirements and guidance are provided in Title 24 of the California Code of
Regulations.
14. ADMINISTERING AGENCY will advertise, award and administer PROJECT in accordance
with the current LOCAL ASSISTANCE PROCEDURES unless otherwise stated in the executed
project-specific PROGRAM SUPPLEMENT.
Page 3 of 26
15, ADMINISTERING AGENCY shall provide or arrange for adequate supervision and inspection
of each PROJECT. While consultants may perform supervision and inspection work for
PROJECT with a fully qualified and licensed engineer, ADMINISTERING AGENCY shall provide a
full-time employee to be in responsible charge of each PROJECT.
16. ADMINISTERING AGENCY shall submit PROJECT-specific contract award documents to
STATE's District Local Assistance Engineer within sixty (60) days after contract award. A copy of
the award documents shall also be included with the submittal of the first invoice for a construction
contract by ADMINISTERING AGENCY to: Department of Transportation, Division of Accounting
Local Programs Accounting Branch, MS #33, PO Box 942874, Sacramento, California 94274-
0001.
17. ADMINISTERING AGENCY shall submit the final report documents that collectively constitute
a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure
by ADMINISTERING AGENCY to submit a "Report of Expenditures" within one hundred
eighty(180) days of project completion will result in STATE imposing sanctions upon
ADMINISTERING AGENCY in accordance with the current LOCAL ASSISTANCE
PROCEDURES.
18. ADMINISTERING AGENCY shall comply with: (i) section 504 of the Rehabilitation Act of 1973
which prohibits discrimination on the basis of disability in federally assisted programs; (ii) the
Americans with Disabilities Act (ADA) of 1990 which prohibits discrimination on the basis of
disability irrespective of funding; and (iii) all applicable regulations and guidelines issued pursuant
to both the Rehabilitation Act and the ADA.
19. 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 jurisdictions, have prescribed certain
nondiscrimination requirements with respect to contract and other work financed with public funds.
ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT
PRACTICES ADDENDUM (Exhibit A attached hereto) 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 performance of
PROJECT-related work shall incorporate Exhibits A and B (with third party's name replacing
ADMINISTERING AGENCY) as essential parts of such agreement to be enforced by that third
party as verified by ADMINISTERING AGENCY.
Page 4 of 26
ARTICLE II - RIGHTS OF WAY
1. No contract for the construction of a federal-aid PROJECT shall be awarded until all necessary
rights of way have been secured. Prior to the advertising for construction of PROJECT,
ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence
that all necessary rights of way are available for construction purposes or will be available by the
time of award of the construction contract.
2. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability
that may result in the event the right of way for a PROJECT, including, but not limited to, being
clear as certified or if said right of way is found to contain hazardous materials requiring treatment
or removal to remediate in accordance with Federal and State laws. 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 relocation costs and damages to remainder 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 PROJECT because
utility facilities have not been timely removed or relocated, or because rights of way were not
available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
3. Subject to STATE approval and such supervision as is required by LOCAL ASSISTANCE
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedures,
ADMINISTERING AGENCY may claim reimbursement from Federal Funds for expenditures
incurred in purchasing only the necessary rights of way needed for the PROJECT after crediting
PROJECT with the fair market value of any excess property retained and not disposed of by
ADMINISTERING AGENCY.
4. When real property rights are to be acquired by ADMINISTERING AGENCY for a PROJECT,
said ADMINISTERING AGENCY must carry out that acquisition in compliance with all applicable
.State and Federal laws and regulations, in accordance with State procedures as published in
State's current LOCAL ASSISTANCE PROCEDURES and STATE's Right-of-Way Manual,
subject to STATE oversight to ensure that the completed work is acceptable under 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 49 CFR, Part 24. 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 ninety (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 PROJECT- displaced persons as provided in 49 CFR,
Page 5 of 26
rdrr 24.
6. ADMINISTERING AGENCY shall, along with recording the deed or instrument evidencing title
in the name of the ADMINISTERING AGENCY or their assignee, shall also record an Agreement
Declaring Restrictive Covenants (ADRC) as a separate document incorporating the assurances
included within Exhibits A and B and Appendices A, B, C and D of the AGREEMENT, as
appropriate.
Page 6 of 26
ARTICLE III - MAINTENANCE AND MANAGEMENT
1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed,
constructed, rehabilitated, or restored by PROJECT 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 PROJECT property may transfer
this obligation and responsibility to maintain and operate PROJECT property for that intended
public purpose to another public entity.
2. Upon ADMINISTERING AGENCY's acceptance of the completed federal-aid construction
contract or upon contractor being relieved of the responsibility for maintaining and protecting
PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, ownership,
liability, and the expense thereof, for PROJECT in a manner satisfactory to the authorized
representatives of STATE and FHWA and if PROJECT falls within the jurisdictional limits of
another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a separate
maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies
providing for the operation, maintenance, ownership and liability of PROJECT. Until those
agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJECT
operations, maintenance, ownership and liability in a manner satisfactory to the authorized
representatives of STATE and FHWA. If, within ninety (90) days after receipt of notice from
STATE that a PROJECT, or any portion thereof, is not being properly operated and 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 operation and maintenance satisfactory to STATE
and FHWA. The provisions of this section shall not apply to a PROJECT that has been vacated
through due process of law with STATE's concurrence.
3. PROJECT and its facilities shall be maintained by an adequate and well-trained staff of
engineers and/or such other professionals and technicians as PROJECT reasonably requires.
Said operations and 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.
Page 7 of 26
ARTICLE IV - FISCAL PROVISIONS
1. All contractual obligations of STATE are subject to the appropriation of resources by the
Legislature and the allocation of resources by the California Transportation Commission (CTC).
2. STATE'S financial commitment of Federal Funds will occur only upon the execution of this
AGREEMENT, the authorization of the project-specific E-76 or E-76 (AMOD), the execution of
each project-specific PROGRAM SUPPLEMENT, and STATE's approved finance letter.
3. ADMINISTERING AGENCY may submit signed duplicate invoices in arrears for reimbursement
of participating PROJECT costs on a monthly or quarterly progress basis once the project-specific
PROGRAM SUPPLEMENT has been executed by STATE.
4. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every six
(6) months commencing after the funds are encumbered on either the project-specific PROGRAM
SUPPLEMENT or through a project-specific finance letter approved by STATE. STATE reserves
the right to suspend future authorizations/obligations, and invoice payments for any on-going or
future federal-aid project by ADMINISTERING AGENCY if PROJECT costs have not been
invoiced by ADMINISTERING AGENCY for a six (6) month period
5. Invoices shall be submitted on ADMINISTERING AGENCY letterhead that includes the address
of ADMINISTERING AGENCY and shall be formatted in accordance with LOCAL ASSISTANCE
PROCEDURES.
6. Invoices must have at least one copy of supporting backup documentation for costs incurred
and claimed for reimbursement by ADMINISTERING AGENCY. Acceptable backup
documentation includes, but is not limited to, agency's progress payment to the contractors,
copies of cancelled checks showing amounts made payable to vendors and contractors, and/or a
computerized summary of PROJECT costs.
7. Payments to ADMINISTERING AGENCY can only be released by STATE as reimbursement of
actual allowable PROJECT costs already incurred and paid for by ADMINISTERING AGENCY.
8. An Indirect Cost Rate Proposal and Central Service Cost Allocation Plan and related
documentation are to be provided to STATE (Caltrans Audits & Investigations) annually for review
and approval prior to ADMINISTERING AGENCY seeking reimbursement of indirect cost incurred
within each fiscal year being claimed for federal reimbursement.
9. Once PROJECT has been awarded, STATE reserves the right to de-obligate any excess
Federal Funds from the construction phase of PROJECT if the contract award amount is less than
the obligated amount, as shown on the PROJECT E-76 or E-76 (AMOD).
10. STATE will withhold the greater of either two (2) percent of the total of all Federal Funds
encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY
submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT
PROJECT.
Page 8 of 26
11. The estimated total cost of PROJECT, the amount of Federal Funds obligated, and the
required matching funds may be adjusted by mutual consent of the PARTIES hereto with a
finance letter, a detailed estimate, if required, and approved E-76 (AMOD). Federal-aid funding
may be increased to cover PROJECT cost increases only if such funds are available and FNWA
concurs with that increase.
12. When additional federal-aid funds are not available, ADMINISTERING AGENCY agrees that
the payment of Federal Funds will be limited to the amounts authorized on the PROJECT specific
E-76 / E-76 (AMOD) and agrees that any increases in PROJECT costs must be defrayed with
ADMINISTERING AGENCY's own funds.
13. ADMINISTERING AGENCY shall use its own non-Federal Funds to finance the local share of
eligible costs and all expenditures or contract items ruled ineligible for financing with Federal
Funds. STATE shall make the determination of ADMINISTERING AGENCY's cost eligibility for
federal fund financing of PROJECT costs.
14. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for work
performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall include
overhead assessments in accordance with section 8755.1 of the State Administrative Manual.
15. Federal and state funds allocated from the State Transportation Improvement Program (STIP)
are subject to the timely use of funds provisions enacted by Senate Bill 45, approved in 1997, and
subsequent STIP Guidelines and State procedures approved by the CTC and STATE.
16. Federal Funds encumbered for PROJECT are available for liquidation for a period of seven (7)
years from the beginning of the State fiscal year the funds were appropriated in the State Budget.
State funds encumbered for PROJECT are available for liquidation only for five (5) years from the
beginning of the State fiscal year the funds were appropriated in the State Budget. Federal or
state funds not liquidated within these periods will be reverted unless an Cooperative Work
Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California
Department of Finance (per Government Code section 16304). The exact date of fund reversion
will be reflected in the STATE signed finance letter for PROJECT.
17. Payments to ADMINISTERING AGENCY for PROJECT-related travel and subsistence (per
diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors
claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid
rank and file STATE employees under current State Department of Personnel Administration
(DPA) rules. If the rates invoiced by ADMINISTERING AGENCY are in excess of DPA rates,
ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments
inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on
demand within thirty (30) days of such invoice.
18. ADMINISTERING AGENCY agrees to comply with Office of Management and Budget (OMB)
Circular A-87, Cost Principles for State and Local Governments, and 49 CFR, Part 18, Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and Local
Governments.
Page 9 of 26
19. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will
be obligated to agree that (a) Contract Cost Principles and Procedures, 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the
allowability of individual PROJECT cost items and (b) those parties shall comply with federal
administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local Governments. Every
sub-recipient receiving PROJECT funds as a contractor or sub-contractor under this
AGREEMENT shall comply with Federal administrative procedures in accordance with 49 CFR,
Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State
and Local Governments.
20. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit
that are determined by subsequent audit to be unallowable under OMB Circular A-87, 48 CFR,
Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by ADMINISTERING AGENCY
to STATE. Should ADMINISTERING AGENCY fail to reimburse moneys due STATE within thirty
30 days of demand, or within such other period as may be agreed in writing between the
PARTIES hereto, STATE is authorized to intercept and withhold future payments due
ADMINISTERING AGENCY from STATE or any third-party source, including but not limited to,
the State Treasurer, the State Controller and the CTC.
21. Upon written demand by STATE, any overpayment to ADMINISTERING AGENCY of amounts
invoiced to STATE shall be returned to STATE.
22. Should ADMINISTERING AGENCY fail to refund any moneys due STATE as provided
hereunder or should ADMINISTERING AGENCY breach this AGREEMENT by failing to complete
PROJECT without adequate justification and approval by STATE, then, within thirty 30 days of
demand, or within such other period as may be agreed to in writing between the PARTIES,
STATE, acting through the State Controller, the State Treasurer, or any other public entity or
agency, may withhold or demand a transfer of an amount equal to the amount paid by or owed to
STATE from future apportionments, or any other funds due ADMINISTERING AGENCY from the
Highway Users Tax Fund or any other sources of funds, and/or may withhold approval of future
ADMINISTERING AGENCY federal-aid projects.
23. 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 - 22, 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.
24. ADMINISTERING AGENCY acknowledges that the signatory party represents the
ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers
Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict or
otherwise limit STATE's ability to recover State funds improperly spent by ADMINISTERING
AGENCY in contravention of the terms of this AGREEMENT.
Page 10 of 26
ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
1. STATE reserves the right to conduct technical and financial audits of PROJECT work and
records when determined to be necessary or appropriate and ADMINISTERING AGENCY agrees,
and shall require its contractors and subcontractors to agree, to cooperate with STATE by making
all appropriate and relevant PROJECT records available for audit and copying as required by
paragraph three (3) of ARTICLE V.
2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain an
accounting system and records that properly accumulate and segregate incurred PROJECT costs
and matching funds by line item for the PROJECT. The accounting system of ADMINISTERING
AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting
Principles, enable the determination of incurred costs at interim points of completion, and provide
support for reimbursement payment vouchers or invoices sent to or paid by STATE.
3. For the purpose of determining compliance with Title 21, California Code of Regulations,
Chapter 21, section 2500 et seq., when applicable, and other matters connected with the
performance of ADMINISTERING AGENCY's contracts with third parties, ADMINISTERING
AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and STATE shall each
maintain and make available for inspection and audit all books, documents, papers, accounting
records, and other evidence pertaining to the performance of such contracts, including, but not
limited to, the costs of administering those various contracts. All of the above referenced parties
shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at their
respective offices at all reasonable times during the entire PROJECT period and for three (3)
years from the date of final payment to ADMINISTERING AGENCY under any PROGRAM
SUPPLEMENT. STATE, the California State Auditor, or any duly authorized representative of
STATE or the United States, shall each have access to any books, records, and documents that
are pertinent to a PROJECT for audits, examinations, excerpts, and transactions and
ADMINISTERING AGENCY shall furnish copies thereof if requested.
4. ADMINISTERING AGENCY is required to have an audit in accordance with the Single Audit Act
of OMB Circular 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 a PROGRAM SUPPLEMENT are a part of the
Catalogue of Federal Domestic Assistance (CFDA) 20.205, Highway Planning and Research.
5. ADMINISTERING AGENCY agrees to include all PROGRAM SUPPLEMENTS adopting the
terms of this AGREEMENT in the schedule of projects to be examined in ADMINISTERING
AGENCY's annual audit and in the schedule of projects to be examined under its single audit
prepared in accordance with OMB Circular A-133.
6. ADMINISTERING AGENCY shall not award a construction contract over $10,000 or other
contracts over $25,000 (excluding professional service contracts of the type which are required to
be procured in accordance with Government Code sections 4525 (d), (e) and (f) on the basis of a
noncompetitive negotiation for work to be performed under this AGREEMENT without the prior
written approval of STATE. Contracts awarded by ADMINISTERING AGENCY, if intended as
local match credit, must meet the requirements set forth in this AGREEMENT regarding local
match funds.
Page 11 of 26
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT
shall contain all of the provisions of ARTICLE IV, FISCAL PROVISIONS, and this ARTICLE V,
AUDITS, THIRD-PARTY CONTRACTING RECORDS RETENTION AND REPORTS, and shall
mandate that travel and per diem reimbursements and third-party contract reimbursements to
subcontractors will be allowable as PROJECT costs only after those costs are incurred and paid
for by the subcontractors.
8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local match
funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in the
same manner as required of all other PROJECT expenditures.
9. In addition to the above, the pre-award requirements of third-party contractor/consultants with
ADMINISTERING AGENCY should be consistent with LOCAL ASSISTANCE PROCEDURES.
Page 12 of 26
ARTICLE VI -FEDERAL LOBBYING ACTIVITIES CERTIFICATION
1. By execution of this AGREEMENT, ADMINISTERING AGENCY certifies, to the best of the
signatory officer's knowledge and belief, that:
A. No federal or state 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, to any
person for influencing or attempting to influence an officer or employee of any federal agency, a
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," in accordance with the form instructions.
C. This certification is a material representation of fact upon which reliance was placed when this
AGREEMENT and each PROGRAM SUPPLEMENT was or will be made or entered into.
Submission of this certification is a prerequisite for making or entering into this AGREEMENT
imposed by Section 1352, Title 31, United States 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 AGREEMENT 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.
Page 13 of 26
ARTICLE VII - MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all State funds reimbursed hereunder only for
transportation purposes that are in conformance with Article XIX of the California State
Constitution and the relevant Federal Regulations.
2. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute
enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms, or
funding of this AGREEMENT in any manner.
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 or the federal government.
4. Each project-specific PROGRAM SUPPLEMENT shall separately establish the terms and
funding limits for each described PROJECT funded under the AGREEMENT. No federal or state
funds are obligated against this AGREEMENT.
5. ADMINISTERING AGENCY certifies that neither 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 STATE immediately in the event a suspension or a debarment
occurs after the execution of this AGREEMENT.
6. 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.
7. 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 (2) 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.
8. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with
STATE, FHWA or FTA 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.
9. 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
Page 14 of 26
10. 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.
11. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed
of by agreement shall be decided by the STATE's Contract Officer who may consider any written
or verbal evidence submitted by ADMINISTERING AGENCY. The decision of the Contract
Officer, issued in writing, shall be conclusive and binding on the PARTIES on all questions of fact
considered and determined by the Contract Officer.
12. Neither the pending of a dispute nor its consideration by the Contract Officer will excuse
ADMINISTERING AGENCY from full and timely performance in accordance with the terms of this
AGREEMENT.
13. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any
injury, damage or liability occurring by reason of anything done or omitted to be done by, under or
in connection with any work, authority or jurisdiction arising under this AGREEMENT. It is
understood and agreed that STATE shall fully defend, indemnify and save harmless the
ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or actions
of every name, kind and description brought forth under, including, but not limited to, tortuous,
contractual, inverse condemnation and other theories or assertions of liability occurring by reason
of anything done or omitted to be done by STATE under this AGREEMENT.
14. Neither STATE nor any officer or employee thereof shall be responsible for any injury, 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 arising under this
AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully defend,
indemnify and save harmless STATE and all of its officers and employees from all claims, suits or
actions of every name, kind and description brought forth under, including, but not limited to,
tortuous, contractual, inverse condemnation or other theories or assertions of liability occurring by
reason of anything done or omitted to be done by ADMINISTERING AGENCY under this
AGREEMENT.
15. STATE reserves the right to terminate funding for any PROJECT upon written notice to
ADMINISTERING AGENCY in the event that ADMINISTERING AGENCY fails to proceed with
PROJECT work in accordance with the project-specific PROGRAM SUPPLEMENT, the bonding
requirements if applicable, or otherwise violates the conditions of this AGREEMENT and/or
PROGRAM SUPPLEMENT, or the funding allocation such that substantial performance is
significantly endangered.
Page 15 of 26
16. No termination shall become effective if, within thirty (30) days after receipt of a Notice of
Termination, ADMINISTERING AGENCY either cures the default involved or, if not reasonably
susceptible of cure within said thirty (30) day period, ADMINISTERING AGENCY proceeds
thereafter to complete the cure in a manner and time line acceptable to STATE. Any such
termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice of
Termination, which notice shall become effective not less than thirty (30) days after receipt,
specifying the reason for the termination, the extent to which funding of work under this
AGREEMENT is terminated and the date upon which such termination becomes effective, if
beyond thirty (30) days after receipt. During the period before the effective termination date,
ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the event
of such termination, STATE may proceed with the PROJECT work in a manner deemed proper by
STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY, STATE
shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under the
PROGRAM SUPPLEMENT and/or STATE approved finance letter prior to termination, provided,
however, ADMINISTERING AGENCY is not in default of the terms and conditions of this
AGREEMENT or the project-specific PROGRAM SUPPLEMENT and that the cost of PROJECT
completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY.
17. In case of inconsistency or conflicts with the terms of this AGREEMENT and that of a project-
specific PROGRAM SUPPLEMENT, the terms stated in that PROGRAM SUPPLEMENT shall
prevail over those in this AGREEMENT.
18. Without the written consent of STATE, this AGREEMENT is not assignable by
ADMINISTERING AGENCY either in whole or in part.
19. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in
writing and signed by the PARTIES, and no oral understanding or agreement not incorporated
herein shall be binding on any of the PARTIES.
IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT by their duly
authorized officers.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPOR ATION
By kt'a r ,
City of Los Gatos
By
In -k Pam (7 a ~h t ~CLL.f) il(
Chief, Office of Project Implementation
_71-V Division of Local Assistance
Date P/26 /p7
City of Los Gatos
Representative Name & Title
(Authorized Governing Body Representative)
Date , {S-
Approved as to form:
ATTEST FOR THE TOWN OF LOS GATO
15 Page 16 of 26
Clerk-A4=ikistrator
_ „orb, Town Attorney
EXHIBIT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate against
any employee for employment because of race, color, sex, sexual orientation, religion, ancestry or
national origin, physical disability, medical condition, marital status, political affiliation, family and
medical care leave, pregnancy leave, or disability leave. ADMINISTERING AGENCY will take
affirmative action to ensure that employees are treated during employment without regard to their
race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical
condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or
disability leave. Such action shall include, but not be limited to, the following: employment;
upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including apprenticeship.
ADMINISTERING AGENCY shall post in conspicuous places, available to employees for
employment, notices to be provided by STATE setting forth the provisions of this Fair Employment
section.
2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with the
provisions of the Fair Employment and Housing Act (Government Code Section 1290-0 et seq.),
and the applicable regulations promulgated thereunder (California code of Regulations, Title 2,
Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing
Commission implementing Government Code, Section 12900(a-f), set forth in Chapter 5 of
Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT
by reference and made a part hereof as if set forth in full. Each of the ADMINISTERING
AGENCY'S contractors and all subcontractors shall give written notice of their obligations under
this clause to labor organizations with which they have a collective bargaining or other
agreements, as appropriate.
3. ADMINISTERING 1 GENCY shall include the nondiscrimination and compliance provisions of
this clause in all contracts and subcontracts to perform work under this AGREEMENT.
4. ADMINISTERING AGENCY will permit access to the records of employment, employment
advertisements, application forms, and other pertinent data and records by STATE, the State Fair
Employment and Housing Commission, or any other agency of the State of California designated
by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment
section of this Agreement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred
upon receipt of a final judgment to that effect from a court in an action to which ADMINISTERING
AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing
Commission that it has investigated and determined that ADMINISTERING AGENCY has violated
the Fair Employment Practices Act and had issued an order under Labor Code Section 1426
which has become final or has obtained an injunction under Labor Code Section 1429.
Page 17 of 26
(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate
this Agreement either in whole or in part, and any loss or damage sustained by STATE in securir
the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY an,
by the surety under the performance bond, if any, and STATE may deduct from any moneys due
or thereafter may become due to ADMINISTERING AGENCY, the difference between the price
named in the Agreement and the actual cost thereof to STATE to cure ADMINISTERING
AGENCY's breach of this Agreement.
Page 18 of 26
EXHIBIT B
NONDISCRIMINATION ASSURANCES
ADMINISTERING AGENCY HEREBY AGREES THAT, as a condition to receiving any federal
financial assistance from the STATE, acting for the U.S. Department of Transportation, it will
comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C.
2000d-4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title
49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, "Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964" (hereinafter referred to as
the REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the
end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in
the United States shall, on the grounds of race, color, sex, national origin, religion, age or
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination under any program or activity for which ADMINISTERING AGENCY receives
federal financial assistance from the Federal Department of Transportation. ADMINISTERING
AGENCY HEREBY GIVES ASSURANCE THAT ADMINISTERING AGENCY will promptly take
any measures necessary to effectuate this agreement. This assurance is required by subsection
21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the above general assurance, ADMINISTERING AGENCY
hereby gives the following specific assurances with respect to its federal-aid Program:
1. That ADMINISTERING AGENCY agrees that each "program" and each "facility" as defined in
subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "program")
conducted, or will be (with regard to a "facility") operated in compliance with all requirements
imposed by, or pursuant to, the REGULATIONS.
a
2. That ADMINISTERING AGENCY shall insert the following notification in all solicitations for bids
for work or material subject to the REGULATIONS made in connection with the federal-aid
Program and, in adapted form, in all proposals for negotiated agreements:
ADMINISTERING AGENCY hereby notifies all bidders that it will affirmatively insure that in any
agreement entered into pursuant to this advertisement, minority business enterprises will be
afforded full opportunity to submit bids in response to this invitation and will not be discriminated
against on the grounds of race, color, sex, national origin, religion, age, or disability in
consideration for an award.
3. That ADMINISTERING AGENCY shall insert the clauses of Appendix A of this assurance in
every agreement subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with
the land, in any deed effecting a transfer of real property, structures, or improvements thereon, or
interest therein.
Page 19 of 26
5. That where ADMINISTERING AGENCY receives federal financial assistance to construct a
facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated
connection therewith.
6. That where ADMINISTERING AGENCY receives federal financial assistance in the form, or for
the acquisition, of real property or an interest in real property, the Assurance shall extend to rights
to space on, over, or under such property.
7. That ADMINISTERING AGENCY shall include the appropriate clauses set forth in Appendix C
and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits,
licenses, and similar agreements entered into by the ADMINISTERING AGENCY with other
parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal-aid
Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquired, or
improved under the federal-aid Program.
8. That this assurance obligates ADMINISTERING AGENCY for the period during which feder
financial assistance is extended to the program, except where the federal financial assistance is to
provide, or is in the form of, personal property or real property or interest therein, or structures, or
improvements thereon, in which case the assurance obligates ADMINISTERING AGENCY or any
transferee for the longer of the following periods:
(a) the period during which the property is used for a purpose for which the federal financial
assistance is extended, or for another purpose involving the provision of similar services or
benefits; or
(b) the period during which ADMINISTERING AGENCY retains ownership or possession of the
property.
9. That ADMINISTERING AGENCY shall provide for such methods of administration for the
program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates
specific authority, to give reasonable guarantee that ADMINISTERING AGENCY, other recipients,
sub-grantees, applicants, sub-applicants, transferees, successors in interest, and other
participants of federal financial assistance under such program will comply with all requirements
imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement.
10. That ADMINISTERING AGENCY agrees that the United States and the State of California
have a right to seek judicial enforcement with regard to any matter arising under the ACT, th,
REGULATIONS, and this Assurance.
Page 20 of 26
11. ADMINISTERING AGENCY shall not discriminate on the basis of race, religion, age, disability,
color, national origin or sex in the award and performance of any STATE assisted contract or in
the administration on its DBE Program or the requirements of 49 CFR Part 26. ADMINISTERING
AGENCY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non
discrimination in the award and administration of STATE assisted contracts. ADMINISTERING
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 recipient of its
failure to carry out its approved DBE Race-Neutral Implementation Agreement, STATE may
impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the
matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1985
(31 USC 3801 es seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and all
federal grants, loans, agreements, property, discounts or other federal financial assistance
extended after the date hereof to ADMINISTERING AGENCY by STATE, acting for the U.S.
Department of Transportation, and is binding on ADMINISTERING AGENCY, other recipients,
subgrantees, applicants, sub-applicants, transferees, successors in interest and other participants
in the federal-aid Highway Program.
F
Page 21 of 26
APPENDIX A TO EXHIBIT B
During the performance of this Agreement, ADMINISTERING AGENCY, for itself, its assigne,-
and successors in interest (hereinafter collectively referred to as ADMINISTERING AGENCY)
agrees as follows:
(1) Compliance with Regulations: ADMINISTERING AGENCY shall comply with the regulations
relative to nondiscrimination in federally assisted programs of the Department of Transportation,
Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time,
(hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and
made a part of this agreement.
(2) Nondiscrimination: ADMINISTERING AGENCY, with regard to the work performed by it during
the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin,
religion, age, or disability in the selection and retention of sub-applicants, including procurements
of materials and leases of equipment. ADMINISTERING AGENCY shall not participate either
directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS,
including employment practices when the agreement covers a program set forth in Appendix B of
the REGULATIONS.
(3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all
solicitations either by competitive bidding or negotiation made by ADMINISTERING AGENCY for
work to be performed under a Sub-agreement, including procurements of materials or leases of
equipment, each potential sub-applicant or supplier shall be notified by ADMINISTERIN(
AGENCY of the ADMINISTERING AGENCY's obligations under this Agreement and the
REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin.
(4) Information and Reports: ADMINISTERING AGENCY shall provide all information and reports
required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to
ADMINISTERING AGENCY's books, records, accounts, other sources of information, and its
facilities as may be d9termined by STATE or FHWA to be pertinent to ascertain compliance with
such REGULATIONS or directives. Where any information required of ADMINISTERING
AGENCY is in the exclusive possession of another who fails or refuses to furnish this information,
ADMINISTERING AGENCY shall so certify to STATE or the FHWA as appropriate, and shall set
forth what efforts ADMINISTERING AGENCY has made to obtain the information.
(5) Sanctions for Noncompliance: In the event of ADMINISTERING AGENCY's noncompliance
with the nondiscrimination provisions of this agreement, STATE shall impose such agreement
sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to ADMINISTERING AGENCY under the Agreement within a
reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part.
Page 22 of 26
(6) Incorporation of Provisions: ADMINISTERING AGENCY shall include the provisions of
paragraphs (1) through (6) in every sub-agreement, including procurements of materials and
leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto.
ADMINISTERING AGENCY shall take such action with respect to any sub-agreement or
procurement as STATE or FHWA may direct as a means of enforcing such provisions including
sanctions for noncompliance, provided, however, that, in the event ADMINISTERING AGENCY
becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of
such direction, ADMINISTERING AGENCY may request STATE enter into such litigation to
protect the interests of STATE, and, in addition, ADMINISTERING AGENCY may request the
United States to enter into such litigation to protect the interests of the United States.
a
Page 23 of 26
APPENDIX B TO EXHIBIT B
The following clauses shall be included in any and all deeds effecting or recording the transfer of
PROJECT real property, structures or improvements thereon, or interest therein from the United
States.
(GRANTING CLAUSE)
NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the
condition that ADMINISTERING AGENCY will accept title to the lands and maintain the project
constructed thereon, in accordance with Title 23, United States Code, the Regulations for the
Administration of federal-aid for Highways and the policies and procedures prescribed by the
Federal Highway Administration of the Department of Transportation and, also in accordance with
and in compliance with the Regulations pertaining to and effectuating the provisions of Title VI of
the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise,
release, quitclaim and convey unto the ADMINISTERING AGENCY all the right, title, and interest
of the U.S. Department of Transportation in, and to, said lands described in Exhibit "A" attached
hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto ADMINISTERING AGENCY and
its successors forever, subject, however, to the covenant, conditions, restrictions and reservations
herein contained as follows, which will remain in effect for the period during which the real
property or structures are used for a purpose for which federal financial assistance is extended or
for another purpose involving the provision of similar services or benefits and shall be binding on
ADMINISTERING AGENCY, its successors and assigns.
ADMINISTERING AGENCY, in consideration of the conveyance of said lands and interests in
lands, does hereby covenant and agree as a covenant running with the land for itself, its
successors and assigns,
(1) that no person shall on the grounds of race, color, sex, national origin, religion, age or
disability, be excludedrom participation in, be denied the benefits of, or be otherwise subjected to
discrimination with regard to any facility located wholly or in part on, over, or under such lands
hereby conveyed (and) *
(2) that ADMINISTERING AGENCY shall use the lands and interests in lands so conveyed, in
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in
federally-assisted programs of the Department of Transportation - Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be amended and
(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the
U.S. Department of Transportation shall have a right to re-enter said lands and facilities on said
land, and the above-described land and facilities shall thereon revert to and vest in and become
the absolute property of the U.S. Department of Transportation and its assigns as such interest
existed prior to this deed.*
* Reverter clause and related language to be used only when it is determined that such a clause is
Page 24 of 26
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964
APPENDIX C TO EXHIBIT B
The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar
instruments entered into by ADMINISTERING AGENCY, pursuant to the provisions of Assurance
7(a) of Exhibit B.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal
representatives, successors in interest, and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds and leases add "as covenant running with the
land") that in the event facilities are constructed, maintained, or otherwise operated on the said
property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation program or activity is extended or for another purpose involving the
provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall
maintain and operate such facilities and services in compliance with all other requirements
imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation,
Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally-assisted programs of the
Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said
Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter and
repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit,
etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have'the right to re-enter said land and facilities thereon, and the above-
described lands and facilities shall thereupon revert to and vest in and become the absolute
property of ADMINISTERING AGENCY and its assigns.
Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
Page 25 of 26
APPENDIX D TO EXHIBIT B
The following shall be included in all deeds, licenses, leases, permits, or similar agreements
entered into by the ADMINISTERING AGENCY, pursuant to the provisions of Assurance 7 (b) of
Exhibit B.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal
representatives, successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the
land") that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be
excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in
the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishing of
services thereon, no person on the ground of race, color, sex, national origin, religion, age or
disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected
to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with
the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and
repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit,
etc.) had never been made or issued.
I
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTERING
AGENCY shall have the right to re-enter said land and facilities thereon, and the above-
described lands and facilities shall thereupon revert to and vest in and become the absolute
property of ADMINISTERING AGENCY, and its assigns.
* Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
Page 26 of 26