07-134, Master agrmt. for federal-aid projects
MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREEMENT FOR
FEDERAL-AID PROJECTS
04 City of Cupertino
District Administering Agency
Agreement No. 04-5318R
Z 7 ;itl /11_ J I
This AGREEMENT, is entered into effective this ) day of lfl totJ-e-( , 2007, by and
between the City of Cupertino, 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:
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ARTICLE 1- 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 anyon-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),
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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.
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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,
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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,
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Part 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,
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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.
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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 anyon-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).
1 O. 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.
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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 FHWA
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,
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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.
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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.
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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,
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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.
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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
AGR~EMENT.
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 PROJ ECT 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 TRANSPORTATION
By 10~ L-if
Ci~ S)JO
By.. . ~~^('
V~~~
\
City of Cupertino
Representative Name & Title
(Authorized Governing Body Representative)
f7 Chief, Office of Project Implementation
Division of Local Assistance
Date
ic /~3/o"7
I I
Date (0.;8. D '1
Page 16 of 26
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 AGENCY 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 securing
the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY and
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.
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 in
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 federal
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, the
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.
Page 21 of 26
APPENDIX A TO EXHIBIT B
During the performance of this Agreement, ADMINISTERING AGENCY, for itself, its assignees
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 ADMINISTERING
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 determined 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.
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 ongln, religion, age or
disability, be excluded from 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
nece~sary 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 aU,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.
(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
RESOLUTION NO. 07-162
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE ALL MASTER
AGREEMENTS, PROGRAM SUPPLEMENTAL AGREEMENTS, FUND TRANSFER
AGREEMENTS, AND ANY AMENDMENTS THERETO WITH THE CALIFORNIA
DEPARTMENT OF TRANSPORTATION
WHEREAS, the City of Cupertino is eligible to receive Federal and/or State funding for
certain Transportation Projects, through the California Department of Transportation; and
WHEREAS, Master Agreements, Program Supplemental Agreements, Fund Exchange
Agreements and/or Fund Transfer Agreements need to be executed with the California
Department of Transportation before such funds could be claimed; and
WHEREAS, the City of Cupertino wishes to delegate the authority to execute these
agreements and any amendments thereto to the City Manager.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby authorizes the City Manager to execute all Master Agreements, Program Supplemental
Agreements, Fund Exchange Agreements and/or Fund Transfer Agreements and any
amendments thereto with the California Department of Transportation.
BE IT FURTHER RESOLVED that the City Manager, or the City Manager's designee, is
authorized, on behalf of the City of Cupertino, to execute and submit all documents, payment
requests, and related actions, as well as to accept and appropriate any additional funds received
as a result of carrying out the terms of the aforementioned agreements and amendments thereto,
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of September 2007 by the following vote:
Vote Members of the ~ity Council
ATTEST:
APPROVED:
THIS IS TO CERTIFY THAT THE WITHIN
INSTRUMENT IS A TRUE AND CORRECT COpy
OF THE ORI INA~ ON FILE IN THIS OFFICE
ATTEST C+ , ~ 2otJ'1
CITY C OF CI OF CUPERTINO
BY ~:/ {
CITY CLERK
AYES:
NOES:
ABSENT:
ABSTAIN:
Wang, Lowenthal, Mahoney, Sandoval
None
None
None
Is/Kimberly Smith
Is/Kris Wang
City Clerk
Mayor, City of Cupertino