05-025, The Bay Area Air Quality Management District
BAY AREA
AIR O!dALITY
MANAGEMENT
DISTRICT
PUBLIC WORKS
JAN 2 ., 2005
January 26,2005
Glenn Goepfert
City of Cupertino
Public Works Dept.
10300 Torre Avenue
Cupertino, California 95014
RE: Project #04R51 - Mary Avenue Gateway and Refuge Project
Dear Mr. Goepfert:
Enclosed are two signed original copies of the Funding Agreement between
the City of Cupertino and the Air District. We will forward the funds for the
project in accordance with the schedule set forth in Attachment A of the
Agreement.
Please note the quarterly reporting requirements specified in Attachment C
and mark your calendar accordingly.
Please refer to the above project number in all correspondence with the Air
District. If you have any questions, please contact me at (415) 749-5121.
Sincerely,
Karen Chi
Environmental Planner
Enclosure
939 ELLIS STREET. SAN FRANCISCO CALIFORNIA 94109.415.771.6000. 1l'1l'1l'.baaqmd.goll
FUNDING AGREEMENT
BETWEEN
THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT
AND
CITY OF CUPERTINO
PROJECT NUMBER
04R51
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."
SECTION I
RECITALS:
1) Air District is authorized to administer the Transportation Fund for Clean Air (TFCA) pursuant to
California Health and Safety Code Sections 44223 and 44225, which allows the Air District to levy a
fee on motor vehicles registered within its jurisdiction and to use the funds generated to implement
projects and programs to reduce air pollution from motor vehicles.
2) California Health and Safety Code Section 44241 requires that TFCA funds be allocated to public
agencies within the Air District's jurisdiction and that TFCA funds be used only for specified eligible
transportation control measures and mobile source measures included in the latest version of any plans
adopted in accordance with California Health and Safety Code Sections 40233, 40717, and 40919 for
the California and federal ambient air quality standards.
3) Air District and Project Sponsor, a public agency in Air District's jurisdiction, desire to enter into this
Funding Agreement (Agreement) to implement an eligible transportation control or mobile source
measure (Project) to improve air quality in the San Francisco Bay Area Air Basin.
NOW, THEREFORE, the parties agree as follows:
SECTION II
PROJECT SPONSOR OBLIGATIONS:
l) Project Sponsor will implement the Project in accordance with this Agreement and Attachment A,
Project Specific Information; Attachment B, Project Description; and Attachment C, Monitoring of
Project Performance, which are hereby incorporated into this Agreement.
2) Project Sponsor will complete the Project in accordance with the budget described in Attachment A and
the following conditions:
A. The Air District's funding obligation under this Agreement is limited to the "Total TFCA
Regional Funds Awarded" as specified in Attachment A. Any Project cost overruns are the sole
responsibility of the Proj ect Sponsor.
B. In the event that the "Total Project Cost" is less than the amount listed on Attachment A, the Air
District may reduce the "Total TFCA Regional Funds Awarded" to the Project. Any reduction in
TFCA funding will maintain the percentage, listed on Attachment A, of "Total TFCA Regional
Funds Awarded" to "Total Project Cost".
C. Only those allowable Project costs incurred after the "Air District Approval Date" as specified in
Attachment A, and up to the completion or termination of the Project, whichever occurs first, are
eligible to receive TFCA funds.
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BAAQMD FY2004 TFCA Funding Agreement
D. Project Sponsor will contribute or expend those "Matching Funds," if any, as specified in
Attachment A. In the event the specified "Matching Funds" are to be contributed by a third party
and the Project Sponsor does not receive all such funds, the Air District reserves the right to
terminate this Agreement in whole or in part, or renegotiate the terms and conditions.
E. If "TFCA Administrative Costs" are included in the "TFCA Line Item Project Budget" in
Attachment A, Project Sponsor will not use more than five (5) percent of the "Total TFCA
Regional Funds Awarded" for allowable costs incurred in the administration of the Project.
F. If the Project Sponsor removes any capital equipment, purchased with TFCA funds under this
Agreement, from operation within the "Project Useful Life" as specified in Attachment B, the
Project Sponsor will return funds in proportion to the percentage of TFCA funds originally used
to purchase the capital equipment minus depreciation within thirty (30) days of removing the
capital equipment from operation. In the event the Project Sponsor transfers the capital
equipment that has been removed from operation to another use within the Air District's
jurisdiction, with the Air District's approval, this provision may not apply.
G. If the Project Sponsor sells any capital equipment purchased with TFCA funds under this
Agreement within the "Project Useful Life", as specified in Attachment B, the Project Sponsor
will return the funds realized from the sale in proportion to the percentage of TFCA funds
originally used to purchase the capital equipment within thirty (30) days of the sale.
3) Project Sponsor will submit invoices to the Air District for reimbursement of eligible Project costs and
expenses consistent with the budget and schedule contained in Attachments A and B, respectively in a
form acceptable to the Air District. Invoices will include a summary sheet specifying the project
number; time period for the invoice; itemized staff charges to the Project, if any; itemized payments to
vendors, consultants, or contractors and total funds being requested for the invoice period. Each
invoice will also include detailed supporting documentation which will include copies of time sheets
documenting hourly labor costs incurred in the implementation of the Project, copies of invoices from
vendors, consultants, or contractors or an explanation of the goods or services provided for the Project.
Project Sponsor may establish an alternative method approved in advance by the Air District to
document staff costs charged to the Project.
If invoices include "TFCA Administrative Costs", the Project Sponsor must provide supporting
documentation to show how the costs were accrued. This shall include the date hours were accrued,
employees' job titles, employees' hourly pay rates, hours worked, task being charged, and total charges.
Project Sponsor must submit the final invoice for payment no later than ninety (90) days after the
submission of the Final Report as required by Attachment C.
4) Project Sponsor will keep all necessary Project records to document Project activities and performance,
including documentation of expenses and charges to support invoices submitted to the Air District and
other Project reporting requirements as described in Attachment C.
5) Project Sponsor will allow Air District or its authorized representatives to inspect, audit, and make
copies of any Proj ect records related to the performance of this Agreement. Proj ect Sponsor will keep
Project records in one central location for a period of three (3) years after the Air District's final
payment of an approved final invoice as required by Section II.3 above.
6) Project Sponsor will submit all reports set forth in Attachment C to the Air District by the specified due
dates. In the event that a report other than the Final Report is not received, the Air District reserves the
right to withhold payment of invoices until the appropriate report is submitted to the Air District. The
District will retain fifteen (15) percent of the "Total TFCA Regional Funds Awarded" until the Air
District accepts the Final Report as required by Attachment C.
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BAAQMD FY2004 TFCA Funding Agreement
7) Project Sponsor will acknowledge the Air District as a funding source and will use or display the
approved TFCA logo so that it is visible to the public:
A. On any motor vehicles leased or purchased with TFCA funds, or on any other capital property
purchased with TFCA funds.
B. On any printed or electronic material associated with the Project that is distributed to the public.
Printed material includes Project related schedules, brochures, handbooks, or promotional
material. Electronic material includes Project related web sites, electric signs, or e-mail
broadcasts.
C. In any Project related media events, articles, news releases or other publicity materials.
8) Project Sponsor will place in the public domain any software, written document, intellectual property,
process, technique, or product developed with TFCA funds as part of the Project.
9) Project Sponsor will monitor the operational status of the capital equipment or services purchased or
funded under this Agreement for the "Project Useful Life", as listed in Attachment B. In the event
there is a change in the operational status of the capital equipment or services under this Agreement, the
Project Sponsor will notify the Air District, in writing, within thirty (30) days of the change in
operational status. This may include the sale of capital equipment to a new owner, the transfer of
capital equipment to a new location, or the discontinuance of services or use of capital equipment on
the Project. Project Sponsor will be responsible for any applicable refunds under Section II.2.F and G.
SECTION ill
AIR DISTRICT OBLIGATIONS:
1) Air District will provide TFCA funds not to exceed the "Total TFCA Regional Funds Awarded" for
this Project as listed in Attachment A.
2) Air District will endeavor to pay undisputed amounts of approved invoices within thirty (30) calendar
days of receipt.
3) The Air District will provide timely notice prior to conducting an audit.
4) The Air District will provide a copy of any fiscal audits of the Project as specified in California Health
and Safety Code Section 44242.
5) The Air District will provide a copy of its approved TFCA logo.
SECTION IV
GENERAL PROVISIONS:
1) Term: This Agreement will remain in effect for three (3) years after 1) the Air District's final payment
after acceptance of the Final Report, or 2) the "Project Useful Life" as specified in Attachment B,
whichever is longer, unless terminated as provided below.
2) Termination: Either party may terminate this Agreement for convenience at any time by giving thirty
(30) days written notice of termination to the other party. Upon receiving notice of termination, Project
Sponsor will 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 until
the effective date of the termination.
The Air District may terminate this Agreement for default upon giving ten (10) days written notice (or
such other period of time authorized in writing by the Air District) of such default to Project Sponsor
and Project Sponsor does not cure such default. The Air District will reimburse Project Sponsor for
qualifying expenditures in full conformance with this Agreement made until the effective date of the
termination.
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BAAQMD FY2004 TFCA Funding Agreement
3) Early Termination: This Agreement may be terminated prior to completion of the term period upon any
of the following circumstances:
A. The heavy-duty vehicles or associated capital equipment funded under this Agreement become
inoperable through mechanical failure of components or systems directly related to the fuel
technology being utilized, and such failure is not caused by Project Sponsor's negligence, misuse,
or malfeasance.
B. Project Sponsor shall submit written documentation supporting any basis for early termination for
the approval of the Air District.
Reimbursement for Early Termination: Project Sponsor is obligated through this Agreement to acquire
and operate capital equipment funded under this Agreement as well as to provide periodic reports to the
Air District. Should Project Sponsor desire to terminate this Agreement prior to the end date for
reasons other than those stated in Item 3.A, Project Sponsor shall reimburse the Air District for a
prorated share of the funds provided under this Agreement. The prorated share for which Project
Sponsor shall be liable shall be 100% if the termination occurs within one (1) year of project
implementation; 80% if termination occurs between years one (1) and two (2); 60% between years two
(2) and three (3); 40% between years three (3) and four (4); 20% between years four (4) and five (5);
and 0% after year five (5). The reimbursable amount shall be paid to the Air District within sixty (60)
calendar days ofthe early termination date. Project Sponsor shall not be responsible for any
reimbursement to the Air District if termination results from one or more of the reasons set forth in Item
2. Nothing in this Item entitles Project Sponsor to payment in the event of breach.
4) Indemnity: Project Sponsor will indemnify and hold harmless the Air District, its officers, employees,
agents, representatives, and successors-in-interest against any and all claims, suits or actions arising out
of an act or omission of the Project Sponsor or its employees, subcontractors or agents in the
performance of this Agreement, except to the extent such claim, suit or action arises out of the sole
negligence or willful misconduct of the Air District. Project Sponsor will cause any third party who
owns, operates or controls the motor vehicle(s) purchased with TFCA funds under this Agreement to
indemnify the Air District in accordance with this provision. This indemnification will survive
expiration or termination of 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 arising out of a negligent act or
omission by Air District in the performance of its duties under this Agreement.
5) 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 by the parties.
6) Contacts: The persons listed as Contacts in Attachment A will be the first point of contact and act as
the liaisons between the Air District and Project Sponsor with regards to the day-to-day activities of the
Project. All reports and correspondence are to be addressed to the specified Contacts.
7) Project Number: All correspondence shall reference the "Project Number" specified in
Attachment A.
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.
9) Amendment: This Agreement may not be changed, modified, or rescinded except in writing and signed
by the parties hereto. Any attempt to modify this Agreement orally will be void and of no effect. The
Air District and Project Sponsor Contacts as specified in Attachment A may jointly authorize, in
writing, any minor schedule revisions, "TFCA Line Item Project Budget" revisions, or changes to the
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BAAQMD FY2004 TFCA Funding Agreement
Project scope of work. Any other amendments to this Agreement must be executed in writing by the
signatories to this Agreement. Any change in Project scope of work must be approved by the Air
District prior to implementation of the change by the Project Sponsor.
10) Independent Contractor: Project Sponsor and any party contracting with it 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. The legal relationship of any
person performing services for the Project Sponsor will be solely between that person and the Project
Sponsor. 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, or subcontracted 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 portiones), reasonably be interpreted to give effect to the
intentions of the parties.
13) Effective Date: The effective date of this Agreement is the date the Air District Executive
Officer/ APCO executes this Agreement.
14) General Compliance with Laws: The performance of this Agreement and the expenditure ofTFCA
funds received under this Agreement will be in accordance with all applicable provisions oflocal and
state law.
15) Liquidated Damages: It is agreed by the parties that a violation of Section II.7 will result in damage to
the Air District that is or will be impracticable to determine. It is therefore agreed that the Project
Sponsor will be liable for up to ten percent (10%) of the "Total TFCA Regional Funds Awarded" for
the Project as liquidated damages if the Project Sponsor does not cure a noticed violation of Section II.7
within thirty (30) days of such written notice from the Air District. The Air District may deduct such
liquidated damage amounts from any amounts owed to the Project Sponsor.
16) 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.
17) 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.
18) Binding on Successors: All of the terms, provisions and conditions of this Funding Agreement will be
binding upon and inure to the benefit of the parties and their respective successors, assigns and legal
representatives.
19) Attorneys' fees: If any legal proceeding should be instituted by either of the parties to enforce the
terms of this Agreement or to detennine the rights of the parties under this Agreement, the prevailing
party in said proceeding will recover, in addition to all court costs, reasonable attorneys' fees.
20) Conflict of Interest: Project Sponsor warrants and represents that it presently has no interest and agrees
that it will not acquire any interest which would represent a conflict of interest under California
Government Code sections 1090 et seq. and 87100 et seq. during the performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers.
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BAAQMD FY2004 TFCA Funding Agreement
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 (Section IV.6): 04R51
3. Total Project Cost (Section 11.3): $100,000
4. Matching Funds (Section 11.2): None
5. Total TFCA Regional Funds Awarded (Section 11.3, 11.6, m.l, m.2): $100,000
The Air District will fund 100% of the Total Project Cost, to a maximum of $100,000
6. TFCA Line Item Project Budget: Eligible expenditures for Total TFCA Regional Funds Awarded
include the listed line items, as follows:
Line Item
Stake & install concrete islands
Furnish & install in-road lighting system
Furnish & install signing & striping
Furnish & install trellis & low voltage lighting
Traffic control & construction signing
Furnish & install pedestrian crossing with
synthetic stamped surface
Furnish & install access ramps (2)
Total
Amount
$ 20,000
$ 30,000
$ 2,500
$ 15,000
$ 2,500
$ 20,000
$ 10,000
$100,000
7. Invoice and Payment Schedule (Section 11.3, 11.6, m.2): The Project Sponsor shall submit to the Air
District invoices for reimbursement as Project costs are incurred, but not more than once per calendar
quarter.
Final Invoice: The final invoice for reimbursement of fifteen percent (15%) of the Total TFCA Regional
Funds Awarded is to be submitted with the final report as listed in Attachment C.
Per Section II.6 of this Agreement, the Air District may withhold funds pending receipt of reports.
8. Notices (Section IVA): Any written notice required is to be addressed to:
Proiect Sponsor:
Carol Atwood
Director of Administrative Services
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Air District:
Jack P. Broadbent
Executive Officer/ APCO
Bay Area Air Quality Management District
939 Ellis Street
San Francisco, CA 94109
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BAAQMD FY2004 TFCA Funding Agreement
9. Contacts (Section IV.S): Contact persons for day-to-day activities of the Project are:
Proi ect Contact:
Glenn Goepfert
Assistant Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
glenng@cupertino.org
Air District:
Karen Chi
Environmental Planner
Bay Area Air Quality Management District
939 Ellis Street
San Francisco, CA 94109
kchi@baaqmd.gov
10. Air District Approval Date (Section 11.2): October 20, 2004
11. Special Conditions (Section 11.2, 11.7, 11.9):
A. The Project Sponsor shall install the TFCA decal on any signs purchased with TFCA funds.
B. The Project Sponsor shall acknowledge the TFCA as a funding source in all promotional material
related to the Project (e.g., press releases, brochures, schedules, etc.).
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BAAQMD FY2004 TFCA Funding Agreement
ATTACHMENT B
PROJECT DESCRIPTION
The TFCA funding application dated June 30, 2004 is incorporated herein by this reference.
1. Project Title: Mary Avenue Gateway and Refuge Project.
2. Project Useful Life: Twenty (20) years.
3. Project Description: Total TFCA Regional Funds Awarded shall be used by the City of Cupertino to
implement traffic calming and pedestrian improvements on Mary Avenue, near Stevens Creek Boulevard,
to provide a safe and enhanced pedestrian and bicycle access to the neighboring commercial zone and
activity centers, including De Anza College, a senior center, a high-density apartment complex, a popular
city park, and a local shopping center. The objective of this improvement is to provide a safe pedestrian
mid-block crossing, in the form of gateway, as a traffic calming measure. Designed to reduce the crossing
distance, this facility will provide a better pedestrian access to the neighboring commercial zone, maintain
bicycle access, and promote speed reduction. It has been observed that most individuals using the west
side diagonal parking do not use the crosswalk at the intersection, but habitually cross mid-block. The
median will funnel pedestrians and provide an alternate to the existing intersection crossing and improve
pedestrian safety.
The specific improvements to be implemented with TFCA funds are:
. Install a distinctive median island with stamped crosswalk.
. Install a microwave-activated in-road lighting system and an audible feature warning pedestrians to
be cautious.
. Install trellis and low-voltage pedestrian lighting.
4. Project Schedule:
Milestone
Project Start Date
Design and Engineering
Bid and Advertise
Bid Date
Council Award
Construction Start
Construction Complete
Final report due date per Attachment C
Date
November 1,2004
November 1,2004
December 1, 2004
January 1,2005
February 1,2005
March 1, 2005
May 1,2005
May 1, 2006
5. Project Goal: The goal of this Project is to reduce on-road motor vehicle emissions by shifting trips from
motor vehicles to walking, bicycling, or public transit. The mode shift will be accomplished by providing
safe and comfortable environment for walking, bicycling, and accessing transit to the neighboring
commercial zone and activity centers. Mary Avenue connects the residential and commercials areas to the
senior center, high-density apartments, De Anza College, and a public park.
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BAAQMD FY2004 TFCA Funding Agreement
ATTACHMENTC
MONITORING OF PROJECT PERFORMANCE
1. Quarterly Reports (Section 11.6):
Due Dates: January 15, 2005; April 15, 2005; July 15, 2005; and quarterly thereafter until the
Construction is completed.
The Project Sponsor shall submit brief quarterly reports to the Air District during implementation of the
Project. Quarterly reports are required regardless of project activity. Quarterly reports shall summarize
progress in Project implementation, describe any problems encountered, and note any potential need for
changes in the Project implementation schedule. Quarterly reports shall be submitted based upon the
format provided by the Air District.
2. Final Report (Section 11.6):
Due Date: May 1, 2006
The final report shall include the following information in a format approved by the Air District:
A. A count of pedestrian, bicycle, transit riders, and motor vehicles on Mary Avenue in the Project area
no more than three (3) months prior to start of construction and approximately one (1) year after
completion of construction. The counting methodology, including the establishment of baseline
traffic volumes, specific location of the counts, and dates and daily period of counts, shall be pre-
approved by Air District staff. The post-construction counts to be conducted one (1) year after
completion of construction shall be chosen to provide the most relevant comparison with the pre-
Project count, considering seasonal variation, special events, and other factors.
B. Photographs showing the nature of improvements, including photos of the median, lighted crosswalk,
and pedestrian amenities along Mary Avenue.
C. A brief narrative description of the Project.
D. Documentation that TFCA decals have been placed on any signs installed with TFCA funds.
E. Copies of any promotional materials, press releases, newsletter articles, or other media coverage
regarding the Project.
3. Amendment (Section IV.9): The Project Sponsor must submit in writing to the Air District Project
Contact listed above any requests to revise the Project schedule, TFCA Line Item Project Budget, or scope
of work. The Air District will approve or disapprove these requests in writing.
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