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12-041 Grant Agreement, Roberti-Z’berg-Harris Proposition 40 Urban Needs Basis grant, Contract C0214003
State of California — Natural Resources Agency DEPARTMENT OF PARKS AND RECREATION GRANT CONTRACT 2002 Resources Bond Act Roberti-Z'berg-Harris - Urban Needs Basis GRANTEE City of Cupertino THE PROJECT PERFORMANCE PERIOD IS FROM July 01, 2011 through June 30, 2015 CONTRACT PERFORMANCE PERIOD IS FROM July 01, 2011 through June 30, 2031 The Grantee agrees to the terms and conditions of this Contract, and the State of California, acting through its Director of Parks and Recreation pursuant to the Roberti- Z'berg-Harris - Urban Needs Basis in the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, agrees to fund the total Project Grant Amount indicated. THESE FUNDS ARE FOR THE ACQUISITION AND DEVELOPMENT OF NEIGHBORHOOD, COMMUNITY, AND REGIONAL PARKS AND RECREATION LANDS AND FACILITIES. City of Cupertino The General and Special Provisions attached are made a i ; Grantee part of and incorporated into the Contract. / Ilk STATE SAa ALIFOR (Si ature of • -rized Repre entative) DEPA' 7 N 'OF P• -K' 'ND RECrATION itle: jreetel�- iAv .6 KrvAl)P, By: / / / C try MAI∎ t y • Date: t / , 2-s. 1 Date: 2 ., , Q CERTIFICATION OF FUNDING CONTRACT NO AMENDMENT NO CALSTRS VENDOR NQ' PROJECT NO CO231195 400000417500 1 AMOUNT ENCUMBERED BY THIS FUND DOCUMENT Clean Water, Cln Air, Cstl Protc Fd, CA $ 251,000 PRIOR AMOUNT ENCUMBERED BY THIS ITEM CHAPTER STATUTE FISCAL YEAR CONTRACT 3790-103-6029(1) 33/11 11 2011/12 0 TOTAL AMOUNT ENCUMBERED TO DATE INDEX OBJ.EXPEND PCA PROJECT/WORK $ 251,000 1091 702 I PHASE ..) r CAL) T.B.A.NO I hereby certify upon my own personal knowledge that budgeted funds are available for this encumbrance. B.R.NO SIGNATLu ACCOUNTING OFFICER DATE i 4:21 1 • GRANT CONTRACT This AGREEMENT is hereby made and agreed upon by the State of California, acting through the California Department of Parks and Recreation (hereinafter referred to as "STATE") and City of Cupertino (hereinafter referred to as "GRANTEE") pursuant to the Roberti-Z'berq-Harris - Urban Needs Basis in the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002. RECITALS 1. On or about 6/7/2006 the STATE and GRANTEE entered into Grant Contract #CO214003 (hereinafter referred to as "PREVIOUS CONTRACT")for an amount not to exceed $ 251,000. This grant was funded in accordance with the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, also known as Proposition 40. 2. The completion date set forth in the PREVIOUS CONTRACT was 6/30/2012. The GRANTEE did not complete the grant project(s) or spend its entire allocation prior to the contract liquidation date and, therefore, is not discharged from its obligations under the PREVIOUS CONTRACT. 3. Pursuant to the PREVIOUS CONTRACT, STATE disbursed grant funds to GRANTEE in the total amount of$ 251,000, leaving a balance in the amount of$ 251,000 for use by GRANTEE. 15. On or about June 30, 2011, Chapter 33 of the Statutes of 2011 (hereinafter"Budget Bill of 2011/12") was enacted. Item 3790-401 stated that all grant funds previously appropriated from Proposition 40 that have not been expended by grant recipients prior to June 30, 2011 shall revert to the funds from which the appropriations were made. This provisions effectively terminated STATE's authority to pay out further grant funds under the PREVIOUS CONTRACT. Pursuant to section 3790-103-6029 of the Budget Bill of 2011/12, the Legislature appropriated an amount equivalent to the balance remaining on June 30, 2011 in the 2002 California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Bond Fund. The Legislature made these funds available for grants previously appropriated from Proposition 40 funds which are deemed to have the highest priority statewide consistent with Section 5096.633 of the Public Resources Code. These funds are available for encumbrance on or before June 30, 2013. Per Government Code section 16304, the liquidation period of these funds is extended to on or before June 30, 2015. 5. Pursuant to the Budget Bill of 2011/12, item number 3790-103-6029 and 3790-401, STATE and GRANTEE agree to enter into this Agreement (hereinafter referred to as "CONTRACT"). which establishes terms and conditions that allow the expenditure of the newly appropriated grant funds established by Senate Bill 87 to complete the project(s) set forth in the CONTRACT. STATE and GRANTEE agree to cancel the PREVIOUS CONTRACT and agree to be bound by the terms and conditions of this CONTRACT. 1 TERMS AND CONDITIONS The STATE, pursuant to the Roberti-Z'berg-Harris - Urban Needs Basis in the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, and through authority granted by section 3790-103-6029 of the Budget Bill of 2011/12, hereby grants to GRANTEE a sum (hereinafter referred to as "GRANT MONIES") not to exceed $ 251,000 subject to the terms and conditions of this CONTRACT, the GUIDES, any legislation applicable to the ACT, and the APPLICATION. In consideration thereof GRANTEE agrees to abide by the terms and conditions of this CONTRACT as well as the provisions of the ACT. GRANTEE acknowledges that the GRANT MONIES are not a gift or a donation. In addition to the terms and conditions of this CONTRACT, the parties agree that the terms and conditions contained in the documents set forth below are hereby incorporated into and made part of this CONTRACT. w. The PROCEDURAL GUIDE; x. The submitted APPLICATION(S). I. GENERAL PROVISIONS A. Definitions As used in this CONTRACT, the following words shall have the following meanings: 133. The term "ACQUISITION" means to obtain fee title of real property or a permanent easement which provides the recipient permanent rights to use the property for the purposes of the project. Leases or rentals do not constitute ACQUISITION. 134. The term "ACT" means the statutory basis for these grant programs. 135. The term "APPLICATION" means the individual project application packet(s)for a grant(s) pursuant to the enabling legislation and/or grant program process guide requirements. 136. The term "COMPETITIVE GRANT PROGRAM" means the Urban Park Act of 2001, the Murray Hayden Urban Youth Services Program, the State Urban Parks and Healthy Communities Act, the Roberti-Z'berg-Harris Nonurban Needs Basis, Roberti-Z'berg-Harris Urban Needs Basis or California Youth Soccer and Recreation Development program. 137. The term "CONTRACT PERFORMANCE PERIOD" means the period of time described in Section 1 of this CONTRACT. The "CONTRACT PERFORMANCE PERIOD" means the period of time during which the GRANTEE must use the property acquired or developed with the grant for purposes consistent with the grant. 2 138. The term "DEVELOPMENT" means capital improvements to real property by means of construction of permanent or fixed features of the property. 139. The term "GRANT PERFORMANCE PERIOD" means the period of time described in the Section I of this contract during which eligible costs can be charged to the grant and which begins on the date of appropriation and ends on the fund liquidation date. 140. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE/Cost Estimate Form(s)found in the APPLICATION(s). 141. The term "PROCEDURAL GUIDE" means the document identified as the "Procedural Guide for the 2002 Resources Bond Act [subprogram name]. The GUIDE provides the procedures and policies controlling the administration of the grant. 142. The term "PROJECT TERMINATION" refers to the non-completion of a GRANT SCOPE. 143. The term "REASONABLE HOURS OF OPERATION" means that the facility is available to the public during days and times consistent with the type of property, the amount of the STATE GRANT MONIES invested in the project, the time of year, and the operating hours of similar facilities in nearby communities. 144. The term "STATE" refers to the State of California acting by and through the California Department of Parks and Recreation. B. Project Execution 78.Subject to the availability of GRANT MONIES in the ACT, the STATE hereby grants to the GRANTEE a sum of money not to exceed the amount stated in Section I of this CONTRACT, in consideration of, and on condition that, the sum be expended in carrying out the purposes set forth in the GRANT SCOPE(S), and under the terms and conditions set forth in this CONTRACT. The GRANTEE shall assume the obligation to furnish any additional funds that may be necessary to complete the GRANT SCOPE(S). 79.All changes and alterations to the GRANT SCOPE must be approved in writing by the STATE. GRANTEE'S failure to comply with this provision may be construed as a breach of the terms of the CONTRACT and result in the enforcement of the Project Termination provision section E. found in this CONTRACT. If the contract was funded under a COMPETITIVE GRANT PROGRAM, the GRANTEE agrees that any other project changes or alterations which deviate from the project selection criteria responses provided by the GRANTEE in the original competitive APPLICATION must be submitted in writing to the STATE for prior approval. This requirement is necessary to maintain the integrity of the competitive grant process. 3 80.The GRANTEE shall complete the GRANT SCOPE in accordance with the time of the GRANT PERFORMANCE PERIOD set forth on page one of this CONTRACT, and under the terms and conditions of this CONTRACT. 81.The GRANTEE shall comply with the California Environmental Quality Act(Public Resources Code, Section 21000, et. seq., Title 14, California Code of Regulations, Section 15000 et. seq.). 82.The GRANTEE shall at all times comply with all applicable current laws and regulations affecting ACQUISITION and DEVELOPMENT projects, including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities, including but not limited to the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et.seq.) and the California Unruh Act(California Civil Code §51 et seq.) 83. If the GRANT SCOPE includes ACQUISITION of real property, the GRANTEE agrees to comply at all times with all applicable State and local laws or ordinances affecting relocation and real property ACQUISITION. 84. GRANTEE agrees that lands acquired with GRANT MONIES shall not be acquired through the use of eminent domain. C. Project Costs 23. GRANTEE agrees to abide by the GUIDES. 24. GRANTEE acknowledges that the STATE may make reasonable changes to its procedures as set forth in the GUIDES. If the STATE makes any changes to its procedures and guidelines, STATE agrees to notify GRANTEE within a reasonable time. D. Project Administration 67. If GRANT MONIES are advanced for ACQUISITION projects, the GRANT MONIES shall be placed in an escrow account by GRANTEE. If GRANT MONIES are advanced and not expended, GRANTEE shall return the unused portion of the advanced funds to the STATE within 60 days after the close of escrow. 68. If GRANT MONIES are advanced for DEVELOPMENT projects, the advanced funds shall be placed in an interest bearing account by GRANTEE until expended. Advanced funds must be spent within six months from the date of receipt, unless the STATE provides GRANTEE with a written waiver of this requirement. Interest earned on the advanced funds shall be used on the project as approved by the STATE. If GRANT MONIES are advanced and not expended, the unused portion of the grant and any interest earned shall be returned to the STATE within 60 days after project completion or the end of the GRANT PERFORMANCE PERIOD whichever is earlier. 69.The GRANTEE shall submit written project status reports within 30 calendar days after the STATE has made such a request. In any event, the GRANTEE shall provide the 4 STATE a report showing total final project expenditures within 60 days of project completion or the end of the GRANT PERFORMANCE PERIOD, whichever is earlier. The GRANT PERFORMANCE PERIOD is identified on page one of this CONTRACT. 70.The STATE shall have the right to inspect all property or facilities acquired and/or developed pursuant to this CONTRACT and the GRANTEE shall make such property or facilities available for inspection upon 24 hours notice from the STATE. 71.The GRANTEE and the STATE agree that if the GRANT SCOPE includes DEVELOPMENT, final payment may not be made until the work described in the GRANT SCOPE is complete. 72.Any grant funds that have not been expended by the GRANTEE shall revert to the STATE. E. Deed Restriction 12. In order to ensure that property improved or acquired with GRANT MONIES are used for purposes consistent with the grant, if the property acquired or developed with GRANT MONIES is owned by the GRANTEE, the GRANTEE must record a deed restriction on the title to property prior to receiving payments for any purpose other than acquisition. The Deed Restriction shall include the following elements: ss. DURATION. (a) This Deed Restriction shall remain in full force and effect and shall bind Owner(s) and all his/her/their assigns or successors-in-interest during the CONTRACT PERFORMANCE PERIOD. tt. TAXES AND ASSESMENTS. The Deed Restriction shall be irrevocable and shall constitute an enforceable restriction within the meaning of a)Article XIII, section 8, of the California Constitution; and b) section 402.1 of the California Revenue and Taxation Code or successor statue. Furthermore, the Deed Restriction shall be deemed to constitute a servitude upon and burden to the Property within the meaning of section 3712(d)of the California Revenue and Taxation Code, or successor statue, which survives a sale of tax-deeded property. uu. RIGHT OF ENTRY. STATE or its agent or employees may enter onto the Property at times reasonably acceptable to Owner(s)to ascertain whether the use restrictions set forth above are being observed. w. REMEDIES. Any act, conveyance, contract, or authorization by Owner(s) whether written or oral which uses or would cause to be used or would permit use of the Property contrary to the terms of the Deed Restriction will be deemed a violation and a breach hereof. STATE may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of the Deed Restriction. In the event of a breach, any forbearance on the part of STATE to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach. F. Project Termination 45. In the event of non-completion of a GRANT SCOPE, the GRANTEE shall return all GRANT MONIES to the STATE. 5 46.This CONTRACT may be rescinded, modified or amended only by mutual written CONTRACT between the GRANTEE and the STATE, unless the provisions of this CONTRACT provide that mutual CONTRACT is not required for a rescission, modification or CONTRACT. 47. Failure by the GRANTEE to comply with the terms of this CONTRACT, as well as any other grant contracts or other CONTRACTs that GRANTEE has entered into with STATE, may be cause for suspension of all obligations of the STATE under this CONTRACT unless the STATE determines that such failure was due to no fault of the GRANTEE. In such case, STATE may reimburse GRANTEE for eligible costs properly incurred in performance of this CONTRACT despite non-performance of the GRANTEE. To qualify for such reimbursement, GRANTEE agrees to mitigate its losses to the best of its ability. 48.The GRANTEE agrees that in the event of a breach of this CONTRACT, the STATE may seek, in addition to all remedies provided by law, specific performance of the CONTRACT in accordance with the purpose of the CONTRACT to preserve, protect and increase the quantity and quality of parks, public recreation facilities, opportunities and/or historic resources available to the people of the State of California. G. Budget Contingency Clause For purposes of this program, if funding for any fiscal year is reduced or deleted by the budget act, executive order, the legislature, or by any other provision of statute, the STATE shall have the option to either cancel this contract with no liability occurring to the STATE, or offer a CONTRACT to GRANTEE to reflect a reduced grant amount. This paragraph shall not require the mutual CONTRACT as addressed in Paragraph E, subsection 2, of this CONTRACT. H. Indemnity 56.The GRANTEE shall waive all claims and recourse against the STATE including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this CONTRACT except valid legal claims arising from the concurrent or sole negligence of the STATE, its officers, agents, and employees. 57.To the fullest extent of the law, the GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability costs arising out of the ACQUISITION, DEVELOPMENT, construction, operation or maintenance of the property described as the project which claims, demands or causes of action arise under California Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of the STATE, its officers, agents, or employees. 58.The GRANTEE agrees that in the event the STATE is named as codefendant under the provisions of California Government Code Section 895 et. seq., the GRANTEE 6 shall notify the STATE of such fact and shall represent the STATE in the legal action unless the STATE undertakes to represent itself as codefendant in such legal action in which event the STATE shall bear its own litigation costs, expenses, and attorney's fees. 59.The GRANTEE and the STATE agree that in the event of judgment entered against the STATE and the GRANTEE because of the concurrent negligence of the STATE and the GRANTEE, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. 60.The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, costs, expenses or liability costs arising out of legal actions pursuant to items to which the GRANTEE has certified. The GRANTEE acknowledges that it is solely responsible for compliance with items to which it has certified. I. Financial Records 23.The GRANTEE shall maintain satisfactory financial accounts, documents and records for the project and make them available to the STATE for auditing at reasonable times. The GRANTEE also agrees to retain such financial accounts, documents and records for five years following project termination or final payment, whichever is later. 24.The GRANTEE shall keep such records as the STATE shall prescribe, including records which fully disclose(a)the disposition of the proceeds of GRANT MONIES, (b) the total cost of the project; (c)the amount and nature of project funds provided by other sources, and (d)any other records that will facilitate an effective audit of use of the GRANT MONIES. 3. The GRANTEE agrees that the STATE shall have the right to inspect and make copies of any books, records or reports pertaining to this CONTRACT or matters related thereto during regular office hours. The GRANTEE shall maintain and make available for inspection by the STATE accurate records of all of its costs, disbursements and receipts with respect to its activities under this CONTRACT. Such accounts, documents, and records shall be retained by the GRANTEE for 5 years following final payment of GRANT MONIES. 4. The GRANTEE shall use a generally accepted accounting system. J. Use of Facilities 89.The GRANTEE agrees to operate and maintain any property acquired or developed with the GRANT MONIES for the duration of the CONTRACT PERFORMANCE PERIOD. 90.The GRANTEE agrees that during the CONTRACT PERFORMANCE PERIOD, any income earned by the GRANTEE from a STATE approved non-recreational use of 7 the project shall be used for recreational purposes at the project, or, if approved by the STATE, for recreational purposes within the GRANTEE'S jurisdiction. 91. If the APPLICATION does not specify the days and hours of operation, the facility will have REASONABLE OPERATING HOURS. The GRANTEE shall request the STATE'S approval before making any changes to the hours of operation. 92. If the APPLICATION specifies the hours of operation, the facility shall have operating hours consistent with the times proposed in the APPLICATION and be open to members of the public in accordance with the project selection criteria in the APPLICATION, unless otherwise granted permission by the STATE and except as noted under the special provisions of this CONTRACT or under provisions of the enabling legislation and/or grant program. 93.The GRANTEE agrees that for the duration of the CONTRACT PERFORMANCE PERIOD, any property acquired or developed with GRANT MONIES under this CONTRACT shall be used only for the purposes of the grant and consistent with the GRANT SCOPE referenced in the APPLICATION unless prior written approval is given by the STATE. 94.The GRANTEE agrees to use any property acquired or developed with GRANT MONIES under this CONTRACT only for the purposes of the grant and no other use, sale, or other disposition shall be permitted except as authorized by a specific act of the legislature in which event the properly shall be replaced by the GRANTEE with property of equivalent value and usefulness as determined by STATE. 95.The property acquired or developed with GRANT MONIES may be transferred to another eligible entity only if the successor entity assumes the obligations imposed under this CONTRACT and with written approval of the STATE. 96.Any real property acquired or developed with GRANT MONIES (including any portion of it or any interest in it) may not be used as security for any debt or mitigation, without the written approval of the STATE provided that such approval shall not be unreasonably withheld as long as the purposes for which the GRANT MONIES were awarded are maintained. Any such permission that is granted does not make the STATE a guarantor or a surety for any debt or mitigation, nor does it waive the STATE'S rights to enforce performance under this CONTRACT. 8. All real property, or rights thereto, acquired with GRANT MONIES shall be subject to an appropriate form of restrictive title, rights, or covenants required and approved by the STATE. If the project property is taken by use of eminent domain, GRANTEE shall reimburse the STATE an amount at least equal to the amount of GRANT MONIES received from the STATE or the pro rated full market value of the real property, including improvements, at the time of sale, whichever is higher. 9. If eminent domain proceedings are initial:ed against GRANTEE, GRANTEE shall notify STATE within 10 days of receiving the complaint. 8 K. Nondiscrimination 23.The GRANTEE shall not discriminate against any person on the basis of sex, race, creed, color, national origin, age, religion, ancestry, sexual orientation, disability, medical condition, or marital status in the use of property or a specific facility included in the GRANT SCOPE(S). 24.The GRANTEE shall not discriminate against any person on the basis of residence, and shall not apply differences in admission or other fees on the basis of residence. Fees shall be reasonable and not unduly prevent use by economically disadvantaged members of the public. L. Severability If any provision of this CONTRACT or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of the CONTRACT which can be given effect without the invalid provision or application, and to this end the provisions of this contract are severable. M. Liability STATE assumes no responsibility for assuring the safety of construction, site improvements or programs related to the GRANT SCOPE. The STATE'S rights under this CONTRACT to review, inspect and approve the GRANT SCOPE and any final plans of implementation shall not give rise to any warranty or representation that the GRANT SCOPE and any plans or improvements are free from hazards or defects. N. Assignability Without the written consent of the STATE, the GRANTEE'S interest in and responsibilities under this CONTRACT shall not be assignable by the GRANTEE either in whole or in part. O. Section Headings The headings and captions of the various sections of this CONTRACT have been inserted only for the purpose of convenience and are not a part of this CONTRACT and shall not be deemed in any manner to modify, explain, or restrict any of the provisions of this CONTRACT. 9 P. Waiver Any failure by a party to enforce its rights under this CONTRACT, in the event of a breach, shall not be construed as a waiver of said rights; and the waiver of any breach under this CONTRACT shall not be construed as a waiver of any subsequent breach. City of Cupertino Gr BY fi . 2-8 . It Si ure of Authorized Representa ive (Position Authorized in the Resolution) Title: My tni KNA P/ cIry MiAt Date: ( ( • 2-3 . i ( 10 • EXHIBIT A LEGAL DESCRIPTION OF PROPERTY ALL THAT CERTAIN REAL PROPERTY BEING A PORTION OF SECTION 22,T. 7. S.,R. 2 W.,M.D.B. &M. AND INCLUDING THEREIN PROTIONS OF LOTS 96, 85, 86, 87, 88, 89,90,91,92,95,96,AND 99,AND A PORTION OF VALLECITO ROAD AS SAID LOTS AND ROAD ARE SHOWN ON THE MAP OF MONTA VISTA PARK,WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF SANTA CLARA COUNTY ON APRIL 11, 1917 IN BOOK"P"OF MAPS,PAGE 19,DESCRIBED AS FOLLOWS: BEGINNING AT A ONE INCH IRON PIPE AT THE INTERSECTION THEREOF THE CENTERLINE OF MCCLELLAN ROAD AND THE WESTERLY BOUNDARY LINE OF THE COLONY TRACT,THE MAP OF WHICH IS ON FILE IN THE OFFICE OF THE RECORDER OF THE SAID COUNTY IN BOOK"P"OF MAPS, PAGE 21;THENCE ALONG SAID CENTERLINE OF MCCLELLAN ROAD S. 64°31' 12"W. 103.80 FEET TO A 3/4"I.P.;THENCE S. 78°57' 47"W. 196.60 FEET TO A 3/4"IRON PIPE;THENCE S. 61°49' 47"W. 296.20 FEET TO A 3/4"I.P. SANTA CLARA COUNTY STATION 17+7694;THENCE S. 80° 27' 54"W. 145.54 FEET TO A 3/4"I.P.;THENCE N.54°03' 06"W. 113.46 FEET TO THE INTERSECTION OF THE CENTERLINE OF MCCLELLAN ROAD WITH THE SOUTHWESTERLY LINE OF THAT CERTAIN 15.25 ACRE TRACT OF LAND DESCRIBED IN THE DEED FROM CLIFFORD J. SIMMS,ET UX,TO HIROSUKE INOUYE,ET UX, RECORDED JULY 22, 1955 IN BOOK 3232 OF OFFICIAL RECORDS,PAGE 86, SANTA CLARA COUTY RECORDS;THENCE LEAVING SAID CENTERLINE AND RUNNING THE SOUTHWESTERLY LINE OF SAID 15.25 ACRE TRACT N. 25°07' W.41.33 FEET TO THE NORTHEASTERLY LINE OF MCCLELLAN ROAD;THENCE ALONG SAID NORTHEASTERLY LINE S. 54°03' 06"E.44.85 FEET TO THE SOUTHEASTERLY TERMINUS OF THE AGREED BOUNDARY LINE,AS DESCRIBED IN THE AGREEMENT EXECUTED BY AND BETWEEN CLIFFORD J. SIMMS,ET UX AND HIROSUKE INOUYE, RECORDED OCTOBER 7, 1957 IN BOOK 3907 OF OFF]CIAL RECORDS,PAGE 35,RECORDS OF SAID COUNTY,SAID AGREED BOUNDARY LINE ALSO SHOWN ON THE MAP OF RECORD OF SURVEY ON FILE IN BOOK 67 OF MAPS,PAGE 36;THENCE LEAVING THE NORTHEASTERLY LINE OF MCCLELLAN ROAD ALONG SAID AGREED LINE BEING THE CENTERLINE OF STEVENS CREEK,AS THE SAME EXISTED AT THE DATE OF AGREEMENT THE FOLLOWING COURSES AND DISTANCES:N. 12°03' 33"W. 75.91 FEET;THENCE N.54°02' 36"W. 82.13 FEET;THENCE N. 19°24' 36"W. 330.00 FEET; THENCE N.6°23' 24"E. 124.55 FEET;THENCE N. 53°06' 59"E. 219.56 FEET;THENCE N. 30° 17' 17"E. 159.80 FEET;THENCE N.51°34' 47"E. 154.46 FEET;THENCE N. 88°09' 50"E. 177.37 FEET;THENCE S. 61°46' 55"E. 153.27 FEET;THENCE S.45°24' 00"E. 114.77 FEET;THENCE S. 16°02' E. 100.58 FEET; THENCE S.68°40' 00"E. 121.93 FEET TO THE INTERSECTION THEREOF WITH THE WESTERLY LINE OF THE COLONY TRACT HEREIN ABOVE REFERRED TO;THENCE LEAVING SAID CENTERLINE OF STEVENS CREEK AND AGREED BOUNDARY LINE AND RUNNING ALONG THE WESTERLY LINE OF SAID COLONY TRACT AND THE EASTERLY LINE OF MONTA VISTA PARK S.47° 15' 00"W.47.64 FEET TO THE SOUTHERLY CORNER OF LOT 99 SAID MONTA VISTA PARK MARKED BY A FENCE POST; THENCE LEAVING SAID MONTA VISTA PARK AND CONTINUING ALONG THE WESTERLY LINE OF SAID COLONY TRACT S. 8°06' 48"E.438.93 FEET TO THE POINT OF BEGINNING AND CONTAINING APPROXIMATELY 15.37 ACRES. EXCEPTING THEREFROM THAT PORTION THEREOF CONVEYED TO SANTA CLARA COUNTY FLOOD CONTROL AND WATER DISTRICT,A PUBLIC CORPORATION BY GRANT DEED RECORDED OCTOBER 5, 1972 IN BOOK 0054,PAGE 9,OFFICIAL RECORDS,DESCRIBED THEREIN AS FOLLOWS: "BEING A PORTION OF THE LANDS OF THE CITY 0 CUPERTINO AS DESCRIBED IN THE DEED RECORDED IN BOOK 3232 OF OFFICIAL RECORDS AT PAGE 86 ET SEQ., SANTA CLARA COUNTY RECORDS,TO WIT: ALL OF SAID LANDS LYING WITHIN A STRIP OF LAND 120 FEET IN WIDTH,THE CENTER LINE OF SAID STRIP BEING THE NOW EXISTING CENTER LINE OF STEVENS CREEK AS SAID STRIP IS SHOWN ON `EXHIBIT A2' ATTACHED HERETO AND MADE A PART HEREOF." • AUDIT CHECKLIST • An audit of the project may be performed. The grantee must retain and make available all project related records for a minimum of three years following project termination or final payment of grant funds. Listed below are some of the items the auditor will examine during the review of your records as applicable. It is the responsibility of the grantee to have these records available in a central location ready for review once an audit date and time has been confirmed. If you have any questions regarding these documents, you may contact the State Department of Parks and Recreation Audits Office at (916)445-8999. CONTRACTS MINOR CONTRACTS/MATERIALS/SERVICES/EQUIPMENT RENTALS Summary list of bidders(including individual bid packages) Purchase orders/Contracts/Service Agreements Recommendation by reviewer of bids Invoices Awarding by governing body(minutes of the Payments (actual cancelled checks/warrants**) meeting/resolution) Construction contract agreement ACQUISITION Contract bonds (bid, performance, payment) Appraisal Report Contract change orders Did the owner accompany the appraiser? Contractor's progress billings 10 year history Payments to contractor(cancelled checks/warrants**) Statement of just compensation(signed by seller) Stop Notices(filed by sub-contractors and release if Statement of difference(if purchased above applicable) appraisal) Liquidated damages(claimed against the contractor) Waiver of just compensation (if purchased below appraisal: signed by seller) Notice of completion(recorded) Final Escrow Closing Statement FORCE LABOR* Cancelled checks/warrants (payment(s)to seller(s)) Authorization/work order identifying project Grant deed (vested to the participant)or final order of condemnation Daily time sheets signed by employee and supervisor Title insurance policy(issued to participant) Hourly rate(salary schedules/payroll register) Relocation documents Fringe benefits(provide breakdown) Income (rental,grazing,sale of improvements,etc.) IN-HOUSE EQUIPMENT* INTEREST Authorization/work order Schedule of interest earned on State funds advanced Daily time records identifying the project site Note: Interest on grant advances is accountable, even if commingled in a pooled fund account and/or Hourly rate related backup documents interest was never allocated back to the grant fund. AGREEMENT/CONTRACTS Leases, agreements, etc., pertaining to developed/acquired property * Estimated time expended on the projects is not acceptable. Actual time records and all supporting documentation must be maintained as charges are incurred and made available for verification at the time of audit. ** Front and back if copied. Revised 1/12/2006 0 _ § Li. S U 0 k o 0 § I- ° 8 § R 0 .. \ \ \ \ § N � r0 § cl 1_ 0 0 2 \ 0 a s 15 $ < E \ \ \ egkCe \ 0 < non Io_k = § § § & k § \ ilD /§ / � #- o c y° « E 2 = w ■ C 48 © 13 0. } § § o / CD 0 § \ 3 § k 0 ( = 0 � ca k § � \ ec @ 00 -1 c0 < 0 ' c71 Mk _ i72 % f § 0a 0 C 2 10) 0 � E � k . � & 2 c § eOW 0. ° 2 p o v § 0kI \ U .0 � 2 z 0 7) � o / E 2 a mm o / 5u) / m I I E o 0 R 0 < 1 -J } � $ / 0 .- J1 I > § o 8 I- § E § 3 z ƒ rgq of 82 a ce 0 ` 0 c < ._ § 0 \ NN \ \ \ / \ � � � ea t o • E � E C) / co tu Z E C 00 0 re .. z m a 1 o I- w.0 � 0)V0 r E Z2/ G ®0u. w > = aa0Q « ~ I- I- Deed Restriction Overview The enclosed Deed Restriction is required by the Office of Grants and Local Services (OGALS) to record a restriction on the title to the property. The restriction ensures that the property is used for a purpose consistent with the grant scope for the length of the contract performance period. • If the Grantee owns the proiect site property, a deed restriction is required before any additional grant payments may be approved. • Acquisition-only projects The deed restriction is required after the acquisition is complete and the Grantee takes ownership of the property(grant payments may only be made for acquisition costs until the deed restriction is recorded). • Acquisition/Development projects The deed restriction is required after the acquisition is complete and prior to paying for development costs. Deed Restriction Instructions 1. Fill in all the blank spaces of the Deed Restriction form as indicated below. Do not alter the Deed Restriction form. Deed Restriction Form— Paae 1 I. WHEREAS, (hereinafter referred to as "Owner(s)" .... Insert ownership information as it appears on the deed. Deed Restriction Form— Page 3 - 5. SEVERABILITY. Dated: I 7 , 20 Insert the dat the Deeii Restriction,is signed by the Grantee's Authorized Representative (the position dentified on the Grant,Contract f9ce sheet) in the presence of a notary. Business N me(if property is owned y a business): Signed: Signed: PRINT/TYPE NAME&TITLE OF ABOVE PRINT/TYPE NAME&TITLE OF ABOVE (GRANTEE'S AUTHORIZED REPRESENTATIVE) (ADDITIONAL SIGNATURE,AS REQUIRED) 7/29/11 1 The Grantee's Authorized Representative (the position identified on the Grant Contract face sheet) signs in the presence of a notary. Additional signature lines may be added if multiple signatures are required. 2. To the Deed Restriction form attach: (1)A page entitled, "Exhibit A(Legal Description of Property)". (2) Exhibit A: A formal legal description of every parcel of property to which grant funds will be allocated. This information can be obtained from the grant deed or title policy. (NOTE: The assessor's parcel number or a street address is NOT a valid legal description.), or, Exhibit A (Alternative), Habitat Conservation Fund (HCF) Grant Program only: A topographic map that clearly outlines the project boundaries (3) Exhibit B: A complete copy of the Grant Contract signed by the Grantee and the State of California with Grant Contract provisions attached. 3. Notarize it: Take the unsigned Deed Restriction form, "Exhibit A", and "Exhibit B", to a notary. The Grantee's Authorized Representative(the position identified on the Grant Contract face sheet) signs the Deed Restriction form signature page in the presence of a notary. The notary then completes the "Notary Acknowledgement" section. 4. Record it: Take the notarized Deed Restriction form, "Exhibit A", and "Exhibit B", to the County Recorder's Office of the county in which the property is located and ask the County Clerk to "record the Deed Restriction form, Exhibit A, and Exhibit B, on the title to the property." 5. Send a copy of the notarized and recorded Deed Restriction form, "Exhibit A", and "Exhibit B"to OGALS Project Officer. 7/29/11 2 l RECORDING REQUESTED BY: California Department of Parks and Recreation 2 Office of Grants and Local Services 3 WHEN RECORDED MAIL TO: Office of Grants and Local Services 4 PO Box 942896 Sacramento,CA 94296-0001 5 Attn: Lowell Landowski 6 7 DEED RESTRICTION 8 9 I. WHEREAS, City of Cupertino(hereinafter referred to as"Owner(s)"is/are recorded 10 owner(s)of the real property described in Exhibit A, attached and incorporated herein by 11 reference 12 (hereinafter referred to as the"Property"); and 13 14 IL WHEREAS, City of Cupertino(hereinafter referred to as"Applicant(s)") 15 III. WHEREAS,the California Department of Parks and Recreation(hereinafter referred to 16 as"DPR")is a public agency created and existing under the authority of section 5001 of the California 17 Public Resources Code(hereinafter referred to as the"PRC"). And 18 IV. WHEREAS, Owner(s)(or Applicants)applied to DPR for grant funds available pursuant 19 to the 2002 Resources Bond Act,Roberti-Z'berg-Harr.s -Urban Needs Basis, for improvements on the 20 Property; and P Y� 21 V. WHEREAS,DPR's Office of Grants and Local Services approved Grant RU-43-001. 11 22 (hereinafter referred to as"Grant")on the Property, subject to, among other conditions,recordation of this 23 Deed Restriction on the Property; and 24 VI. WHEREAS,but for the imposition of the Deed Restriction condition of the Grant,the 25 Grant would not be consistent with the public purposes of the 2002 Resources Bond Act,Roberti-Z'berg- 26 27 1 Harris-Urban Needs Basis and the funds that are the subject of the Grant could therefore not have been 2 granted; and 3 VII. WHEREAS, Owner(s)has/ve elected to comply with the Deed Restriction of the Grant, 4 so as to enable Owner(s),to receive the Grant funds a:id perform the work described in the Grant; 5 NOW, THEREFORE, in consideration of the issuance of the Grant funds by DPR, the 6 undersigned Owner(s) for himself/herself/themselves and for his/her/their heirs, assigns, and successors- 7 in-interest,hereby irrevocably covenant(s)with DPR ghat the condition of the grant(set forth at 8 paragraph(s) 1 through 5 and in Exhibit B hereto) shall at all times on and after the date on which this 9 Deed Restriction is recorded constitute for all purposes covenants, conditions and restrictions on the use 10 and enjoyment of the Property that are hereby attached to the deed to the Property as fully effective 11 components thereof. 12 1. DURATION. (a)This Deed Restriction shall remain in full force and effect and shall 13 bind Owner(s) and all his/her/their assigns or successors-in-interest for the period running from 7/1/2011 14 through 6/30/2031. 15 2. TAXES AND ASSESMENTS. It is intended that this Deed Restriction is irrevocable 16 17 and shall constitute an enforceable restriction within the meaning of a)Article XIII, section 8,of the 18 California Constitution; and b) section 402.I of the California Revenue and Taxation Code or successor 19 statue. Furthermore,this Deed Restriction shall be deemed to constitute a servitude upon and burden to 20 the Property within the meaning of section 3712(d)of the California Revenue and Taxation Code, or 21 successor statue,which survives a sale of tax-deeded property. 22 3. RIGHT OF ENTRY. DPR or its agent or employees may enter onto the Property at time 23 reasonably acceptable to Owner(s)to ascertain whether the use restrictions set forth above are being 24 observed. 25 4. REMEDIES. Any act, conveyance, contract, or authorization by Owner(s)whether 26 written or oral which uses or would cause to be used or would permit use of the Property contrary to the 27 terms of this Deed Restriction will be deemed a violat:,on and a breach hereof. DPR may pursue any and 2 all available legal and/or equitable remedies to enforce the terms and conditions of this Deed Restriction. In the event of a breach, any forbearance on the part of DPR to enforce the terms and provisions hereof 2 3 shall not be deemed a waiver of enforcement rights regarding any subsequent breach. 4 5. SEVERABILITY. If any provision of these restrictions is held to be invalid,or for any 5 reason becomes unenforceable, no other provision shell be affected or impaired. 6 7 Dated: , 20 8 9 10 Signed: Signed: 11 12 PRINT/TYPE NAME&TITLE OF ABOVE PRINT/TYPE NAME&TITLE OF ABOVE (GRANTEE'S AUTHORIZED REPRESENTATIVE) (ADDITIONAL SIGNATURE,AS REQUIRED) 13 14 15 16 17 18 19 20 21 22 **NOTARY ACKNOWLEDGEMENT ON THE NEXT PAGE** 23 24 25 26 27 3 I State of California 2 County of 3 On before me, , a Notary Public, 4 personally appeared , who proved to me on the basis of 5 satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and 6 acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that 7 by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the 8 person(s) acted, executed the instrument. 9 10 I certify under PENALTY OF PERJURY under the laws of the State of California that the 11 foregoing paragraph is true and correct. 12 WITNESS my hand and official seal. 13 Signature (Seal) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 JAM 7 State of California•The Resources Agency Arnold Schwarzenegger? Governor �TEt pP-® DEPARTMENT OF PARKS AND RECREATION • P.O. Box 942896•Sacramento,CA 94296-0001 Ruth Coleman, Director 916-653-7423 June 7, 2006 Therese Ambrosi Smith Director, Parks & Recreation City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Dear Therese Ambrosi Smith, Re: Project Name: CUPERTINO ENVIRONMENTAL CLASSROOM Program Name: 2002 Resources Bond Act Roberti-Z'berg-Harris - Urban Needs Basis Project Number: RU-43-001 Contract Number: CO214003 Enclosed for your files is a copy of a fully executed contract for the above referenced project. Refer to your procedural guide for grant process information. Please remember that you must comply with all applicable state and federal laws and regulations including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and the laws and codes pertaining to individuals with disabilities. If you have any questions, please contact me at (916) 651-8441 or email me at Iandowski@parks.ca.gov. Sincere„ // Lowell Landowski Project Officer Enclosure Q r State of California-The Resources Agency Department of Parks and Recreation ` GRANT CONTRACT 2002 Resources Bond Act Roberti-Z'berg-Harris - Urban Needs Basis GRANTEE City of Cupertino PROJECT TITLE CUPERTINO ENVIRONMENTAL CLASSROOM PROJECT NUMBER RU-43-001 PROJECT PERFORMANCE PERIOD is from July 01,2C04 thru March 31,2012 Under the terms and conditions of this Contract,the Grantee agrees to complete the Project as described in the Project description, and the State of California,acting through its Director of Parks and Recreation,pursuant to the Roberti-Z'Berg-Harris Urbanized Area Need-Basis Program in the California Clean Water,Clean Air,Safe Neighborhood Parks,and Coastal Protection Act of 2002, agrees to fund the Project up to the total State Grant Amount indicated. PROJECT DESCRIPTION: A development project in the City of Cupertino to construct an environmental center and outdoor exhibit space, Total State Grant not to exceed $251,000.00 The General Provisions attached are made a part of and City of Cupertino incorporated into the Contract. Grantee By n,t/t LA) (LNAia0 li Typ or print name of thorized Representative STATE OF CALIFORNIA S . 18.06, STATE OF PARKS AND RECREATION Signature of Authorized Re s tative - Address l®30o T©r re +Av �ah-1 r-h'no A ct5�+)`il' By r ,�� - , Title C. S■ICi, t✓f Date 51/c9- j,/c9 Date 5 lq 0 I hereby certify that the Grantee has met,or will meet,all federal,State and local environmental,public health,relocation,affirmative action,and clearinghouse requirements and all other appropriate codes,laws,and regulations prior to the expenditure of the grant funds. [Public Resources Code 5626(d)] Signed ;Z J`✓`f ✓ . - Date /f% d!v Legal Counsel for Grant:- CERTIFICATION OF FUNDING CONTRACT NO AMENDMENT NO CALSTARS VENDOR NO. PROJECT NO. CO214003 400000417500 RU-43-001 AMOUNT ENCUMBERED BY THIS DOCUMENT FUND. $251,000.00 CA CLEAN WATERAIRSAFE NGHBORHD PKSCOASTL PROTCT PRIOR AMOUNT ENCUMBERED FOR THIS ITEM CHAPTER STATUTE FISCAL YEAR CONTRACT 3790-101-6029 208 04 2005/06 TOTAL AMOUNT ENCUMBERED TO DATE INDEX. OBJ.EXPEND PCA. PROJECT/WORK PHASE $ $251,000.00 1091 702 66014 T.B.A.NO. I hereby certify upon my personal knowledge that budgeted'unds are available for this encumbrance. B.R..NO. ACCOUNTING OFFICERS NA URE DATE. Xi." )(.1-1 4r- 5/4"/ 06 6 GP cl.-> --.a a'; Grant Contract Special Provisions General Provisions A. Definitions 1. The term"Act'as used herein means the Appropriation for the Program. 2. The term"Application"as used herein means the individual Application and its required attachments for grants pursuant to the enabling legislation and/or Program. 3. The term"Acquisition"means to obtain fee title or a lesser interest in real property, including specifically,a conservation easement or development rights. 4. The term"Department"means the California Department of Parks and Recreation. 5. The term"Development" means including, but not limited to, improvement, Rehabilitation, restoration, enhancement, Preservation, protection, and interpretation. Bond Act funds may only be used for Capital Improvements. 6. The term"Grantee"as used herein means the party described as the Grantee on page 1 of this Contract.The term"Project'as used herein means the Project described on page 1 of this Contract. 7. The term"State"as used herein means the State of California Department of Parks and Recreation. B. Project Execution 1. Subject to the availability of grant monies in the Act,the State hereby grants to the Grantee a sum of money(grant monies)not to exceed the amount stated on page 1 of this Contract, in consideration of,and on condition that, the sum be expended in carrying out the purposes as set forth in the Description of Project on page 1 of this Contract, and under the terms and conditions set forth in this Contract. Grantee agrees to furnish at least thirty(30)percent of the total cost of the Project unless waived per the procedures stated in the current State Procedural Guide for the Roberti-Z'Berg- Harris Urban Open Space and Recreation Program Act and shall assume any obligation to furnish any additional funds that may be necessary to complete the Project. Any modification or alteration in the Project as set forth in the Application on file with the State must be submitted to the State for approval. 2. The Grantee shall complete the Project in accordance with the time of Project Performance set forth on page 1, and under the terms and conditions of this Contract. 3. The Grantee shall comply as lead agency with the California Environmental Quality Act(Public Resources Code, Section 21000, et. seq. Title 14, California Code of Regulations, Section 15000 et. seq.) 4. The Grantee shall comply with all applicable current laws and regulations affecting Development Projects, including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities. 2002 RZH Urbanized Area Need-Basis Procedural Guide 47 5. The Grantee shall permit periodic site visits, including a final inspection upon Project completion by the State, to determine if Development work is in accordance with the approved Project _ Scope. 6. Prior to the commencement of any work, the Grantee agrees to submit any significant deviation from the original Project Scope in writing to the State for prior approval. Changes in the Project Scope must be approved in writing by the State and must meet the exact need described in the original Project Application. 7. If the Project includes Acquisition of real property, the Grantee agrees to comply with all applicable State and local laws or ordinances affecting relocation and real property Acquisition. 8. The Grantee shall provide for public access to Project facilities in accordance with the intent and provisions of the enabling legislation and/or Program. 9. Grantees shall have (1)fee title, (2) lease hold or(3)other interest to the Project lands and demonstrate to the satisfaction of the State that the proposed Project will provide public benefits that are commensurate with the type and duration of the interest in land, as determined by the State, that is held by the Grantee. 10. The Grantee shall maintain and operate the property funded for a period that is commensurate with the type of Project and the proportion of State funds allocated to the capital costs of the Project. With the approval of the State, the Grantee, or the Grantee's successor in interest in the property, may transfer the responsibility to maintain and operate the property in accordance with this section. The Grantee shall use the property only for the purposes for which the grant was made and shall make no other use or sale or other disposition of the property, except as authorized by specific Act of the Legislature. The agreements specified in this section shall not prevent the transfer of the property from the Grantee to a public agency, if the successor public agency assumes the obligations imposed by those agreements. If the use of the property is changed to a use that is not permitted by the category from which the grant funds were appropriated, or if the property is sold or otherwise disposed of, an amount equal to (1)the amount of the grant, (2)the fair market value of the real property, or(3)the proceeds from the sale or other disposition, whichever is greater, shall be used by the Grantee for a purpose authorized by that category, pursuant to agreement with the State as specified in this section, or shall be reimbursed to the fund and be available for Appropriation by the Legislature only for a purpose authorized by that category. If the property sold or otherwise disposed of is less than the entire interest in the property funded with the grant, an amount equal to either the proceeds from the sale or other disposition of the interest or the fair market value of the interest sold or otherwise disposed of, whichever is greater, shall be used by the Grantee for a purpose authorized by the category from which the funds were appropriated, pursuant to agreement with the State as specified in this section, or shall be reimbursed to the fund and be available for Appropriation by the Legislature only for a use authorized by that category. 11. Lands or interests in land acquired with grant funds shall be acquired from a willing seller. 12. The Application shall be accompanied by certification from the Grantee's planning agency that the Project for which the grant is requested is consistent with the Park and Recreation element of the applicable city or county general plan, the District park and recreation plan, or appropriate planning document, as the case may be and will satisfy a high priority need. 2002 RZH Urbanized Area Need-Basis Procedural Guide 48 C. Project Costs • The Grant monies to be provided to the Grantee under this Contract may be disbursed as follows: 1. If the Project includes Acquisition of real property,the State may disburse to the Grantee the grant monies as follows, but not to exceed, in any event, the total State Grant Amount set forth on page 1 of this Contract: a. Up to a 10%advance of the total State Grant Amount b. After the property is in escrow,the Grantee may request up to 80%of the total State Grant Amount as specified in the approved Application,or 100%of the actual Acquisition cost, whichever is less. The Grantee shall immediately place these funds in escrow. c. The remaining State grant funds shall be paid up to the amount of the grant or the actual Project cost,whichever is less,on completion of the Project and receipt of a detailed summary of Project costs from the Grantee. 2. If the Project includes Development, the State may disburse to the Grantee the grant monies as follows, but not to exceed in any event the total State Grant Amount set forth on page 1 of this Contract a. Up to a 10%advance of the total State Grant amount. b. On proof of award of a construction contract or commencement of construction by Force Account, up to 80%of the total State Grant Amount, not to exceed 80%of the total dollar amount of any or all awarded construction contracts. c. The remaining State grant funds shall be paid up to the amount of the grant or the actual Project cost,whichever is less, on completion of the Project and receipt of a detailed summary of Project costs from the Grantee. D. Project Administration 1. The Grantee shall promptly submit written Project reports as the State may request. In any event, the Grantee shall provide the State a report showing total final Project expenditures. 2. The Grantee shall make property and facilities developed pursuant to this Contract available for inspection upon request by the State. 3. The Grantee shall use any monies advanced by the State under the terms of this Contract solely for the Project herein described. 4. If grant monies are advanced, the Grantee shall place these monies in a separate interest bearing account, setting up and identifying such account prior to the advance. Interest earned on grant monies shall be used on the Project, as approved by the State. If grant monies are advanced and not expended, the unused portion of the grant shall be returned to the State within 60 days of completion of the Project or end of the Project Performance Period,whichever is earlier. 5. The Grantee shall use income earned by the Grantee from use of the Project to further Project purposes, or, if approved by the State,for related purposes within the Grantee's Jurisdiction. 2002 RZH Urbanized Area Need-Basis Procedural Guide 49 E. Project Termination 1. Any Grant funds that have not been expended by the Grantee shall revert to the fund and be available for Appropriation by the Legislature for one or more of the local assistance programs that the Legislature determines to be the highest priority statewide. 2. The Grantee may unilaterally rescind this Contract at any time prior to the commencement of the Project After Project commencement this Contract may be rescinded, modified or amended only by mutual agreement in writing between the Grantee and the State. 3. Failure by the Grantee to comply with the terms of this Contract or any other Contract under the Act may be cause for suspension of all obligations of the State hereunder. However, such failure shall not be cause for the suspension of all obligations of the State hereunder if in the judgment of the State such failure was due to no fault of the Grantee. In such case,any amount required to settle at minimum cost any irrevocable obligations properly incurred shall be eligible for reimbursement under this Contract 4. Because the benefit to be derived by the State,from the full compliance by the Grantee with the terms of this Contract, is the Preservation, protection and net increase in the quantity and quality of parks, public recreation facilities and/or Historical Resources available to the people of the State of California and because such benefit exceeds to an immeasurable and unascertainable extent,the amount of money furnished by the State by way of grant monies under the provisions of this Contract, the Grantee agrees that payment by the Grantee to the State of an amount equal to the amount of the grant monies disbursed under this Contract by the State would be inadequate compensation to the State for any breach by the Grantee of this Contract. The Grantee further agrees therefore,that the appropriate remedy in the event of a breach by the Grantee of this Contract shall be the specific performance of this Contract, unless otherwise agreed to by the State. 5. The Grantee and the State agree that if the Project includes Development,final payment may not be made until the Project conforms substantially to this Contract F. Hold Harmless 1. The Grantee shall waive all claims and recourse against the State including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this Contract except claims arising from the concurrent or sole negligence of the State, its officers, agents, and employees. 2. The Grantee shall indemnify, hold harmless and defend the State, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability costs arising out of the Acquisition, Development,construction,operation or maintenance of the property described as the Project which claims, demands or causes of action arise under Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of the State, its officers, agents, or employees. 3. The Grantee agrees that in the event the State is named as codefendant under the provisions of Government Code Section 895 et seq.,the Grantee shall notify the State of such fact and shall represent the State in the legal action unless the State undertakes to represent itself as codefendant in such legal action in which event the State shall bear its own litigation costs, expenses, and attorney's fees. 4. The Grantee and the State agree that in the event of judgment entered against the State and the Grantee because of the concurrent negligence of the State and the Grantee, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent Jurisdiction. Neither party shall request a jury apportionment. 2002 RZH Urbanized Area Need-Basis Procedural Guide 50 5. The Grantee shall indemnify, hold harmless and defend the State, its officers, agents and employees against any and all claims, demands,costs,expenses or liability costs arising out of legal actions pursuant to items to which the Grantee has certified. The Grantee acknowledges • that it is solely responsible for compliance with-items to which it has certified. G. Financial Records 1. The Grantee shall maintain satisfactory financial accounts,documents and records for the Project and to make them available to the State for auditing at reasonable times. The Grantee also agrees to retain such financial accounts,documents and records for three years following Project termination or final payment. The Grantee and the State agree that during regular office hours each of the parties hereto and their duly authorized representatives shall have the right to inspect and make copies of any books, records or reports of the other party pertaining to this Contract or matters related thereto. The Grantee shall maintain and make available for inspection by the State accurate records of all of its costs, disbursements and receipts with respect to its activities under this Contract. 2. The Grantee shall use a generally accepted accounting system. H. Use of Facilities 1. The Grantee agrees that the Grantee shall use the property developed with grant monies under this Contract only for the purposes for which the State grant monies were requested and no other use of the area shall be permitted except by specific Act of the Legislature. 2. The Grantee shall maintain and operate the property developed for a period commensurate with the type of Project and the proportion of State grant funds and local funds allocated to the capital costs of the Project, as determined by the State. Nondiscrimination 1. The Grantee shall not discriminate against any person on the basis of sex, race, color, national origin, age, religion, ancestry, sexual orientation, or disability in the use of any property or facility developed pursuant to this Contract. 2. The Grantee shall not discriminate against any person on the basis of residence except to the extent that reasonable differences in admission or other fees may be maintained on the basis of residence and pursuant to law. 3. All facilities shall be open to members of the public generally, except as noted under the special provisions of this Project Contract or under provisions of the enabling legislation and/or Program. J. Application Incorporation The Application and any subsequent change or addition approved by the State is hereby incorporated in this Contract as though set forth in full in this Contract. K. Severability If any provision of this Contract or the Application thereof is held invalid, that invalidity shall not affect other provisions or Applications of the Contract which can be given effect without the invalid provision or Application, and to this end the provisions of this Contract are severable. 2002 RZH Urbanized Area Need-Basis Procedural Guide 51 RESOLUTION 04-449 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE APPLICATION FOR GRANT FUNDS FROM THE STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES URBAN STREAMS RESTORATION PROGRAM FOR THE STEVENS CREEK CORRIDOR PARK PROJECT WHEREAS, the State of California Depar:ment of Water Resources is soliciting applications for the Urban Streams Restoration Program; and WHEREAS, this program supports actions that reduce property damage caused by flooding and bank erosion, restore the natural value of streams, and promote community stewardship; and WHEREAS, the California.Department of Parks and Recreation has been delegated responsibility for the administration of the Urban Streams Restoration Program for grants within the state, setting up necessary procedures; and WHEREAS, said procedures established by the California Department of Parks and Recreation require the applicant's Governing Body to certify by Resolution the approval of the Application before submission of said Application to the State; and WHEREAS, the Applicant will enter into a Contract with the State of California for the Project; NOW,THEREFORE, BE IT RESOLVEI) that the Cupertino City Council hereby: 1. Approves the filing of an Application for funds from the Urban Streams Restoration Program for the Stevens Creek Corridor F ark; and 2. Acknowledges that the City of Cupertino will be the project sponsor; and 3. Certifies that the City of Cupertino will abide by the requirements of the California Environmental Quality Act in the execution of the project; and 4. Appoints the City Manager as agent to conduct all negotiations, execute and submit all documents including, but not limited to, Applications, agreements,payment requests and so on, which may be necessary for the completion of the Project; and 5. Designates the Director of Parks and Recreation as the City's representative with the day- to-day responsibility for the grant funded project. z Resolution No. 04-449 2 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7th day of December 2004, by the following vote: Vote Members of the City Council AYES: Kwok, Lowenthal, Sandoval, Wang, James NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/Patrick Kwok City Clerk Mayor, City of Cupertino 3