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13-151 Santa Clara Valley Transportation Authority Congestion Mgmt Program, Transportation Fund for Clean Air Agreement FY 2013-14 SANTA CLARA VALLEY TRANSPORTATION AUTHORITY CONGESTION MANAGEMENT PROGRAM TRANSPORTATION FUND FOR CLEAN AIR AGREEMENT FY 2013/14 This Agreement is between the Santa Clara Valley Transportation Authority (VTA) and the City of Cupertino (Sponsor). This Agreement is made with reference to the following facts: A. VTA has been designated by the Cities of Santa Clara County and by the County of Santa Clara as the Program Manager for Santa Clara County for Transportation Fund for Clean Air (TFCA) County Program Manager funds under the State of California Health and Safety code §44241. B. Pursuant to that designation, VTA is responsible for allocating and administering TFCA County Program Manager funds to eligible project sponsors in accordance with its agreement with the Bay Area Air Quality Management District (BAAQMD). C. This Agreement specifies the conditions under which VTA will allocate, and administer, TFCA Program Manager funds to Sponsor for fiscal year 2013/14. Now,therefore the parties agree: Section 1. Description of Project, Grant Amount and Monitoring Requirements Sponsor agrees to implement and complete the Stevens Creek "Corridor Park" project ("Project") described in the project summary in Attachment A, which is attached hereto and incorporated herein, in consideration of a TFCA grant in an amount not to exceed $95,000 furnished by VTA to Sponsor as provided herein. Sponsor shall comply with the project schedule and monitoring requirements described in Attachment A. Section 2. Expenditure of Funds A. VTA's obligations under the terms of this Agreement are subject to the appropriation of TFCA funds to VTA by BAAQMD under VTA's agreement with 13AAQMD for approved projects during Fiscal Year 2013/14. B. VTA will allocate to Sponsor the TFCA funds only on a cost reimbursement basis and only for documented legitimate costs of the Project. C. Sponsor shall submit invoices at quarterly intervals to VTA for reimbursement of costs incurred to implement the Project. Sponsor shall send requests for reimbursement to VTA Accounts Payable at 3331 North 1St Street, San Jose, CA 95134-1927. Sponsor shall include auditable back-up documentation (time sheets, bills, etc.) with each invoice. Upon review and approval of invoices and documentation, VTA shall reimburse Sponsor within 20 days of invoice submission for all eligible expenditures up to the maximum amount described in Section 1 of this Agreement. Only those project costs incurred by Sponsor on or after July 1, 2012 shall be considered reimbursable expenditures. D. Funds for the Project described in this Agreement, which are not claimed for reimbursement by invoices submitted prior to June 30, 2015, shall not be available to reimburse Project costs unless a project schedule, 1314 Cupertino TFCA agreement 1 of 8 8/22/2013 which extends the project completion date beyond June 30, 2015, had been approved by VTA and BAAQMD. Any requests for additional time to complete Project beyond June 30, 2015 must be submitted in writing to VTA no later than 60 days prior to June 30, 2015. Section 3. State Audit This Agreement shall be subject to the examination and audit of the State Auditor pursuant to Government Code Section 8546.7 for a period of five years after final payment. Section 4. Sponsor's Obligations Sponsor shall: A. Expend no more than 5% of funds received hereunder on administrative costs, per Health and Safety Code, Section 44233. B. Allow VTA or BAAQMD to audit all expenditures relating to the Project and require all recipients of funds allocated under this Agreement to fully cooperate with such audits. For the duration of the Project and for five years following completion of the Project, Sponsor shall promptly furnish at the request of VTA or BAAQMD, or an independent auditor selected by VTA or BAAQMD, all records relating to project performance and expenses incurred in implementing the Project for which funding was received. C. Maintain hourly employee time sheets documenting the time spent by Sponsor's employees, contractors or consultants who are paid by the hour in the implementation of the Project, or use an alternative method, approved in advance by VTA or BAAQMD, to document staff costs charged to this grant. D. Keep all financial and project implementation records necessary to demonstrate compliance with this Agreement and the Program. Such records shall include the reports and those records required to comply with this agreement and documentation that demonstrates significant progress made for those projects seeking extensions to the completion date. Sponsor shall keep such documents in a central location for a period of five years following completion of the Project. E. Submit a mid-year progress report to VTA one month after the end of the second quarter of each fiscal year ("fiscal year" means the period starting July 1, and ending June 30.) The report shall itemize (a) the expenditure of the funds and(b)progress to date in the implementation of each funded project. F. Submit a year-end report within one month of the end of each fiscal year until each project is completed and all monitoring requirements have been fulfilled. The report shall itemize (a)the expenditure of the funds, (b) progress to date in the implementation of each funded project and (c) the results of the monitoring of the performance of the Project as specified in Attachment A. G. Acknowledge VTA and the BAAQMD as project's funding sources during the implementation of a project and to use the VTA and the BAAQMD approved logos as specified below: (1) The logos shall be used on signs posted at the site of any Project construction. (2) The logos shall be displayed on any vehicles operated with or obtained as part of the Project. (3) The logos shall be used on any material intended for public consumption associated with the Project, such as websites and printed materials, including project related transit schedules, brochures, handbooks, maps created for public distribution, and promotional material. 1314 Cupertino TFCA agreement 2 of 8 8/22/2013 (4) Sponsor will demonstrate to VTA through evidence, such as photographs of vehicles, construction signs and copies of press releases, that the logos are used and displayed as required. H. Credit VTA and BAAQMD as a funding source in any related articles, news releases or other publicity materials for the Project that are produced or caused to be produced by Sponsor. I. Assure that all funds received under this Agreement are expended only in accordance with all applicable provisions of law for the Project that is implemented by Sponsor, and to require any other sub-recipients of grant funds for the Project to do the same. J. Return to VTA all funds that are not expended in accordance with applicable provisions of law. K. Place in the public domain any software, written document, or other product developed with funds received through this Agreement, to the extent not otherwise: prohibited by law, and to the extent required by the California Public Records Act(California Government Code section 6250 et seq.). L. Return the TFCA funds to VTA if a project is not maintained and/or operated throughout and until the conclusion of the Project Years of Effectiveness. The Project Years of Effectiveness is the default value stated in Appendix G of BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending 2013" for the applicable project type,unless a different value was approved and shown to yield a Project meeting the cost-effectiveness requirement in the Policies by the Program Manager. The amount of funds returned to the Program Manager shall be calculated on a prorated basis. M. Obtain and maintain, throughout the Term of this Agreement,the insurance coverage specified in"Insurance Requirements," Attachment B, and to comply with all insurance requirements set forth therein, including the provision of documentation of said insurance coverage. Failure to obtain and maintain the insurance coverage and to comply with all insurance requirements shall be deemed a breach of this Agreement. The sponsor shall forward a copy of the insurance documentation to VTA. N. Comply with all TFCA program and project requirements set forth in the BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending 2013," the Funding Agreement between VTA and BAAQMD for FY 2013/14; and the TFCA County Program Manager Fund Policies for FY 2013/14. These documents, including appendices, are incorporated herein and made a part hereof by this reference as if fully set forth herein. O. Indemnify, defend and hold harmless VTA and BAAQMD, and their employees, agents, representatives, and successors-in-interest against any and all liability, loss, expense, including reasonable attorneys' fees, or claims for injury or damages arising out of Sponsor's performance of the Project or operation or use of the equipment that is subject to this Agreement. Section 5. VTA's Obligations VTA shall: A. Reimburse Sponsor's project costs as provided in Section 2, up to the maximum grant amount shown in Section 1. Notwithstanding the above, the VTA is only obligated to pay that portion of the grant amount that is received by the by VTA from the BAAQMD and is available to VTA from the calendar year 2012 Motor Vehicle Fees received from the California Department of Motor Vehicles ("DMV")via the BAAQMD. 1314 Cupertino TFCA agreement 3 of 8 8/22/2013 B. Review Sponsor's progress in implementing the Project at the end of the sixth quarter following execution of this Agreement. If progress at the sixth quarter review is insufficient to implement the Project or to expend the funds within the period described in Section 2, develop an action plan with the Sponsor to ensure that these funds are not lost to the county, which may include reprogramming funds to other projects within Santa Clara County to ensure their expenditure prior to the fund expiration date described in Section 2. C. Provide Sponsor with all BAAQMD-approved Program Manager reporting forms required pursuant to this Agreement. D. Provide a copy of BAAQMD and VTA logos to Sponsor solely for use to fulfill the obligation under Section 4-G of this Agreement. Section 6. Non-Performance A. If Sponsor causes all or part of these funds to be lost to the countywide program as a result of failure to complete a project according to the workscope described in Attachment A, Sponsor's next grant allocation of any kind shall be reduced by the amount lost. B. Sponsor shall be ineligible for future funding under this program if Sponsor has five or more projects greater than two years old on BAAQMD's annual "Less than 100%complete" list. Section 7. General Terms and Conditions A. Notice. Any notice required to be given by either party, or which either party may wish to give, shall be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows: To VTA: Santa Clara Valley Transportation Authority Manager, Programming & Grants 3331 North 1 st Street San Jose, CA 95134-1906 To SPONSOR: City of Cupertino City Manager 10300 Torre Avenue Cupertino, CA 95014-3202 B. Program Liaison: Within 30 days from the Effective Date of this Agreement, Sponsor shall notify VTA of Sponsor's Program Liaison and of the Liaison's address, telephone number and email address. The Program Liaison shall be the liaison to VTA pertaining to implementation of this Agreement and shall be the contact for information about the Project(s). Sponsor shall notify VTA of the change of Program Liaison or of the Liaison's contact information in writing no later than 30 days from the date of any change. C. Term: The term of this Agreement shall commence when fully executed and continue until either the Project is completed or terminated, or until June 30, 2015, whichever occurs first, unless a time extension is approved per Section 2-D above. D. Termination: 1314 Cupertino TFCA agreement 4 of 8 8/22/2013 a. Voluntary. Either party may terminate this Agreement by giving written notice to the other party. The notice of termination shall specify the effective date of termination, which shall be no less than thirty(30) calendar days from the date of receipt of such notice. Unless the Parties have agreed to an alternative formula, the VTA will calculate the amount of funds to which the Sponsor is eligible or to which the Sponsor is required to return to VTA,pursuant to the formula set forth in Paragraph 4L above. If the VTA has paid the Sponsor more than the amount of such eligible funds, the Sponsor shall pay the funds owed to the VTA within thirty (30) days of the effective date of termination. If the VTA terminates this Agreement pursuant to this provision, the Sponsor shall cease all work under this Agreement and cease further expenditures of TFCA funds received under this Agreement immediately upon receipt of the notice of termination, except any work permitted to continue, if any, that is specified in the notice of termination. The VTA will reimburse Sponsor for eligible costs on the Project expended up to the effective date of the termination. b. Breach. The VTA may terminate this Agreement for breach. The VTA will deliver a written notice of breach that specifies the date of termination, which will be no less than ten (10) business days from delivery of such notice, and will provide the Sponsor the opportunity to contest such breach within that period of time. The notice of termination will specify the amount of the Total TFCA Funds Awarded that the VTA has paid. The Sponsor shall reimburse any funds owed the VTA within thirty (30) days of the effective date of termination. Unless this Agreement provides for an alternative reimbursement formula set forth in the Special Project Conditions, the VTA will calculate the amount of funds owed pursuant to the formula set forth in Paragraph 4L above.. E. Survival. Any term that by its nature extends beyond the term or termination of this Agreement shall survive the expiration or termination of this Agreement. F. Non-Waiver. The failure of either parry to insist upon the strict performance of any of the terms, covenant and conditions of this Agreement shall not be deemed a waiver of any right or remedy that either party may have, and shall not be deemed a waiver of their right to require strict performance of all of the terms, covenants, and conditions thereafter. G. Assignment: Sponsor shall not assign, sell, license or otherwise transfer any rights or obligations under this Agreement without the prior written consent of VTA.. H. Integration. This Agreement, including all attachments and references, constitutes the entire Agreement between the parties pertaining to the subject matter contained therein and supersedes all prior or contemporaneous agreements, representations and understandings of the parties relative thereto. 1. Amendments. Future amendments and modifications to this Agreement shall be made in writing, and signed by both parties. J. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be field by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 1314 Cupertino TFCA agreement 5 of 8 8/22/2013 K. Warranty of Authority to Execute Agreement. Each Parry to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this Agreement on behalf of the entity that is a party to this Agreement. In Witness Whereof, the Parties have executed this Agreement as of the date shown below. City of Cupertino Santa Clara Valley Transportation Authority (Sponsor) (VTA) Dated: Dated: Z Z . V i Brandt Michael T. Burns fill City Manager General Manager Approved As To Form: Approved As To Form: v Counsel Counsel 1314 Cupertino TFCA agreement 6 of 8 8/22/2013 ATTACHMENT A PROJECT INFORMATION A. Project Number: 13SC07 B. Project Title: Stevens Creek"Corridor Park" C. TFCA Program Manager Funds Allocated: $95.,000 D. TFCA Regional Funds Awarded (if applicable):$0 E. Total TFCA Funds Allocated (sum of C and D'): $95,000 F. Total Project Cost: $815,000 G. Project Description: Grantee will use TFCA funds to construct the final segment of Stevens Creek Trail between McClellan Road and Stevens Creek Boulevard. The project extends the Stevens Creek Trail from Blackberry Farm Park to Stevens Creek Blvd.,provides new connections to the bicycle lanes and bus stops and adds 5 acres of parkland that was acquired in 1999, opening it to public use and enjoyment. The Stevens Creek Trail is a regional trail extending from San Francisco Bay to the Pacific Ocean. The new trail elements which are the subject of this funding request are being constructed in association with a larger project that includes creek restoration actions. H. Final Report Content: Final Report Form for Bicycle Projects and final Cost Effectiveness Worksheet. I. Attach a completed Cost-effectiveness Worksheet and any other information used to evaluate the proposed project. J. Comments (if any): none. 1314 Cupertino TFCA agreement 8/22/2013 Attachment B FY 2013/14 INSURANCE REQUIREMENTS VERIFICATION OF COVERAGE Sponsor shall obtain and maintain certificates and/or other evidence of the insurance coverage required below. VTA and the BAAQMD reserve the right to require Sponsor to provide complete, certified copies of any insurance offered in compliance with these specifications. Certificates, policies and other evidence provided shall specify that the VTA and the BAAQMD shall receive 30 days advanced notice of cancellation from the insurers. MINIMUM SCOPE OF INSURANCE Throughout the Term as defined in Section 2 of this Agreement, the Sponsor shall obtain and maintain in full force and effect the Liability Insurance as set forth below: 1. Liability Insurance with a limit of not less than $1,000,000 per occurrence. Such insurance shall be of the type usual and customary to the business of the Sponsor and any Sub- awardee, and to the operation of the vehicles, vessels, engines or equipment operated by the Sponsor or any Sub-awardee. 2. Property Insurance in an amount of not less than the insurable value of Sponsor's vehicles, vessels, engines or equipment funded under the Agreement, and covering all risks of loss, damage or destruction of such vehicles,vessels, engines or equipment. ACCEPTABILITY OF INSURERS Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII. The BAAQMD may, at its sole discretion,waive or alter this requirement or accept self-insurance in lieu of any required policy of insurance. PUBLIC WORKS DEPARTMENT ' CITY HALL 10300 TORRE AVENUE:•CUPERTINO, CA 95014-3255 TELEPHONE:(408)771-3354 www.cupertino.org CUPERTINO CITY COUNCIL STAFF REPORT Meeting: May 21, 2013 Subject Stevens Creek Corridor Park and Restoration Phase 2 - award of construction contract, authorization of agreements and easement, acceptance of outside funding and appropriation of funds. Recommended Actions 1. Authorize award of a construction contract to the low bidder, Robert A. Bothman, Inc. in the amount of $3,063,900.00 including the base bid and bid alternate number 1 and waiving of minor clerical errors, and authorize a construction contingency allowance of $380,000. 2. Authorize the City Manager to execute a cost sharing agreement with Cupertino Sanitary District accepting a contribution of up to$74,600. 3. Authorize acceptance of a $95,000 Transportation Fund for Clean Air grant and authorize the City Manager to execute a funding agreement. 4. Appropriate outside funding in an amount of$383,600 to the project budget as described in this report. 5. Appropriate city funding in the amount of$398,000 to the project budget. 6. Authorize the City Manager to negotiate and execute a consultant services agreement with SSA Landscape Architects for construction phase services for an amount not to exceed$195,000. 7. Authorize the dedication of a new sanitary main and corresponding easement to Cupertino Sanitary District to accommodate sanitary sewer main relocation. Background The Stevens Creek Corridor Park and Restoration Phase 2 project includes a new bicycle- pedestrian trail connection from Blackberry Farm Park to Stevens Creek Boulevard, widening and restoration of Stevens Creek, and a variety of related elements and amenities. After adoption of the environmental clearance documents in September 2011, the design was refined and permitting commenced. Bid documents were prepared early this year and issued in March to meet the schedule required by outside grants and permitting agencies. A status update with additional background information was provided to the Council in April (see Attachment A). - 1 - Bid Results A notice was issued on March 22, 2013, regarding the opportunity to bid on the Stevens Creek Corridor Park and Restoration Phase 2 project to potential contractors and to builder's exchanges and plan rooms. The project was advertised and posted on the City website. During the bid phase, staff learned that potential firms were exceptionally busy preparing bids for other large projects. An addendum was issued to extend bidding for two extra weeks based on feedback from planholders requesting extra time. On May 7, 2013, construction bids for the Stevens Creek Corridor Park and Restoration Phase 2 project were opened with the following results: Bidder Bid Amount Robert A.Bothman,Inc. San Jose, CA $3,038,900.00 A single bid was received, from Robert A. Bothman, Inc. (see Attachment B, Bid Summary). Staff and our construction management firm reviewed the bid documents and unit prices and found them to be substantially in order and as required by the contract specifications. A minor arithmetic and clerical error were contained in the bid form and can be waived by the City Council (a minor addition error of$100 in the total base bid, and a clerical numeric error on an extended cost for one line item). The bid was approximately 30% higher than the engineer's estimate of$2.34M. Staff believes that several factors affected the bid outcome of this project. First, the summertime schedule required for construction puts this projE'ct in competition with other projects being bid for the same timeframe, such as schools, other creek and restoration projects, and all projects that have to execute work during the summer season and dry months. Second, the improving economy has caused the demand for construction to increase. However, the supply of qualified contractors has yet to fully rebound from the economic recession and in combination with increased demand for construction, the bidding environment has become much less competitive recently. Thirdly, the regulatory agencies were unable to provide project permits in a timely fashion. The necessary federal approvals took 11 months to secure, despite excellent application materials and a beneficial project which the agencies supported. This delay caused the project to be bid later into the busy spring season, resulting in more competition with other projects, and reducing the possible options for responding to a high bid. Lastly, a variety of sources are reporting observations that the construction market in the Bay Area has become very active and that bid costs are escalating as availability of firms is declining. Local private sector construction has particularly rebounded and high quality, experienced contractors that can execute a project of this complexity have become selective about the public work they are willing to pursue. Feedback from planholders after the bid opening indicates that the potential general contractors were exceptionally busy and that other large and less complex projects were available. -2•- Particular bid items significantly exceeding the estimated costs included the creek flow diversion system and earthwork. The necessary creek diversion is a highly regulated element and is an uncommon, demanding task. For earthwork, the pricing was likely affected by the extremely limited site access, limited staging and handling areas, and the requirement to keep the golf course in play. Analysis &Budget The adopted project budget is $4.347M. Of that total, $2.435M is from grants and outside sources. Since the budget adoption, several additional funding sources totaling $383,600 have been secured toward project expenses: • $214,000 Habitat Conservation Fund grant-agreement executed • $74,600 Cost Share contribution from Cupertino Sanitary District, toward costs to relocate a sanitary sewer main-draft agreement attached • $95,000 Transportation Fund for Clean Air(TFCA) grant-pending [Note:TFCA funding for the project has been approved in the Santa Clara Valley Transportation Authority(VTA)program for this fiscal year and endorsed by the Bay Area Air Quality Management District's Board of Directors;funding agreements are pending.] Staff recommends accepting the Cupertino Sanitary District cost share contribution (see Attachment C, draft agreement) and the TFCA grant (see Attachment D, sample funding agreement, provided by VTA). The low bid is higher than anticipated, and higher than the current adopted budget can accommodate. However, with appropriation of the three funding sources noted above to the project, the shortfall reduces considerably and the need for supplemental city funding is reduced to $398,003, based on award of the base bid project plus bid alternate number 1. Staff recommends appropriating necessary funding, awarding a construction contract, and proceeding with the project, as the best course of action. The low bidder, Robert A. Bothman Inc., is an experienced and capable firm. Bothrr an successfully constructed the Stevens Creek Corridor Phase 1B improvements at Blackberry Farm Park in 2008-09 and brings familiarity with the area, and with staff and community expectations. All regulatory construction permits have been successfully secured, including: a U.S. Army Corps of Engineers permit; a National Marine Fisheries Service 'Biological Opinion' addressing steelhead; a California Department of Fish and Wildlife permit (i.e. Streambed Alteration Agreement); a San Francisco Bay Regional Water Quality Control Board permit (i.e. Water Quality Certification per Section 401 of the Clean Water Act); a California State Water Resouces Control Board Permit Registration Document package including a Stormwater Pollution Prevention Plan and Notice of Intent; a Santa Clara Valley Water District Encroachment and Construction permit; and a Streamside Development permit. The Santa Clara Valley Water District has agreed to manage the fish -3 - relocation effort, which they performed very professionally for the Phase 1 project. Staff has spent several years securing grants for the work and numerous grant deadlines are at risk with any delays to the project. There is not enough time to re-bid this year and still meet the regulatory agency required window for creek dewatering and fish relocation. The alternate course of action is to reject the single bid and to re-bid the project early next year. While there is the possibility that bids could be lower next year, they very likely could be higher due to the improving economy forcing construction market demand to continue. Even with a lower bid next year, another possibility is that the low bidder would be a firm less experienced than the current single bidder. A critical drawback of re-bidding next yE,ar is that several of the grants which fund this project will sunset in the first half of 2014 (see Exhibit E). Each of those grantors would need to authorize a deadline extension and such extensions are not in hand nor guaranteed. Budget Summary The proposed budget to proceed with the project is noted below. Design Fees $750,000 Environmental, Permitting,Services,Adrnin. 340,000 Construction Contract 3,063,900 Construction Change Order Allowance, 12.5% 380,000 Construction Management, Inspection,Testing 330,000 Construction Support- design team 195,000 Project Contingency 70,000 TOTAL PROJECT COST: 5,128,900 Less Prior Appropriations 4,347,179 Less New Outside Funding/Grants 383,600 FUNDING NEEDED TO PROCEED: 398,121 Approximately $800,000 has been expended to date, invested in bringing the project to this point. Should the Council choose to proceed; staff will seek efficiencies and opportunities to reduce the cost of implementing the project. Value engineering options will be explored with the construction manager and contractor to identify feasible possibilities for reducing the contract cost. Staff will prepare an amendment to the CIP to reallocate funds to cover the additional project expense should City Council award the construction contract. -4 - Related Actions Construction Support Several other actions are needed if the Council should decide to proceed with the project. A consulting services agreement is needed with SSA Landscape Architects, the design team lead, to provide construction support services, such as submittal reviews, construction progress reviews, and preparation of record drawings. The recommended fee for services is not to exceed $195,000 for the SSA Landscape Architects and their sub-consultant team (hydrological engineer, civil engineer, geotechnical engineer, electrical engineer). Construction Management The locally knowledgeable but internationally experienced Gilbane Construction Company has been retained as the construction manager for the project after conducting a qualifications- based selection process. The firm is just beginning work under a startup services agreement within the approval authority of the Director of Public Works. Staff anticipates returning to Council in July to amend the agreement to incorporate the full scope of testing and inspection that will be required. Sanitary Sewer Relocation The existing 10" sanitary sewer main within the Blackberry Farm Golf Course on the east side of Stevens Creek must be moved in order to widen the creek. Because the relocation provides for a new and enhanced sanitary sewer to replace an aging 50-year-old and maintenance-intensive sewer, the Cupertino Sanitary District (CuSD) has agreed to share in the cost of installing the new main. An associated action is for the Cite to dedicate to CuSD the new main and an easement for its new location, and for CuSD to quitclaim the existing easement which is within the west side of the 81h and 91h holes of Blackberry Farm Golf Course. The proposed plat maps and legal descriptions for these actions are provided as Attachments F-1 and F-2. Optional Project Additions Add Alternates The bid documents included 3 add alternates which were not a part of the base bid. These add alternate items were not included in the budget, but were incorporated into the bid documents to determine pricing, should the City Council choose to include them. These items are not necessary to the project,but would provide enhancements. They are as follows: Item Description _ Bid Price 1 Backwater Area $25,000 2 Wildlife Viewing Structure $18,000 3 Custom Protection Fence $385,000 Bid Alternate #1 would add a backwater area on the west creek bank, approximately opposite the practice range structure on the golf course. It would improve creek channel performance -5- during storm flows by reducing scour and erosion forces on the east bank. It would also provide an additional high flow refuge area for fish and habitat complexity on the west bank. This item is recommended for inclusion in the project since it will improve the long term function of the creek. It would be difficult and much more expensive to install this feature at a later time because it involves work within the active creek channel and within critical habitat for steelhead. New permits and another creek diversion process would be needed. This feature is supported by the resource agencies;the current permits allow its inclusion if the Council should choose to fund this work. The bid price of$25,000 is deemed reasonable and is very close to the cost estimate. Staff recommends including this item in the project since it will improve the channel performance, is reasonably priced, and would be prohibitively expensive to undertake at a later time. Bid Alternate #2 would provide a protected venue where small groups could observe wildlife at the confluence of the creek and the backwater. It is designed as a rustic structure using willow panels to blend with the creekside setting. The Wildlife Viewing Structure would be a useful amenity, and its bid price of $18,000 is deemed a good value. However it could also easily be installed at a later time if the Council so desires. Bid Alternate #3 would upgrade the trailside fencing along the edge of the golf course from chain link fence to decorative metal panels; the fence configuration would be unchanged. The bid price was high at$385,000 and deemed too expensive. Staff recommends not awarding this purely ornamental upgrade. Fencing upgrades could be pursued at a later time if desired. Summary The design and bidding of the Stevens Creek Corridor Park and Restoration Phase 2 project have been completed. The complex multitude of permits has been secured, and an impressive collection of grant funding and other partnering agencies have been engaged to assist this popular project in moving forward. Staff recommends the project at this time and increasing the budget with a combination of outside and City funds. This action will fully leverage the $2.819M of outside funding that has been committed to this project. The project will deliver an important recreational amenity and trail link for our community, improve water quality, provide creek restoration and habitat enhancement benefitting protected steelhead and a variety of wildlife, provide an educational experience for our schools, and create a healthier and more stable creek. Recommendation Recap Staff recommends award of a construction contract for the project to Robert A. Bothman, Inc., including the base bid and bid alternate number 1, authorization of a construction contingency allowance, appropriation of outside and city funding to the project budget, and related actions described in this report. -6 Sustainability Impact Implementation of the Stevens Creek Corridor Park and Restoration Phase 2 project will support the city's sustainability goals. Fiscal Impact The recommended budget for this project will provide funding for implementation and address the recommended actions. The anticipated operating and maintenance costs over the next five years following completion of the project are between$7,000-8,000 per year. Prepared by: Gail Seeds,Park Restoration and Improvement Manager Reviewed by: Timm Borden,Director of Public Works Approved for Submission by: David Brandt, City Manager Attachments: A-Project Status Update, April 2013 B-Bid Summary C-Draft Agreement, Cupertino Sanitary District Sewer Main Relocation Cost Sharing Agreement D-Sample TFCA Funding Agreement E-Current Grants&Outside Funding F-1 -Legal Description and Plat Map for Grant of Easement to Cupertino Sanitary District F-2-Legal Description and Plat Map for Quitclaim of Sanitary Sewer Easement -7 - ATTACHMENT D SAMPLE TFCA FUNDING AGREEMENT ORIGINAL SANTA CLARA VALLEY TRANSPORTATION AUTHORITY CONGESTION MANAGEMENT PROGRAM TRANSPORTATION FUND FOR CLEAN AIR AGREEMENT FY 2011/2012 This Agreement is between the Santa Clara Valley Transportation Authority (VTA) and the City of Mountain View(Sponsor). This Agreement is made with reference to the following facts: A. VTA has been designated by the Cities of Santa Clara County and by the County of Santa Clara as the Program Manager for Santa Clara County for Transportation Fund for Clean Air (TFCA) County Program Manager funds under the State of California Health and Safety code §44241. B. Pursuant to that designation, VTA is responsible for allocating and administering TFCA County Program Manager funds to eligible project sponsors in accordance with its agreement with the Bay Area Air Quality Management District(BAAQMD). C. This Agreement specifies-the conditions under which VTA will allocate, and administer, TFCA Program Manager Rinds to Sponsor for fiscal year 2011/2012. Now,therefore the parties agree: Section 1. Description of Project, Grant Amount and Monitoring Requirements Sponsor agrees to implement and complete the Permanente Creek Trail Project ("Project") described in the project summary in Attachment A,which is attached hereto and incorporated herein,in consideration of a TFCA grant in an amount not to exceed $100,000 famished by VTA to Sponsor as provided herein. Sponsor shall comply with the project schedule and monitoring requirements described in Attachment A. Section 2. Expenditure of Funds A. VTA's obligations under the terms of this Agreement are subject to the appropriation of TFCA funds to VTA by BAAQMD under VTA's agreement with DAAQMD for approved projects during Fiscal Year 2011/2012. B. VTA will allocate to Sponsor the TFCA funds only or. a cost reimbursement basis and only for documented legitimate costs of the Project. C. Sponsor shall submit invoices at quarterly intervals to VTA for reimbursement of costs incurred to implement the Project. Sponsor shall include auditable;back-up documentation(time sheets,bills, etc.) with each invoice. Upon review and approval of invoices and documentation, VTA shall reimburse Sponsor within 20 days of invoice submission for all eligible expenditures up to the maximum amount described in Section 1 of this Agreement. Only those project costs incurred by Sponsor on or after July 1, 2011 shall be considered reimbursable expenditures. D. Funds for the Project described in this Agreement, which are not claimed for reimbursement by invoices submitted prior to June 30, 2013, shall not be available to reimburse Project costs unless a project schedule, which extends the project completion date beyond June 30, 2013, had been approved by VTA and 1112 Mountain View funding Agreement 1 of 7 7/7/2011 BAAQMD. Any requests for additional time to complete Project beyond June 30,2013 must be submitted in writing to VTA no later than 60 days prior to June 30, 2013. Section 3. State Audit This Agreement shall be subject to the examination and audit of the State Auditor pursuant to Government Code Section 8546.7 for a period of five years after final payment.. Section 4. Sponsor's Obligations Sponsor shall: A. Expend no more than 5%of funds received hereunder on administrative costs, per Health and Safety Code, Section 44233. B. Allow VTA or BAAQMD to audit all expenditures relating to the Project and require all recipients of funds allocated under this Agreement to fully cooperate with such audits. For the duration of the Project and for five years following completion of the Project, Sponsor shall promptly furnish at the request of VTA or BAAQMD, or an independent auditor selected by VTA or BAAQMD, all records relating to project performance and expenses incurred in implementing the Project for which funding was received. C. Maintain hourly employee time sheets documenting the time spent by Sponsor's employees, contractors or consultants who are paid`by the hour in the implementation-of the Project, or use an alternative method, approved in advance by VTA or BAAQMD;to document staff costs charged to this grant. D: Keep all financial and`project implementation records necessary to demonstrate compliance with this . Agreement and the Program. Such records'shall.include the:reports"and those records required to comply with this agreement and documentation that demonstrates .significant progress made for those projects seeking extensions to the completion date. Sponsor shall keep such documents in a central location for a period of five years following completion of the Project, E. Submit a raid-year progress report to VTA one month after the end of the second quarter of each fiscal year ("fiscal year" means the period starting July 1, and ending June 30.) The report shall itemize (a) the expenditure of the funds and(b)progress to date in the implementation of each funded project. F. Submit a year-end report within one month of the end of each fiscal year until each project is completed and all monitoring requirements have been fulfilled.The report shall itemize(a)the expenditure of the funds, (b) progress to date in the implementation of each funded project and (c) the results of the monitoring of the performance of the Project as specified in Attachment A.. G. Acknowledge VTA and the BAAQMD as project's funding sources during the implementation of a project and to use the VTA and the BAAQMD approved logos as specified below: ('1)The logos shall be used on signs posted-at the site of any,Project.construction. (2)The logos shall be displayed on any vehicles operated.with or obtained as part of the Project. (3) The logos shall be used on any material intended for public consumption associated with the Project, such as websites and printed materials,including project related transit schedules,brochures,handbooks, maps created for public distribution, and promotional material. 1112 Mountain View funding Agreement 2 of 7 7/7/2011 (4) Sponsor will demonstrate to VTA through evidence, such as.photographs of vehicles, construction signs and copies of press releases,that the logos are used and displayed as required. H. Credit VTA and BAAQMD as a funding source in any related articles, news releases or other publicity materials for the Project that are produced or caused to be produced by Sponsor. I. Assure that all funds received under this Agreement are expended only in accordance with all applicable provisions of law for the Project that is implemented by Sponsor, and to require any other sub-recipients of grant funds for the Project to do the same. J. Return to VTA all funds that are not expended in accordance with applicable provisions of law. K. Place in the public domain any software, written document, or other product developed with funds received through this Agreement, to the extent not otherwise prohibited by law, and to the extent required by the California Public Records Act(California Government Code section 6250 et seq.). L. Return to the Program Manager any funds realized :from the sale of any vehicles purchased with Total Available TFCA Funds if such reuse or sale occurs within five (5) years from the date of purchase of the vehicles. The amount of funds returned to the Program Manager shall be proportional to the percentage of Total Available TFCA Funds originally used to purchase the vehicles. Any such funds returned to the ` Program Manager shall be reallocated to eligible projects. M. Obtain and.maintain,throughout the Term.of this.Agreement,the insurance coverage specified in"Insurance Requirements,",Attachment B, and to comply.with all i nsurance requirements set forth therein,including the provision of documentation of said insurance coverage. Failure to obtain and maintain the insurance coverage and to comply with.all insurance requirements shall be deemed a breach of this Agreement.The sponsoiR shall forward.a copy of the insurance documentation to VTA. N. Comply.with all TFCA program and project requirements set forth in the BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year 2011/2012 Version 1.1 with typo corrections, 2/23/11," the Funding Agreement between VTA and 13AAQMD for FY 2011-2012; and the TFCA County Program Manager Fund Policies for FY 2011-2012. These documents, including appendices, are incorporated herein and made a part hereof by this reference as if fully set forth herein. O. Indemnify, defend and hold harmless VTA and BAAQMD, and their employees, agents,representatives, and successors-in-interest against any and all liability, loss, expense, including reasonable attorneys' fees, or claims for injury or damages arising out of Sponsor's performance of the Project or operation or use of the equipment that is subject to this Agreement. Section 5. VTA's Obligations VTA shall: A. Reimburse Sponsor.'s project costs as,provided in Section 2,up to the maximum grant amount shown in.Section L.Notwithstanding the above, the VTA-is:only obligated.to pay that portion of the grant amount that is received by the -by VTA from the BAAQMD and is available to VTA from the calendar year 2011 Motor Vehicle Fees received from the California Department of Motor Vehicles ("DMV")via the BAAQMD. 1112 Mountain View funding Agreement 3 of 7 7/7/2o11 B. Review Sponsor's progress in implementing the Project at the end of the sixth quarter following execution of this Agreement. If progress at the sixth quarter review is insufficient to implement the Project or to expend the funds within the,period described in. Section 2,develop an action plan with the Sponsor to ensure that these:funds are not,lost to the county, which may include, funds to other.projects within Santa Clara County to :ensure.their expenditure prior to the fund expiration date described in Section 2. C. Provide Sponsor with all BAAQMD-approved Program Manager reporting forms required pursuant to this Agreement. D. Provide a copy of BAAQMD and VTQ logos to Sponsor solely for use to fulfill the obligation under Section 4-G of this Agreement. Section 6. Non-Performance A. If Sponsor causes all or part of these funds to be lost to the countywide program as a result of failure to complete a project according to the workscope described in Attachment A, Sponsor's next grant allocation of any kind shall be reduced by the amount lost. B. Sponsor shall be ineligible for future funding under this program if Sponsor has five or more projects greater than two years old on BAAQMD's annual "Less than 100%complete"list. Section 7. General Terms and Conditions A. Notice- Any notice required.to ,be given.by>either.party,or which either party nay wish to give, shall be in writing and served either bypersonal delivery or sent,by:certified or registered mail,postage prepaid, addressed as follows: To VTA: Santa Clara Valley Transportation Authority Manager,Programming&Grants 3331 North 1st Street San Jose, CA 95134-1906 To SPONSOR: City of Mountain View City Manager 500 Castro Street Mountain View, CA 94041 B. Term: The term of this Agreement shall commence when fully executed and continue until either the Project is completed or terminated, or until June; 30, 2013, whichever occurs first, unless a time extension is approved per Section 2-D above. C. Termination: a. Voluntary. Either party may terminate this Agreement by giving"written notice'to the other party. The notice of termination shall specify the effective date of termination, which shall be no less than thirty(30)calendar days from the date of receipt of such notice. If the Sponsor terminates this Agreement fo:r reasons other than those set forth in the Early Termination provision below, the Sponsor shall not be entitled to the full amount of the "Total 1112 Mountain View funding Agreement 4 of 7 7/7/2011 TFCA Funds Awarded."The Sponsor may ret,un or receive payment for that portion of the TFCA Funds to which they are entitled. Unless the Parties have agreed to an alternative reimbursement-formula; the VTA will calculate the arriount of funds to which the Sponsor is eligible by a)dividing the amount of the encumbered Total TFCA Funds Awarded by the number of years of the project useful life, and then;b)multiplying that amount by the number of full years of operation completed at the time the Agreement is terminated. If the VTA has paid the Sponsor more than the amount of such eligible funds, the Sponsor shall pay the funds owed to the VTA within thirty(30)days of the effective date of termination. If the VTA terminates this Agreement pursuant to this provision, the Sponsor shall cease all work under this Agreement and cease further expenditures of TFCA funds received under this Agreement immediately upon receipt of the notice of termination, except any work permitted to continue,if any, that is specified in the notice of termination. Tae VTA will reimburse Sponsor for eligible costs on the Project expended up to the effective date of-the termination. b. Breach. The VTA may terminate this Agreement for breach. The VTA will deliver a written notice of breach]that specifies the date of termination, which will be no less than ten (10) business days from delivery of such notice, and will provide the Sponsor the opportunity to contest such breach within that period of time. The notice of termination will specify the amount of the Total TFCA Funds Awarded that the VTA has paid.The Sponsor shall reimburse any funds owed the VTA within thirty(30)days of the effective date of termination. Unless this Agreement provides for an alternative reimbursement formula set forth in the Special Project Conditions, the VTA will calculate the amountoffunds owed based on each year or part of each year of the project useful life that Sponsor completed operation under this Agreement prior to 4the breach.:: For:example, if the VTA.'detenn nes that the Sponsor breached this Agreement during the seventh year of operation of equipment that has a ten-year project useful life, the VTA will reimburse the Sponsor up to the amount of Total TFCA Funds that represents six years of operation. c. Early Termination: the Sponsor may seek to terminate this Agreement prior to the end of the Term if a) any vehicles or associated equipment funded under this Agreement become inoperable through mechanical failure of components or systems directly related to the fuel technology being utilized, and b) such failure is not caused by the Sponsor's negligence, misuse, or malfeasance. To obtain an early termination, the Sponsor shall submit to the VTA a written request with documentation to support such early termination. The Sponsor will not be deemed in breach of this Agreement if the VTA approves the request for an early termination. Reimbursement for Early Termination: If the Sponsor seeks an early termination of this Agreement, the Sponsor understands and agrees that it shall reimburse a percentage of the Total TFCA Funds Awarded that have been paid to.Sponsor, if any, in accordance with the following schedule: 100%, if the termination occurs prior to completion of one (1)year of operation of the equipment covered by this Agreement; 80%,if termination occurs between years one (1) and two (2) of operation; 60%, between years two (2) and three (3) of operation; 40%, between years three (3) and folar (4) of operation; 20%, between years four (4) and five (5) of operation; and 0% after year five (5). The reimbursable amount shall be paid to the VTA within sixty(60) calendar days of the early termination date. Nothing in this Paragraph.3 entitles the Sponsor.to..payrnient in the event of breach. . . D. Survival. Any term that by its nature extends beyond the term or termination of this Agreement shall survive the expiration or termination of this Agreement. E. Non-Waiver. The failure of either party to insist upon the strict performance of any of the terms, 1112 Mountain View funding Agreement 5 of 7 7/7/2011 1 L, covenant and conditions of this Agreement shall not be deemed a waiver of any right or remedy that either party may have, and shall not be deemed a w�dver of their right to require strict performance of all of the terms, covenants, and conditions thereafter. F. Assignment: Sponsor shall not assign,:sell, license or otherwise transfer any rights or obligations under this Agreement without the prior written consent of VTA. G. Integration. This Agreement, including all attachments and references, constitutes the entire Agreement between the parties pertaining to the subject matter contained therein and supersedes all prior or contemporaneous agreements,representations and understandings of the parties relative thereto. H. Amendments. Future amendments and modifications to this Agreement shall be made in writing, and Signed by both parties.: I. Severability. If any term, covenant, condition or provision of this Agreement,or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,covenants, conditions and provisions of this Agreement,or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected,impaired or invalidated thereby. J. Warranty of Authority to Execute Agreement. Each Party to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute.this Agreement on behalf of the entity that is a party to this Agreement. In Witness Whereof,the Parties have executed this Agreement as of the date shown below. City of Mountain View Santa Clara Valley Transportation Authority (Sponsor) (VTA) Dated: 10124Ill Dated: ,,, Melissa Stevenson Dile Michael T.Burns U�Iiatim Cit Manager General Manager Ass I STA Dated: Michael A. Fuller Public Works Director Approved As To Form: Approved As To Form: r Assistant City Attorney .01aJel 1112 Mountain View funding Agreement 6 of 7 7/7/2011 ATTACHMENT A PROJECT INFORMATION A, TFCA Program Manager Fund Project Number: 11 SC05 B. Project Title: Permanante Creek Trail C. TFCA Funds Allocated: 100,000 D. Total Project Cost: $330,00 0 E. Project Description:Mountain View will use TFCA funds to extend Permanante Creek Trail from Old Middlefield Way to Rock Street and Crittenden Middle School. F. Final Report Content: Submit final report form and final Cost Effectiveness Worksheet-Form 3 — Bicycle Projects G. Attach a..,copy of post-project cost-effectiveness worksheet and any other information used to evaluate the proposed project. For example, for heavy-duty vehicle projects, include the California Air Resources Board Executive Orders for all engines and diesel emission control systems. H. Comments(if any):None. 1112 Mountain View funding Agreement 7 of 7 7/7/2011 Attachment B FY 2010/2011 INSURANCE REQUIREMENTS VERIFICATION OF COVERAGE Sponsor shall obtain and maintain certificates and/or other evidence of the insurance coverage required below. VTA and the BAAQMD reserve the right to require Sponsor to provide complete, certified copies of any insurance offered in complliance with these specifications. Certificates, policies and other evidence provided shall specify that the VTA and the BAAQMD shall receive 30 days advanced notice of cancellation from the insurers. MINIMUM SCOPE OF INSURANCE Throughout the Term as defined in Section 2 of this Agreement, the Sponsor shall obtain and maintain in full force and effect the Liability Insurance as set forth below: 1. Liability Insurance with a limit of not less than$1,000,000 per occurrence. Such insurance shall be of the type usual and customary to the business of the Sponsor and any Sub- awardee, and to the operation of the vehicles,vessels,engines or equipment operated by the Sponsor or any Sub-awardee. 2. Property Insurance in an amount of not less than the insurable value of Sponsor's vehicles, vessels, engines or equipment funded under the Agreement, and covering all risks of loss, damage or destruction of such vehicles,vessels,engines or equipment. ACCEPTABILITY OF INSURERS Insurance is to be placed with insurers with a current AM Best's rating of no less than A:VII. The BAAQMD may,at its sole discretion,waive or alter this requirement or accept self-insurance in lieu of any required policy of insurance.