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99-139 Funding agreement with Bay Area Quality Management District, Project No. 99R21 FUNDING AGREEMENT j BETWEEN j THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT -A.ND CITY OF CUPERTINO PROJECT NUMBER 99821 I This Agreement is made and entered into between the City of Cupertino, hereinafter referred to as"Project Sponsor, and the Bay AreaAir Quality Management District, hereinafter referred to as the "Air District." Attachment!A, Project Specific Information; Attachment B; Project Description; and Attachment C, Monitoring of Project Performance are hereby incorporated into this Agreement by this reference. I j SECTION I RECITALS: 1) Air Diistrict is authorized under California Health and Safety Code Section 44223 to levy a fee on motor vehicles registered within its jurisdiction. Funds generated by the fee are to be used to implement projects and programs to reduce air pollution from motor vehicles. 2) Air District administers these funds as the Transportation Fund for Clean Air(TFCA). 3) California Health and Safety Code Section 44241 limits expenditure to specified eligible transportation control measures included in the clean air plan adopted pursuant to California Health and Safety Code Sections 40233, 40717, and 40919 and limits the allocation of the funds to public agencies within the Air District's jurisdiction. 4) Air District and Project Sponsor, pursuant to California Health and Safety Code Section 44241, hereby enter;into this Funding Agreement(Agreement)to implement a transportation measure (Project)to improve air quality in the San Francisco Bay Area Air Basin. 5) The Project, as used in this Agreement, is described on Attachment B. i SECTION II PROJECT SPONSOR AGREES: i 1) To implement the Project in accordance with the description and implementation schedule contained on Attachment B. 2) To submit detailed invoices to the Air District for reimbursement of costs and expenses incurred to complete the Project consistent with the budget and schedule contained on Attachment A. Invoices shall specify the time period for the invoice, itemize staff charges to the Project, if any, indicating the number of hours worked on the Project;,and itemize any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. 3) To keep necessary records of Project activities, expenses and charges to document and support invoices submitted to the Air District. 4) To allow and facilitate Air District audit of Project performance and all expenditures relating to the Project funded through this Agreement. i • TFCA Regional Fund Project 99R21 Page 1 4 BAAQMD FY99 TFCA Fundi g Agreement I i 5) To record on a time sheet those hourly labor costs incurred in the implementation of the Project which are paid with TFCA funds received under this Agreement, or to establish an alternative method approved by the Air District to document staff costs charged to the Project. 6) To use no more than five percent of the TFCA funds received under this Agreement for costs incurred in the administration of the Project consistent with the line item Project budget specified in Attachment A. 7) To ke Ip necessary records of Project performance as specified on Attachment C. 8) To submit to the Air District all reports specified on Attachment C. 9) To use the Air District's approved logo for the Transportation Fund for Clean Air on any vehicles leasedlor purchased with TFCA funds, or on any other capital property purchased with TFCA funds that islvisible to the public. 10) To use the Air District's approved logo for the'Transportation Fund for Clean Air, or to acknowledge the Air District as a funding source, on any printed or electronic material for public distribution associated with the Project. Included as printed material are Project related schedules, brochures, handbooks, or promotional material. Included a.electronic material are Project related Web Sites, electric signs, or e-mail broadcasts. 11) To acknowledge the Air District as a funding source for the Project in any related media events, articles, news releases or other publicity materials. I 12) To assure that all funds received under this Agreement are expended only in accordance with all applicable provisions of law. 13) To expend those"Matching Funds," if any, as listed on Attachment A,toward completion of the Project as described on Attachment B. In the event funding from other sources for the,total cost of the Project as set forth in Attachment A is not received, in whole, by the Project Sponsor, the Air District reserves the right to renegotiate the terms and conditions of this Agreement. 14) To return to the Air District any funds realized from the sale of any motor vehicle(s) purchased with TFCAifunds if such sale occurs within the industry standards for the useful life from the date of purchase of the motor vehicle(s). The amount of the funds returned to the Air District shall be proportional to the percentage of TFCA funds originally used to purchase the motor vehicle(s). i 15) To place in the public domain any software,written document, intellectual property, process, technique, or product developed with TFCA funds as part of the Project. 16) To coil ply with those"Special Conditions," if any, listed on Attachment A. SECTION 1.11 AIR DISTRICT AGREES: 1) To pay within 30 calendar days of receipt, invoices for reimbursement of legitimate Project expenses submitted by the Project Sponsor, excepting that the Air District will retain fifteen percent(15%) of the "TotaIl,TFCA Regional Funds Awarded" as listed on Attachment A until the Air District's acceptance of the final report as specified on Attachment.C. 2) To provide TFCA funds not to exceed the"Total TFCA Regional Funds Awarded amount for this Project as listed on Attachment A. 3) To provide timely notice prior to conducting an audit. 4) To provide a copy of any fiscal audits of the Project as specified in California Health and Safety Code Section 44242. i TFCA Regional Fund Project 99R21 Page 2 i i BAAQMD FY99 TFCA Funding Agreement SECTION IV IT IS MUTUALLY AGREED: 1) Term: This Agreement'will remain in effect for three(3)years after the completion of the Project unless terminated as provided below. 2) Termination: Either party may terminate this Agreement at any time by giving written notice of termination to the other party which shall specify the effective date thereof. Notice of termination under this paragraph shall be given at least ninety(90)days before the effective date of such termination. Upon receiving notice of termination, Project Sponsor shall immediately cease further expenditure of TFCA funds received under this Agreement. The Air District will reimburse Project Sponsor for qualifying expenditures on the Project made prior to the receipt of the notice of termination. 3) Indemnity: Project Sponsor shall indemnify and hold harmless the Air District its officers, employees, agents, representatives, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Project Sponsor of its duties under this Agreement. Air District shall indemnify and hold harmless Project Sponsor its officers, employees, agents, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Air District of its duties under this Agreement. 4) Notices: Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal delivery service or first class mail,to the addressees set forth on Attachment A, or to such addressees which may be specified in writing to the parties hereto. 5) Contacts: Project Sponsor and Air District persons to act as contacts and liaison with the Air District and the Project Sponsor with regards to the day-to-day activities of the Project are specified on Attachment A. All reports and correspondence are to be addressed to the"Contacts" listed on Attachment A. 6) Project Number: All correspondence shall reference the"Project Number" listed on Attachment A. 7) Additional Acts and Documents: Each party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this Agreement. 8) Integration: This Agreement represents the entire Agreement of the parties with respect to the subject matter described in this Agreement, and no representation, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements. 9) Amendment: This Agreement may not be changi,d, modified or rescinded except in writing and signed by the parties hereto. Any attempt at oral modification of this Agreement shall be void and of no effect. The Air District contact person and Project:Sponsor contact person identified pursuant to paragraph IV.5 above may jointly authorize; in writing, any schedule revisions,budget line item revisions, or changes to the Project scope of work that do not diminish the emission reductions associated with the Project. Any other amendments to this Agreement must be executed in writing by the signators to this Agreement. Any change in Project scope must be approved by the Air District prior to implementation of the change by the Project Sponsor. TFCA Regional Fund Project 99R21 Page 3 T BAAQMD FY99 TFCA Fund ng Agreement 10) Independent Contractor: Project Sponsor renders its service under this Agreement as an independent contractor. None of the Project Sponsor's agents, subcontractors or employees shall be construed as agents or employees of the Air District. This paragraph does not apply to elected officials serving concurrently on the governing boards of both the Project Sponsor and Air District. 11) Assignment: This Agreement may not be assigned,transferred, hypothecated, subcontracted or pledged by any party without the express written consent of the other party. 12) Severability: Should any part of this Agreement be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that,the remainder of this Agreement can, absent.the invalid portion.(s), reasonably be interpreted to give effect to the intentions of the parties. 13) Effective Date: The effective date of this Agreement is the date of signature by the Air Pollution Control Officer as listed on page 5. 14) Schedule for Eligible Costs: Only Project costs incurred after the"Air District Approval Date" listed on Attachment A, and before completion of Project and fulfillment of monitoring requirements or termination, whichever occurs first, are eligible to receive TFCA funds. 15) Cost Reduction: The Air District may reduce its contribution to the Project in the event that the "Total Project Cost" is less than the amount listed on Attachment A. Any reduction in TFCA funding shall be proportional to the percentage of TFCA funds provided toward the total project cost as noted on Attachment A. 1.6) Penalty: The Air District may decrease the total TFCA Regional Funds awarded for the Project by up to ten percent(10%) for failure of the Project Sponsor to comply with paragraphs.I1.9,1I.10, and 11.11 above. 17) Project Cost: Project cost overruns are the sole responsibility of the Project Sponsor. The Air District's finding obligation is limited to the"Total TFCA Regional Funds Awarded" as listed on Attachment A. Acceptance of this funding agreement obligates the Project Sponsor to deliver the Project according to the terms and conditions of this Agreement. 18) Force Majeure: Neither the Air District nor Project Sponsor shall be liable or deemed to be in default for any delay or failure in performance under this Funding Agreement or interruption of services, directly or indirectly, from the acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable.control of the Air District or Project Sponsor. 19) Governing Law: This Funding Agreement shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. TFCA Regional Fund Project 99R21 Page 4 1 BAAQMD FY99 TFCA FundinAgreement SIGNATURES: l by: by: _ Date: Bert iskovich Ellen Garvey Director of Pub 'c Works Air Pollution Con o Officer City of Cupertino Bay Area Air Quality Management District Approved as to legal form aad- / by: by: -- Legal Counsel Robert N. Kwong City of Cupertino District Counsel Bay Area Air Quality Management District TFCA,Regional Fund Project 99R21 Page 5 r BAAQMD FY99 TFCA Funding greement o ATTACHMENT A PROJECT SPECIFIC INFORMATION [Note: The section numbers shown in parenthesis below refer to Sections in the Funding Agreement.] 1. Project Sponsor: City of Cupertino 2. Project Number: 99821 3. Total TFCA Regional Funds Awarded (Section IIL2): $100,000 Air District will fund 44% of the total project cost„to a maximum of$100,000 in TFCA funds. 4. Total Project Cost(Section IV.15): $225,000 5. Matching Funds (Section IL13): $125,000 (FY 99/00 TDA Article 3 funds) 6. Total Line Item Project Budget: Line Item Amount Preliminary engineering $44,000 Mobilization $ 5,000 Traffic control $15,000 Traffic signs $10,000 Striping $46,000 Pavement markings $20,000 Loop detectors '330,000 Landscaping $20,000 Project administration $ 5,000 Contingencies $30,000 Total $225,000 7. Invoice and Payment Schedule (Section II.2): The Project Sponsor will submit invoices for reimbursement as project costs are incurred, but not more than once per calendar quarter. (In lieu of periodic invoices, the project sponsor may submit a single invoice upon completion of the project.) Invoices shall specify the time period for the invoice, itemize staff charges to the Project, if any, indicating the number of hours worked on the project; and provide documentation of any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. The final invoice is to be submitted with the final report as listed on Attachment C. 8. Notices (Section IVA): Any written notice required is to be addressed to: Proiect Sponsor: Air District: Bert Viskovich Ellen Garvey Director of Public Works Air Pollution Control Officer City of Cupertino Bay Area Air Quality Management District 10300 Torre Ave 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 J TFCA Regional Fund Project 991321 Page 6 BAAQMD FY99 TFCA Funding Agreement e 9. Contacts (Section IV.S): Contact persons for day-to-day activities of the,Project are: Proiect Contact: Air District: Raymond Chong David Burch Traffic Engineer Sr.Environmental Planner City of Cupertino Bay Area Air Quality Management District 10300 Torre Ave. 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 (408) 777-3240 (415) 749-4641 10. Air District Approval Date(Section IV.14): October 6,.1999 11. Special Conditions(Section II.16): The bicycle lanes shall have a minimum width of 5 feet throughout the length of the corridor. Project sponsor shall submit project plans and specifications for approval by the Air District prior to entering into a construction contract. TFCA Regional Fund Project 99821 Page 7 BAAQMD FY99 TFCA Funding Agreement ATTACHMENT B PROJECT DESCRIPTION The TFCA funding application dated June 28, 1999 is incorporated herein by this reference. Project Title: Class 2 Bicycle Lanes—Wolfe Road Project Description: The City of Cupertino will install bicycle lanes with a minimum width of 5 ft. on a 1.1 mile stretch of Wolfe Road from Stevens Creek Blvd. north to the Sunnyvale boundary at Homestead Road. The project will provide striped bicycle lanes, pavement markings and bicycle loop detectors. The Wolfe Road bicycle lanes will connect with bicycle lanes that are planned for Miller Avenue in the southern end of the corridor. Project Schedule: Project Start Date: October 6, 1999 Execute construction contract: by December 2000 Project Completion Date: July 1, ?001 Project Goal: The goal of the project is to reduce motor vehicle travel and vehicle emissions by Providing improved bicycle facilities, and to implement the City of Cupertino Bicycle Plan. TFCA Regional Fund Project 99R21 Page 8 BAAQMD FY99 TFCA Funding Agreement e ATTACHMENT C MONITORING OF PROJECT PERFORMANCE Quarterly Reports: Due Dates: April 15,2000; July 15,2000; October 15,2000; January 15,2001; April 15,2001 and thereafter until completion of the project Quarterly reports shall summarize progress in project implementation, describe any special problems encountered, and note any potential need for changes in the project schedule. Project Monitoring Requirements and Final Report: Due Date: November 1,2001 The Final Report shall provide the following: 1. A description of the project specifications(e.g. lengi:h and width of the bike lanes, type of material used for bike lane striping, etc.)and documentation to demonstrate that the project'conforms to standards in Chapter 1000 of the California Highway.Design Manual. 2. Photographs of the completed bike lanes, including photos at key intersections; and photos of signs and pavement legends installed as part of the project 3. A pre-project count of bicyclists on all project segments on a weekday-in the May through September period, prior to construction of the bicycle lanes. The count is to be performed for the AM peak period (7-9 a.m.)and the PM peak period (4-6 p.m.). The project sponsor may perform the count all day in lieu of the peak periods. 4. A post-project count of bicyclists using the lanes on.a weekday in the same month as when the pre-project counts were conducted. The post- project counts are to be performed for the same time period(s) and in the same locations as the pre-project counts. 5. Copies of any promotional materials, press releases,:newsletter articles, or other media coverage regarding the project. TFCA Regional Fund Project 99R21 Page 9 0 FUNDING AGREEMENT BETWEEN THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT AND CITY OF CUPERTINO PROJECT NUMBER 99R22 This Agreement is made and entered into between the City of Cupertino, hereinafter referred to as"Project Sponsor," and the Bay Area Air Quality Management District, hereinafter referred to as the "Air District." Attachment A,Project Specific Information; Attachment B, Project Description; and Attachment C, Monitoring of Project Performance are hereby incorporated into this Agreement by this reference. SECTION I RECITALS: 1) Air District is authorized under California Health and Safety Code Section 44223 to levy a fee on motor vehicles registered within its jurisdiction. 'Funds generated by the fee are to be used to implement projects and programs to reduce air pollution from motor vehicles. 2) Air District administers these funds as the Transportation Fund for Clean Air(TFCA). 3) California Health and Safety Code Section 44241 limits expenditure to specified eligible transportation control measures included in the clean air plan adopted pursuant to California Health and Safety Code Sections 40233, 40717, and 40919 and limits the allocation of the funds to public agencies within the Air District's jurisdiction. 4) Air District and Project Sponsor, pursuant to California Health and Safety Code Section 44241, hereby enter into this Funding Agreement(Agreement)to implement a transportation measure (Project)to improve air quality in the San Francisco Bay Area Air Basin. 5) The Project, as used in this Agreement, is described on Attachment B. SECTION II PROJECT SPONSOR AGREES: 1) To implement the Project in accordance with the description and implementation schedule contained on Attachment B. 2) To submit'detailed invoices to the Air District for reimbursement of costs and expenses incurred to complete the Project consistent with the budget and schedule contained on Attachment A. Invoices shall specify the time period for the invoice, ite►rtize staff charges to the Project, if any, indicating the number of hours worked on the Project; and itemize any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. 3) To'keep necessary records of Project activities, expenses and charges to document and support invoices submitted to the Air District. 4) To allow and facilitate Air District audit of Project performance and all expenditures relating to the Project funded through this Agreement. TFCA Regional Fund Project 99R22 Page 1 rly,eoj./ ' 1 BAAQMD FY99 TFCA Funding Agreement e 5) To record on a time sheet-those hourly labor costs incurred in the implementation of the Project which are paid with TFCA finds received under this Agreement, or to establish an alternative method approved by the Air District to document staff costs charged to the Project. 6) To use no more than five percent of the TFCA funds received under this Agreement for costs incurred in the administration of the Project consistent with the line item Project budget specified in Attachment A. 7) To keep necessary records of Project performance as specified on Attachment C.- 8) To submit to the Air District all reports specified on Attachment C. 9) To use the Air District's approved logo for the Transportation Fund for Clean Air on any vehicles leased or purchased with TFCA funds, or on any other capital property purchased with TFCA finds that is visible to the public. 10) To use the Air District's approved logo for the Transportation Fund for Clean Air, or to acknowledge the Air District as a funding source, on any printed.or electronic material for public distribution associated with the'Project. Included as printed material are Project related schedules, brochures, handbooks, or promotional material. Included as electronic material are Project related Web Sites, electric signs, or e-mail broadcasts. 11) To acknowledge the Air District as a funding source;for the Project in any related media events, articles, news releases or other publicity materials. 12) To assure that all funds received under this Agreement are expended only in accordance with all applicable provisions of law. 13) To expend those"Matching Funds," if any, as listed on Attachment A, toward completion of the Project as described on Attachment B. In the event funding from other sources for the total cost of the Project as set forth in Attachment A is not received, in whole, by the Project Sponsor,the Air District reserves the right to renegotiate the terms and conditions of this Agreement. 14) To return to the Air District any funds realized from the sale of any motor vehicle(s) purchased with TFCA funds if such sale occurs within the industry standards for the useful life from the date of purchase of the motor vehicle(s). The amount of the funds returned to the Air District shall be proportional to the percentage of TFCA funds originally used to purchase the motor vehicle(s). 15) To place in the public domain any software, written document, intellectual property, process, technique, or product developed with TFCA funds as part of the Project. 16) To comply with those"Special Conditions," if any, listed on Attachment A. SECTION III AIR DISTRICT AGREES: 1) To pay within 30 calendar days of receipt, invoices for reimbursement of legitimate Project expenses submitted by the Project Sponsor, excepting that the Air District will retain fifteen percent(15%)of the "Total TFCA Regional Funds Awarded" as listed on Attachment A until the Air District's acceptance of the final report as specified on Attachment C. 2) To provide TFCA funds not to exceed the "Total TFCA Regional Funds Awarded" amount for this Project as listed on Attachment A. 3) To provide timely notice prior to conducting an audit. 4) To provide a copy of any fiscal audits of the Project as specified in California Health and Safety Code Section 44242. TFCA Regional Fund Project 99R22 Page 2 l BAAQMD FY99 TFCA Funding Agreement o `� SECTIaN IV IT IS MUTUALLY AGREED: 1) Term: This Agreement will remain in effect for three(3)years after the completion of the Project unless terminated as provided below. 2) Termination: Either party may terminate this Agreement at any time by giving written notice of termination to the other party which shall specify the effective date thereof. Notice of termination under this paragraph shall be given at least ninety(90)days before the effective date of such termination. Upon receiving notice of termination, Project Sponsor shall immediately cease further expenditure of TFCA funds received under this Agreement. The Air District will reimburse Project Sponsor for qualifying expenditures on the Project made prior to the receipt of the notice of termination. 3) Indemnity: Project Sponsor shall indemnify and hold harmless the Air District its officers, employees, agents, representatives, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Project Sponsor of its duties under this Agreement. Air District shall indemnify and hold harmless Project Sponsor its officers, employees, agents, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Air District of its duties under this Agreement. 4) Notices: Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal delivery service or first class mail, to the addressees set forth on Attachment A, or to such addressees which may be specified in writing to the parties hereto. 5) Contacts: Project Sponsor and Air District persons to act as contacts and liaison with the Air District and the Project Sponsor with regards to the day-to-day activities of the Project are specified on Attachment A. All reports and correspondence are to be addressed to the"Contacts" listed on Attachment A. 6) Project Number: All correspondence shall reference;the "Project Number" listed on Attachment A. 7) Additional Acts and Documents: Each party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this Agreement. 8) Integration: This Agreement represents the entire Agreement of the parties with respect to the subject matter described in this Agreement, and no representation, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements. 9) Amendment: This Agreement may not be changed, modified or rescinded except in writing and signed by the parties hereto. Any attempt at oral modification of this Agreement shall be void and of no effect. The Air District contact person and Project Sponsor contact person identified pursuant to paragraph IV.5 above may jointly authorize, in writing, any schedule revisions, budget line item revisions, or changes to the Project scope of work that do not diminish the emission reductions associated with the Project. Any other amendments to this Agreement must be executed in writing by the signators to this Agreement. Any change in Project.scope must be approved by the Air District prior to implementation of the change by the Project Sponsor. TFCA Regional Fund Project 99R22 Page 3 BAAQMD FY99 TFCA Fundi g Agreement e 10) Independent Contractor: Project Sponsor renders.its service under this Agreement as an independent contractor. None of the Project Sponsor's agents, subcontractors or employees shall be construed as agents or employees of the Air District. This paragraph does not apply to elected officials serving concurrently on the governing boards of both the Project Sponsor and Air District. 1 l) Assignment: This Agreement may not be assigned,transferred, hypothecated, subcontracted or pledged by any party without the express written consent of the other party. 12) Severability: Should any part of this Agreement be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that,the remainder of this Agreement can, absent the invalid portion(s), reasonably be interpreted to give effect to the intentions of the parties. 13) Effective Date: The effective date of this Agreement is the date of signature by the Air Pollution Control Officer as listed on page 5. 14) Schedule for Eligible Costs: Only Project costs incurred after the "Air District Approval Date" listed on Attachment A, and before completion of Project and fulfillment of monitoring requirements or termination, whichever occurs first, are eligible to receive TFCA funds. 15) Cost Reduction: The Air District may reduce its contribution to the Project in the event that the"Total Project.Cost" is less than the amount listed on Attachment A. Any reduction in TFCA funding shall be proportional to the percentage of TFCA funds provided toward the total project cost as noted on Attachment A. 16) Penalty: The Air District may decrease the total TFCA Regional Funds awarded for the Project by up to ten percent(10%) for failure of the Project Sponsor to comply with paragraphs IL9, 11.10, and 11.11 above. 17) Project Cost: Project cost overruns are the sole responsibility of the Project Sponsor. The Air District's funding obligation is limited to the"Total TFCA Regional Funds Awarded"as listed on Attachment A. Acceptance of this funding agreernent obligates the Project Sponsor to deliver the Project according to the terms and conditions of this Agreement. 18) Force Majeure: Neither the Air District nor Project Sponsor shall be liable or deemed to be in default for any delay or failure in performance under this Trending Agreement or interruption of services, directly or indirectly, from the acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts,:materials, labor or transportation, or any similar cause beyond the reasonable control of the Air District or Project Sponsor. 19) Governing Law: This Funding Agreement shall be construed and interpreted and the legal relations created"thereby shall be determined in accordance with the laws of the State of California. TFCA Regional Fund Project 99R22 Page 4 BAAQMD FY99 TFCA Funding Agreement SIGNATURES: by- by: Date: Be U•iskovich Elden Garvey Di ec or of Publ c Works Air Pollution Cont Officer Ci f Cupertin Bay Area Air Quality Management District Approved as to legal form apd- � by: IT �//�� by: Legal Counsel Robert *Kwon g City of Cupertino District Counsel Bay Area Air Quality Management District TFCA Regional Fund Project 99R22 Page 5 BAAQMD FY99 TFCA Fundin g Agreement e ATTACHMENT A PROJECT SPECIFIC INFORMATION [Note: The section numbers shown in parenthesis below:refer to Sections in the Funding Agreement.] 1. Project Sponsor: City of Cupertino 2. Project Number: 99R22 3. Total TFCA Regional Funds Awarded (Section I111-.2): $140,000 Air District will fund 80% of the total project cost, to a maximum of$14.0,000 in TFCA funds. 4. Total Project Cost(Section IV.15): $175,000 5. Matching Funds (Section II.13): $35,000 (City General Funds) 6. Total Line Item Project Budget: Line Item Amount Preliminary engineering $33,000 Mobilization $ 3,000 Traffic control $ 6,000 Traffic signs $ 3,000 Striping $ 8,000 Pavement markings :S 3,000 Bike loop detectors `.S:12,000 Bridge widening `.580,000 Project administration `.i 7,000 Contingencies S>20;000 Total S1.75,000 7. Invoice and Payment Schedule(Section II.2): The Project Sponsor will submit invoices for reimbursement as project.costs are incurred, but not more than once per calendar quarter. (In lieu of periodic invoices, the project sponsor may submit a single invoice upon completion of the project.) Invoices shall specify the time period for the invoice, itemize staff charges to the Project, if any, indicating the number of hours worked on the project; and provide documentation of any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. The final invoice is to be submitted with the final report as listed on Attachment C'. 8. Notices(Section IVA): Any written notice required is to be addressed to: Project Sponsor: Air District: Bert Viskovich Ellen Garvey Director of Public Works Air Pollution Control Officer City of Cupertino Bay Area Air Quality Management District 10300 Torre Ave 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 TFCA Regional Fund Project 99R22 Page 6 BAAQMD FY99 TFCA Funding Agreement 9. Contacts (Section IV.5): Contact persons for day-to-day activities of the Project are: Project Contact: Air District: Raymond Chong David Burch Traffic Engineer Sr. Environmental Planner City of Cupertino Bay Area Air Quality Management District 10300 Torre Ave. 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 (408) 777 73240 (415) 749-4641 10. Air District Approval Date (Section IV.14): October 6, 1999 11. Special Conditions (Section.11.16): Project design shall conform to all applicable standards in Chapter 1000 of the California Highway Design Manual. Project sponsor shall submit project plans and specifications for approval by the Air District prior to entering into a construction contract. TFCA Regional Fund Project 99R22 Page 7 BAAQMD FY99 TFCA Funding Agreement ATTACHMENT B PROJECT DESCRIPTION The TFCA funding application dated June 28, 1999 is incorporated herein by this reference. Project.Title: Class 2 Bicycle Lanes—Bollinger Road Project Description: This project will install new bicyclle lanes on a 1.1 mile stretch of Bollinger Road from De Anza Blvd. east to Miller Avenue. It will also provide, improvements, including better signage and pavement markings, for existing bicycle lanes on Bollinger from Miller east to Lawrence Expressway. The Bollinger bicycle lanes will continue eastward on Moorpark Avenue in San Jose, and will also link to existing bike lanes on De Anza Blvd to the west. The major capital expense in the project is the widening of the bridge over Calabazas Creek to provide sufficient width to accommodate the bicycle lanes. Project Schedule: Project Start Date: October 6, 1999 Execute construction contract: by December 2000 Project Completion Date: July 1, 2001 Project Goal: The.goal of the project is to reduce motor vehicle travel and vehicle emissions by providing improved bicycle facilities, and to implement the City of Cupertino Bicycle Plan. TFCA Regional Fund Project 99R22 Page 8 BAAQMD FY99 TFCA Funding Agreement ATTACHMENT C MONITORING OF PROJECT PERFORMANCE Quarterly Reports: Due Dates:'April 15,2000; July 15,2000;October 15,2000; January 15,2001; April 15,2001 and thereafter until completion of the project Quarterly reports shall summarize progress in project implementation, describe any special problems encountered, and note any potential need for changes in fl'ie project schedule. Project Monitoring Requirements and Final Report: Due Date: November 1,2001 The Final Report shall provide the following: 1. A description of the project specifications(e.g. length.and width of the bike lanes, type of material used for bike lane striping, etc.) and documentation to demonstrate that the project conforms to standards in Chapter 1000 of the California Highway Design Manual. 2. Photographs of the completed bike lanes, including photos at key intersections; and photos of signs and pavement legends installed as part of the project 3. A pre-project count of bicyclists on all project segments on a weekday in the May through September period, prior to construction of the bicycle lanes. The count is to be performed for the AM peak period (7-9 a.m.)and the PM peak period (4-6 p.m.). The project sponsor may perform the count all day in lieu of the peak periods. 4. A post-project count of bicyclists using the lanes on a weekday in the same month as.when the pre-project counts were conducted. The post- project counts are to be performed for the same time period(s)and in the same locations as the pre-project counts. 5. Copies of any promotional materials, press releases, newsletter articles, or other media coverage regarding the project. TFCA Regional Fund Project 99R22 Page 9 FUNDING AGREEMENT BETWEEN THE BAY AREA AIR QUALITY.MANAGEMENT DISTRICT AND CITY OF CU:PERTINO PROJECT NUMBER 991123 This Agreement is made and entered into between the City of Cupertino, hereinafter referred to as"Project Sponsor,"and the Bay Area Air Quality Management District, hereinafter referred to as the "Air District." Attachment A, Project Specific Information; Attachment B,Project Description; and Attachment C, Monitoring of Project Performance are hereby incorporated into this Agreement by this reference. SECTION I RECITALS: 1) Air District is authorized under California Health and Safety Code Section 44223 to levy a fee on motor vehicles registered within its jurisdiction. Funds generated by the fee are to be used to implement projects and programs to reduce air pollution from motor vehicles. 2) Air District administers these funds as the Transportation Fund for Clean Air(TFCA). 3) California.Health and Safety Code Section 44241 limits expenditure to specified eligible transportation control measures included in the clean air plan adopted pursuant to California Health and Safety Code Sections 40233, 40717, and 40919 and limits the allocation of the funds to public agencies within the Air District's jurisdiction. 4) Air District and Project Sponsor, pursuant to California Health and Safety Code Section 44241, hereby enter into this Funding Agreement(Agreement)to implement a transportation measure (Project)to improve air quality in the San Francisco Bay Area Air Basin. 5) The Project, as used in this Agreement, is described on Attachment B. SECTION II PROJECT SPONSOR AGREES: 1) To implement the Project in accordance with the description and implementation schedule contained on Attachment B. 2) To submit detailed invoices to the Air District for ri,imbursement of costs and expenses incurred to complete the Project consistent with the budget and schedule contained on Attachment A. Invoices shall specify the time period for the invoice, itemize staff charges to the Project, if airy, indicating the number of hours worked on the Project; and itemize any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. 3) To keep necessary records of Project activities, expenses.and charges to document and support invoices submitted to the Air District. 4) To allow and facilitate Air District audit of Project 7 erformance and all expenditures relating to the Project funded through this Agreement. TFCA Regional Fund Project 99R23 Page 1 i7 BAAQMD FY99 TFCA Funding Agreement e � ' 5) To record on a time sheet those hourly labor costs incurred in the implementation of the Project which are paid with TFCA funds received under this Agreement, or to establish an,alternative method approved by the Air District to document staff costs charged to the Project. 6) To use no more than five percent of the TFCA funds received under this Agreement for costs incurred in the administration of the Project consistent with the line item Project budget specified in Attachment A. 7) To keep necessary records of Project performance as specified on Attachment C. 8) To submit to the Air District all reports specified on Attachment C. 9) To use the Air District's approved logo for the Transportation Fund for Clean Air on any vehicles leased or purchased with TFCA funds, or on any other capital property purchased with TFCA funds that is visible to the public. 10) To use the Air District's approved logo for the Transportation.Fund for Clean Air, or to acknowledge the Air District as a funding source, on any printed or electronic material for public distribution associated with the,Project. Included as printed material are Project related schedules, brochures, handbooks, or promotional material. Included as electronic material are Project related Web Sites, electric signs, or e-mail broadcasts. 11) To acknowledge the Air District as a funding source for the Project in any related media events, articles, news releases or other publicity materials. 12) To assure that all funds received under this Agreement are expended only in accordance with all applicable provisions of law. 13). To expend those"Matching Funds," if any, as listed on Attachment A,,toward completion of the Project as described on Attachment B. In the event funding from other sources for the total cost of the Project as set forth in Attachment A is not received, in whole, by the Project Sponsor, the Air District reserves the right to renegotiate the terms and conditions of this Agreement. 14) To return to the Air District any funds realized fronn the sale of any motor vehicle(s)purchased with TFCA funds if such sale occurs within the industry standards for the useful life from the date of purchase of the motor vehicle(s). The amount of the funds returned to the Air District shall be, proportional to the percentage of TFCA funds originally used to purchase the motor vehicle(s). 15) To place in the public domain any software, written document, intellectual property, process, technique, or product developed with TFCA funds as part of the Project. 16) To comply with those"Special Conditions," if any, Fisted on Attachment A. SECTION III AIR DISTRICT AGREES: 1) To pay within 30 calendar days of receipt, invoices for reimbursement of legitimate Project expenses submitted by the Project Sponsor, excepting that the Air District will retain fifteen percent(15%)of the "Total TFCA Regional Funds Awarded" as listed on Attachment A until the Air District's acceptance of the final report as specified on Attachment C. 2) To provide TFCA funds not to exceed the"Total TIFCA Regional Funds Awarded"amount for this Project as listed on Attachment A. 3) To provide timely notice prior to conducting an audit. 4) To provide a copy of any'fiscal audits of the Project as specified in California Health and Safety Code Section 44242. TFCA Regional Fund Project 99R23 Page 2 BAAQMD FY99 TFCA Funding Agreement e SECTION IV IT IS MUTUALLY AGREED: I) Term: This Agreement will remain in effect for three(3)years after the completion of the Project unless terminated as provided below. 2) Termination: Either party may terminate this Agreement at anytime by giving written notice of termination to the other party which shall specify the effective date thereof. Notice of termination under this paragraph shall be given at least ninety(90) days before the effective date of such termination: Upon receiving notice of termination„_Project Sponsor shall immediately cease further expenditure of TFCA funds received under this Agreement. The Air District will reimburse Project Sponsor for qualifying expenditures on the Project made prior to the receipt of the notice of termination. 3) Indemnity: Project Sponsor shall indemnify and hold harmless the Air District its officers, employees, agents, representatives, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Project Sponsor of its duties under this Agreement. Air District shall indemnify and hold harmless Project Sponsor its officers., employees, agents, and successors-in-interest against any and all claims, suits or actions resulting from the performance by Air District of its duties under this Agreement. 4) Notices: Any notice which may be required under this Agreement,shall be in writing, shall be effective when received, and shall be given by personal delivery service or first class mail,to the addressees set forth on Attachment A, or to such addressees which may be specified in writing to the parties hereto. 5) Contacts: Project Sponsor and Air District persons to act as contacts and liaison with the Air District and the Project Sponsor with regards to the day-to-day activities of the Project are specified on Attachment A. All reports and correspondence are to be addressed to the"Contacts" listed on Attachment.A. 6) Project Number: All correspondence shall reference the "Project Number" listed on Attachment A. 7) Additional Acts and Documents: Each party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this Agreement. 8) Integration: This Agreement represents the entire Agreement of the parties with respect to the subject matter described in this Agreement, and no representation, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements. 9) Amendment: This Agreement.may not be changed, modified or rescinded except in writing and signed by the parties hereto. Any attempt at oral modification of this Agreement shall be void and of no effect. The Air District contact person and Project Sponsor contact person identified pursuant to paragraph IV.5 above may jointly authorize, in writing, any schedule revisions, budget line item revisions, or changes to the Project scope of work that do not diminish the emission reductions associated with the Project. Any other amendments to this Agreement must be executed in writing by the signators to this Agreement. Any change in Project scope must be approved by the Air District prior to implementation of the change by the Project Sponsor. TFCA Regional Fund Project 99R23 Page 3 BAAQMD FY99 TFCA Funding Agreement 10) Independent Contractor: Project Sponsor renders As service under this Agreement as an independent contractor. None of the Project Sponsor's agents, subcontractors or employees shall be construed as agents or employees of the Air District. This paragraph does not apply to elected officials serving concurrently on the governing boards ofboth the]Project Sponsor and Air District. 11) Assignment: This Agreement may not be assigned], transferred, hypothecated, subcontracted or pledged by any party without the express written consent of the other party. 12) Severability: Should any part of this Agreement be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that; the remainder of this Agreement can, absent the invalid portion(s), reasonably be interpreted to give effect to the intentions of the parties. , 13) Effective Date: The effective date of this Agreement is the date of signature by the Air Pollution Control Officer as listed on page 5. 14) Schedule for Eligible Costs: Only Project costs incurred after the"Air District Approval Date" listed on Attachment A, and before completion of Projecl:and fulfillment of monitoring requirements or termination, whichever occurs first,are eligible to receive TFCA funds. 1,5) Cost Reduction: The Air District may reduce its contribution to the Project in the event that the "Total Project Cost" is less than the amount listed on Attachment A. Any reduction in TFCA funding shall be proportional to the percentage of TFCA funds provided toward the total project cost as noted on Attachment A. 16) Penalty: The Air District may decrease the total T.FCA Regional Funds awarded for the Project by up to ten percent(10%)for failure of the Project Sponsor to comply with paragraphs I1.9, I1.1.0, and IL 11 above. 17) Project Cost: Project cost overruns are the sole responsibility of the Project Sponsor. The Air District's funding obligation is limited to the "Total.TFCA Regional Funds Awarded"as listed on Attachment A. Acceptance of this funding agreement obligates the Project Sponsor to deliver the Project according to the terms and conditions of this Agreement. 18) Force Majeure: Neither the Air District nor Project Sponsor shall be liable or deemed to be in default for any delay or failure in performance under this Funding Agreement or interruption of services, directly or indirectly, from the acts of God, civil or:military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, rriaterials, labor or transportation, or any similar cause beyond the reasonable control of the Air District or Project Sponsor. 19) Governing Law: This Funding Agreement shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. TFCA Regional Fund Project 99R23 Page 4 ' 1 BAAQMD FY99 TFCA Fundi g Agreement SIGNATURES: 7 by: by: Date: Bert isckovich Eller, Garvey Direc or of Publi Works Air Pollution C t 1 Officer City of Cupertino Bay Area Air Quality Management.District tte Approved as to legal form a -eei � Legal Counsel Robert N.Kwong City of Cupertino. District Counsel Bay Area Air Quality Management District TFCA Regional Fund Project 99R23 Page 5 BAAQMD FY99 TFCA Funding Agreement e ATTACHMENT A PROJECT SPECIFIC INFORMATION [Note: The section numbers shown in parenthesis below refer to Sections in the Funding Agreement.] 1. Project Sponsor: City of Cupertino 2. Project Number: 99R23 3. Total TFCA Regional Funds Awarded (Section 1]:1.2): $120,000 Air District will provide 40% of total project cost, to a maximum of$120,000 in TFCA funds. 4. Total Project Cost(Section IV.15): $300,000 5. Matching Funds (Section H.13): $180,000 Source Amount TFCA Program Manager Funds $120,000 City of Cupertino General`Fund $60,000 6. Total Line Item Project Budget: Line Item Amount Traffic Responsive System $195,000 Traffic Signal Retiming $93,000 Administration $12,000 Total $300,000 7. Invoice and Payment Schedule(Section II.2): The Project Sponsor will submit quarterly invoices for reimbursement within fifteen (15)calendar days after the close of a calendar quarter. Invoices shall specify the time period for the invoice, itemize staff charges to the Project, if any, indicating the number of hours worked on the project; and itemize,any payments to vendors, consultants, or contractors with an explanation of the goods or services provided for the Project. Invoices are due: January 15, 2000, April 15, 2000, July 15, 2000, October 15, 2000 and quarterly thereafter until the Post-Construction Report is submitted. The final invoice is to be submitted with the Final Report as listed on Attachment C. 8. Notices (Section IVA): Any written notice required is to be addressed to Project Sponsor: Air District: Bert Viskovich Ellen Garvey Director of Public Works Air Pollution Control Officer City of Cupertino Bay Area Air Quality Management District 10300 Torre Avenue 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 9. Contacts(Section IV.5): Contact persons for day-to-day activities of the Project are: Project Contact: Air District: Raymond Chong Joseph Steinberger Traffic Engineer Environmental Planner City of Cupertino Bay Area Air Quality Management District 10300 Torre Avenue 939 Ellis Street Cupertino, CA 95014 San Francisco, CA 94109 TFCA Regional Fund Project 99R23 Page 6 a , l BAAQMD FY99 TFCA Fundi g greement e w 10. Air District Approval Date(Section IV.14): October 6, 1999 11. Special Conditions (Section 11.16): The City will monitor and, if necessary, retime the lights on De Anza Boulevard between Stevens Creek Boulevard and Homestead Road, Stevens Creek Boulevard :between Bubb Road and De Anza Boulevard, and Wolfe Road between Stevens Creek Boulevard and Homestead Road,two years after completion of construction. The City committed to this special condition in the application by requesting that the project be evaluated using four years of effectiveness instead of the two year default. The monitoring and retiming requirements are set forth in Attachment C, Final Report. TFCA Regional Fund Project 99R23 Page 7 BAAQMD FY99 TFCA Funding Agreement e �/ ATTACHMENT B PROJECT DESCRIPTION The TFCA funding application dated June 28, 1999, is incorporated herein by this reference. Project Title: Arterial Management—Retime 34 Traffic Signals—DeAnza and Stevens Creek Blvds., Wolfe Rd. Project Description: The City of Cupertino will instal I a traffic responsive system and retime 34 traffic signals along De Anza Boulevard between Stevens Creek Boulevard and Homestead Road, Stevens Creek Boulevard between Bubb Road and De Anza Boulevard, and Wolfe Road between Stevens Creek Boulevard and Homestead Road. Project Schedule: Project Start Date: December 1, 1999 Project Completion Date: March 1, 2004 Project Milestones: Environmental Clearance January 1, 2000 Request for Proposal February 1, 2000 Consultant Contract April 1, 2000 Commence Construction May 1,2000 Complete Construction January 1, 2002 Post-Construction Report Submittal March 1, 2002 Two-Year Post Construction Analysis January 1, 2004 Final Report Submittal March 1, 2004 Project Goal: The goal of this project is to reduce air emissions by improving arterial traffic flow and increasing vehicle speeds. TFCA Regional Fund Project 99R23 Page 8 BAAQMD FY99 TFCA Fundi g Agreement e ATTACHMENT C MONITORING OF PROJECT PERFORMANCE Quarterly Reports: Due Dates: January 1.5, 2000, April 15, 2000; July 15, 2000, October 15, 2000 and quarterly thereafter until the Post-Construction Report is submitted. Quarterly reports shall provide a brief narrative highlighting major activities and accomplishments during the quarter, an itemization of expenditures on the project of both TFCA funds and other funding, if any, which comprise the total cost of the project; a general statement of the overall progress of the project; and a projection of anticipated activities for the next quarter. The quarterly reports are to explain delays, if any, in the Project's implementation. Project Monitoring Requirements and Post-Construction Report: Due Date: March 1, 2002 The Post-Construction Report shall contain the following: 1. Map indicating location of retimed traffic signals. 2. Posted speed on De Anza Boulevard between Stevens Creek Boulevard and Homestead Road, Stevens Creek Boulevard between Bubb Road and De Anza Boulevard, and Wolfe Road between Stevens Creek Boulevard and Homestead Road. 3. Data gathered not more than three months prior to st:a.rt of construction and one month after completion of construction for De Anza Boulevard between Stevens Creek Boulevard and.Homestead Road, Stevens Creek Boulevard between Bubb Road and De Anza:Boulevard, and Wolfe Road between Stevens Creek Boulevard and Homestead Road. The after-project survey date(s)are to be chosen to provide the most relevant comparison with the before project survey, considering seasonal, special events, and other factors: a. Concurrent average traffic speeds and volumes for the morning, mid-day and evening peak hours on a normal/non-holiday Tuesday,Wednesday or Thursday. "Average speed" includes delay(s)at intersections. b. Arteriallevel of service(LOS)for peak hour on the same day. c. Average daily traffic volume for each day of the week, including Saturday and Sunday. Counts shall be conducted for a minimum of three weeks that do not include a holiday. These data are to help the District analyze variation in traffic patterns. Final Report: Due Date: March 1, 2004 The Final Report shall contain the following: 1. The concurrent average traffic speeds and volumes and LOS (described in 3a and 3b of the Post- Construction Report Requirements) gathered two years after completion of construction. 2. An analysis comparing arterial traffic speeds two years after project construction with the before and after project survey. If the analysis indicates that the incremental speed improvements between the post- construction survey and final report survey have decreased by more than 50%,the signals shall be retimed on the arterial(s). 3. When the two-year post project analysis requires retiming, collect concurrent average traffic speeds and volumes and LOS (described in 3a and 3b of the Post-Construction Report Requirements)one month after the subsequent signal retiming. 4. Average daily traffic volume for each day of the week, including Saturday and Sunday. Counts shall be conducted for a minimum of three weeks that do not include a holiday. TFCA Regional Fund Project 99R23 Page 9