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15-165 Agreement, Santa Clara Valley Transportation Authority Congestion Management Program Transportation Fund for Clean Air FY 2015-16SANTA CLARA VALLEY TRANSPORTATION AUTHORITY CONGESTION MANAGEMENT PROGRAM TRANSPORTATION FUND FOR CLEAN AIR AGREEMENT FY 2015/16 This agreement ("Agreement") by and between the Santa Clara Valley Transportation Authority ("VTA") and the City of Cupe1iino ("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 facts: 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 under the State of California Health and Safety Code Section 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 VT A will allocate and administer a grant from the County Fund to Sponsor for fiscal year 2015/16. Now, therefore the parties agree as follows: AGREEMENT Section 1. Grant of TFCA Funds; Description of Project A. Subject to appropriation and receipt of TFCA funds (as fuiiher set foiih in Section 9, below), VTA hereby agrees to allocate to Sponsor a TFCA grant in an amount not to exceed $55,000 (the "Grant Funds") in consideration for Sponsor's agreement to implement and complete the DeAnza Blvd Traffic Signal Synchronization ("Project") (as further set forth in the project summary, attached hereto as Attachment A), in accordance with the tenns and conditions set forth in this Agreement. B. In consideration of VT A's providing Sponsor with the Grant Funds, Sponsor hereby agrees to implement and complete the Project in conformance with the tem1s of this Agreement. In implementing the Project, Sponsor shall comply with the Project schedule and monitoring requirements, as described in Attachment A. Cupertino 1516 funding Agreement 1 of8 9/29/2015 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 Sponsor shall require any other sub-recipients of Grant Funds for the Project to do the same. B. Sponsor shall comply with: (i) all TFCA program and project requirements, as set forth in the BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending 2016," the Funding Agreement between VTA and BAAQMD for FY 2015/16; and (ii) the TFCA County Program Manager Fund Policies for FY 2015/16 (hereinafter "Policies"). 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 five percent (5%) of Grant Funds received hereunder on administrative costs, per California Health and Safety Code Section 44233. D. Sponsor shall return to VTA all funds that are not expended in accordance with applicable provisions oflaw. 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 "Number of Years of Effectiveness." This is the default value stated in Appendix Hof BAAQMD's "County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending 2016" for the applicable project type, unless a different value was approved and shown to yield a Project that meets 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. Term The tenn of this Agreement shall commence July 1, 2015 and shall continue until either the Project is completed or tenninated in accordance with Section 15C, or until June 30, 2017, ("Projected Termination Date") whichever is earlier. Any requests for additional time to complete Project beyond the Projected Tennination Date must be submitted in writing to VTA no later than sixty (60) days prior to the Projected Termination Date. VTA may approve or deny such requests in its sole discretion. Documentation by VTA approving any extensions for the Project shall be sufficient approval to extend the tern1 of this Agreement. 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 Sections 6250 et seq.). Cupertino 1516 funding Agreement 2 of8 9/29/2015 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 shall 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; and (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 by this Section. B. VTA shall provide a copy of BAAQMD and VTA logos to Sponsor solely for use in fulfilling Sponsor's obligations under this Section. C. Sponsor shall acknowledge 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 Attachment B "Insurance Requirements," and shall comply with all insurance requirements set forth therein, including the provision regarding 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 required insurance documentation to VT A. The parties acknowledge that Sponsor is self-insured for the amounts outlined in Attachment B and fuiiher acknowledge that BAAQMD has infonned the Parties that such self-insurance satisfies the requirements of this Section. Section 7. Invoicing Sponsor shall submit invoices at quaiierly intervals to VTA for reimbursement of costs incurred to implement the Project. Sponsor shall send requests for reimbursement to VTA Accounts Payable at 3331 N01ih 1st Street, Building A, San Jose, CA 95134-1927. Sponsor shall include relevant, auditable back-up documentation (time sheets, bills, etc.) with each invoice. Section 8. Reimbursement A. All funds allocated by VTA to Sponsor shall be on a cost-reimbursement basis only. VTA shall pay no funds in advance. Cupertino 1516 funding Agreement 3 of8 9/29/2015 B. Upon review and approval of invoices and documentation, VT A shall, within twenty (20) days of receipt of an invoice that confonns 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, 2015 shall be considered reimbursable expenditures. C. Funds for the Project desctibed in this Agreement, which are not submitted for reimbursement prior to June 30, 2017, shall not be available to reimburse Project costs unless a Project schedule, which extends the Project completion date beyond June 30, 2017, has been approved by VTA and BAAQMD, as set forth in Section 3, above. Section 9. Funds Subject to Appropriation/Allocation 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 "16-SC" agreement with BAAQMD for approved projects during Fiscal Year 2015/16. Section 10. Audit by State Auditor This Agreement shall be subject to the examination and audit of the California State Auditor pursuant to California Government Code Section 8546.7 for a period of five (5) years after final payment. Section 11. §ponsor's Record Keeping Sponsor shall: A. Allow VTA staff, BAAQMD staff, both Patiies' authorized representatives, and both Parties' independent auditors, dming the tern1 of this Agreement and for five (5) years following completion of each Project, to conduct perfonnance and financial audits of the Project and to inspect the Project. During audits, the Sponsor shall make available to the auditor, in a timely mam1er, 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 incun-ed 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 (1) 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 Cupertino 1516 funding Agreement 4 of8 9/29/2015 report shall itemize: (a) the expenditure of the funds; and (b) progress to-date m the implementation of each funded project. E. Submit a year-end report within one (1) 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 monitming of the perfom1ance 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 hannless VT A 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 perfonnance 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 3, VTA shall develop an action plan with the Sponsor to ensure that these funds are not required to be repaid to the County Funds, and the action plan may include reprogramming funds to other projects within Santa Clara County to ensure their expenditure prior to the fund expiration date described in Section 3. B. VTA shall provide Sponsor with all BAAQMD-approved Program Manager repmiing fom1s required pursuant to this Agreement. Section 14. Non-Performance A. If Sponsor causes all or part of these Grant Funds to be subject to repayment to the County Fund 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 (5) or more projects greater than two (2) 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: Cupe1iino 1516 funding Agreement 5 of8 9/29/2015 ToVTA: To SPONSOR: Santa Clara Valley Transportation Authority Manager, Programming & Grants 3331N01ih1st Street San Jose, CA 95134-1906 City of Cupertino City Manager 10300 Torre A venue Cupertino, CA 95014-3202 B. Program Liaison. Within thirty (30) days from the Effective Date of this Agreement, Sponsor shall notify VTA of Sponsor's "Program Liaison" and of the Program Liaison's address, telephone number, and email address. The Program Liaison shall be the liaison to VT A pe1iaining to implementation of this Agreement and shall be the contact for infom1ation about the Project. Sponsor shall notify VTA of the change of Program Liaison or of the Program Liaison's contact infonnation in writing no later than thirty (30) days from the date of any change. C. Termination. 1. Voluntary. Either Party may tenninate this Agreement by giving written notice to the other Party. The notice of tennination shall specify the effective date of tennination, 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 which the Sponsor is required to retum to VT A. 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 thi1iy (30) days of the effective date of tennination. If the VT A tenninates 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 tem1ination, excepting any work pennitted to continue 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 of the tennination. 1i. After Breach. The VTA may tenninate this Agreement for breach. The VTA will deliver a written notice of breach that specifies the date of tennination, 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 tennination will specify the amount of the Total TFCA Funds awarded that the VTA has paid. The Sponsor shall reimburse any funds owed to the VTA within thirty (30) days of the effective date of tem1ination. D. Survival. Any provision that, by its nature, extends beyond the tenn or tennination of this Agreement shall survive the expiration or termination of this Agreement. Cupertino 1516 funding Agreement 6 of8 9/29/2015 E. Non-Waiver. The failure of either party to insist upon the strict perfom1ance of any of the tenns, covenants, 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 perfonnance of all of the tenns, 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 attaclunents and references, constitutes the entire Agreement between the Paiiies pertaining to the subject matter contained herein 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 attaclunent hereto is incorporated into this Agreement as if fully set forth herein. J. Severability. If any tenn, covenant, condition, or prov1s10n 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 tenns, 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 wan-ants 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 011 following page. Cupertino 1516 funding Agreement 7 of8 9/29/2015 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date shown below. City of Cupertino (Sponsor) Dated: --'t;._..fl""-+-#-<RV,____~?=-..----- Second signatory if requested App~ A ----Carol Korade "" ' City Attorney Cupertino 1516 funding Agreement 8 of8 Santa Clara Valley Transportation Authority (VTA) fi Dated: ~~ '2.o, ~15 Approved As To Fonn: Caroline Kim Assistant Counsel 9/29/2015 ATTACHMENT A PROJECT INFORMATION A. Project Number: 16SC07 B. Project Title: DeAnza Blvd Traffic Signal Synchronization C. TFCA Program Manager Funds Allocated: $55,000 D. TFCA Regional Funds Awarded (if applicable):$0 E. Total TFCA Funds Allocated (sum of C and D): $55,000 F. Total Project Cost: $55,000 G. Project Description: Grantee will use TFCA funds to conduct traffic data gathering, design and implementation for fifteen (15) signals along De Anza Boulevard from Homestead Road to Prospect Road. The goal of the project is to conduct signal timing analysis and develop and implement signal coordination during the AM, Midday, and PM peak periods for the 15 signals. H. Final Report Content: Final Report Fonn for arterial management projects and final Cost Effectiveness Worksheet. I. Attach a completed Cost-effectiveness Worksheet and any other infonnation used to evaluate the proposed project. Cupertino 1516 funding Agreement 9/29/2015 Attachment B FY 2015/16 INSURANCE REQUIREMENTS VERIFICATION OF COVERAGE Sponsor shall obtain and maintain certificates and/ or other evidence of the insurance coverage required below. VTA and the BAAQJ\.ID 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 BAAQJ\.ID 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 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 BAAQJvID may, at its sole discretion, waive or alter this requirement or accept self-insurance in lieu of any required policy of insurance.