01-114 California Department of Transportation, Master agreement Administering Agency - State Agreement for state funded projects, Agreement No. 000317
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MASTER AGREEMENT
ADMINISTERING AGENCY - STATE AGRE~MEN(;ONFCH~ViEl)
STA TE FU~~~ PROJECTS C.Opy
District 04
Agreement No; 000317
City of CupeJ"tino
. Adminstering Agency
TillS AGREElvIENT, made effective this 11th day of April, 2001, is 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, hereinafter referred to as
'STATE.'
WITNESSETH
WHEREAS, the Legislature of the State of California has 'enacted legislation by which
certain State funds are made available for use On local transportation facilities; and
WHEREAS, ADlVJlNISTERING AGENCY has applied to the California Transportation
Conunission (CTC) and/or STATE for funding from the STAlE Transportation Improvement
Program (STIP), or other programs, as defined in the Local Assistance Program Guidelines for
use on local transportation facilities as local administered PROJECT(s), hereinafter referred to as
"PROJECT"; and
WHEREAS, said PROJECT wilI not receive any federal funds; and
WHEREAS, STATE is willing to enter into an AGREEMENf with AD1illNISTERING
AGENCY to delineate those certain obligations placed upon ADMINISTERING AGENCY
relative to, the use of said State funding and the prosecution of said PROJECT by
ADMINISlERING AGENCY.
. NOW. THEREFORE. the parties agree as follows:
ARTICLE I - PROJECT AD1'v1INISlRA TION
1. This AGREEMENT shall have no force or effect with respect to any programmed project
unless and until a PROJECT-specific program supplemem, adopting all of the tenus. and
conditions of this AGREEMENT, hereinafter referred to as "PROGRAM SUPPLEMENT:' has
been fuHy executed by the parties.
2_ A Financial commitment of state funds will OCcur only fOlloWing the execution of this
AGREEMENT together with the subsequent execution of ea~h applicable PROGRAM
SUPPLEMENT.
3. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of
State funds encumbered to the PROJEcr described in the PROGRAM SuPPLEMENT to '
comply with the.terms of this AGREEMENT and all of the agreed-upon Special Covenants an'd
Fi~st Paragraph 2001
THIS AGREEMENT~ made effective this
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Conditions attached to or made a part of the PROGRAM SUPPLEMENT, identIfying and
defining the nature of that specific PROJECT.
4_ The PROGRAM SUPPLEMENT shall designate the ADMINISTERING AGENCY
responsible for implementing the various phases of the PROJECT, the State funding program,
and the matching funds to be provided by ADl\fiNISTERING AGENCY and/or others_
Adoption and execution of the PROGRAM SuPPLEMENT by AD:MlNISTERING AGENCY
and STATE, incorporating the terms and conditions of this AGREEMENT into the PROGRAM
SUPPLEMENT as though fulIy set forth therein, shall be sufficient to bind the
ADl\1lNISTERlNG AGENCY to these terms and conditions when performing the PROJECT_
Unless otherwise expressly delegated in a resolution by the ADMINISTERING AGENCY'S
governing body and concurred in by STATE, the PROGRAM SUPPLE1v.1ENT shall be managed
by the ADMINISTERING AGENCY's governing body.
5. PROJECT shall be acquired, designed, and constructed. (a) as required in the Local
Assistance Program Guidelines, (b) such other STAlE procedures as are identified in the
PROGRAM SUPPLEMENT, and (c) as is specified in this AGREEMENT.
6. Unless otherwise provided in the PROGRAM SUPPLEMENT, the ADMINISlERlNG
AGENCY shall adveltise, award. and administer the PROJECT construction contract or
contracts.
7. The estimated cost and scope of PROJECT wilI be as described in the PROGRAM
SUPPLEMENT and STAlE funding participation is limited to the amounts established by
STATE. A contract awarded by ADMINISTRATING AGENCY for an amount in ex.cess of said
approved estimate may exceed said PROGRAM SUPPLEMENT cost estimate provided (a)
ADMINISTERING AGENCY provides the necessary additional funding or (b) a PROJEcr cost
increase in State funding is first requested by ADMINISTERING AGENCY,and is approved by
STATE in the form of an amended PROGRAM SUPPLErvIENT Or a STATE approved
encumbrance documet:lt adding (or deleting) PROJECT funds.
8. Subsequent to the inclusion of the PROJECT in a plan or program approved by STATE
and the ADMINISTERING AGENCY entering into this AGREEMENT and the PROGRAM
SUPPLEMENT, the ADMINISTERlNG AGENCY may request and receive payment for eligible
work as follows:
(a) STATE will reimburse the STAlE's share of eligible participating PROJECT costs
monthly in arrears upon ADMINISTERING AGENCY's submittal of signed acceptable monthly
progress pay invoices (in duplicate) for expenditures actually made by AD1vIINISTERING
AGENCY.
(b) If PROJECT involves work on the STATE highway system, that PROJECT shall also
be the subject. of separate standard forms of STATE encroachment permits issued to'
ADMINISTERING AGENCY and any contractors and, where appropriate, an executed
cooperative agreement between STATE and AD.MINISTERING AGENCY to determine how .
PROJECT is to be acquired, designed, or constructed and to establish ownership and future
maintenance obligations. ,
..
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(c) State funds will not participate in any portion of PROJECT work petformed in
advance of either the effective date of the executed PROGRAM SUPPLE:MENT for said
PROJECT or the effective date of this AGREEl\1ENT.
9. The total of all ADMINISTERING AGENCY invoices (submitted monthly or quarterly in
arrears) for reimbursement of palticipating PROJECT costs, including all required
ADMINISTERING AGENCY matching funds, must not exceed the actual total allowable
PROJECT costs, including, but not limited to, all completed preliminary engineering work, rigfut
of way acquisition, design and construction included within the PROJECT description contained
inthe PROGRAM SUPPLElVIENT.
10. Invoices shall be submitted on ADMINISTERlNG AGENCY letterhead and shall
reference (a) this AGREE:MENT number, (b) the PROJECT title and number, (c) the progress
billing number for the PROJECT, and Cd) shall be fonnatted and costs reported in accordanc.e
with the current version of Chapter 5, "AccouritinglInvoices,''' of the Local Assistance
Procedures Manual published by STATE.
11. STATE programmed amounts may be increased to cover PROJECT cost increases only
(a) if such funds are available, (b) STAlE concurs with that proposed increase, and (c) STAlE
executes an amending PROGRAM SUPPLE11ENT or a STATE approved encumbrance
document encUmb~ring those funds.
12. When additional State funds are not available, the ADMINISTERING AGENCY agrees
that the payment of State' funds will be limited to the amounts already approved in the
PROGRAM SUPPJ.,E1v1ENT and all STATE approved encumbrance documents and that any
increases in PROJECT costs must be defrayed with ADMINIS1ERING AGENCY funds.
13. The legislature of the State of California and the Governor of the State of California, each
within their respective jurisdictions, have prescribed certain employment practices with respect
to contract and other work financed with State funds. ADMINISTERING AGENCY shall ensure
that work perfonned under this AGREEMENT is done in conformance with the rules. and .
regulations embodying such requirements where they are applicable.
14~ ADMINlSTERING AGENCY and its subcontractors shall establish and maintain an'
accounting system conforming to Generally Accepted Accounting PrinCiples (GAAP) to support.
reimbursement payment vouchers or invoices which segregate and accumulate costs of
PROJECT work elements and produce monthly reports which clearly identify reimbursable costs, .
matching costs, and otherexpendirures by AD:MlNISTERlNG AGENCY.
15. ADMINISTERING AGENCY and aU subcontractors shall comply with the Uniform
Administrative Requirements for State and Local Governments set forth in the Code of Federal
Regulations (CPR), Title 49, Part 18. In addition, the ADMINISTERING AGENCY agrees to .
comply with the cost principles and procedures set forth in Office of Management and Budget:
Circular A-87. The ADMINISTERING AGENCY agrees that a reference to either Office of .'
Management and Budget COMB) Circular A-87 or the Code of Federal Regulations, Title 48,
Chapter 1, Part 31, whichever is applicable and the code of Federal Regulations, Title 49, Part
18, will be included in any subcontracts entered into as a result of this AGREEMENT.
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16. . After completion of all wo~k under this AGREEMENT, and after all PROJECT costs are
known. ADMINISTERING AGENCY 'shall contract for a financial audit of PROJEer costs if
those costs are in excess of $300,000. This Audit, to be accomplished at the ADMlNISTERlNG
AGENCY's expense, may. be done on an individual PROJECT basis, or PROJECT may be
included in the ADMINISTERING AGENCYts anm~al Single Audit. If an individual audit of
PROJECT is done, the auditor must prepare a' Pinal Audit Report. If ADMINISTERING
AGENCY chooses the Single Audit option, an audit report is required for the ,state funding
share.. This report should be prepared in accordance with the guidelines set forth in OMB
Circular A-133. Compliance testing performed for this audit should determine whether the
ADMINISTERING AGENCY has a system that is adequate to accumulate and segregate
reasonable, allowable and allocable costs to assure that:
. (a) Reimbursement claims submitted to STATE for the PROJECT are supported by
payment vouchers and canceled checks.
(b) Charges for the various categories of eligible PROJECT costs incurred by the
ADMINISTERING AGENCY are fully supported and recorded in the ADMlNISTERING
AdENCY's accounting records in accordance with ge~eraIly accepted accounting principles.
(c) The AD:MINISTERINP AGENCY complied with CFR 49 Part 18, Uniform
Administrative Requirements for State and Local Governments and OMB A-87. Cost Principles
for State and Local Governments. Any instances of noncompliance or costs detennined
ineligible in accordance with these regulations b~t claimed for reimbursement should be
identified and set forth in the auditor's report.
17. The "State Report of Expenditures" must be completed by ADMINISTERING AGENCY
within one hundred eightY (180) days of PROJECT completion in the format described fO.r State
funded projects in Chapter 17, "Project Completion" of the Local Assistance Procedures
Manual. The Pinal Invoice must be submitted with the "State Report of EXpenditures". The
Audit must be completed by the December 30th following the fiscal year of PROJECT
completion. Project completion is defined as when all work identified in the approved
PROmer Application and PROGRAM SUPPLEMENT has been completed and final costs are
known. The report documents (State Report of ExpeI)ditures and Final Audit Report) will be
sent to tlJe appropriate STATE office. Failure to comply with these reporting requirements may
result in the withholding of. future allocations for other projects.
18. STATE reserves the right to conduct technical and financial audits if it is detennined to
be necessary. After any financial audit, ADMlNISTERING AGENCY shall promptly refund any
excess State funds erroneously reimbursed to ADMINISTERING AGENCY.
19. 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 thirty (30) days of STATE's 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, the California Transportation Conimission (eyc), or any
other public agency, may withhold or demand a transfer of an amount equal to the PROJECT
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amount paid by 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 projects.
20. Should ADMINISTERING AGENCY be constituted as a joint powers authority, a special
district, or any other public entity not directly receiving funds through the State Controller and
ADMINISTERING AGENCY is declared by STATE to be in breach of this AGREEMENT or
otherwise in default, STAlE is authorized to obtain reimbursement from whatever sources of
funding are available, including the withholding or transfer of funds, pursuant to Article 1-19,
from any or all, joint and several, of those constituent emities comprising the joint powers
authority or by the bringing of an action against ADMINISTERING AGENCY and its constituent
member entities to recover all funds provided by STATE hereunder. The ADMINISTERING
AGENCY acknOWledges that the signatory party represents the ADMINISTRlNG AGENCY and
further wan-ants that there is nothing within the Joint Powers Agreement itse]fthat would restrict
or otherwise limit STATE's ability to recover state funds improperly spent by the
ADMINISTERING AGENCY in contravention of the terms of this AGREEMENT.
21. 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 and administered 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 or constructed under that contract.
ARTICLE II - ENGINEERING
L "Project Development Costs" includes all preliminary work directly related to the
PROJECT up to contract award for construction, including, but not limited .to. environmental
studies, preliminary surveys and reports, laboratory work, soil investigation, preparation of plans,
specifications and estimates,' advertising for bids, awarding contract, as well as project
development contract administration.
2. "Construction Engineering" eligible costs' include actual inspection and supervision of
PROJECT construction work, construction staking, laboratory and field testing, preparation and
processing of field reports, and records, estimates, final reports,. and allowable expenses of
employees/consultants engaged in such activities.
3. Unless the parties shall othenvise agree in writing, AD:MlNISTERlNG AGENCY's
employees or its subcontractor engineering consultant shall be responsible for all PROJECT
engineering work. When construction engineering is performed by STATE, charges by STATE
invoiced to ADl\.fiNISTERING AGENCY shall jnclude an assessment on direct labor costs in
accordance with Section 8755.1 ot'the State Administrative Manual. Any portions of STATE
charges not contractually absorbed by ST A 1E shall be paid from PROJECT or other funds
administered by AD:MlNISlERING AGENCY.
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4. Costs incuned by ADMINISTERING AGENCY in the period prior to the effective date
of this AGREEMENT or prior to a later date specified in a PROGRAM SUPPLEMENT or after
termination date for PROJECT described in the PROGRAM SUPPLEMENT or this
AGREEMENT are not allowable by STATE as reimbursable or matching costs.
ARTICLEID - RIGHT-OF-WAY
1. All related rights-of-way necessary for the construction of PROJECT shall be acquired by
ADMINISTERING AGENCY, and no contract for construction of PROJECT or any portion
thereof shall be advel1ised until those necessary rights-of-way have been secured.
2. The 'furnishing of rights-of-way as provided for herein includes, and is limited to, the
fOllowing, unless the PROGRAM SUPPLEMENT provides otherwise:
(a) expenditures to purchase all real property required for PROJECT free and clear of
liens, conmcting easements, obstructions and encumbrances, after crediting PROJECT with the
fair market value of any excess property retained and not disposed of by ADMINISTERING
AGENCY.
(b) the payment of damages to rea) property not actually taken but injuriously
affected by the proposed improvement.
(c) the cost of relocating owners and occupants pursuant to Government Code
Sections 7260-7277.
(d) the cost of demolition and sales of all improvements on the right-of-way after
credit for sale proceeds.
(e) the cost of all unavoidable utility relocation, protection or removal.
(f) the cost of all, necessary hazardous material and hazardous waste treatment,
encapsulation or removal and protective storage for which ADMlNISTERING AGEN~Y is not
responsible and where the actual generator cannot be identified and recovery made.
3. Should ADMINISTERING AGENCY, in acquiring right-of-way for PROJECT, displace
an individual, family, business, farm operation or nonprofit organization, the ADMINISTERING
AGENCY 'shall 'provide relocation payments and services as required by California Government
Code Sections 7260-7277.
4. State funds will not, participate in any PROJECT costs arising out of delays to
construction or a demolition contractor's orderly prosecution of the PROJECT work because
utilities have not been timely removed or relocated or due to the unavailability of rights-of-way.
5. If any protection, .relocarion Or removal of utilities is required within STATE's
right-of-way, such work shall only be perfonned in accordance with then current STATE policies
and procedures. ADMINlSTERING AGENCY shall require any utility company pel'forming
relocation work in the STATE's right-of-way to obtain a STATE Encroachment Permit prior to
the perfonnance of said relocation work. Any relocated utilities shall 'be correctly located and
identified on the PROJEC!' as-built plans.
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ARTICLE IV '. MISceLLANEOUS PROVISIONS
1. The cost of security, protection,' or maintenance performed by AD;MlNISTERlNG
AGENCY or contractor forces during any temporary suspension of the work or at any other time
may not be charged to the PROJECT.
2. 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 ADM1NISTERING
AGENCY under or in connection with any work, authority, or jurisdiction delegated to
AD:MlNISTERlNG AGENCY under this AGREEMENT. It is also understood and agreed that,
pursuant to Government Code Section 895.4, ADMINISTERING AGENCY shaH fully defend,
indemnify and hold STATE, its officers and employees harmless from any liability imposed for
injury (as defined be Government Code Section 810.8) occuning by reason of anything done or
Omitted to be .done by ADMINISTERING AGENCY under or in connection with any work,
authority, or juri'sdiction delegated to ADMINISTERING AGENCY under this AGREEMENT.
3. Neitiler ADMINISTERING AGENCY nor any officer or employee thereof, shall he
responsible for any damage or liability occurring by reasons 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 defend, indemnify and hold ADMINISTERING
AGENCY hannless from any liability imposed for injury (as defined be Gove111ment Code
Section' 810.8) occurring by reas.on 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.
4. Auditors of state shall be given access to books and records of ADMINISTERING
AGENCY and its consultants, contractors and subcontractors for the pUrpose of verifying
PROJECT costs and STAlE's share to be paid or credited to ADM1NrSTERlNG AGENCY for
matching funds. ADMINISTERING AGENCY shaH include clauses in its contracts for
PROJECT Obligating consultants, contractors and subcontractors to conform and cooperate in
an'y audit of their PROJECT Costs including providing copies of all requested documents and
financial records.
5. ADMINIsTERING AGENCY will maintain and operate the PROJECT property
acquired, developed, rehabilitated, or restored fOr its intended public use as proposed in those
docnments supplied by ADMINISTERING AGENcy as pact of PROJECT funding applications
and as described in this' AGREEMENT 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 tile property may transfer this obligation and
responsibility to maintain and operate the PROJECT property to another public entity.
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6. Upon ADMINISTERING AGENCY acceptance of the completed PROJECT construction
contract or upon the construction contractor being relieved of the responsibHity for maintaining
and protecting any portion of the work, the ADMINISTERING AGENCY having jurisdiction
over the PROJECT shall maintain, repair and restore any damaged portions of the completed
work in a manner satisfactory to the authorized representatives of STATE. If, within ninety (90)
days after receipt of notice from STATE that a PROJECT, or any portion thereof, under
AD1v.1lNISTERING AGENCY's jurisdiction is not being properly operated, maintained, repaired
or restored and ADMINISTERING AGENCY has not satisfactorily remedied the conditions
complained of, the approval of future projects of ADMINlSTERlNG AGENCY will be withheld
until the PROJECT shall have been put in a condition satisfactory to ST A IE. The provisions of
this section shall not apply to a PROJECT which has been vacated, as preapproved by ST A 1E,
through due process of law.
7. The ADMINISTERING AGENCY obligation to maintain, referred to in paragraph 6
above, includes not only the physical condition of the PROJECT but its continued 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 an agreement with AD1vITNISTERlNG AGENCY. All maintenance will be perfonned at
regular intervals or as required for efficient operation of the complete PROJECT improvements.
8. Without the written consent of STAlE, this AGREEMENT is not assignable by
ADMINISTERING AGENCY, either in whole or in part.
9. No alteration or variation of the terms of this AGREEMENT or the PROGRAM
SuPPLEMENT 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.
10. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or
any statute enacted by the State Legislature or adopted by the ere that may affect the provisions,
terms"or funding of this AGREE:.MENT in any manner.'
1l. ADMINISTERING AGENCY agrees to use all PROJECT funds reimbursed hereunder
only for transportation purposes that are in conformance with Article XIX of the California State
Constitution.
ARTICLE V - CONDITION OF ACCEPTANCE
AD:rvnNISTERING AGENCY shaH conform to all State statutes, regulations, and the
Local Assistance Program Guidelines and Local Assistance Procedures Manual as published by
STATE and incorporated herein, inclUding all subsequent approved revisions thereto, hereafter
collectively referred to as PROCEDURES, applicable to' PROJECT, unless otherwise designated
in the approved PROGRAM SUPPLEMENT. .'
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This AGREEMENT and any PROGRAM SUPPLE:MENT(s) executed under this
AGREEMENT shaH tenninate upon sixty (60) days' prior written notice by STATE except that
obligations relative to the respective parties indemnification shall not expire and the
ADMINISTERING AGENCY's duties assumed under Sections 4, 5, 6 and 7 of Article IV shall
continue for so long as PROJECT remains operable.
IN WITNEss WHEREOF, the parties have executed this AGREEMENT by their duly
authorized officers.
STATE OF CALIFORNIA
Department of Transportation
City of Cupertino
~J4J.
Chief, Office of Loc rograms
Project Implementation
By
ByW~
(Authorized Representative)
Date
~ /1 b / (J J
Date
-
~ , z.S; 0 (
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RESOLUTION NO. 01-113
A RESOLUTION OF THE.CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE ALL CALIFORNIA DEPARTMENT
. OF TRANSPORTATION MASTER AGREEMENTS, PROGRAM SUPPLEMENTAL .
AGREEMENTS, FUND EXCHANGE AGREEMENTS~.FUND TRANSFER AGREEMENTS
AND ANY AMENDMENTS THERETO
WHEREAS, the City of Cupertino is eligible. to receive Federal and/or State funding for
certain transportation projects; 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 authorization to execute these
agreements and any amendments thereto to the City Manager.
. NOW, THEREFORE, BE. IT RESOLVED, that the City Manager is hereby authorized to
execute all Master Agreements, Program Supplemental Agreements~ Fund Exchange
Agreements, Fund Transfer Agreements and any amendments thereto with the California'
Department of Transportation.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 2151 day of May, 2001, by the following vote:
Vote Members of the Cit"t Council
A YES: Burnett, Chang, James, Lowenthal
~ m m EE:RTIFY 'fRA'1' 'fRE WJ"tl.rm
INSTRUMENT 15 A TRUE: AND CORRECT COpy
OF' THE ORIGINAL ON ....'LE IN THis OFFICE.
A"lTE$T. ~;;t. S . ~ :J..()D I
CITy CLERIC OF THE CITY OF' CUPERTINO
ey ~K-.~~
....:-:- ~~ ~ ot.~~
NOES: None
ABSENT: None
ABSTAIN: None
ArrEST:
APPROVED:
/slKimberly Smith
Is/Sandra James
City Clerk
Mayor, City of Cupertino