97-028 CalTrans Master Agreement 04-5318 Federal Aid ProjectsSTATE OF CALIFORNIA • BUSINESS, TRANSPORTATION AND HOUSING AGENCY PETE WILSON, Govemor
DEPARTMENT OF TRANSPORTATION
DESIGN AND LOCAL PROGRAMS
1120 N Street
P. 0. Box 942874, MS #1
Sacramento, CA 94274-0001
TDD (916) 654-4014
(916)654-3151 PUBLIC WOR! -/,,q
Fax (916) 6542409
April 9, 1997
Mr. Bert Viscovich
Director of Public Works
P 0 Box 580
Cupertino, CA 95015
Dear Mr. Viscovich:
File: 04-SCL-0-CPO
Enclosed are two originals of the updated Administering Agency -State Master Agreement
No. 04 - 5318 covering the general requirements of all federal -aid projects relative to the
prosecution of projects and the maintenance of the completed facilities. This master
agreement has been modified to reflect the new provisions of the Intermodal Surface
Transportation Efficiency Act (ISTEA) and the reengineered Local Assistance procedures.
We are requesting that all agencies sign this latest version.
Please sign both copies of this Agreement and return them to this office, Office of
Local Programs - MSL Alterations should not be made to the agreement language. Attach
your local agency's certified authorizing resolution that identifies the official authorized to
execute the agreement. A fully executed copy of the agreement will be returned to you upon
ratification by Caltrans.
Sincerely,
HERB REINL
14r Office of Local Programs
Enclosure Project Implementation
cc: OLP AE project files
DLAE - 04
MASTER AGREEMENT
ADMINISTERING AGENCY -STATE AGREEMENT
FOR
FEDERAL -AID PROJECTS
04 City of Cupertino
District Administering Agency
Agreement No. 5318
This AGREEMENT, made effective this 91 day of
/,�� G� , 1997, is by and between
the City of Cupertino, hereinafter referred to as "ADMINISTERING and the State of
California, acting by and through the California Department of Transportation (Caltrans), hereinafter
referred to as "STATE."
WITNESSETH:
WHEREAS, the Congress of the United States has enacted the Intermodal Surface Transportation
Efficiency Act of 1991 to fund programs which include, but are not limited to, the Surface Transportation
Program (RSTP), the Congestion Mitigation and Air Quality Improvement Program (CMAQ), the
Transportation Enhancement Activities Program (TEA), and the Bridge Replacement and Rehabilitation
Program (HBRR) (collectively the "Programs"); and
WHEREAS, the Legislature of the State of California has enacted legislation by which certain
Federal funds (RSTP and CMAQ) may be made available for use on local transportation facilities of public
entities qualified to act as recipients of these federal funds in accordance with the intent of Federal law; and
WHEREAS, before Federal -aid will be made available for a specific Program project,
ADMINISTERING AGENCY and STATE are required to enter into an agreement relative to prosecution
of said project and maintenance of the completed facility.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I - PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any Program project
unless and until a project -specific Program Supplement to this AGREEMENT for Federal -aid Projects,
hereinafter referred to as "PROGRAM SUPPLEMENT," has been executed.
2. The term "PROJECT," as used herein, means that authorized project financed in part with
Federal funds as further described in an "Authorization to Proceed" document executed by STATE, in the
subsequent specific PROGRAM SUPPLEMENT, and in a Federal -aid Project Agreement (PR -2).
3. The Financial 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.
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4. ADMINISTERING AGENCY further agrees, as a condition to payment of funds obligated
to a PROJECT, to comply with all the agreed-upon Special Covenants or Remarks attached to the
PROGRAM SUPPLEMENT identifying and defining the nature of the specific PROJECT.
5. The PROGRAM SUPPLEMENT shall designate the party responsible for implementing
the various phases of the PROJECT, the Federal funds requested, and the matching funds to be provided
by ADMINISTERING AGENCY and/or STATE. Adoption of the PROGRAM SUPPLEMENT by
ADMINISTERING AGENCY and approval by STATE shall cause such PROGRAM SUPPLEMENT to
be executed and be a part of this AGREEMENT as though fully set forth herein. Unless otherwise
expressly delegated in a resolution by the ADMINISTERING AGENCY's governing body, the
PROGRAM SUPPLEMENT shall be approved and managed by the ADMINISTERING AGENCY's
governing body.
6. ADMINISTERING AGENCY shall conform to all State statutes, regulations and
procedures (including those set forth in LPP 95-07, "Reengineering," and subsequent approved revisions
and Local Programs Manual updates, hereafter referred to as REENGINEERED PROCEDURES) relating
to the Federal -aid Program, all Title 23 Federal requirements, and all applicable Federal laws, regulations,
and policy and procedural or instructional memoranda, unless otherwise designated in the approved
PROGRAM SUPPLEMENT.
7. If PROJECT involves work on the State highway system, it shall also be the subject of a
separate standard form of encroachment permit and, where appropriate, a cooperative agreement between
STATE and ADMINISTERING AGENCY to determine how the PROJECT is to be constructed.
8. If PROJECT is not on STATE -owned right of way, PROJECT shall be constructed in
accordance with REENGINEERED PROCEDURES. The REENGINEERED PROCEDURES describe
minimum statewide design standards for local agency streets and roads. The REENGINEERED
PROCEDURES for projects off the National Highway System (NHS) allow the STATE to accept either
the minimum statewide design standards or ADMINISTERING AGENCY -approved geometric design
standards. Also, for projects off the NHS, STATE will accept ADMINISTERING AGENCY -approved
standard specifications, standard plans, and materials sampling and testing quality assurance programs that
meet the conditions described in the REENGINEERED PROCEDURES.
9. When PROJECT is not on the State highway system but includes work to be performed by
a railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY or by STATE,
as the parties may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an
agreement with the railroad providing for future maintenance of protective devices or other facilities
installed under the contract.
10. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and
inspection of each PROJECT. As provided in.the REENGINEERED PROCEDURES, work may be
performed by a consultant(s), provided a fully qualified and licensed employee of ADMINISTERING
AGENCY is in responsible charge.
11. The Congress of the United States, the Legislature of the State of California, and the
Governor of the State of California, each within their respective jurisdiction, have prescribed certain
employment practices with respect to work financed with Federal or State funds. ADMINISTERING
AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES
ADDENDUM (Exhibit A attached hereto) whenever State funds finance part of the PROJECT, and the
NONDISCRIMINATION ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGENCY
further agrees that any agreement entered into by ADMINISTERING AGENCY with a third party for
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performance of work connected with the PROJECT shall incorporate Exhibits A (whenever State funds
finance part of the PROJECT) and Exhibit B (with third party's name replacing ADMINISTERING
AGENCY) as parts of such agreement.
ARTICLE 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 free and clear of obstructions and encumbrances affecting PROJECT and the payment, as
required by applicable law, of damages to real property not actually taken but injuriously affected by
PROJECT. ADMINISTERING AGENCY shall pay, from its own non-matching funds, any costs which
arise out of delays to the construction of the PROJECT because utility facilities have not been removed or
relocated, or because rights of way have not been made available to ADMINISTERING AGENCY for the
orderly prosecution of PROJECT work.
3. Subject to STATE approval and such supervision as is required in REENGINEERED
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedures,
ADMINISTERING AGENCY may claim reimbursement from Federal funds for expenditures to purchase
only necessary rights of way included in PROJECT after crediting PROJECT with the fair market value of
any excess property retained and not disposed of by ADMINISTERING AGENCY.
4. When real 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 acquiring right of way for PROJECT, displace an individual, family, business, farm
operation, or non-profit organization, relocation payments and services will be provided as set forth in
Chapter 5 of Title 23, U.S. Code. The public will be adequately informed of the relocation payments and
services which will be available, and, to the greatest extent practicable, no person lawfully occupying real
property shall be required to move from his/her dwelling or to move his/her business or farm operation
without at least 90 -days written notice from ADMINISTERING AGENCY. ADMINISTERING
AGENCY will provide STATE with specific assurances, on each portion of the PROJECT, that no person
will be displaced until comparable decent, safe and sanitary replacement housing is available within a
reasonable period of time prior to displacement, and that ADMINISTERING AGENCY's relocation
program is realistic and adequate to provide orderly, timely and efficient relocation of displaced persons
for the PROJECT as provided in Federal Highway Programs Manual (FHPM 7-5).
6. In all real property transactions acquired for the PROJECT, following recordation of the
deed or such other recorded instrument evidencing title in the name of the ADMINISTERING AGENCY
or their assignee, there shall also be recorded a separate document which is an "Agreement Declaring
Restrictive Covenants." Said Agreement Declaring Restrictive Covenants will incorporate the assurances
included within Exhibits A and B and Appendices A, B, C and D, as appropriate, when executed by
ADMINISTERING AGENCY.
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ARTICLE III - MANAGEMENT AND MAINTENANCE OF PROPERTY
1. ADMINISTERING AGENCY will maintain and operate the PROJECT property acquired,
developed, rehabilitated, or restored for its intended public use until such time as the parties might amend
this AGREEMENT to otherwise provide. With the approval of STATE, ADMINISTERING AGENCY or
its successors in interest in the property may transfer this obligation and responsibility to maintain and
operate the property to another public entity.
2. Upon ADMINISTERING AGENCY acceptance of the completed Federal -aid construction
contract or upon contractor being relieved of the responsibility for maintaining and protecting a portion of
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 90 days
after receipt of notice from STATE that a PROJECT, or any portion thereof, under ADMINISTERING
AGENCY's jurisdiction is not being properly maintained and ADMINISTERING AGENCY has not
satisfactorily remedied the conditions complained of, the approval of future Federal -aid projects of
ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of
maintenance satisfactory to STATE and the Federal Highway Administration. The provisions of this
section shall not apply to a PROJECT which has been vacated through due process of law.
3. The maintenance referred to in paragraph 2, above, includes not only the physical condition
of the PROJECT but its operation as well. PROJECT shall be maintained by an adequate and well-trained
staff of engineers and/or such other professionals and technicians as the project requires. Said
maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or a
contractor under agreement with ADMINISTERING AGENCY. All maintenance will be performed at
regular intervals or as required for efficient operation of the complete PROJECT improvements.
ARTICLE IV - FISCAL PROVISIONS
1. The PROJECT, or portions thereof, must be included in a Federally -approved Statewide
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submittal of the
"Request for Authorization."
2. State and Federal funds will not participate in 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. ADMINISTERING AGENCY may submit invoices in arrears for reimbursement of
participating PROJECT costs on a monthly or quarterly progress basis once the PROJECT PROGRAM
SUPPLEMENT has been executed by STATE and the PR -2 has been executed by FHWA. The total of all
amounts claimed, plus any required matching funds, must not exceed the actual total allowable costs of all
completed engineering work, right of way acquisition, and construction.
4. Invoices shall be submitted on ADMINISTERING AGENCY letterhead and shall include
this AGREEMENT number, Federal -aid project number, and Progress billing number for the PROJECT,
and shall be in accordance with REENGINEERED PROCEDURES.
5. The estimated total cost of PROJECT, the amounts of Federal -aid programmed, and the
matching amounts agreed upon may be adjusted by mutual consent of the parties hereto in a Finance
Letter/Detail Estimate and a PR -2 document which are to be considered as part of this AGREEMENT.
Federal -aid program amounts may be increased to cover PROJECT cost increases only if such funds are
available and FHWA concurs with that increase.
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6. When additional federal -aid funds are not available, the ADMINISTERING AGENCY
agrees that the payment of Federal funds will be limited to the amounts approved by the PR -2, or its
modification (PR -2A), and agrees that any increases in PROJECT costs must be defrayed with
ADMINISTERING AGENCY funds.
7. ADMINISTERING AGENCY shall use its own nonfederal -aid funds to finance the local
share of eligible costs and all expenditures ruled ineligible for financing with Federal funds. STATE shall
make the determination of ADMINISTERING AGENCY cost eligibility for Federal fund financing.
8. Any overpayment to ADMINISTERING AGENCY of amounts invoiced shall be returned
to STATE by ADMINISTERING AGENCY upon written demand.
9. Should ADMINISTERING AGENCY fail to refund all moneys due STATE as provided
hereunder or should ADMINISTERING AGENCY breach this Agreement by failing to complete
PROJECT, then, within 30 days of demand, or within such other period as may be agreed to in writing
between the parties hereto, STATE, acting through the State Controller, the State Treasurer, or any other
public agency, may withhold or demand a transfer of an amount equal to the amount owed to STATE from
future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users
Tax Fund or any other funds and/or may withhold approval of future ADMINISTERING AGENCY
Federal -aid projects.
10. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or
otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint
powers authority, special district, or any other public entity not directly receiving funds through the State
Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are available,
including the withholding or transfer of funds, pursuant to Article IV - 9, from those constituent entities
comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY or
its constituent member entities, to recover all funds provided by STATE hereunder.
ARTICLE V - RETENTION OF RECORDS/AUDITS
1. For the purpose of determining compliance with Public Contract Code Section 10115, et.
seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et, seq., when applicable, and
other matters connected with the performance of the Agreement pursuant to Government Code
Section 10532, ADMINISTERING AGENCY and any third party under contract with ADMINISTERING
AGENCY shall retain all original records to the project financed with Federal funds and shall make records
available upon request by Federal and State representatives. Following final settlement of the project costs
with FHWA the records/documents may be microfilmed by the ADMINISTERING AGENCY, but in any
event shall be retained for a period of three years from STATE payment of the final voucher, or a four-year
period from the date of the final payment under the contract, whichever is longer. ADMINISTERING
AGENCY shall retain records/documents longer if required in writing by STATE.
2. Per the Single Audit Act of 1984, any ADMINISTERING AGENCY that receives
$100,000.00 or more per fiscal year in Federal Financial Assistance shall have an audit performed by an
independent audit firm per the Single Audit Act - (see OMB -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:
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A. No STATE or Federal appropriated funds have been paid or will be paid, by or on
behalf of ADMINISTERING AGENCY, to any person for influencing or attempting to influence an
officer or employee of any STATE or Federal agency, a Member of the State Legislature or United States
Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the
Legislature or Congress in connection with the awarding of any STATE or Federal contract including this
Agreement, the making of any STATE or Federal loan, the entering into of any cooperative contract, and
the extension, continuation, renewal, amendment, or modification of any STATE or Federal contract,
grant, loan, or cooperative contract.
B . If any funds other than Federal appropriated funds have been paid, or will be paid,
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 was made or entered into. Submission of this certification is a prerequisite for
making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code. Any party who
fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
2. ADMINISTERING AGENCY also agrees by signing this document that the language of
this certification will be included in all lower tier sub -agreements which exceed $100,000 and that all such
sub -recipients shall certify and disclose accordingly.
ARTICLE VII - MISCELLANEOUS PROVISIONS
1. Neither STATE nor any officer or employee thereof shall be responsible for any damage or
liability occurring by reason of anything done, or omitted to be done, by ADMINISTERING AGENCY
under, or in connection with, any work, authority or jurisdiction delegated to ADMINISTERING
AGENCY under this AGREEMENT. It is understood and agreed that, pursuant to Government Code
Section 895.4, ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE,
its officers, and employees from all claims, suits or actions of every name; kind and description brought
for, or on account of, injury (as defined in Government Code Section 810.8) occurring by reason of
anything done, or omitted to be done, by ADMINISTERING AGENCY under, or in connection with, any
work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. STATE
reserves the right to represent itself in any litigation in which STATE's interests are at stake.
2. Neither ADMINISTERING AGENCY nor any officer or employee thereof, shall be
responsible for any damage or liability occurring by reason of anything done, or omitted to be done, by
STATE under, or in connection, with any work, authority, or jurisdiction delegated to STATE under this
AGREEMENT. It is also understood and agreed that, pursuant to Government Code Section 895.4,
STATE shall fully indemnify and hold ADMINISTERING AGENCY harmless from any liability imposed
for injury (as defined by Government Code Section 810.8) occurring by reason of anything done, or
omitted to be done, by STATE under, or in connection with, any work, authority, or jurisdiction delegated
to STATE under this Agreement. ADMINISTERING AGENCY reserves the right to represent itself in
any litigation in which ADMINISTERING AGENCY's interests are at stake.
3. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING
AGENCY, when engaged in the performance of this Agreement, shall act in an independent capacity and
not as officers, employees or agents of STATE.
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4. STATE may terminate this AGREEMENT with ADMINISTERING AGENCY should
ADMINISTERING AGENCY fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, STATE may proceed with the PROJECT work in any
manner deemed proper by STATE. If STATE terminates this AGREEMENT with ADMINISTERING
AGENCY, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY
under this AGREEMENT prior to termination, provided, however, that the cost of PROJECT completion
to STATE shall first be deducted from any sum due ADMINISTERING AGENCY under this
AGREEMENT, and the balance, if any, shall then be paid ADMINISTERING AGENCY upon demand.
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 AGENCY shall also list current contractors who may have a financial interest in the
outcome of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not now have nor shall it
acquire any financial or business interest that would conflict with the performance of PROJECT under this
AGREEMENT.
11. ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or
secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE
employee. For breach or violation of this warranty, STATE shall have the right, in its discretion, to
terminate this AGREEMENT without liability, to pay only for the work actually performed, or to deduct
from the PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate, kickback,
or other unlawful consideration.
12. This Agreement is subject to any additional restrictions, limitations, conditions, or any
statute enacted by the State Legislature that may affect the provisions, terms, or funding of this
AGREEMENT in any manner.
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ARTICLE VIII - TERMINATION OF AGREEMENT
1. This Agreement and any PROGRAM SUPPLEMENT(s) executed under this
AGREEMENT shall terminate upon 60 days' prior written notice by STATE.
2. Each separate PROGRAM SUPPLEMENT shall separately establish the term and funding
limits for each described PROJECT funded under this Federal -aid program. No STATE or FHWA funds
are obligated against this AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized
officers.
STATE OF CALIFORNIA CITY OF CUPERTINO
DEPARTMENT OF TRANSPORTATION
By.
Chief, Office of Local Programs
Project Implementation
Date /— -F-f �
'Mayor, City of Cupertino
ADMINISTERING AGENCY
Representative Name &. Tiile
(Authorized Governing Body Representative)
Date May 28, 1997
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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, religion, ancestry or national origin.
ADMINISTERING AGENCY will take affirmative action to ensure that employees are treated during
employment, without regard to their race, sex, actual or perceived sexual orientation, color, religion,
ancestry, or national origin. 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 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.
3. 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 Employ-
ment 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.
(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 bome
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.
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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.
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.
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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 of 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.
THIS ASSURANCE is 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.
11 11/29/95
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 until
ADMINISTERING AGENCY complies; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part.
(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.
12 11/29/95
APPENDIX B TO EXHIBIT B
The following clauses shall be included in any and all deeds effecting or recording the tran$fer 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 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
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
13 11/29/95
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.
14 11/29/95
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.
15 11/29/95
RESOLUTION NO. 9841
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF ADMINISTERING AGENCY -STATE
MASTER AGREEMENT NO. 04-5318 FOR FEDERAL -AID PROJECTS
BETWEEN THE STATE OF CALIFORNIA DEPARTMENT OF
TRANSPORTATION AND THE CITY OF CUPERTINO
WHEREAS, there has been presented to the City Council an Administering Agency -State
Master Agreement No. 04-5318 covering the general requirements of all federal -aid projects
relative to prosecution of projects and the maintenance of the completed facilities; and
WHEREAS, the proposed master agreement has been modified to reflect the new
provisions of the Intermodal Surface Transportation Efficiency Act (ISTEA) and the re-
engineered Local Assistance procedure; and
WHEREAS, all agencies are requested to execute the latest version; and
WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have
been reviewed and approved by the City Attorney and the Director of Public Works.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby approves the subject agreement and authorizes the Mayor and the City Clerk to execute
said agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 19th day of May, 1997, by the following vote:
Vote Members of the Ciit Council
AYES: Burnett, Chang, Dean, Sorensen, Bautista
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Roberta Wolfe /s/ John Bautista
Dep. City Clerk Mayor, City of Cupertino