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12-157 Department of Transportation (Caltrans) Grant, Environmental Enhancement and Mitigation (EEM), Stevens Creek Corridor Park and Restoration Project Phase 2, State Project No. EEM-2010(035)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: February 27, 2014 TO: Distribution FROM: Gail Seeds RE: Stevens Creek Corridor Phase 2, Project 9134 - Funding Agreement Amendment #1, Environmental Enhancement & Mitigation Program For your records, attached is a copy of the executed Amendment No. 1 for grant funding for the Stevens Creek Corridor Park and Restoration Phase 2 project from the California" Environmental Enhancement and Mitigation Program" grant program. Distribution: . City Clerk (w /original), Finance /J. Chang File 92,069.02/ 9134.10- EEMP grant STATE OF CALIFORNIA— BUSINESS TRANSPORTATION AND HOUSING AGENCY EDMUND G. BROWN Jr. Governor DEPARTMENT OF TRANSPORTATION DIVISION OF LOCAL ASSISTANCE — M.S. 1 1120 N STREET P. O. BOX942874 SACRAMENTO, CA 94274 -0001 PHONE (916) 653 -8450 FAX (916) 657 -1905 TTY 711 February 24, 2014 Ms. Gail Seeds City of Cupertino 10300 Torre Avenue. Cupertino, CA 95014 -3255 Dear: Mr. Kempf, RECEIVED FEB 2 7.2014 PUBLIC WORKS DEPARTMENT FY 2010 -2011 Cycle 20 EEM- 2010(035) Flex your power! Be energy efficient! Attached is your Executed Applicant State Agreement No. 04 -20 -035., amending the expiration date from June 30, 2014 to June 30, 2015, for the Environmental Enhancement Mitigation Program Project.* If you should have any questions you can contact me at 916- 653 -8740. Thank you Brenda Herron Associate Transportation Planner Environmental Enhancement & Mitigation Program Coordinator Office of Active Transportation & Special Programs Division of Local Assistance California Department of Transportation Enclosure: cc: Hin Kung -D -04 Xin Tran -Acct. "Caltrans improves mobility across California" . -.. 17 ";b FIRST AMENDMENT TO APPLICANT_STATE AGREEM:ENT NO; -.'04*720-035 FOR. .ENVIRONM"E"NTAL ENHANCEMENT AND MITIGATION' (EEM) PROGRAM PROJECT' NO. EEM= 26.10(035) -NOTICE IS HEREBY GIVEN, that the undersigned mutually agree 'to revise the APPLICANT -STATE AGREEMENT . NO. 04-20-05: " _GkEEM A ENT'%. the Stevens Creek Corridor Park -,&.Restoration Project, 8EM-2- dated the f. 1-th day of Deeenibet. t no. 2011.. This -AMENDMENT -to the XdkEtMENT 20 - b' is effective the 20th. d! ay .of Feb', 201 "4'; by .and I*t-wbeh;.theState ofCA_136rnia, "8-TAT-8" and .-the '-of'Cupertiao- "APPLICANT": City This, AMENDMENT extends the expiration` date of the AGREEMEN11f -- from.j' - une-30j,2014, to June', 36., -2015 in, correlation With the: extension of the Ii-quiclati'Oft period granted by the caiif6rhi , a Department of F inanU per,669eftiffie'rit Code Section (GC) 16304.3. IN WITNESS WHI EREOF, the parties hereby *execute •his - AMENDMENT. by their duly duthbrized*,offir'_"efs as of the date ,set -.forth above;aiid,agr,.Oe-to be bound a hereby STATE OF CALIFORNIA DE .. PA-kTMEiI-T'OF'TRA'N8PORTATION B;, AjpriI.Nitsd9',. Chief DepA.rthient.,Of Transportation' Off ce.d Local' Assistance 11- , 0, W.9treet, MS' I Sacramento, CA 95814 110 EEM-2909(002) First Amen'dincift APPLICANT, :j3y-- City of Cupertino 14 41� 1:0300. Torre Avenue, Cupertino, CA 95044= 32'5,5 FOR CALTRA S USE: I hereby certi on my oven personal knowledge that budgeted funds are available for this encumbrance. &�k, dO U2, Accounting Officer Date: q Chapter Statutes (tern Fiscal Year Program BC Category Fund Source I ;k a010 aLQL00_("Ai3 00 APPLICANT -STATE AGREEMENT Igo, 04 -20 -035 ENVIRONMENTAL ENHANCEMENT CEMEl T AN MITIGATION EEM PROGRAM STATE PROJECT NUMBER. EEM-2010 - 2010-2011 FISCAL YEAR ALLOCATION Advantage Project 1D: 0400021079 THIS AGREEMENT, made effective this December ,1 , 2011 , by and between the Ci of Cupertino, hereinafter referred to as "APPLICANT", and the State of Calif rni, acting by and through the California. Department of Transportation Caltran , hereinafter referred to as "STATE." W1TNESSETH WHEREAS, as provided by Streets and Highways Code Section 164-56, Senate Bill 117 (Statutes of 1999, Chapter 739) established the EEM Program as a permanent program, funds have been allocated to APPLICANT by the California Transportation Commission CTC after the PROJECT submitted by APPLICANT had been recommended for funding by the Resources Agency; and as described in the application (APPLICATION); WHEREAS, STATE and APPLICANT now desire to enter into an Agreement relative to fund transfers and cost sharing on the described PROJECT. NOW, THEREFORE, the parties agree as follows: ARTICLE I - Project Administration and General Provisions 1. PROJECT shall mean that EEM PROTECT described in the APPLICATION submitted by APPLICANT and summarized in Exhibit A to this Agreement including financing information as set forth in Section III of Exhibit A to this Agreement. Page I of 17 EE- 2010(035) 2. The PROJECT submitted by APPLICANT, together with all conditions and assurances contained therein, and specifically including information on how the PROJECT shall be financed, are made an express part of this Agreement. Should any conflict exist between the APPLICATION and the Agreement, the Agreement shall prevail. 3. APPLICANT shall complete PROJECT, which shall be acquired, developed, designed and constructed as provided in this Agreement. 4. If PROJECT is located on STATE-owned right-of-way, APPLICANT shall comply with all applicable STATE design and construction standards and practices. If PROJECT is not on' STATE - owned right-of-way, APPLICANT shall comply with the applicable design and construction standards and practices of the local govemment having jurisdiction over the PROJECT location. In cases where the CTC approved funding is less than the amount for which APPLICANT originally applied due to a Budget Reduction on the project required by the State Resources Agency, APPLICANT is obligated to complete PROJECT without downscoping it, unless specifically authorized to o so, in writing, b the State Resources Agency. This will be accomplished by APPLICANT supplementing PROJECT costs with another funding source or by finding a less costly way to complete the PROJECT. The estimated total cost of PROJECT is as shown in Section III of Exhibit A. While APPLICANT nay, with the STATE's written approval, award contract in an amount in exceeding the estimated total PROJECT cost specified in Section 111-A of Exhibit A of the Agreement, the allocation of STATE funds for PROJECT will never be greater than the amount specified in Section 111-C of Exhibit A of this Agreement. Section III of Exhibit A. specifies the APPLICANT's estimated total PROJECT cost, each party's proportionate percentage of those costs and the maximum amount of STATE funds the CTC has authorized for the PROJECT. The STAT 's proportionate share of funding is a certain percent of the estimated total PROJECT cost and approved scope of the PROJECT STATE's PROPORTIONATE SFLARE) and will be used as the reimbursement ratio on the project. In the evert the actual cost of PROJECT exceeds the estimated total cost of the PROJECT, the STATE shall pay its PROPORTIONATE SHARE of the cost only up to the amount specified in Section III -C of Exhibit A of the Agreement. 8. In the event the PROJECT scope decreases, a decrease in the ST TE's PROPORTIONATE SHARE shall be made. In the event the actual cost of PROJECT decreases for any reason from the estimated total PROJECT cost specified in Section III of Exhibit A, the allocation of STATE funds will be decreased proportionately with any decrease in PPLICANT's participating contribution so that the ST 'T 's PROPORTIONATE SHARE of costs relative to TOTAL PROJECT COST" remains as specified in Section III -E of Exhibit A of the Agreement. 9. No changes of any kind may be made to the PROJECT without prior written notice to and written acceptance by the STATE of the proposed change. The STATE shall acknowledge a written notice of proposed change by either accepting or rejecting the proposed changed in writing. In the event the STATE responds to a proposed change by stating that the proposed change requires discussion and amendment., such acti 10. After completion and acceptance of PROJECT by both APPLICANT and STATE, STATE shall pay ST TE's PROPORTIONATE SHARE of the cost of PROJECT to APPLICANT, within sixty days after receipt of a signed invoice for payment .submitted by APPLICANT. At the option of APPLICANT, monthly or quarterly pro rata progress payments in arrears may be made on a reimbursement basis upon submittal of invoices by APPLICANT and approval by STATE of the PROJECT costs incurred. Pro rata payments will be based on the amount of the STATE fund transfer authorized herein in proportion to the total cost of PROJECT, including APPLICANT contributions. An invoice format document is included as Exhibit C. 11, If PROTECT involves work anywhere on the State highway system, a separate standard form of encroachment permit between STATE and APPLICANT must be prepared and executed before PROJECT work may commence. 1. APPLICANT shall comply with the requirements of the PAIR EMPLOYMENT PRACTICES ADDENDUM (Exhibit and further agrees that any agreement or service contract entered into by APPLICANT with a third party for performance of work connected with the PROJECT shall incorporate Exhibit E as a part of such agreement. 13. Upon completion of all work under this Agreement and prior to the expiration of this Agreement, APPLICANT shall prepare and file with STATE one 1 original Final Project Expenditure Report. The Final Project Expenditure Report must be submitted with the final invoice on the PROJECT. ARTICLE TI ^ Rights-of-Way i . The acquisition, clearance, and improvement of rights of way necessary for the development of PROJECT shall be the responsibility of APPLICANT. Right-of-way acquisition are clearance costs may be included as participating item of total PROJECT costs if included as part of the PROJECT scope of wort. 2. APPLICANT shall perform all PROJECT aright -of -way activities in accordance with applicable State laws and regulations unless the STATE determines, in writing, that the State Uniform Relocation Assistance and Real Property Acquisition Policies Act (Government Code Sees. 7260- 7277) do not apply to PROJECT. 3. .APPLICANT, as part of its PROJECT CT design responsibility, shall identify and locate all utility facilities within the PROJECT area. All utility facilities, including those not relocated or removed in advance of construction, shall be identified on PROJECT plans and specifications. 4. If any existing public- and/or private utilities conflict with the construction of PROJECT, APPLICANT will make all necessary arrangements with the owners of such utilities for their protection, relocation, or removal. If utility relocation is required within STATE right-of-way, APPLICANT shall conform to STATE standards, Policies and procedures. If utility relocation i outside of STATE right- of-way, APPLICANT shall conform with local government policies. 5. APPLICANT shall certify as to legal and physical control of that PROJECT right-of-way once it is ready for construction and that the PROJECT right-of-way was acquired in accordance with applicable State laws and regulations, subject to review and concurrence by STATE, prior to the advertisement for bids for construction/development of PROJECT. Page 3 of 17 EE- 2010(035) 6. If right-of-way acquisition and clearance costs are included as a participating item of PROJECT costs, STATE shall provide funds only for purchase of the actual right -of -way required for PROJECT. If APPLICANT acquires right-of-way which includes excess land, STATE will not participate in the cost of the excess portion. In the event land initially acquired as part of PROJECT is declared excess at a later date, APPLICANT shall reimburse STATE, no later than one hundred twenty (1 20) days after PROJECT completion or upon the subsequent sale of that excess land, for either the pro rata fair market value of that excess at the time of disposal or, if that property is retained by APPLICANT, the pro grata fair market value of the excess land at that time. The pro rata fair market value shall be based on the total of the STATE fund transfer amount appli ARTICLE v - Equipment Purchase I. Prior authorization in writing by STATE shall be required before APPLICANT enters into any non-budgeted purchase order or subcontract exceeding $500 for supplies, equipment, or consultant services. APPLICANT shall provide an evaluation of the necessity or desirability of incurring such costs. 2. For purchase of any item., service or consulting work not identified in APPLICAI T's Cost Proposal and exceeding $500, with written prior authorization by STATE, three competitive quotations must be submitted with that request or the absence of bidding must be adequately justified. 3. Any equipment purchased as a result of this Agreement is subject to paragraph 3 of this Article V. APPLICANT shall maintain an inventory of all none pendable property, defined as property . having a useful life of at bast two years and an acquisition cost of $500 or more. If purchased equipment needs replacement and is sold or traded in, STATE shall receive a proper refund or credit. Upon the expiration date of this Agreement, or if this Agreement is terminated, APPLICANT may either keep the equipment and credit STATE in are amount equal to its fair market value or sell such equipment at the best price obtainable, at a public or private sale, in accordance with established STATE procedures, and credit STATE in an amount equal to the sales prig. If APPLICANT elects to keep that equipment, fair market et value shall be determined, at APPLIC NT's expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to STATE and APPLICANT. If it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by STATE. ARTICLE VI - Management and Maintenance of Property I. APPLICANT will operate, manage and maintain into the future all property acquired, developed, rehabilitated, or restored with funds transferred through this Agreement. With STATE's prior approval, APPLICANT or its successors in interest may transfer management and maintenance responsibilities over the property. If the property is not managed and maintained consistent with the PROTECT APPLICATION, APPLICANT or its successors in interest, at the discretion of STATE and within 45 days after receiving notice to APPLICANT by STATE, shall reimburse STATE an amount at least equal to the amount of STATE's funding participation in PROTECT together with all accrued interest at State Treasurer's pooled money investment account. 2. All real property, or rights thereto, acquired with these funds shall be subject to are appropriate form of restrictive title, or rights, covenants approved by STATE. If the PROJECT real property, or rights thereto, is sold, traded., condemned, or otherwise put to any use other than that use as approved in the Allocation for STATE funds, the State Highway Account, at the discretion of STATE and within 45 days notice to APPLICANT by STATE, shall be reimbursed an amount at least equal to the amount of the STATE's funding participation in PROTECT or the' pro rata fair market value of the real property, or rights thereto, including improvements, at the time of sale, whichever is higher. The pro rata fair market value shall be based on the proportions of the fund transfer amount applied toward the purchase of the property, or rights thereto, and the design and construction of improvements in proportion to the total purchase price of the real property, or rights thereto, and the cost of all improvements made prior to the time of sale. Page 5 of 17 EE -a 10(035) ARTICLE L v11- Retention of Records/Audit Review Procedures 1. For the purpose of determining compliance with Public Contract Code 10115, et seq, and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable, and other matters connected with the performance of the Agreement pursuant to Govemment Code 10532, APPUCANT, its contractors and their subcontractors and STATE shah each maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement. All parties shall make such materials available at their respective offices at all reasonable tines during the Agreement period and for four years from the date of final payment under this Agreement. STATE, the State auditor, the Federal Highway Administration Fw, or any duly authorized representative of the Federal government shall have access to any boobs, records, and documents of APPLICANT that are pertinent to this Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished by APPLICANT or its contractors, if requested. 2. Any dispute conceming a question of fact arising under an interim or post audit of this Agreement that is not satisfactorily disposed of by agreement shah be reviewed by the Chairperson of the STATE Audit Review Committee (ARC). The ARC will consist of the Assistant Director, Audits Security (Chairperson); Deputy Director of Transportation Engineering; the Chief Counsel, Legal Division, or their designated alternates; and two representatives appointment by the Director of Transportation from private industry whose role will be advisory in nature only and without voting rights. 3. Not later than 3 0 days after issuance of the final audit report, APPLICANT may request a review by the ARC of unresolved audit issues. The request for review will be submitted in writing to the Chairperson of the ARC. The request must contain detailed information of the factors involved in the dispute as well as justifications for reversal. A meeting by the ARC will be scheduled if the Chairperson concurs that further review is warranted. After the meeting, the ARC' will - make recommendations to the Chief Deputy Director. The Chief Deputy Director will make the final decision for STATE within one 1 month following the receipt of the notification of dispute or following the ARC meeting recommendation date, whichever is later in tine. 4. Neither the pendency of a dispute nor its consideration by STATE will excuse APPLICANT from full and timely performance of its obligations in accordance with the terms of this Agreement. 5. Any subcontract entered into as a result of this Agreement shall contain all the provisions of this Article VII. 6. Expenditures of E M program funds are subject to financial and compliance audits by the Mate Controllers Office and Caltran.s Office of Audits and Investigations. 'these guidelines may be found in Caltrans Local Assistance Procedures Manual, Chapter 10, "Consultant Selection', Exhibit 10-N "Accounting and Auditing Guidelines for Contracts with Caltr ns ". Pap 6 of 17 EE- 2010(035) ARTICLE VIII — Allowable Costs and Payments I. The method of reimbursement authorized by STATE for P'ROJEC'T expenditures made by APPLICANT under this Agreement will be based on actual costs incurred. STATE will reimburse the STAT 's PROPORTIONATE SHARE of actual costs (based on Section III of Exhibit A and including labor costs, employee benefits, travel, equipment rental costs, and other direct costs) incurred by APPLICANT in performance of the work. APPLICANT will not be reimbursed for actual costs that exceed the estimated wage rates', employee benefits, travel, equipment rental, fringe benefit rates, and other estimated costs set forth in APPLICANT's cost proposal (Exhibit Al) unless additional reimbursement is provided for by Agreement amendment. In the event that STATE determines aaditional wort beyond that specified in APP ICANT's cost proposal and this Agreement is required to produce a satisfactory PROJECT, the actual costs reimbursable by STATE may be increased by Agreement amendment to accommodate that additional work. The maximum total costs as specified in Section III of Exhibit A of this Agreement, shall not be exceeded unless authorized by Agreement amendment. 2. Reimbursement for transportation and subsistence costs shall not exceed the rates to be paid nonrepre ented /excluded State employees under then current State Department of Personnel Administration rules detailed in the Caltrans Travel And Expense wide. 3. General and administrative PROTECT overhead is unallowable under the Resources Agency of California's Environmental Enhancement and Mitigation Program Procedures and Criteria guidelines. . Progress payments will be allowed and may be made no less than monthly in arrears based on PROJECT work performed and allowable incurred costs authorized as part of the PROJECT. 5. APPLICANT may not commence any reimbursable PROTECT development work or services or PROTECT capital outlay work before both program adoption and funding allocation by the California Transportation Commission and execution of this PROJECT agreement by both APPLICANT and STATE. Reimbursement is subject to annual appropriation by the Legislature in the State Budget for the Environmental Enhancement and Mitigation Program Fund. 6. APPLICANT will be reimbursed as promptly as fiscal procedures will permit upon receipt by STATE's Local Program Accounting office in the Division of Accounting of signed invoices. One original and two copies of the invoice (ire the format shown in Exhibit Q shall be submitted after the performance of work for which APPLICANT is billing. Invoices shall include detailed backup up information supporting the work performed. The final invoice must contain the final cost and all credits due STATE, including credits or reimbursements due STATE for any equipment purchased under the provisions of Artier V of this Agreement. Progress and final invoices as well as the Final Project Expenditure Deport shall be mailed to the Caltrans District t Director, ATTN: District Local Assistance Engineer I A , for invoice approval. The DLAE will forward invoices to the Accounting office for payment. ARTICLE IX — Cost Principles I. APPLICANT agrees to comply with: 1 ) The Resources Agency of California's Environmental Enhancement and Mitigation og a Procedures and Criteria, and California Transportation Commission Guidelines far Allocating, Monitoring, and Auditing of Local Assistance Projects. Page 7 of 17 EE-0 10(035) 2. APPLICANT agrees to comply with the following, as applicable: A. The Contract Cost Principles and Procedures, 48 CFI, Federal Acquisition Regulations System, Chapter 1, fart 31 et seq., which shall be followed to determine the ail wabillty of individual items of cost for which reimbursement is sought. B) 9 CF R, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments and Office of Management and Budget Circular -7, Cost Principles for State and Local Governments.. C Office of Management and Budget Circular A-122, Cost Principles for Nonprofit Organizations, which shall be used to determine costs of grants, contracts and other agreements with nonprofit organizations (excluding colleges, universities and hospitals). D) Office of Management and Budget Circular -21, Cost Principles for Educational Institution establishing principles for determining costs applicable to grants, contracts, and other agreements with educational institutions. E) Office of Management and Budget Circular A-110, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and other Nonprofit fit Organizations. 3. Any costs for which payment has been made to APPLICANT that are determined by subsequent audit to be unallowable under Paragraphs 1 and 2 of this Article IX are subject to repayment by APPLICANT to STATE, 4. Should any conflict exist between the STATE guidelines as described in Paragraph. 1 and 2 of this Article IX, the following order will prevail and be applied as follows: 1 ) Resourees Agency of California's Environmental Enhancement and Mitigation Program Procedures and Criteria; 2 California t'ra'nsportation Commission Guidelines for 4 ' o a ing, Monitoring, and Auditing of Local ,4ssisance Projects, 48 CFI., Federal Acquisition Regulations System, Chapter 1, Part 31 et seq.; 49 CFI , Federal Acquisition Regulations System, Fart 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Government; OMB A-2 1, Cost Principles for Educational Institutions; OMB A-110, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Nonprofit Organizations; OMB A- 122, Cost Principles for Nonprofit Organizations; and OMB A -8 7, Cost Principles for State and Focal Government. 5. Any subcontract entered into as a result of this Agreement shall contain all the provisions of this Article IX. 6. Should APPLICANT fail to reimburse moneys due STATE within thirty days of demand, or within such other period as may be agreed between the parties hereto, STATE is authorized to withhold future payments due APPLICANT from any source, including but not limited to, the State Treasurer, the Mate Controller and the California Transportation Commission. Page s of 17 EEM-2010(035) ARTICLE X - Subcontracting 1. ,APPLICANT shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by STATE, except that which is expressly identified In APPLICANT's APPLICANT' Cost Proposal (Exhibit A 1). 2. Any subcontract in excess of $25,000, entered into as a result of this Agreement, shall contain all the provisions stipulated in this Agreement and shall be applicable to all subcontractors, 3. , Any substitution of subcontractors must be approved in writing by STATE. 4. Any subcontract entered into as a result of this Agreement shall contain all the provisions of this Article X. ARTICLE X1- Insurance 1. If the scope of APPLICANT services will not require APPLICANT or a subcontractor to enter upon STATE highway right of way, then the APPLICANT is not required to show evidence of general comprehensive liability insurance. 2. In the event that APPLICANT or an agent, contractor or subcontractor of APPLICANT will be present or working on STATE right of way, prior to commencement of the work described herein, the APPLICANT shall furnish to STATE a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for APPLICANT and/or its agents, contractors, and subcontractors who will be working in any manner) on STATE property with a combined single limit (CSL)of not less than one million dollars ($1,000,000) per occurrence. 3. The Certificate of Insurance must provide: A. That the insurer will not cancel the insured's coverage without 30 days prior written notice to the STATE. B. That the STATE, its officers, agents, employees, and servants are also included as additional named insureds, but only insofar as PROJECT operations under this Agreement are concerned. C. That STATE will not be responsible for any premiums or assessments on the policy. 4. APPLICANT agrees that all bodily injury liability insurance or self-insurance required herein skull be in effect at all braes during the term of this Agreement. In the event said insurance coverage expires at any time or times during the terra of this Agreement, APPLICANT agrees to provide, at least thirty days prior to said expiration date, a new Certificate of Insurance or Certificate of Self = Insurance evidencing coverage as provided for herein for not less than the remainder of the term of the Agreement, or for a period of not less than one 1 year. New Certificates are subject to the approval of STATE and Department of General Services. In the event APPLICANT fails to keep coverage as herein provided in effect at all tinges, STATE may, in addition to any other remedies it may have, terminate this .Agreement upon the occurrence of such event. Page 9 of 17 EE- 2010(035) 5. If APPLICANT is self - insured, the EEM PROJECT APPLICANT shall submit a Certificate of Self - Insurance asserting that APPLICANT is covered for all purposes of liability for all work performed hereunder. STATE and APPLICANT acknowledge that only one Certificate of Self- Insurance will be required and that APPLICANT must maintain that level of Self - Insurance [not less than one million dollars 1,000,000)]. It is also understood that STATE, its officer, agents, employees, and servants, are included as covered for all purposes insofar as the operations of APPLICANT under this Agreement are concerned. ARTICLE X11 - Miscellaneous Provisions 1. Neither STATE nor any off leer or employee thereof is responsible 'for any injury, damage, or liability occurring by reason of anything done or omitted to be done by APPLICANT under or in connection with any work, authority or jurisdiction conferred upon APPLICANT under this Agreement. It is understood and agreed that APPLICANT shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited. to, toartious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by APPLICANT under this Agreement. STATE reserves the right to represent itself in any litigation in which STATE'S interests are at stale. 2. APPLICANT, and the agents and employees of APPLICANT, in performance of this Agreement, shall act in an independent capacity and not as officers, employees or agents of STATE. 3. Following written notice and at least thirty days to cure, STATE may terminate this Agreement with APPLICANT should APPLICANT fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, STATE may Proceed with the PROJECT work in any manner deemed proper by STATE. If STATE terminates this Agreement with APPLICANT, STATE shall pay APPLICANT the sum of allowable costs due APPLICANT under this Agreement prior to termination, provided, however, that the e st of PROJECT completion to STATE shall first be deducted from any sung due APPLICANT under this Agreement, and the balance, if any, shall then be paid APPLICANT upon demand. 4. Without the written consent of STATE, this Agreement is not assignable by APPLICANT, either in whole or in part. 5. Time is of the essence in this Agreement. 6. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, andxno oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 7. The consideration to be paid APPLICANT, as provided herein, shall constitute full compensation for all of APPLICA T's allowable approved costs and' expenses incurred in the performance hereof, unless otherwise expressly so provided. Page 10 of 17 M- o 10(035) 8. APPLICANT warrants, by execution of this Agreement, that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona Bide established commercial or selling agencies maintained by APPLICANT for the purpose of securing business. For breach or violation of this warranty, STATE has the right to annul this Agreement without liability, pay only for the value of the work actually perfortned, or in its discretion, to deduct from the price of consideration, or otherwise recover from APPLICANT, the full amount of such commission, percentage, brokerage, or contingent fee. 9. In accordance with Public Contract Code Section 10296, APPLICANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by Federal court has been issued against APPLICANT within the immediate preceding two -year period because of PPLIC TT's failure to comply with an order of a Federal court that orders APPLICANT to comply with an order of the National Labor Relations Board. 10. APPLICANT shall disclose any financial, business, or other relationship with STATE, the Resources Agency, or the California Transportation Commission CTC that may have an impact upon the outcome of this Agreement. APPLICANT shall also list current associates or clients who may have a financial interest in the outcome of this Agreement. 11. APPLICANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of this Agreement. 12. APPLICANT warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE or Resources Agency employee, For breach or violation of this warranty, STATE shall have the right, in its sole discretion, to terminate the Agreement without liability, to Pay only for the work actually performed, or to deduct from the Agreement price or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration. 13. This Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the State Legislature or the Federal Government that may affect the provisions, terms, or funding f this Agreement in any manner. 14. This Agreement shall terminate on .June 30,.2014 - -with project completion and final invoicin. g done by April 30, 2014 - -or upon the earlier completion of PROTECT, whichever is first earlier in tine, except that APPLICANT duties regarding the continuing operations and maintenance of PROJECT property, credits due STATE, and indemnification of STATE shall survive. Page I I of 17 EE - o l0 0 ITT WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers. STATE OF CALIFORNIA IA PARTMENT OF TRANSPORTATION Y April Ni s s, 5e�nior Transportation Engineer Office of Special and Discretionary Programs Division of Let Assistance 1120 "N" Street, Sacramento, Calif is 95814 Page 12 of 17 r R o10 a APPLICANT By ti I c��d -�-, , � �'r -�c-�r �� � I li �.. Wo""'Iq- ' APPLICAN 17rese�tative Name and Title 0 U V �1'' 'i 0 Agenc 10 30 0 o Leo Ad ress (�U P'e rh�o City; $tate, ZIP 4-4, P)_ 07*77, 3,e3 �5-+ Telephone N. E -mail address EXHIBIT A - PROJECT DESCRIPTION AND FINANCING APPLICANT: City of Cupertino PROJECT NAME: Stevens Creek Corridor Park & Restoration, Project, Phase 2 COUNT: Santa Mara I. Project Location: Final segment of the trail between Stevens Creek Blvd. and McClellan Rd within the City of Cupertino. II. Proi6ect Description of Work Proposed as set forth in Application No. : 035 Project will extend the regional multi -use Stevens Creek Trail, restore riverine and riparian habitat along 1,400 feet of Stevens Creek, and open 5 acres of parkland to the public. Approximately 1 -1 acres will be planted with native riparian, wetland and oak woodland plantings, a local orchard opened to public access with a new trail, and wildlife habitat improved. The creek channel will be widened to create 550 feet of pool and riffle stream habitat. A new backwater wetland area will be constructed. Existing concrete and riprap channel armoring will be removed from the creep and the banks vegetated with native plantings. III Proposed Project Funding: A. ESTIMATED TOTAL PROJECT COST. 296959000.00 Is this amount different from that sot forth in the APPLICATION? Yes X No B. PROJECT FINANCING: State Funding 245, 000.00 = 9.10% of total project cosh` Applicant Funding $ 294 0�000.00 = 90.90% of total project cost Federal Funding if any)... _ 0.00 - Total Project Funding $ 2,195,000.00 = 100.00% of total J ro`ect cost P *NOTE: This percentage is referred to in this Agreement as the STATE's PROPORTIONATE SHADE of costs and will be used as the reimbursement ratio on the project. C. The maximum arno nt of STATE funding approved by the CTC that may he contributed to the PROJECT shall not exceed $ 245,000.00. Page 13 of 1 EE - 2010(035) EXHIBIT Al - COST PROPOSAL (This must be completed by APPLICANTfor all projects, except,for acquisition-only projects, ects, and returned with Applicant-State Agreement to the STA TF APPLICANT: City of Cupertino PROJECT NAME: Stevens Creep Corridor Park & restoration Project, Phase COUNTY: Santa. Clara. Direct Labor: $0 (labor rates must be calculated as actual dollar earnedper hour and cannot include overhead costs) Classification Name Fours Rate Total Project Manager Total Direct Labor Costs Fringe Benefits: (Benefits, such as vacation, medical, and retirement, etc., must be calculated as rates earnedper hour) Other Costs: (itemize with description, quantity, unit price, and total cost; estimates acceptable) Travel Costs Equipment and Supplies Other Direct Costs Subcontractor Costs: See attached sleets (attach scope of work and detailed cast estimate for each suhcontractor Volunteer Services: $0 Classification Name Hours Rate Total Volunteer @ Cad Total Volunteer Labor Costs Donations: $0 (itemize with description, quantity, unitprace, and total cost; estimates acceptable) Materials $0 Other See attached sheet Total Project Cost: $2,695,000 See attached sleet Page 14 of 17 EEM- x.010(035) r r r COST ESTIMATE ATE Stevens C reek Corridor Park and Restoration Projcet, Phase Environmental Enhancement & Mitigation Program City & Local/ Calif. River Project EE,tP Regional Parkway's Item Description Unit! t . Cost Grant Match Grant Design and Permitting ]design Fees $420,000 $203,000 $217,400 Design and Permitting Subtotal $420,000 $0 $203,000 $2175000 Services Native Plantings - collect & contract grow 2000 EA 251000 25,000 $259000 0 $259000 $0 Construction Contract Work Site P rep airation Mobilization LS 1500000 25,000 15,000 110,000 Prep activities (prepare S PPP, tree protection, etc.) LS 29,000 10,000 19,000 Dewatering System LS 100,000 24,000 80,000 Site Preparation Subtotal $2799000 $35,000 $54,000 $190,000 Stream Restoration Site Prep LS 47,000 22,000 25,000 Clear & grub; remove invasives; remove & stockpile riprap Demolition and Disposal 580 CY 120,000 57,000 63,000 Trees for Woody Habitat Elements & Channel Restoration LS 11,000 11,000 Earthwork LS 901000 10,000 80,000 Construction of Pool - Riffle Sequences, & Log jam/fish structures LS 100,000 50,000 50,000 Channel Restoration Materials &, Placement LS 153,040 53,000 100000 Construct Log Crib Wall 60 LF 80,000 1 5,000 65,000 Temporary easures & Erasion Control LS 50,000 50,000 Stream Restoration Subtotal $651,000 $0 $26%000 $3539000 Replace Sewer Line - Relocate & Replace Sewer Line for creek widening LS 90,000 0 20,000 70,000 Replace Sewer Line Subtotal $90,000 $0 $205000 $70,000 Creek Restoration Planting - riparian & adjacent upland $55,000 15,000 40,000 Install Restoration Plants 1,100 E Watering & Maintenance Period L Riparian & Adjacent Upland Habitat Planting Subtotal $55,000 $0 $15,000 $40,000 Trail & Amenities Construction Install Trail inl, baserock and subgrade 10,800 SF 1627000 4000 72,000 50,000 Trailside Golf Protection Fence 375 LF 44,000 0 407000 Excavation and Grading LS 202000 20,000 Walkway to Bus Stop LS 1 6,000 16,000 Low Retaining Wall LS 16,000 16,000 Trail Entry & conforms at planter stri p LS 9,000 9,040 New Footbridge over creek 1 EA 175,000 1200000 25,000 30,000 Footbridge, Span &. Placement Footbridge Foundation, Renovate Parking Lot: for tail users LS' 120,000 120,000 Drainage modifications LS 131000 13,040 Crosswalk; roadway reconfig,, rnediari modifications LS 40,000 40,000 Wood Fencing 250 LF 15,000 15,000 Tail Construction Subtotal $626,000 $160,000 $3469000 $120,0110 Trailside & Habitat Planting 72,000 45,000 27,000 0 Native Trailside & Habitat Plantings 900 EA Install Irrigation System LS Maintenance Period Allow Trailside & Habitat Planting Subtotal $721000 $45,000 $27,000 �] Trailside Amenities ignage directional, rules & reg,s, donor) LS 15,000 Amenities 14,000 5,000 Entry gate at drive /access control 1, Dog Waste Pickup Bag Dispensor,s 2 EA Trash and Recycla.bl s Receptacles 4 E Benches 4 E Subtotal Trailside Amenities $329000 $51000 $279000 $0 Construction Contract Subtotal $1,805,000 ,$245,000 $737,000 $733,400 Construction Change Order & Contingency Allowance $195,000 0 $1957100 0 Construction Management, Inspection & Testing $225A0 0 $301000 $195,000 First Year Monitoring $25,000 0 $25,000 0 Total Cost Estimate $2,695,000 $245,11110 $13235,000 $1,21.5 000 Page 14A of 17 EEMR010(03 5 EXHIBIT B FAIR EMPLOYMENT PRACTICES ADD I DUM I. In the performance of this Agreement, APPLICANT will not discriminate against any employee for employment because of race, seas, color, religion, ancestry, or national origin. APPLICANT will tale affirmative action to ensure that employees are treated during employment, without regard to their race, sex, color, religion., ancestry, or national origin. Such action shall include,- but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. APPLICANT shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section. 2. APPLICANT will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and - records by the State Fair Employment and Dousing Commission., or any other agency of the State of California designated by the awarding authority, for the purposes of investigation, to ascertain compliance with- the Fair Employment ent section of this Agreement, 3. Remedies for willful Violation: a The State may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which APPLICANT was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that the APPLICANT has violated the Fair Employment Practices Act and had issued an order, under Labor Code Section 1426, which has become final, or obtained an Injunction under Labor Code Section 1429. b For willful violation of this Fair Employment Prevision, STATE shall have the right to terminate this Agreement either in whole or in Past, and any loss or damage sustained by STATE in securing the goods or services hereunder shall be borne and paid for by APPLICANT and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or the thereafter may become due to APPLICANT, the difference between the price named in the Agreement and the actual cost thereof to STATE. Page 15 of 17 EEM- 2010(035) Date of Invoice (For all Invoices) Department of Transportation Division of Local Assistance Marne, District Director District Local Assistance Engineer Street Number City, CA Zip Code Attn: District EEM Coordinator A R EMMNT EXHIBIT C - SAMPLE OF EEM INVOICES (Prepare On applicant's Letterhead) Billing No.: 1, 2, or Final Invoice No: Local Agency I Invoice No. Project Completion Date: Final Date or " l 'a (if not f mal Tax Identification # County: County Name Project Location Advantage ID Reimbursement for Environmental Enhancement and Mitigation (EElI ) fands is claimed pursuant to State Project No. M- 0XX (XXX ), Applicant State Agreement No. Agreement date Description of work covered by this invoice: Preliminary Construction Acquisition and Construction Engineering Engineering Incidentals Total Costs to Date ** Less; Nonparticipating Costs to Date Total State Participating Costs to Date Reimbursement Ratio Total Reimbursement Less: Amount Claimed on Previous invoice Amount this Invoice % N % Total Amount this Invoice * cte: The State will make the parents o n a re im bursem en t basis of its proportionate share of ac tuai cos ts incurred on the project to date after expenses and debts have been paid by the applicant; ti mesheets, mileage logs, invoices, re cc lets, cancelled warrants, and other documents as applicable are required by the State as ,supporting documentation prior to each reimbursement. I certify that the work covered by this Invoice has been completed in accordance with approved plans and specifications; the costs shown in this Invoice are true and correct; including retention as reflected above, is due and payable accordance with the terms of the agreement. Signature, Title and Unit of Local Agency Representative Phone No. Contact Name (for questions about this invoice) Page 16 of 1 7 EEM- 2010(035) Phone No. AGREEMENT + XHIBIT D - FINAL PROJECT XP DID` REPORT (Prepare On Applicant's Letterhead) Marne, District Director Department of Transportation Street or P.O. Box City, CA, Zip Code Attention: Hare, District Local Assistance Engineer Final Proiet ExiDenditure Rei)ort Description/Location of Work: Project Completion Date: Expenditure Authorization: Project Number: State -Local Entity Agreement Number: State Funds Allocated: E en itu:re Incurred: A. Payment to Contractor ttac `nal ay estimate) B. Other Project Costs: Preliminary Engineering Construction Engineering Any Additional Construction Right of Way (Capital and Support) C. Liquidated Damages D. Outstanding Contractors Claims E. Others (specify) Sources and Amounts of Additional Funds Used: State Funds Allocated But Not Used: Total CERTIFICATION I hereby certify that: To the best of nay knowledge and belief, the information in this report is a true and accurate record of project costs. The work was performed in accordance with the CTC approved scope and state funding for the project. 11L it; al U111L U la U Udi 1-1gURC Y 1 pTU S C11 LdL1 PROJECT vERIFI ATI N This verification of completion also constitutes approval to pay costs shown in the Final Invoice included in the Report of Expenditures. I have reviewed the job site and Found the project completed in accordance with the scope and description of the proj cot authorization document. "istri z Eo w Assisiance Engineer "ate: Page 17 of 17 EE- 2010(035)