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14-158 Santa Clara Valley Transportation Authority Congestion Management Program Transportation Fund for Clean Air FY 14/15 City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 Telephone: (408) 777-3223 C U P E RT I N® FAX: (408) 777-3366 OFFICE OF THE CITY CLERK September 23, 2014 Santa Clara Valley Transportation Authority Attention: Manager, Programming & Grants 3331 North 1St Street San Jose, CA 95134-1906 Re: Congestion Management Program Transportation Fund for Clean Air Agreement FY 2014/15. Enclosed are two original copies of the above stated agreement for your signature. Please sign and date both contracts and return one to the City of Cupertino in the provided self- addressed stamped envelope. You may retain the second original copy for your records. If you have any questions, please contact the Public Works department at (408) 777-3354 Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure SANTA CLARA VALLEY TRANSPORTATION AUTHORITY CONGESTION MANAGEMENT PROGRAM TRANSPORTATION FUND FOR CLEAN AIR AGREEMENT FY 20.14/15 This agreement ("Agreement") by and between the Santa Clara Valley Transportation Authority ("VTA") and the City of Cupertino ("Sponsor") shall be effective on. the date that this Agreement is fully executed by the . parties hereto ("Effective Date"). RECITALS This Agreement is made with reference to the following J.acts: A. VTA has been designated by resolutions of the County of Santa Clara as well as a majority of the cities within Santa Clara County as the Program Manager for Santa Clara County 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 the County of Santa Clara's TFCA County Program Manager Fund ("County Fund") 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 a grant from the TFCA Program Manager Fund to Sponsor for fiscal year 2014/15. Now, therefore the parties agree as follows: AGREEl1IIENT Section 1. Grant of TFCA Funds, Description of Proiect A. Subject to appropriation and receipt of TFCA funds (as further set forth in Section 9, below), VTA hereby agrees to allocate to Sponsor a TFCA grant in an amount not to exceed $63,595 (the "Grant Funds.") in consideration of Sponsor's agreement to implement ,and-complete the Stevens Creek Boulevard Colorized Bike Lane Project ("Project") (further described in the project summary in Attachment A), in accordance with the terms and conditions set forth in this Agreement. B. In consideration of VTA's providing Sponsor with the Grant Funds, Sponsor hereby agrees to implement and complete the Project in conformance with the terms of this Agreement. In implementing the Project, Sponsor shall comply with the Project schedule and monitoring requirements described in Attachment A. Section 2. Proper Expenditure; Return of Funds A. Sponsor shall assure that all funds received under this; Agreement are expended only in accordance with all applicable provisions of federal, state and local law, and require any other sub-recipients of Grant funds for the Project to do the same. B. Sponsor shall comply with all TFCA program and. project requirements set forth in the BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending 20.13," the Funding Agreement between VTA and BAAQMD for FY 2014115; and the TFCA County Program Manager Fund #21444 1 of 7 9/15/2014 Policies for FY 2014/15. These documents, including appendices, are incorporated herein and made a part hereof by this reference as if fully set forth herein. C. Sponsor shall expend no more than 5% of funds received hereunder on adm-inistrative costs, per Health and Safety Code, Section 44233. D. Sponsor shall return to VTA all funds that are not expended in accordance with applicable provisions of law. E. In addition, Sponsor shall 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. Section 3. 'Perm The tern of this Agreement shall be deemed to have commenced retroactively as of June 30, 2014 and continue until either the Project is completed or terminated, or until December 31, 2018. Any requests for additional time to complete Project beyond June 30, 2016 must be submitted in writing to VTA no later than 60 days prior to June 30, 2016. Section 4. Work Product Sponsor shall 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.). Section 5. Acknowledgement of Funding Sources A. Sponsor shall 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. (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. B. VTA shall provide a copy of BAAQMD and VTA logos to Sponsor solely for use in fulfilling the obligations under this Section. #21444 2 of 7 9/15/2014 C. Sponsor shall 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. Section 6. Insurance Coverage Sponsor shall obtain and maintain, throughout the Tenn of this Agreement, the insurance coverage specified in "Insurance Requirements," Attachment B, and comply with all insurance requirements set forth therein, including the provision of documentation of said insi.i:rance 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. The parties acknowledge that Sponsor is self-insured for the amounts in outlined in Attachment B and the BAAQMD has informed the Parties that such self-insurance satisfies the requirements of this Section. Section 7. Invoicing 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 33.31 North 1St Street, Building A, San Jose, CA 95134-1927. Sponsor shall include auditable back-up documentation (time sheets, bills, etc.) with each invoice. Section S. Reimbursement A. All funds allocated by VTA to Sponsor shall be on a cost reimbursement basis only. VTA shall pay no funds in advance. B. Upon review and approval of invoices and documentation, VTA shall, within thirty (30) days of receipt of an invoice that conforms to the requirements set forth in this Agreement, reimburse Sponsor 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, 2014 shall be considered reimbursable expenditures. C. Funds for the Project described in this Agreement, 1vhich are not claimed for reimbursement by invoices submitted prior to June 30, 2016, shall not be available to reimburse Project costs unless a Project schedule, which extends the Project completion date beyond June 30, 2016, had been approved by VTA and BAAQMD as further set forth in Section 3, above. Section 9. Funds Subject to Appropriation/Allocaition of Funds Contingent on Appropriation VTA's obligations under the tenns of this Agreement are contingent upon and subject to the allocation of TFCA funds to VTA by BAAQMD under VTA's agreement with BAAQMD for approved projects during Fiscal Year 2014/15. Section 10. Audit by State Auditor This Agreement shall be subject to the examination and audit of the California State Auditor pursuant to Government Code Section 8546.7 for a period of five years after final payment. #21444 3 of 7 9/15/2014 Section 11. Sponsor's Record Keeping Sponsor shall: A. Allow VTA staff, BAAQMD staff, their authorized representatives, and their independent auditors, during the term of this Agreement and for five (5) years following completion of each Project, to conduct performance and financial audits of the Project and to inspect the Project. During audits, the Sponsor will make available to the auditor in a timely manner all records relating to Sponsor's implementation of the Project. During inspections, Sponsor will provide, at the request of VTA or BAAQMD, access to inspect the Project and related records. B. Maintain employee time sheets documenting those hourly labor costs incurred in the implementation of the Project, including both administrative and Project implementation costs, or to establish an alternative method to document staff costs charged to the funded Project. C. Keep all financial and Project implementation records necessary to demonstrate compliance with this Agreement and the Program. Such records shall include documentation that demonstrates significant progress made for those Program Projects seeking extensions to the completion date. Sponsor shall keep such documents in a central location for a period of five (5) years following completion of the Project. D. 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. E. 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. Section 12. Indemnity Neither VTA nor BAAQMD nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Sponsor under or in connection with Sponsor's perfonnance of the Project. It is understood and agreed that Sponsor shall fully defend, indemnify, and save harmless VTA and BAAQMD from all liability, loss, expense (including reasonable attorneys' fees), claims for injury or damages, or suits or actions of every name, kind and description brought on, for, or on account of injury to persons, damages to real or personal property or other monetary damages to the extent caused by anything done or omitted to be done by Sponsor under or in connection with the performance of the Project with funds allocated by this Agreement. Section 13. review A. VTA shall review Sponsor's progress in implementing the Project at the end of the sixth (6th) quarter following execution of this Agreement. If progress at the sixth (6th) quarter review is insufficient to implement the Project or to expend the funds within the period described in Section 2, VTA shall develop an action plan with the Sponsor to ensure that these funds are not required to be repaid to the County Funds, 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. VTA' shall provide Sponsor with all BAAQMD-approved Program Manager reporting forms required pursuant to this Agreement. #21444 4 of 7 . 9/15/2014 Section 14. Non-Performance A. If Sponsor causes all or part of these funds to be subject to repayment to the County Funds as a result of failure to complete a project according to the work scope 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 15. General Terms and Conditions A. Notices. 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 1st 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 Program T_,iaison'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 Program Liaison's contact information in writing no later than thirty (30) days from the date of any change. C. 'Termination. i. 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 fonnula, 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 Section 2D 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 tennination. If the VTA tenninates this Agreement pursuc'irit 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 tennination, except any work pennitted to continue, if any, that is specified in the notice of tennination. The VTA will reimburse Sponsor for eligible costs on the Project expended up to the effective date ofthe termination. #21444 5 of 7 9/15/2014 ii. After 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 fonnula set forth in Section 2D above.. D. Survival. Any provision 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 perfonnance 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. 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. Attachments. Each attachment hereto is incorporated into this Agreement as if fully set forth herein. 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 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. K. 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. Signatures of parties on following page. #21444 6 of 7 9/15/2014 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: Z Dated: Timm Borden, Public Works Director Nuria.I. Fernandez, General Manager Dated: Second signatory if requested Approved As To Form: Approved As To Form: Carol Korade Victor Pappalardo City Attorney Senior Assistant Counsel #21444 7 of 7 9/15/2014 ATTACHMENT A PROJECT INFORMATION A. Project Number: 15SC01 B. Project Title: Stevens Creek Boulevard Colorized Bike Lanes C. TFCA Program Manager Funds Allocated: $63,595 D. TFCA Regional Funds Awarded (if applicable):$0 E. Total TFCA Funds Allocated (sum of C and D): $63,595 F. Total Project Cost: $96,210 G. Project Description: Sponsor will use TFCA funds to widen and add green colorized segments to existing bike lanes along Stevens Creek Boulevard to increase visibility at transition zones and conflict areas. H. Final Report Content: Final Report Form for trip reduction projects and final Cost Effectiveness Worksheet. I. Attach a completed Cost-effectiveness Worksheet and any other infonnation used to evaluate the proposed project. Comments (if any): None. TASP Cupertino Agreement 09 09 14 (Approve to form) 9/15/2014 - _ Q Attachment B FY 2014/15 INSURANCE RIF-'JQUIREMENTS 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 3 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 vehicle-s, 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 curreiat A—K 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.