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12-153 Stevens Creek Corridor Phase 2, Project 9134, Funding Agreement, Habitat Conservation Fund ProgramCUPERTINO OFFICE OF THE DIRECTOR OF PUBLIC WORKS CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408} 777 -3354 • FAX: (408) 777_ -3333 DATE: March 24, 2014 TO: " Distribution FROM: Gail Seeds RE: Stevens Creek Corridor Phase 2, Project 9134 — Funding Agreement, Habitat Conservation Fund program, Contract No. C9771008 For your records, attached is a copy of the executed agreement for grant funding for the Stevens Creek Corridor Park and Restoration Phase 2 project providing $100,000 from the Habitat Conservation Fund grant program. This is the second of two agreements from this program for this project. The first agreement, Contract No. C9769012, is for $114,000. Distribution: City Clerk (w /original), Finance, Parks and Recreation File 92,069.02/ 9134.10- HCF grant a State of California • Natural Resources Agency I Edmund G. Brown Jr.. Governor DEPARTMENT OF PARKS AND RECREATION P.O. Box 942896 • Sacramento, CA 94296 -0001 916 - 653 -7423 March 21, 2014 Gail Seeds Restoration Manager City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 -3255 Re: Project Name: Program Name: Project Number: Contract Number: Dear Gail Seeds, Major General Anthony L. Jackson, USMC (Ret), Director RECEIVED MAR 2 4:2014 PUBLIC WORKS DEPARTMENT Stevens Creek Park Restoration Phase 2 Habitat Conservation Fund Riparian Habitat HR-43-004 C9771008 Enclosed for your files is a copy of a fully executed contract for the above referenced project. Refer to your Grant Administration Guide for grant administration 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. In addition, this grant requires that a deed restriction be recorded on the title to the property. The deed restriction protects the State's interest in the property, and ensures that the property will be used for purposes consistent with the grant contract. No payments, except those necessary for acquisition, can be made until we receive a copy of the recorded deed restriction. The deed restriction and instructions are attached. If you have any questions, please contact me at (916) 651 -0564 or email me at Natalie. Bee @parks.ca.gov. Sincerely, kj�dit�-c A-�� Natalie Bee Project Officer Enclosure(s) to of California -Natural Resources Agency - partment of Parks and Recreation GRANT CONTRACT Habitat Conservation Fund Riparian Habitat GRANTEE City of Cupertino GRANT PERFORMANCE PERIOD is from July 01, 2013 through June 30; 2018 CONTRACT PERFORMANCE PERIOD is from July 01, 2013 through June 30, 2023 PROJECT TITLE STEVENS CREEK PARK RESTORATION PHASE 2 PROJECT NUMBER HR -43 -004 The GRANTEE agrees to the terms and conditions of this contract, hereinafter referred to as AGREEMENT, and the State of California, acting by and through the California Department of Parks and Recreation, agrees to fund the total grant amount indicated below. The GRANTEE agrees to complete the GRANT SCOPE as defined in the GRANT SCOPE: / Cost Estimate Form of the APPLICATION submitted to the State of California. GRANT SCOPE: Restore approximately'550 feet of riverine and riparian forest along Stevens Creek. Total State Grant not to exceed $100,000.00 (or 50% of the total project, which ever is less) The General and Special Provisions attached are made a part of and incorporated into the Contract. City of Cupertino eee��_�^ By iante 6 ez:; Typed or printed name of Authorized Representative S FATE OF LI FORNIA DEPART T PARK AN RECREATION Sign ure of Authorized Representative By Title his :flir ✓ � Uf'cI- ��,,e D;ate _ Date CERTIFICATION OF FUNDING CONTRACT NO AMENDMENT NO CALSTARS VENDOR'NO. PROJECT NO. C9771008 400000417500 HR -43 -004 AMOUNT ENCUMBERED BY THIS DOCUMENT FUND. $100.000.00 Habitat: ConCervat;on. Ft!rd PRIOR AMOUNT ENCUMBERED FOR THIS ITEM CHAPTER STATUTE FISCAL YEAR CONTRACT 3790- 601- 0262(1) ,20/13 9 .13' i c!'V 2013/14 TOTAL AMOUNT ENCUMBERED TO DATE INDEX. OBJ. EXPEND PCA. PROJECT / WORK PHASE $ $100,000.00 1091 702 63664 T.B.A. NO. I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance. B:R.. NO. ACCOUNTING OFFICER'S SIGNATURE DATE. u e��'c�v4e-e 0lc1 GRANT CONTRACT I. RECITALS 1. This agreement is entered into between the State of California, by and through the California Department of Parks and Recreation (hereinafter referred to as "STATE ") and (hereinafter referred to as "grantee "). 2. The California Wildlife Protection Act of 1990, Fish and Game Code, Chapter 9, commencing with Section 2780 (the ACT) authorizes the STATE to award grants to eligible entities. 3. Pursuant to the California Wildlife Protection Act of 1990, Fish and Game Code, Chapter 9, commencing with Section 2780, the STATE is authorized to oversee and manage grants to eligible entities for the purposes stated within its provisions. Funding for this $2,000,000 GRANT program was made available through the California Wildlife Protection .Act of 1990, Fish and Game Code, Chapter 9 (commencing with Fish and Game Code § 2780). 4. The STATE hereby grants to grantee a sum (hereinafter referred to as "grant monies ") not to exceed 6`Y/L,e_--G1 ($ l Z) 0, , subject to the terms and conditions of this agreement, the HCF Application GUIDES, any legislation applicable to the ACT and the APPLICATION. 5. In consideration thereof grantee agrees to abide by the terms and conditions of this agreement as well as the provisions of the ACT. Grantee acknowledges that the grant monies are not a gift or a donation. 6. In addition to the terms and conditions of this agreement, the parties agree that the terms and conditions contained in the documents set forth below are hereby incorporated into and made part of this agreement. a. The Grant Administration Guide b. The APPLICATION GUIDE c. The submitted APPLICATION II. SPECIAL I3ROVISIONS 1. This agreement includes the following special provisions, when project circumstances warrant (by either party): HCF PROGRAM 7 GRANT ADMINISTRATION GUIDE III. GENERAL PROVISIONS A. Definitions K As used in this agreement, the following words shall have the following meanings: 1. The term "ACT" means the statutory basis -for this grant program. 2. The term "APPLICATION" means the individual project APPLICATION packet for a grant pursuant to the enabling legislation and /or grant program process Grant Administration Guide requirements. 3. The term "ACQUISITION" means to obtain fte 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. 4. The term "CONTRACT PERFORMANCE PERIOD" means the period of time described on page 1 of this agreement. 5. The term "DEVELOPMENT" (trails category only) means capital improvements to real property by, but not limited to, improvement, construction, reconstruction, and /or protection of permanent or fixed features of the property., 6. The term "ENHANCEMENT" means to increase the habitat value of the land to benefit the targeted species. 7. The term "GRANT PERFORMANCE PERIOD" means the period of time described on page 1 of this agreement, during which eligible costs can be charged to the grant and which begins on the appropriation date and ends on the fund liquidation_ date. 8.. The term "GRANT SC.GPE" n eans.the items listed•.in:the: GRANT ..SCOPE . /cast... estimate form.found in the APPLICATION. 9. The term "GUIDES" means the documents identified as the APPLICATION and Grant Administration GUIDES for the Habitat Conservation Fund program for deer /mountain lion habitat, rare, endangered, threatened, or fully - protected species habitat, wetlands, anadromous salmonids and trout habitat, riparian habitat, trails, and WILDLIFE AREA ACTIVITIES, as incorporated by reference in Title 14, California Code of Regulations, Section 4870 -4877. 10 The term "RESTORATION" means the act of bringing either land or a species back into a former, non - impaired condition. HCF PROGRAM 8 GRANT ADMINISTRATION GUIDE 11. The term "STATE" refers to the State of California acting by and through the Department of Parks and Recreation. 12.The term "WILDLIFE AREA ACTIVITIES" means an event, or series of events to be accomplished with grant funds, such as a nature interpretation, educational, or other enrichment project, (e.g., classes:, trips, etc.), organized and /or conducted by the grantee, and intended to bring urban residents into park and wildlife areas. , 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 not to exceed the amount stated on page 1 of this agreement; in consideration of, and on condition that the sum be expended in carrying out the purposes set forth in the GRANT SCOPE, and under.the'terms and conditions set forth in this agreement. The grantee shall assume the obligation to furnish any additional funds that may be necessary to complete the GRANT SCOPE. 2. After the STATE has approved the APPLICATION, 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 . agreement and result in the termination of payment of the grant monies provided for in this agreement. To maintain the integrity of the competitive grant program, the grantee agrees that any other project changes or alterations .which deviate from the GRANT SCOPE in the original competitive APPLICATION must be submitted in writing to the STATE for prior approval. 3. The grantee shall complete the GRANT SC.OPE in accordance with the time of the GRANT PERFORMANCE PERIOD set forth on page one of this agreement, and under the terms and conditions of this agreement. 4. 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.). 5. The grantee shall at all times comply with ,all applicable current laws and regulations affecting ACQUISITION, ENHANCEMENT, RESTORATION, DEVELOPMENT, AND WILDLIFE AREA ACTIVITIES 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.) HCF PROGRAM 9 GRANT ADMINISTRATION GUIDE B1 �{ 6. 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. 7. Grantee agrees that lands acquired with grant monies shall not be acquired through the use of eminent domain. C. Project Costs 1. Grantee agrees to abide by the GUIDES. 2. Grantee acknowledges that the STATE may make reasonable changes to its procedures as set forth in the GUIDES. If 41the STATE makes any changes to its. procedures and guidelines;.the.STATE agrees to notify�grantee within a reasonable time. D. Project Administration 1. If the STATE advances grant monies for ACQUISITION projects, the STATE shall place the grant monies in an escrow account. If grant monies are advanced and not expended, the unused portion of the advanced funds shall be returned to the STATE within 60 days after the close of escrow. 2. If grant monies are advanced for an ENHANCEMENT, RESTORATION, DEVELOPMENT, or WILDLIFE AREA ACTIVITIES project, the advanced funds shall be placed in an interest - bearing account until expended. Advanced funds must be spent within six months from the date of receipt, unless the STATE waives 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 advance and any unused 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. 3. The grantee shall submit a written status report within 30 calendar days after the STATE has made such a request. In any event, the grantee shall provide the 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 agreement. 4. The STATE shall have the right to inspect all property or facilities acquired and/or developed pursuant to this agreement and the grantee shall make such property or facilities available for inspection upon ?.4 hours' notice from the STATE. HCF PROGRAM 1 O GRANT ADMINISTRATION GUIDE 5. The grantee and the STATE agree that if the GRANT SCOPE includes ENHANCEMENT, RESTORATION, DEVE=LOPMENT, or WILDLIFE AREA ACTIVITIES project activities, final payment may not be made until the work described in the GRANT SCOPE is complete. 6. Any grant funds that have not been expended by the grantee by the date on the PROJECT COMPLETION Certification form, or by end of the GRANT . PERFORMANCE PERIOD, whichever is earlier, shall revert to the STATE. E. Project Termination 1. In the event of non- completion of a GRANT SCOPE, the STATE may request the return of any grant funds advanced or reimbursed. 2. This agreement may be rescinded, modifiE!d or amended only by mutual written agreement between the grantee and the STATE, unless the provisions of this agreement provide that mutual agreement is not required for a rescission, modification or amendment. 3. Failure by the grantee to comply with the terms of this agreement, as well as any other agreements that grantee has entered into with STATE, 'may be cause for suspension of all obligations of the STATE under this agreement 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 agreement despite non- performance of the grantee. To qualify for such reimbursement, grantee agrees to mitigate its losses to the best of its ability. 4. The grantee agrees that in the event of a breach of this agreement, the STATE may seek, in addition to all remedies provide by law, specific performance of the agreement in accordance with the purposE� of the agreement to preserve, protect and increase the quantity and quality of habitat opportunities and /or resources available to the people of the State of California. F. 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 agreement with no. liability occurring to the STATE, or offer an amendment to the agreement to reflect a reduced grant amount. This paragraph shall not require the mutual agreement as addressed in Paragraph E, subsection 2, of this agreement. HCF PROGRAM 1 'I GRANT ADMINISTRATION GUIDE I ;J G. Indemnity 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 agreement, except valid legal claims arising from the concurrent or sole negligence of the STATE, its officers, agents, and employees. 2. 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 an ACQUISITION, ENHANCEMENT, RESTORATION, DEVELOPMENT, or WILDLIFE AREA ACTIVITIES project, 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. 3. 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 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. 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. H. Financial Records 1. 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 at least five years following project termination or final payment, whichever is later. HCF PROGRAM 12 ' GRANT ADMINISTRATION GUIDE 2. 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 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 agreement 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 agreement. Such accounts, documents, and records shall be retained by the GRANTEE for at least 5 years following final payment of grant monies. 4. The grantee shall use a generally accepted accounting - system, per state and federal requirements. I. Use of Facilities 1. The grantee agrees to operate and maintain project sites and /or locations for the duration of the CONTRACT PERFORMANCE PERIOD. If any property is acquired, enhanced, restored; or developed with grant monies, the grantee is required to operate and maintain the same for the duration of the CONTRACT PERFORMANCE PERIOD. 2. The grantee agrees that during the GRANT PERFORMANCE PERIOD, any income earned by the grantee from a STATE- approved use of the project shall be used for project purposes, or, if approved by the STATE, for other purposes within the grantee's jurisdiction. 3. The grantee acknowledges that reasonable public access shall be provided except when that access may interfere with habitat protection. 4. All facilities 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 agreement or under provisions of the enabling legislation and /or grant program. 5. The grantee agrees that for the duration of the CONTRACT PERFORMANCE PERIOD, any property acquired, enhanced, restored or developed with grant monies under this agreement 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. HCF PROGRAM 13 GRANT ADMINISTRATION GUIDE 6. The grantee agrees to use any property acquired, enhanced, restored, or developed with grant monies under this agreement 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 property shall be replaced by the grantee with property of equivalent value and usefulness as determined by the STATE. 7. The property acquired, enhanced, restored, or developed with grant monies may be transferred to another eligible entity only if the successor entity assumes the obligations imposed under this agreement and with written approval of the STATE. 8. 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 agreement. 9. 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. 10. If eminent domain proceedings are initiated against grantee, grantee shall notify the STATE within 1.0 days of receiving the complaint. J. Nondiscrimination 1. 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 project site(s) as included in the APPLICATION. 2. 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. HCF PROGRAM 14 GRANT ADMINISTRATION GUIDE K. Severability If any provision of this agreement or the appllication thereof is held invalid, that invalidity shall not affect other provisions or applications of the agreement which can be given effect without the invalid provision or application, and to this end the provisions of this contract are severable. L. Liability STATE assumes no responsibility for assuring the safety of construction, site improvements or programs related to the GF;ANT SCOPE. The STATE's rights under this agreement 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. M. Assignability Without the written consent of the STATE, the grantee's interest in and responsibilities under this agreement shall not be assignable by the grantee either in whole or'in part. N. Section Headings The headings and captions of the various sections of this agreement have been inserted only for the purpose of convenience and are not a part of this agreement and shall not be deemed in any manner to modify, explain, or restrict any of the provisions of this agreement. HCF PROGRAM 15 GRANT ADMINISTRATION GUIDE 4 O. Waiver Any failure by a party to enforce its rights uncle this agreement, in the event of a breach, shall not be construed as a waiver of said rights; and waiver of any breach under this agreement shall not be construed as a waiver of any subsequent breach. G i �7 -D T Grantee By. Signature of Autho zed Representative (Position Authorized in the Resolution) Title: �1:54.,6 zt /AC5 Date: &Z/ _ HCF PROGRAM 16 GRANT ADMINISTRATION GUIDE CUPERTINO OFFICE OF THE DIRECTOR OF PUBLIC WORKS CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777 -3354 • FAX: (408) 777 -3333 DATE: December 5, 2012 TO: Distribution FROM: Gail Seeds RE: Stevens Creek Corridor Phase 2, Project 9134 — Funding agreement, Habitat Conservation Fund program For your records, attached is a copy of the executed agreement for grant funding for the Stevens Creek Corridor Park and Restoration Phase 2 project from the State of California's Habitat Conservation Fund grant program. 1 Distribution: City Clerk (w /original), Finance /D. Woo, Parks & Rec /M. Linder File 92,069.02/ 9134.10- HCF grant State of California • Natural Resources DEPARTMENT OF PARKS AND RECREATION P.O. Box 942896 • Sacramento, CA 94296 -0001 916 - 653 -7423 December 3, 2012 Gail Seeds Restoration Manager City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 -3255 Dear Gail Seeds, Edmund G. Brown Jr., Governor Major General Anthony L. Jackson, USMC (Ret), Director RECEIVED DEC 0'5 2012 PUBLIC WORKS DEPARTMENT Re: Project Name: Stevens Creek Park Restoration Phase 2 Program Name: Habitat Conservation Fund Riparian Habitat Project Number: HR -43 -003 Contract Number: C9769012 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 Ilandowski @parks.ca.gov. Sincerely, Lowell Lan owski Project Officer Enclosure(s) LL State of California - Natural Resources Agency Department of Parks and Recreation GRANT CONTRACT Habitat Conservation Fund Riparian Habitat GRANTEE City of Cupertino PROJECT PERFORMANCE PERIOD is from July 01, 2012 thru March 31, 2017 PROJECT TITLE STEVENS CREEK PARK RESTORATION PHASE 2 PROJECT NUMBER HR -43 -003 Under the terms and conditions of this agreement, the applicant 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 program named above, agrees to fund the Project up to the total grant amount indicated. PROJECT DESCRIPTION Restore approximately 550 feet of riverine and riparian forest along Stew3ns Creek. Total State Grant not to exceed $114,000.00 (or 50% of the total project, which ever is less) City of Cupertino By Typed or printed name of Authorized Representative Signature of Authorized Representative Address_ �"Sa Cj -"�'•y�o, .Q.,s j7���j�, Title ���� -t Date The General and Special Provisions attached are made a part of and incorporated into the Contract. STATE O ALIFORNIA DEPAR N OF PAf.C'. D RECREATION B y Date CERTIFICATION OF FUNDING CONTRACT NO AMENDMENT NO TCALSTARS VENDOR NO. — ! C9769012 PROJECT NO. 400000417500 AMOUNT ENCUMBERED BY THIS DOCUMENT - - -- ----------- - - - - -- HR -43 -003 FUND . - - -- - - - — - - -- — - - - - -1 $114,000.00 Habitat Conservation Fund PRIOR AMOUNT ENCUMBERED FOR THIS ITEM CHAPTER —T - r- - - -___ CONTRACT 3790- 101 - 0262(1) i 21/12 FISCAL YEAR iSTATUT12 _ 2012/13 TOTAL AMOUNT ENCUMBERED TO DATE ------ T--- - - - - -- INDEX. PCA. — - -- - -1 - -- - - - -- - - - — $ OBJ. EXPEND PROJECT 1 WORK PHASE $114,000.00 1091 1 702 63662 �— _ __ T.B.A. NO. I hereb certi —upon m - -- -- are—_ - -L- - - - -- - - - -I - - - -- --- - - - - -- - - -- - - -- Y fY y personal knowledge that budgeted funds available for this encumbrance. -- NO OFFICER'S SIGNATURE TE. GPCAvl+ems.. I 1 -21 12 III. GENERAL PROVISIONS A. Definitions As used in this agreement, the following words shall have the following meanings: 1. The term "ACT" means the statutory basis for this grant program. 2. The term "APPLICATION" means the individual project APPLICATION packet for a grant pursuant to the enabling legislation and /or grans: program process Grant Administration Guide requirements. 3. The term "ACQUISITION" means to obtain fee Jtle 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. 4. The term "CONTRACT PERFORMANCE PERIOD" means the period of time described on page 1 of this agreement. 5. The term "DEVELOPMENT" (trails category only) means capital improvements to real property by, but not limited to, improvement, construction, reconstruction, and /or protection of permanent or fixed features of the property. 6. The term "ENHANCEMENT' means to increase the habitat value of the land to benefit the targeted species. 7. The term "GRANT PERFORMANCE PERIOD" means the period of time described on page 1 of this agreement, during which eligible costs can be charged to the grant and which begins on the appropriation date and ends on the fund liquidation date. 8. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE /cost estimate form found in the APPLICATION. 9. The term "GUIDES" means the documents identified as the APPLICATION and Grant Administration GUIDES for the Habitat Conservation Fund program for deer /mountain lion habitat, rare, endangered, threatened, or -Fully- protected species habitat, wetlands, anadromous salmonids and trout habitat, riparian habitat, trails, and WILDLIFE AREA ACTIVITIES, as incorporated by reference in Title 14, California Code of Regulations, Section 4870 -4877. 10. The term "RESTORATION" means the act of bringing either land or a species back into a former, non - impaired condition. 11. The term "STATE" refers to the State of California acting by and through the Department of Parks and Recreation. 12. The term "WILDLIFE AREA ACTIVITIES" means an event, or series of events to be accomplished with grant funds, such as a nature interpretation, educational, or other enrichment project, (e.g., classes, trips, etc.), organized and /or conducted by the grantee, and intended to bring urban residents into park and wildlife areas. 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 not to exceed the amount stated on page 1 of this agreement, in consideration of, and on condition that, the sum be expended in carrying out the purposes set forth in the GRANT SCOPE, and under the terms and conditions set forth in this agreement. The grantee shall assume the obligation to furnish any additional funds that may be necessary to complete the GRANT SCOPE. 2. After the STATE has approved the APPLICATION, 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 agreement and result in the termination of payment of the grant monies provided for in this agreement. To maintain the integrity of the competitive.grant program, the grantee agrees that any other project changes or alterations which deviate from the GRANT SCOPE in the original competitive APPLICATION must be submitted in writing to the STATE for prior approval. 3. The grantee shall complete the GRANT SCOPE in accordance with the time of the GRANT PERFORMANCE PERIOD set forth on page one of this agreement, and under the terms and conditions of this agreement. 4. 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.). 5. The grantee shall at all times comply with all applicable current laws and regulations affecting ACQUISITION, ENHANCEMENT, RESTORATION, DEVELOPMENT, AND WILDLIFE AREA ACTIVITIES 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.) 6. 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. 7. Grantee agrees that lands acquired with grant monies shall not be acquired through the use of eminent domain. C. Project Costs 1. Grantee agrees to abide by the GUIDES. 2. Grantee acknowledges that the STATE may roake reasonable changes to its procedures as set forth in the GUIDES. If the STATE makes any changes to its procedures and guidelines, the STATE agrees to notify grantee: within a reasonable time. D. Project Administration 1. If the STATE advances grant monies for ACQUISITION projects, the STATE shall place the grant monies in an escrow account. If grant monies are advanced and not expended, the unused portion of the advanced funds shall be returned to the STATE within 60 days after the close of escrow. 2. If grant monies are advanced for an ENHANCEMENT, RESTORATION, DEVELOPMENT, or WILDLIFE AREA ACTIVITIES project, the advanced funds shall be placed in an interest - bearing account until expended. Advanced funds must be spent within six months from the date of receipt, unless the STATE waives 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 advance and any unused 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. 3. The grantee shall submit a written status report within 30 calendar days after the STATE has made such a request. In any event, the grantee shall provide the STATE a report showing total final project expenditures within (30 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 agreement. 4. The STATE shall have the right to inspect all property or facilities acquired and /or developed pursuant to this agreement and the grantee shall make such property or facilities available for inspection upon 24 hours' notice from the STATE. 5. The grantee and the STATE agree that if the GRANT SCOPE includes ENHANCEMENT, RESTORATION, DEVELOPMENT, or WILDLIFE AREA ACTIVITIES project activities, D ' final payment may not be made until the work described in the GRANT SCOPE is complete. 6. Any grant funds that have not been expended by the grantee by the date on the PROJECT COMPLETION Certification form, or by end of the GRANT PERFORMANCE PERIOD, whichever is earlier, shall revert to the STATE. E. Project Termination 1. In the event of non - completion of a GRANT %r-,ICOPE, the STATE may request the return of any grant funds advanced or reimbursed. 2. This agreement may be rescinded, modified or amended only by mutual written agreement between the grantee and the STATE, unless the provisions of this agreement provide that mutual agreement is not required -For a rescission, modification or amendment. 3. Failure by the grantee to comply with the terms of this agreement, as well as any other agreements that grantee has entered into with STATE, may be cause for suspension of all obligations of the STATE under this agreement 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 agreement despite non - performance of the grantee. To qualify for such reimbursement, grantee agrees to mitigate its losses to the best of its ability. 4. The grantee agrees that in the event of a breach of this agreement, the STATE may seek, in addition to all remedies provide by law, specific performance of the agreement in accordance with the purpose of the agreement to preserve, protect and increase the quantity and quality of habitat opportunities and /or resources available to the people of the State of California. F. 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 agreement with no liability occurring to the STATE, or offer an amendment to the agreement to reflect a reduced grant amount. This paragraph shall not require the mutual agreement as addressed in Paragraph E, subsection 2, of this agreement. G. Indemnity 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 agreement, except valid legal claims arising from the concurrent or sole negligence of the STATE, its officers, agents, and employees. 2. To the fullest extent of the law, the grantee shalli 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 an ACQUISITION, ENHANCEMENT, RESTORATION, DEVELOPMENT, or WILDLIFE AREA ACTIVITIES project, 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. 3. 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 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 negl genc off I ability to pay such e grantee, their officers, agents, or employees, an app judgment shall be made by a court of competent jurisdiction. 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. H. Financial Records 1. 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 at least five years following project termination or final payment, whichever is later. 2. The grantee shall keep such records as the 13TATE 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 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 agreement 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 agreement. Such accounts, documents, and records shall be retained by the GRANTEE for at least 5 years following final payment of grant monies. 4. The grantee shall use a generally accepted accounting system, per state and federal requirements. I. Use of Facilities 1. The grantee agrees to operate and maintain project sites and /or locations for the duration of the CONTRACT PERFORMANCE PERIOD. If any property is acquired, enhanced, restored, or developed with grant monies, the grantee is required to operate and maintain the same for the duration of the CONTRACT PERFORMANCE PERIOD. 2. The grantee agrees that during the GRANT PERFORMANCE PERIOD, any income earned by the grantee from a STATE - approved use of the project shall be used for project purposes, or, if approved by the STATE, for other purposes within the grantee's jurisdiction. 3. The grantee acknowledges that reasonable public access shall be provided except when that access may interfere with habitat protection. 4. All facilities 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 agreement or under provisions of the enabling legislation and /or grant program. 5. The grantee agrees that for the duration of the CONTRACT PERFORMANCE PERIOD, any property acquired, enhanced, restored or developed with grant monies under this agreement 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. 6. The grantee agrees to use any property acquired, enhanced, restored, or developed with grant monies under this agreement 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 property shall be replaced by the grantee with property of equivalent value and usefulness as determined by the STATE. 7. The property acquired, enhanced, restored, or developed with grant monies may be transferred to another eligible entity only if the successor entity assumes the obligations imposed under this agreement and with written approval of the STATE. 8. Any real property acquired or developed with grant monies (including any portion of it or any interest in it) may not be used rovided that/s for any det or such approval shalln ott be unreasonably written approval of the STATE, p reasonably 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 agreement. 9. 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 of the real p�opertyt including ngeceived from the STATE or the pro -rated full improvements, at the time of sale, whichever is higher. 10. If eminent domain proceedings are initiated against grantee, grantee shall notify the STATE within 10 days of receiving the complaint. J. Nondiscrimination 1. 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 project site(s) as included in the APPLICATION. 2. The grantee shall not discriminate against any person on the basis of residence, and shall not apply differences in admission prevent use by economically d sadvantaged Fees shall be reasonable and not unduly members of the public. K. Severability If any provision of this agreement or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of the agreement which can be given effect without the invalid provision or application, and to this end the provisions of this contract are severable. L. Liability STATE assumes no responsibility for assuring the safety of construction, site improvements or programs related to the e the GRANT SCOPE and any final plans of this and a agreement to review, inspect, pp o 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. M. Assignability Without the written consent of the STATE, the grantee's interest in and responsibilities under this agreement shall not be assignable by the grantee either in whole or in part. N. Section Headings The headings and captions of the various sections of this agreement have been inserted only for the purpose of convenience and are not a part of this agreement and shall not be deemed in any manner to modify, explain, or restrict any of the provisions of this agreement. O. Waiver Any failure by a party to enforce its rights under this agreement, in the event of a breach, shall not be construed as a waiver of said rights; and waiver of any breach under this agreement shall not be construed as a waiver of any subsequent breach. City of Cupertino Grantee By: --- Signature of Authorized Representative (Position Authorized Title: Public Works Director Date: �0� in the Kesoiuuon) Audit Checklist An audit of the PROJECT may be performed before or following PROJECT COMPLETION. Listed below are some of the items the auditor will examine during the review. The GRANTEE must have these records available in a central location ready for review once an audit date and time has been confirmed. Contact DPR's Audits Office at (916) 657 -0370 for questions about audit requirements. CONTRACTS Summary list of bidders (including individual bid packages) Recommendation by reviewer of bids Awarding by governing body (minutes of the meeting /resolution) Construction contract agreement CONTRACT bonds (bid, performance, payment) CONTRACT change orders Contractor's progress billings Payments to contractor (cancelled checks /warrants, bank statements and EFT receipts, etc. *) Stop Notices (filed by sub - contractors and release if applicable) Liquidated damages (claimed against the contractor) Notice of completion (recorded) FORCE ACCOUNT LABOR ** Authorization/work order identifying project Daily time sheets signed by employee and supervisor Hourly rate (salary schedules /payroll register) Fringe benefits (provide breakdown) IN -HOUSE EQUIPMENT- Authorization/work order Daily time records identifying the project site Hourly rate related backup documents * Front and Back MINOR CONTRACTS /MATERIALS /SERVICES /EQUI PMEN T RENTALS Purchase orders /Contracts /Service Agreements Invoices Payments (actual cancelled checks /warrants, bank statements and EFT receipts, etc. *) ACQUISITION Appraisal Report Did the owner accompany the appraiser? 10 year history Statement of just compensation (signed by seller) Waiver of just compensation (if purchased below appraisal: signed by seller) Final Escrow Closing Statement Cancelled checks/warrants, bank statements and EFT receipts, etc.* (payment(s) to seller(s)) GRANT deed (vested to the participant) or final order of condemnation Title insurance policy (issued to participant) Relocation documents Income (rental, grazing, sale of improvements, etc.) INTEREST Schedule of interest earned on State funds advanced Interest on grant ADVANCES is accountable, even if commingled in a pooled fund account and /or 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. Grant Administration Guide for 2006 Audit Checklist (6/512012) Bond Act (Proposition 84) Grants