Staff Report.Hwy 9 Trailhead Connector Construction Funding Agreements with attachments
PREPARED BY: WooJae Kim
Town Engineer
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Finance Director, and Parks and
Public Works Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 11/15/22 ITEM NO: 7
DATE: November 1, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-4505):
a. Authorize the Town Manager to Execute the 2016 Measure B Funding
Agreement with the Santa Clara Valley Transportation Authority to
Accept Grant Funding in the Amount of $693,500 for the Project
Construction; and
b. Authorize the Town Manager to Negotiate and Execute a Transportation
Fund for Clean Air Funding Agreement with the Santa Clara Valley
Transportation Authority to Accept Grant Funding in the Amount of
$755,921 for the Project Construction.
RECOMMENDATION:
Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-4505):
a. Authorize the Town Manager to execute the 2016 Measure B funding agreement
(Attachment 1) with the Santa Clara Valley Transportation Authority (VTA) to accept grant
funding in the amount of $693,500 for the project construction; and
b. Authorize the Town Manager to negotiate and execute a Transportation Fund for Clean Air
funding agreement (Attachment 2) with VTA to accept grant funding in the amount of
$755,921 for the project construction.
BACKGROUND:
The adopted Fiscal Year (FY) 2022/23-2026/27 Capital Improvement Program (CIP) Budget
designates funding for Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-
4505) to install bicycle and pedestrian connections between Highway 9 and the Los Gatos Creek
Trail. Proposed trail connections include the installation of a bicycle and pedestrian bridge
across Los Gatos Creek just south of the Highway 9 and a pedestrian switchback ramp on the
PAGE 2 OF 4 SUBJECT: Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-4505) DATE: November 1, 2022
BACKGROUND (continued):
north side of Highway 9. The Town received $343,000 in One Bay Area Grant Cycle 2 (OBAG 2)
grant funds for the design phase and the design work started in October 2019. This project has
received long-standing support from the community, schools, Complete Streets and
Transportation Commission, and Town Council.
The Bicycle and Pedestrian Master Plan updated in 2020 identified the trailhead connector as
one of the “Connect Los Gatos” prioritized projects. Launched in 2019, Connect Los Gatos is a
program and branding of bicycle and pedestrian projects that promotes connectivity and
improvements to the multimodal network throughout the Town.
The preliminary project design was presented to the Complete Streets and Transportation
Commission and to the community in February of 2020. Both groups provided input and
support for the project. On March 3, 2020, the Town Council approved the preliminary design
and authorized staff to proceed with the final design.
DISCUSSION:
The project is close to fully funded at this time and sources include funds from the One Bay
Area Grant Program - Cycle 2 (OBAG 2), the Transportation Fund for Clean Air (TFCA) regional
grant, 2016 Measure B Funds, and commitment of up to $1 million of Town local funds as
approved by Council on March 1, 2022. The final distribution of funding will be presented to
Council for approval once finalized within the next two months.
Following is a summary of the grant funds for construction:
Grant Program Funding Amount
One Bay Area Grant Cycle 2 (OBAG 2) $3,351,000
2016 Measure B $693,500
Transportation Fund for Clean Air $755,921
Total $4,800,421
Subsequently, the Town’s FY 2022/23 Capital Budget included an allocation of Town General
Fund Appropriated Reserve (GFAR) funding in the amount of $928,687 to provide the balance
of construction budget needed and the local matching funds necessary for the proposed grants,
bringing the total construction budget to $5,728,687.
The project design and environmental clearances have been completed, and staff is currently
working with California Department of Transportation (Caltrans) to obtain the approvals and
permits necessary to allow the project to move forward to construction. Staff will be
PAGE 3 OF 4 SUBJECT: Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-4505) DATE: November 1, 2022
DISCUSSION (continued):
presenting the final plans and specifications to the Town Council in the near future, following
the Caltrans approvals.
In order to obtain reimbursements for project construction costs for 2016 Measure B and TFCA
grant funds, the Town is required to enter into funding agreements for the two grant programs.
Attachment 1 is the funding agreement with VTA for 2016 Measure B. Attachment 2 is the
draft TFCA funding agreement for grant award, which was reviewed by staff but is not yet in
final form for execution.
CONCLUSION:
Staff recommends that the Town Council authorize the Town Manager to execute the Measure
B Funding Agreement as attached; and authorize the Town Manager to negotiate and execute
the TFCA Funding Agreement in substantial compliance with the attached draft agreement.
FISCAL IMPACT:
Staff costs are tracked for all projects. Tracking of staff costs allows for accountability in the
costs of the project, recovery of costs for grant funded projects, and identification of future
staffing needs. This project will utilize both full-time budgeted and part-time staff. The costs
for full-time staff are generally accounted for in the Department’s Operating Budget. Cost for
part-time staff costs incurred will be charged to the project or be reimbursed through one of
the grant programs as necessary.
PAGE 4 OF 4 SUBJECT: Los Gatos Creek Trail to Highway 9 Trailhead Connector (CIP No. 832-4505) DATE: November 1, 2022
FISCAL IMPACT (continued):
Los Gatos Creek Trail to Highway 9 Trailhead Connector
CIP No. 832-4505
Budget Costs
OBAG 2 Grant (2017) $343,000
GFAR (Design Phase) $330,440
OBAG 2 Grant (2022) $3,351,000
2016 Measure B $693,500
TFCA Grant Funds $755,921
GFAR (Construction Phase) $928,687
Total Budget $6,402,548
Potential Additional Funding
Potential Adjustment from Available
Traffic Impact Mitigation Fund $ 64,689
Total Budget with Potential Adjustment $ 6,467,237
Mott MacDonald - Design $576,747
Part-Time Staff Cost (Design Phase) $90,000
Other Expenditures (Advertising) $490
Construction $5,800,000
Total Expenditures $6,467,237
Remaining Budget $0
ENVIRONMENTAL ASSESSMENT:
The funding action is not a project defined under CEQA, and no further action is required. This
project has completed environmental studies and the CEQA/NEPA clearances have been
obtained.
Attachments:
1. 2016 Measure B Funding Agreement
2. Draft TFCA Funding Agreement
Rev. 10/2022 Page 1 of 21 Attachment 1
FUNDING AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
FOR
LOS GATOS CREEK TRAIL CONNECTOR TO HIGHWAY 9 PROJECT
This Agreement (“AGREEMENT”) is between the TOWN of Los Gatos (“TOWN”) and the Santa Clara Valley
Transportation Authority (“VTA”) is entered into as of the last date of signature below (“EFFECTIVE
DATE”). Hereinafter, TOWN and VTA may be individually referred to as “PARTY” or collectively referred
to as “PARTIES”.
I. RECITALS
1. Whereas, on June 24, 2016, the VTA Board of Directors adopted a resolution to place a ballot
measure before the voters of Santa Clara County in November 2016 to authorize a one-half of one
percent retail transaction and use tax (“2016 MEASURE B”) for 30 years for nine transportation-
related program categories;
2. Whereas, on November 8, 2016, the voters of Santa Clara County enacted 2016 MEASURE B for 30
years to pay for the nine transportation-related program categories;
3. Whereas, the duration of 2016 MEASURE B will be 30 years from the initial year of collection,
beginning April 1, 2017, and continuing through March 31, 2047;
4. Whereas, on October 5, 2017, the VTA Board of Directors established the 2016 Measure B Program
(“PROGRAM”) and adopted the 2016 MEASURE B Bicycle & Pedestrian Program Guidelines, attached
as Attachment “A” (“GUIDELINES”);
5. Whereas, the PROGRAM includes a Bicycle and Pedestrian program category (“BIKE/PED
CATEGORY”) to fund bicycle and pedestrian projects and educational programs;
6. Whereas, the BIKE/PED CATEGORY consists of three sub-categories, including a Capital Projects
Competitive Grant Program (“BIKE/PED CAPITAL PROGRAM”);
7. Whereas, on October 3, 2019 the VTA Board of Directors adopted the BIKE/PED CAPITAL PROGRAM
criteria;
8. Whereas, on December 3, 2019, VTA released the Fiscal Year 2020 (July 1, 2019 to June 30, 2020)
(“FY2020”) to Fiscal Year 2030 (July 1, 2029 to June 30, 2030) (“FY2030”) BIKE/PED CAPITAL
PROGRAM call for projects;
9. Whereas on June 4, 2020, the VTA Board of Directors approved the FY2020 to FY2030 10-year priority
project list for the BIKE/PED CAPITAL PROGRAM;
10. Whereas, the Kennedy Road Sidewalk and Class II Bike Lanes is an eligible project on the fiscally-
constrained portion of the VTA Board of Directors-approved FY2020 to FY2030 10-year priority
Rev. 10/2022 Page 2 of 21 Attachment 1
project list for the BIKE/PED CAPITAL PROGRAM, and the Los Gatos Creek Trail Connector to Highway
9 (“PROJECT”) is an eligible project on the unconstrained portion of the VTA Board of Directors-
approved FY2020 to FY2030 10-year priority project list for the BIKE/PED CAPITAL PROGRAM;
11. Whereas, on September 1, 2022, the VTA Board of Directors approved moving the PROJECT into the
fiscally-constrained portion of the FY2020 to FY2030 10-year priority project list for the BIKE/PED
CAPITAL PROGRAM and moved funding from the construction phase of the Kennedy Road Sidewalk
and Class II Bike Lanes to the construction phase of the PROJECT; and
12. Whereas, VTA and TOWN desire to specify herein the terms and conditions under which VTA will
administer the BIKE/PED CAPITAL PROGRAM funds to TOWN as directed by the VTA Board of
Directors.
NOW, THEREFORE, for good and valuable consideration, the PARTIES agree as follows:
II. AGREEMENT
1. PROJECT DESCRIPTION
The PROJECT will construct new bike and pedestrian connectors to the Los Gatos Creek Trail at
Highway 9. Two connectors will be constructed to allow access to the trail from both the north and
south sides of Highway 9. A pedestrian and bicycle bridge crossing the creek will be constructed
along the south side of Highway 9. On the north side of Highway 9, the existing unofficial path will
be replaced with an ADA-accessible pedestrian path to connect Highway 9 and the Trail.
2. SCOPE OF WORK
The SCOPE OF WORK (“SOW”) for this AGREEMENT is the construction phase for the PROJECT,
which includes: construction management services, construction Iispection and testing services,
construction, and construction contract. A project map is included as Attachment “B”.
VTA must approve any changes to the PROJECT’s design layout, major features, and urban design
elements in the SCOPE OF WORK. TOWN must inform VTA, in writing, of any desired modifications
to the PROJECT including, but not limited to, changes in the PROJECT area, design, or construction.
VTA must approve such changes with written authorization from the Program Manager (“VTA PM”)
or the VTA PM’s designee before TOWN may proceed. If the modifications to the PROJECT result in
a change in TOTAL PROJECT COST, as described in Section 4 below, VTA’s financial contribution to
the PROJECT will change pursuant to the terms in Section 5.
3. TERM OF AGREEMENT
The term of this AGREEMENT will commence on the EFFECTIVE DATE and continue through the
earlier of: (i) June 30, 2025, (ii) completion of SOW, (iii) cancellation of the PROJECT, or (iv) other
termination of this AGREEMENT pursuant to its terms.
4. COST OF PROJECT
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a. Total Project Cost. The total cumulative dollar amount actually incurred and expended toward the
Project PROJECT by all PARTIES involved, as measured at the completion or termination of the
PROJECT (“TOTAL PROJECT COST”) is $6,442,000.
b. Construction Phase Cost. The total cost of the Construction Phase SOW is estimated not to exceed
$5,800,000.
5. FINANCIAL CONTRIBUTION TO COST OF SOW
a. VTA’s Financial Contribution to the SOW. VTA will contribute an amount not to exceed
$693,500 of BIKE/PED CAPITAL PROGRAM funds to be used by TOWN for completion of the
SOW. All funds will be available on a reimbursement basis only for ELIGIBLE COSTS (as
described in Section 7 below), pursuant to this AGREEMENT.
b. Additional Funds. TOWN will be solely responsible for any additional funds required to
complete the SOW.
c. Scope of Work Savings. If the PROJECT is delivered under budget, VTA’s Financial
contribution for the SOW will be reduced in proportion to TOWN’s Financial contribution to
the overall PROJECT.
6. TOWN’S MINIMUM CONTRIBUTION TO TOTAL PROJECT COST
TOWN is solely responsible for all funds it has expended toward the PROJECT prior to the EFFECTIVE
DATE. In all circumstances, regardless of the TOTAL PROJECT COST, TOWN must contribute a minimum
of 30% of the TOTAL PROJECT COST.
7. ELIGIBLE COSTS
Only the PROJECT costs TOWN incurs after the EFFECTIVE DATE will be eligible for reimbursement.
VTA will only reimburse TOWN for actual costs directly related to the SOW (“ELIGIBLE COSTS”). ELIGIBLE
COSTS are costs that: (i) are directly related to the SOW and administration of the Construction Phase;
and (ii) were incurred in compliance with all applicable PROGRAM requirements as set forth in Section
18 below.
The following is an illustrative, but not exhaustive, list of costs that are not eligible for reimbursement:
(a) expenses for organizational functions, businesses services, and information technology;
(b) Rent and utilities; and
(c) food or beverages (e.g. as part of meetings, workshops, training, or events).
8. TOWN’S ROLE
TOWN will be the sponsor and implementing agency for the Construction Phase of the PROJECT. In its
Rev. 10/2022 Page 4 of 21 Attachment 1
role as sponsor and implementing agency under this AGREEMENT, TOWN must perform and/or be
responsible for the following:
i. Serving as the project manager (“PM”) for the PROJECT.
ii. Performing all actions necessary to procure construction services for the
Construction Phase including, but not limited to, advertising the work via a public
solicitation, opening bids in response to the public solicitation, awarding a contract,
approving contract documents, and administering the awarded construction
contract in accordance with all applicable laws, regulations, and codes including, but
not limited to, the California Public Contract Code and the California Labor Code.
iii. Obtaining all necessary permits for performance of the SOW.
ii. Serving as the construction management team for the Construction Phase of the
PROJECT.
iii. Conducting standard close-out activities for the PROJECT including, but not limited
to, performing a final accounting review and reviewing all contractual requirements.
9. OTHER TOWN PROJECT MANAGEMENT DUTIES
TOWN must:
i. Submit to VTA the most current version of VTA’s 2016 MEASURE B Complete Streets
Checklist for Capital Projects (as supplied by VTA to TOWN) within five (5) business
days of the EFFECTIVE DATE.
ii. Submit a project management plan (“PMP”) to VTA within thirty (30) business days
of the EFFECTIVE DATE. The PMP must be in writing and must include information
regarding staffing plan, cost, schedule, contracting plan, and risk assessment.
iii. Actively monitor actual PROJECT expenditures to ensure that the BIKE/PED CAPITAL
PROGRAM funds are used to pay only for ELIGIBLE COSTS.
iv. Provide VTA with written quarterly progress updates on the PROJECT including, but
not limited to, updates on PROJECT expenditures, any changes in scope or schedule,
and Project status.
v. Upon request, provide VTA copies of PROJECT deliverables including, but not limited
to, reports, designs, drawings, plans, specifications, schedules, and other materials
related to the Construction Phase.
vi. Submit the PROJECT’s final report (“FINAL REPORT) to VTA within thirty (30) days of
PROJECT’s opening to the public. This FINAL REPORT must be in writing and must
include information regarding final PROJECT costs and post-construction photos
along with any other information VTA may require for inclusion in the FINAL REPORT.
Rev. 10/2022 Page 5 of 21 Attachment 1
vii. TOWN will make staff available to present on the PROJECT at VTA committee
meetings as needed.
10. ADDITIONAL TOWN OBLIGATIONS
TOWN must:
a. Submit first request for reimbursement of ELIGIBLE COSTS from VTA within one (1) year of
the EFFECTIVE DATE.
b. Submit to VTA all records including contractors’ invoices, miscellaneous invoices, and force
account charges as substantiation for invoices submitted to VTA for reimbursement.
c. Maintain financial records, books, documents, papers, accounting records, and other
evidence pertaining to costs related to this AGREEMENT for five (5) years. TOWN shall make
such records available to VTA upon VTA’s written request for review and audit purposes.
Financial audits will be performed at VTA’s sole discretion.
d. Submit invoices to VTA, no more frequently than monthly, for reimbursement of ELIGIBLE
COSTS with documentation. TOWN must submit an invoice for reimbursement within one
year of TOWN incurring the cost (unless otherwise approved by VTA in writing).
11. VTA’S PROJECT ROLE. VTA will perform and/or be responsible for the following PROJECT oversight
tasks:
a. Review the PROJECT’s Complete Streets checklist to ensure Complete Streets compliance. b. Provide technical oversight of PROJECT, including reviews of PMP and PROJECT
deliverables listed in Section 9.
c. Provide oversight of delivery of the PROJECT to ensure PROJECT compliance with the
GUIDELINES.
12. VTA’S OBLIGATIONS
VTA will pay TOWN’s invoices within thirty (30) calendar days of receipt provided that the invoices
are for ELIGIBLE COSTS, are fully documented, and otherwise comply with the requirements of this
AGREEMENT.
13. INDEMNIFICATION
Neither VTA nor any officer or employee thereof will be responsible for any damage or liability
arising out of or relating to TOWN’s acts or omissions under or in connection with any work,
authority, or jurisdiction associated with this AGREEMENT. Pursuant to California Government
Code §895.4, TOWN must fully defend, indemnify, and hold harmless VTA from all suits or actions
of every name, kind, and description arising from an injury (as defined by California Government
Code §810.8) relating to TOWN’s acts or omissions under or in connection with any work,
Rev. 10/2022 Page 6 of 21 Attachment 1
authority, or jurisdiction delegated to TOWN under this AGREEMENT. This provision will survive
the termination or expiration of this AGREEMENT.
14. INSURANCE
At all times during this AGREEMENT, TOWN must comply with the insurance requirements and
specifications of Attachment “C” to this AGREEMENT, which is incorporated by reference.
TOWN may, in its discretion, elect to self-insure, but any such self-insurance must meet the
requirements and specifications in Attachment “C”.
15. ADDITIONAL INSURED AND INDEMNITY PROVISION
In any agreement executed between TOWN and a third party for purposes related in any way
to the subject matter of this AGREEMENT (“THIRD PARTY CONTRACT”), TOWN must require
that VTA be named as: (i) an additional insured on a primary and non-contributory basis with
Separation of Insureds and Waiver of Subrogation on all policies of insurance required by
TOWN in the THIRD PARTY CONTRACT, except when not applicable, and (ii) an indemnified
party in any indemnity provision contained in the THIRD PARTY CONTRACT. THIRD PARTY
CONTRACT must contain insurance requirements with coverages at least as broad as, and limits
at least as great as, the requirements of Attachment A to this AGREEMENT.
16. PUBLIC WORKS
If TOWN awards a contract to a third party for the performance of a public work (as defined in
California Labor Code Section 1720 through 1720.6) (a “PUBLIC WORKS CONTRACT”) in
connection with this AGREEMENT, TOWN must comply, and must require such third party to
comply, with the requirements of California Labor Code Section 1720 et seq. If the PUBLIC
WORKS CONTRACT is funded in whole or in part with federal funds, TOWN must also comply,
and must require such third party to also comply, with the requirements of the Davis Bacon Act
(40 U.S.C. Sections 3141-3144 and 3146-3148).
17. COMPLIANCE WITH APPLICABLE LAW
In execution of the PROJECT and performance of its responsibilities set forth herein, TOWN must
comply with all applicable requirements of local, state, and federal law.
18. COMPLIANCE WITH 2016 MEASURE B REQUIREMENTS
In its performance under this AGREEMENT, TOWN must comply, and must ensure PROJECT
compliance, with all PROGRAM requirements including, but not limited to, the GUIDELINES and
VTA’s Complete Streets Reporting Requirement.
19. TERMINATION
Each of the PARTIES may at any time terminate this AGREEMENT by giving ten (10) business
days' written notice of such termination to other PARTY. Notice must identify the EFFECTIVE
Rev. 10/2022 Page 7 of 21 Attachment 1
DATE of such termination and must be provided in accordance with the terms and conditions of
this AGREEMENT.
In the event of such termination, TOWN must submit its final invoice to VTA within thirty (30)
calendar days of the EFFECTIVE DATE of termination solely for ELIGIBLE COSTS that TOWN
incurred prior to termination.
20. AUDIT AND RECORDS
a. All PARTIES must maintain, and must require their contractors to maintain, in accordance
with generally accepted accounting principles and practices, complete books, accounts,
records and data pertaining to services performed under this AGREEMENT, including the
costs of contract administration. Such documentation must be supported by properly
executed payrolls, invoices, contracts, and vouchers evidencing in detail the nature and
propriety of any charges and must be sufficient to allow a proper audit of services. All checks,
payrolls, invoices, contracts and other accounting documents pertaining in whole or in part
to the services must be clearly identified and readily accessible.
b. For the duration of this AGREEMENT, and for a period of five (5) years after final payment,
each PARTY must provide access to the other PARTY and its representatives during normal
business hours to any books, accounts, records, data, and other relevant documents that are
pertinent to this AGREEMENT for audits, examinations, excerpts, and transactions and must
furnish copies upon request.
21. NOTICES
All notices required or permitted under this AGREEMENT must be in writing, will be effective five (5)
days after being sent by personal service or certified mail, or forty-eight (48) hours after being sent
by electronic mail to the individuals at the addresses set forth below, or to such other address that
may be specified in writing by the PARTIES.
VTA:
Marcella Rensi
Deputy Director, Grants & Allocations
Santa Clara Valley Transportation Authority
3331 N First Street
San Jose, CA 95134
Email: marcella.rensi@vta.org
TOWN:
Parks and Public Works Director
TOWN of Los Gatos
41 Miles Avenue
Los Gatos, CA, 95030
Email: nburnham@losgatosca.gov
Written notification to the other PARTY must be provided, in advance, for changes in the name or
address of the individuals identified above.
Rev. 10/2022 Page 8 of 21 Attachment 1
22. GENERAL TERMS AND CONDITIONS
a. Headings. The subject headings of the articles and paragraphs in this AGREEMENT are
included for convenience only and will not affect the construction or interpretation of any of
its provisions.
b. Construction and Interpretation of AGREEMENT. This AGREEMENT, and each of its
provisions, terms and conditions, has been reached as a result of negotiations between the
PARTIES. Accordingly, each PARTY expressly acknowledges and agrees that (i) this
AGREEMENT will not be deemed to have been authored, prepared, or drafted by any
particular PARTY and (ii) the rule of construction to the effect that ambiguities are to be
resolved against the drafting party will not be employed in the interpretation of this
AGREEMENT or in the resolution of disputes.
c. Amendment. No alteration or variation of the terms of this AGREEMENT will be valid unless
made in writing and signed by both PARTIES, and no oral understanding or agreement not
incorporated herein will be binding on either of the PARTIES.
d. Entire AGREEMENT. This AGREEMENT contains the entire understanding between VTA and
TOWN relating to the subject matter hereof. This AGREEMENT supersedes any and all other
agreements that may have existed between the PARTIES, whether oral or written, relating
to the subject matter hereof. This AGREEMENT is binding upon each PARTY and its successors
and assigns for the duration of the AGREEMENT.
e. Representation of Authority. Each PARTY represents and warrants that the person whose
signature appears on this AGREEMENT for such PARTY has been duly authorized and has the
full authority to execute this AGREEMENT.
f. No Waiver. The failure of either PARTY to insist upon the strict performance of any of the
terms, covenants, and conditions of this AGREEMENT will not be deemed a waiver of any
right or remedy that either PARTY may have, and will not be deemed a waiver of either
PARTY’s right to require strict performance of all of the terms, covenants, and conditions
hereunder.
g. Dispute Resolution. If a question or allegation arises regarding (i) interpretation of this
AGREEMENT or its performance, or (ii) the alleged failure of a PARTY to perform, the PARTY
raising the question or making the allegation must give written notice thereof to the other
PARTY. The PARTIES must promptly meet in an effort to resolve the issues raised. If the
PARTIES fail to resolve the issues raised, alternative forms of dispute resolution, including
mediation, may be pursued by mutual agreement. It is the intent of the PARTIES to avoid
litigation as a method of dispute resolution to the greatest extent possible.
h. Severability. If any of the provisions of this AGREEMENT (or portions or applications thereof)
are held to be unenforceable or invalid by any court of competent jurisdiction, VTA and
TOWN will negotiate an equitable adjustment in the provisions of this AGREEMENT with a
view toward effecting the purpose of this AGREEMENT, and the validity and enforceability
of the remaining provisions or portions or applications thereof will not be affected thereby.
Rev. 10/2022 Page 9 of 21 Attachment 1
i. Governing Law. The laws of the State of California will govern this AGREEMENT and any claim
that might arise between TOWN and VTA without regard to conflict of law provisions.
j. Venue. Any lawsuit or legal action arising from this AGREEMENT must be commenced and
prosecuted in the courts of Santa Clara County, California. TOWN agrees to submit to the
personal jurisdiction of the courts located in Santa Clara County, California for the purpose
of litigating all such claims.
k. Ownership of Work. All reports, designs, drawings, plans, specifications, schedules, studies,
memoranda, and other documents: (i) assembled for; (ii) prepared by or for; (iii) in the
process of being assembled or prepared by or for; or (iv) furnished to VTA or TOWN under
this AGREEMENT are the joint property of all PARTIES. Each PARTY is entitled to copies and
access to these materials during the progress of the PROJECT and upon completion of the
PROJECT or termination of this AGREEMENT. All PARTIES may retain a copy of all material
produced under this AGREEMENT for use in their general activities.
l. Attribution to VTA. TOWN must include attribution to VTA that indicates part of the work
was funded by Program Funds. This provision applies to any project or publication that was
funded in part or in whole by Program Funds. Acceptable forms of attribution include 2016
MEASURE B’s branding on PROJECT-related documents, construction signs, public
information materials, and any other applicable documents. VTA will provide Program
branding to TOWN.
m. Non-discrimination. The PARTIES and any contractors performing services on behalf of the
PARTIES (“CONTRACTORS”) will not unlawfully discriminate or permit discrimination, harass,
or allow harassment against any person or group of persons because of race, color, religious
creed, national origin, ancestry, age (over 40), sex, gender, gender identity, gender
expression, sexual orientation, marital status, pregnancy or childbirth (including related
conditions), medical condition (including cancer), mental disability, physical disability
(including HIV and AIDS), genetic information, or military and veteran’s status, or in any
manner prohibited by federal, state, or local laws. In addition, the PARTIES and
CONTRACTORS must not unlawfully deny any of their employees family care leave or
discriminate against such employees on the basis of having to use family care leave. The
PARTIES and CONTRACTORS must ensure that the evaluation and treatment of their
employees and applicants for employment is free of such discrimination and harassment.
n. Relationship of the PARTIES. It is understood that this is an AGREEMENT by and between
independent parties and does not create the relationship of agent, servant, employee,
partnership, joint venture or association, or any other relationship other than that of
independent contractor.
o. Execution in Counterparts / Electronic Signature. This AGREEMENT may be executed in any
number of counterparts and by each Paty in separate counterparts, each of which when so
executed and delivered will be deemed to be an original and all of which taken together will
constitute one and the same instrument.
Rev. 10/2022 Page 10 of 21 Attachment 1
Unless otherwise prohibited by law, VTA policy, or TOWN policy, the PARTIES agree that both
an electronic copy of a signed contract and an electronically signed contract have the same
force and legal effect as a contract executed with an original ink signature. The term
“electronic copy of a signed contract” refers to a writing as set forth in Evidence Code Section
1550. The term “electronically signed contract” means a contract that is executed by
applying an electronic signature using technology approved by each of the PARTIES.
Signatures of PARTIES on the following page.
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IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT as of the last date set forth below.
Santa Clara Valley Town of Los Gatos
Transportation Authority
Carolyn M. Gonot Laurel Prevetti
General Manager/CEO Town Manager
Date Date
Approved as to Form: Approved as to Form:
Shannon Smyth-Mendoza
Deputy General Counsel
Gabrielle Whelan
Town Attorney
Date Date
Recommended by:
Nicolle Burnham
Director of Parks and Public Works
Attest:
Wendy Wood
Town Clerk
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ATTACHMENT A
Maps provided by the Town will be inserted in the final PDF here.
Rev. 10/2022 Page 13 of 21 Attachment 1
ATTACHMENT B
2016 Measure B Bicycle & Pedestrian Program Guidelines
[Revised and approved by VTA Board of Directors: August 4, 2022]
To fund bicycle and pedestrian projects of countywide significance identified by the cities,
County and VTA. The program will give priority to those projects that connect to schools,
transit and employment centers; fill gaps in the existing bike and pedestrian network; safely
cross barriers to mobility; and make walking or biking a safer and more convenient means of
transportation for all county residents and visitors. Bicycle and pedestrian educational
programs such as Safe Routes to Schools, will be eligible for funding.
Total Funding
3.97% of Program Tax Revenues
Program Type
Formula-based program
Distribution of Funds
• Funds will be allocated on a two-year cycle, in conjunction with the VTA Biennial Budget
process.
• Funds are allocated on an annual basis, based on the application of the ballot-
established ratio to the estimated Program Tax Revenue. The allocations are calculated
in two steps:
Multiplying the ballot-established ratio by the projected Program Tax Revenues for
that fiscal year.
Reconciling prior allocations, which were based on estimated Program Tax Revenues,
with actual Program Tax Revenues (referred to as a “true-up process”). This true-up
process will occur in the first fiscal year of each biennial budget cycle.
• The program will consist of three sub-categories: Education & Encouragement Programs,
Planning Studies, and Capital Projects.
• A minimum of 80% of available program category funds will be allocated to Capital
Projects.
• A maximum of 15% of available program category funds will be set aside for Education &
Encouragement. The funds will be allocated as follows:
o 25% for countywide (including targeting unincorporated areas) education &
encouragement programs
o Remaining funds allocated by city population formula with a $10,000 annual
minimum allocation per city
• A maximum of 5% of available program category funds will be allocated to Planning
Studies.
• If the Planning Studies or Capital Projects competitive grant cycle is not fully awarded,
the balance of funds from that cycle will roll into its next call for projects cycle.
Rev. 10/2022 Page 14 of 21 Attachment 1
Implementation
• Only projects currently listed on Attachment A of 2016 Measure B are eligible.
• Education & Encouragement (Formula Distribution)
• VTA and individual agencies will enter into a Master Agreement for Education
& Encouragement funds.
• The 2016 Measure B Program Office will notify agency of allocation for two-
year cycle.
• Funds will be distributed on a reimbursable basis.
• Agency will submit annual education & encouragement work program and
annual progress report.
• Education & Encouragement funds may be banked for a maximum of three
years with explanation of banking purposes upon approval by the 2016
Measure B Program Office.
• The 2016 Measure B Program Office will conduct an assessment regarding the
effectiveness of the program.
• Capital Projects & Planning Studies (Competitive Grants)
• Only a public agency can serve as a project sponsor. Other entities must partner with
a public agency to apply for a grant.
• The grant program contains two categories:
o Capital projects
Activities leading to/including:
• Environmental Clearance
• Design
• Right of Way
• Construction
Construction grant requests must include cost estimates supported by
30% to 35% design.
o Planning studies
Includes planning studies to support capital project development for
those projects currently listed on Attachment A of 2016 Measure B. It
does not include general/master planning efforts.
• The minimum grant award is $50,000.
• The maximum grant award per sponsoring agency can be no more than 50% of the
total available funds per call for projects per cycle, unless the cycle is
undersubscribed.
• The 2016 Measure B Program Office developed project criteria in conjunction with
the VTA Technical Advisory Committee (TAC) Capital Improvement Program Working
Rev. 10/2022 Page 15 of 21 Attachment 1
Group and incorporated input from the TAC and Bicycle & Pedestrian Advisory
Committee (BPAC).
• Scoring committees for the grant programs will be comprised of three BPAC members,
three Member Agency staff, and one VTA staff person. If enough BPAC or Member
Agency staff are not available as described above, Board-adopted scoring committee
policy will be followed.
Criteria
• Capital Projects and Planning Studies will be scored on criteria that supports the language
in 2016 Measure B, including but not limited to:
o Countywide significance
o Connection to/serves schools, transit, or employment centers
o Fills gaps in bicycle/pedestrian network
o Provides safer crossings of barriers
o Makes walking or biking safer
o Makes walking or biking more convenient
o Other criteria to consider:
Safety benefits
Increase in bicycle and pedestrian usage
Community support
Project readiness
Projects serve Equity Priority Communities or vulnerable populations with
specific needs
Non-2016 Measure B contribution
Requirements
• Competitive grant projects require a minimum 10% non-2016 Measure B contribution.
• Reporting requirements will be detailed in agreements executed with VTA for project
funding.
• VTA Complete Streets reporting requirements are required for Planning Studies and Capital
Projects.
• All projects must comply with 2016 Measure B program oversight requirements.
• All collateral material must comply with 2016 Measure B branding requirements.
Rev. 10/2022 Page 16 of 21 Attachment 1
ATTACHMENT C
Insurance Requirements
TOWN OF LOS GATOS’S (“TOWN”) ATTENTION IS DIRECTED TO THE INSURANCE REQUIREMENTS
BELOW. IT IS HIGHLY RECOMMENDED THAT TOWN CONFER WITH THEIR INSURANCE CARRIERS OR
BROKERS TO DETERMINE THE AVAILABILITY OF INSURANCE CERTIFICATES AND ENDORSEMENTS
REQUIRED BY THIS AGREEMENT.
INSURANCE
Without limiting TOWN’s indemnification and defense of claims obligations to VTA, TOWN must
procure and maintain for the duration of the AGREEMENT insurance against claims for injuries to
persons or damages to property which may arise under or in connection with any work, authority,
or jurisdiction associated with the AGREEMENT. The cost of such insurance must be borne by TOWN.
TOWN must furnish complete copies of all insurance policies within three (3) business days of any
request for such by VTA.
A. MINIMUM SCOPE OF INSURANCE
Coverage must be at least as broad as:
1. Insurance Services Office General Liability coverage (“occurrence” form CG 0001). General
Liability insurance written on a “claims made” basis is not acceptable.
2. Business Auto Coverage, Insurance Services Office form number CA 0001, covering
Automobile Liability, code 1 “any auto.” Auto Liability written on a “claims-made” basis is
not acceptable.
3. Workers’ Compensation insurance as required by the Labor Code of the State of California
and Employer’s Liability insurance.
4. Contractor’s Pollution Liability: covering liability arising out of the treatment, handling,
storage, transportation, or accidental release of any hazardous material.
5. Professional Liability, including limited contractual liability coverage, covering liability arising
out of any negligent act, error, mistake or omission in the performance of Contractor’s
services under this AGREEMENT. This coverage must be continuously maintained for a
minimum of two (2) years following completion of this AGREEMENT. This coverage may be
written on a claims-made basis; if so, see special provisions in Section B.
Rev. 10/2022 Page 17 of 21 Attachment 1
B. MINIMUM LIMITS OF INSURANCE
a. TOWN must maintain limits no less than:
1. General Liability: $5,000,000 limit per occurrence for bodily injury, personal injury, and
property damage. If General Liability Insurance or other form with a general aggregate
limit is used, either the general aggregate limit must apply separately to this
project/location or the general aggregate limit must be twice the required occurrence
limit. This requirement may be satisfied by a combination of General Liability with
Excess or Umbrella, but in no event may the underlying General Liability policy limit be
less than $2,000,000, unless Umbrella/Excess or Umbrella policies feature inception
and expiration dates concurrent with the underlying general liability policy, “Follow
Form” coverage, and a “Drop Down” provision. The Certificate of Insurance must
specifically state that the Excess or Umbrella insurance has scheduled the General
Liability as underlying insurance.
2. Automobile Liability (including umbrella/excess liability): $2,000,000 limit per accident
for bodily injury and property damage. This requirement may be satisfied by a
combination of Automobile Liability with excess or Umbrella, but in no event may the
underlying Auto Liability policy limit be less than $2,000,000, unless Umbrella/Excess
policies feature inception and expiration dates concurrent with the underlying auto
liability policy, “Follow Form” coverage, and a “Drop Down” provision. The Certificate
of Insurance must specifically state that the Excess or Umbrella insurance has
scheduled the General Liability as underlying insurance.
3. Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as
required by the Labor Code of the State of California and Employer’s Liability limits of
$1,000,000 per accident.
4. Contractor’s Pollution Liability: $3,000,000 per occurrence. This requirement may be
satisfied by a combination of Pollution Liability with Excess or Umbrella.
Umbrella/Excess policies must feature inception and expiration dates concurrent with
the underlying pollution policy, “Follow Form” coverage, and a “Drop Down” provision.
The Certificate of Insurance must specifically state that the Excess or Umbrella
insurance has scheduled the Pollution Liability as underlying insurance.
5. Professional Liability: $2,000,000 each occurrence/aggregate minimum limit per claim.
This requirement may be satisfied by a combination of Professional Liability insurance
with Excess or Umbrella policies, but in no event may the Professional Liability primary
policy limit per occurrence be less than $2,000,000, unless Umbrella/Excess policies
feature inception and expiration dates concurrent with the underlying policy, “Follow
Form” coverage, and a “Drop Down” provision. The Certificate of Insurance must
specifically state that the Excess or Umbrella insurance has scheduled the Professional
Liability as underlying insurance.
Rev. 10/2022 Page 18 of 21 Attachment 1
b. Notwithstanding any language in this AGREEMENT to the contrary, if TOWN carries insurance
limits exceeding the minima stated in Section B(a)(1)-(3) immediately above, such greater
limits will apply to this AGREEMENT.
C. SELF-INSURED RETENTION
The certificate of insurance must disclose the actual amount of any deductible or self-insured
retention, or lack thereof, for all coverages required herein. Any self-insured retention or
deductible in excess of $250,000 must be declared to and approved by VTA. If TOWN is a
governmental authority such as a state, municipality or special district, self-insurance is
permitted. To apply for approval for a level of retention or deductible in excess of $250,000,
TOWN must provide a current financial report including balance sheets and income statements
for the past three years, so that VTA can assess TOWN’s ability to pay claims falling within the
self-insured retention or deductible. Upon review of the financial report, if deemed necessary by
VTA in its sole discretion, VTA may elect one of the following options: to accept the existing self-
insured retention or deductible; require the insurer to reduce or eliminate the self-insured
retention or deductible as respects VTA, its directors, officers, officials, employees and
volunteers; or to require TOWN to procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses. Applicable costs resulting therefrom
will be borne solely by TOWN. TOWN may request execution of a nondisclosure agreement prior
to submission of financial reports.
D. CLAIMS MADE PROVISIONS (NOT APPLICABLE TO GENERAL LIABILITY OR AUTO LIABILITY)
Claims-made coverage is never acceptable for General Liability or Auto Liability. Claims-made
may be considered for Professional, Environmental/Pollution, or Cyber Liability. If coverage is
written on a claims-made basis, the Certificate of Insurance must clearly state so. In addition to
all other coverage requirements, such policy must comply with the following:
1. The policy retroactive date must be no later than the date of this AGREEMENT.
2. If any policy is not renewed or the retroactive date of such policy is to be changed, TOWN
must obtain or cause to be obtained the broadest extended reporting period coverage
available in the commercial insurance market. This extended reporting provision must cover
at least two (2) years.
3. No prior acts exclusion may be added to the policy during the AGREEMENT period.
4. The policy must allow for reporting of circumstances or incidents that might give rise to
future claims.
E. OTHER INSURANCE PROVISIONS
Rev. 10/2022 Page 19 of 21 Attachment 1
The policies must contain, or be endorsed to contain, the following provisions:
1. General Liability and Automobile Liability
a. VTA, its directors, officers, officials, employees, and volunteers must be named as
additional insureds as respects: liability arising under or in connection with any work,
authority, or jurisdiction associated with the AGREEMENT. The coverage must contain
no special limitations on the scope of protection afforded to VTA, its directors, officers,
officials, employees, or volunteers. Additional Insured endorsements must provide
coverage at least as broad as afforded by the combination of ISO CG 20 10 10 01 and CG
20 37 10 01.
b. Any failure to comply with reporting provisions of the policies may not affect coverage
provided to VTA, its directors, officers, officials, employees, or volunteers.
c. Coverage must state that TOWN’s insurance applies separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurer’s
liability.
d. The General Liability General Aggregate limit must apply per project, not per policy.
2. All Coverages
a. TOWN must agree to waive all rights of subrogation against VTA, its directors, officers,
officials, employees, and volunteers for losses arising under or in connection with any
work, authority, or jurisdiction associated with the AGREEMENT.
b. TOWN’s insurance coverage must be primary insurance as respects VTA, its directors,
officers, officials, employees, and volunteers. Self-insurance or insurance that may be
maintained by VTA, its directors, officers, officials, employees, or volunteers may apply
only as excess to TOWN’s insurance. TOWN’s insurance must not seek contribution from
VTA’s insurance program.
3. Other Insurance Provisions
a. The Certificate must disclose the actual amount of the Deductible or Self-Insured
Retention.
b. If any coverage forms or endorsements required by this AGREEMENT are updated by
their publishers, whether they be the insurance carrier(s), the Insurance Services office,
Rev. 10/2022 Page 20 of 21 Attachment 1
or the American Association of Insurance Services, during the duration of this
AGREEMENT, VTA reserves the rights to require TOWN to procure said coverage forms
or endorsements using the updated versions upon the next renewal cycle.
F. ACCEPTABILITY OF INSURERS
Insurance must be placed with insurers with an A.M. Best’s rating of no less than A VII (financial
strength rating of no less than A and financial size category of no less than VII), unless specific
prior written approval has been granted by VTA.
G. CERTIFICATES OF INSURANCE
TOWN must furnish VTA with a Certificate of Insurance. The certificates for each insurance policy
are to be signed by an authorized representative of that insurer. The certificates must be issued
on a standard ACORD Form. TOWN must instruct their insurance broker/agent to submit all
insurance certificates and required notices electronically in PDF format to
2016measureb@vta.org. All endorsements must be attached to the ACORD certificate in a single
PDF document.
The certificates must (1) identify the insurers, the types of insurance, the insurance limits, the
deductibles, and the policy term, (2) include copies of all the actual policy endorsements required
herein, and (3) in the “Certificate Holder” box include:
Santa Clara Valley Transportation Authority (“VTA”)
3331 North First Street
Los Gatos, CA 95134-1906
In the Description of Operations/Locations/Vehicles/Special Items Box, the VTA property leased
must appear, the list of policies scheduled as underlying on the Umbrella/Excess policy must be
listed, Certificate Holder must be named as additional insured, and Waiver of Subrogation must
be indicated as endorsed to all policies as stated in the AGREEMENT documents.
It is a condition precedent to granting of this AGREEMENT that all insurance certificates and
endorsements be received and approved by VTA before AGREEMENT execution. No occupancy
may be taken until insurance is in full compliance. VTA reserves the rights to require complete,
certified copies of all required insurance policies, at any time.
If TOWN receives notice that any of the insurance policies required by this Attachment may be
cancelled or coverage reduced for any reason whatsoever, TOWN must immediately provide
written notice to VTA that such insurance policy required by this Attachment is canceled or
coverage is reduced.
H. MAINTENANCE OF INSURANCE
If TOWN fails to maintain insurance as required herein, VTA, at its option, may suspend the
Rev. 10/2022 Page 21 of 21 Attachment 1
AGREEMENT until a new policy of insurance is in effect.
This Page Intentionally Left Blank
ATTACHMENT 2
SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
CONGESTION MANAGEMENT PROGRAM TRANSPORTATION FUND FOR CLEAN AIR AGREEMENT FY 2022/23
This agreement (“Agreement”) by and between the Santa Clara Valley Transportation Authority (“VTA”) and the Town of Los Gatos (“Sponsor”) shall be effective retroactively beginning on July 1, 2022 (“Effective Date”). Hereinafter, Sponsor and VTA may be individually referred to as a “PARTY” or collectively referred to as the “PARTIES”.
RECITALS
This Agreement is made with reference to the following facts:
A. VTA has been designated, by resolutions of the County of Santa Clara and a majority of the cities therein, as the Program Manager for Santa Clara County’s Transportation Fund for Clean Air (“TFCA”) funds 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 (“CPM”) Fund to eligible project sponsors in accordance with the State of California Health and Safety Code Sections 44241 and 44242 and VTA’s current agreement with the Bay Area Air Quality Management District (“Air District”).
C. On September 1, 2022, the VTA Board approved the programming of Fiscal Year (“FY”)
2022/23 TFCA CPM funds for the Los Gatos Creek Trial Connector (“Project”).
D. This Agreement specifies the conditions under which VTA will allocate and administer a grant(s) from the TFCA CPM Fund to Sponsor for FY 2022/23.
Now, therefore the Parties agree as follows:
AGREEMENT
Section 1. Grant of TFCA Funds; Description of Projects
A. Subject to appropriation and receipt of TFCA funds (as further set forth in Section 10, below), VTA hereby agrees to allocate to Sponsor a TFCA grant in an amount not to exceed $755,921 (the “Grant Funds”) in consideration for Sponsor’s agreement to implement and complete the Project(s), as further set forth in the Project Summary(ies) attached hereto as Attachment A,
in accordance with the terms and conditions set forth in this Agreement.
B. In consideration of VTA providing Sponsor with the Grant Funds, Sponsor hereby agrees to implement and complete the Project(s) in conformance with the terms of this Agreement. In implementing the Project(s), Sponsor shall comply with reporting requirements as described in Section 13.
ATTACHMENT 2
Section 2. Proper Expenditure; Return of Funds
A. Sponsor must assure that all Grant Funds received under this Agreement are expended only in accordance with all applicable provisions of federal, state, and local laws, and Sponsor shall require any other sub-recipients of Grant Funds for the Project(s) to do the same.
B. Sponsor must comply with all TFCA program requirements, as set forth in the Air District’s County Program Manager Fund Expenditure Plan Guidance Fiscal Year Ending (FYE) 2023
and the Funding Agreement between VTA and the Air District (23-SC). These documents, including appendices and revisions, are incorporated herein and made a part hereof by this reference as if fully set forth herein and will be provided by VTA to Sponsor upon request.
C. Since the Air District mandates that all TFCA Funds that are not expended in accordance with applicable provisions of law must be returned, Sponsor must reimburse VTA all Grant Funds
that are not expended in accordance with the terms and conditions of this Agreement and/or applicable provisions of law upon notification.
D. Sponsor must also return the Grant Funds to VTA if the Project(s) are not maintained and/or operated throughout and until the conclusion of the years of effectiveness (“Years of Effectiveness”). This is the default value stated in the Air District’s County Program Manager
Fund Expenditure Plan Guidance Fiscal Year Ending 2023 for the applicable project type, unless a different value was approved by the Air District and shown to yield a project that meets the cost-effectiveness requirement specified in the TFCA Guidance document cited above. The amount of Grant Funds returned to the Program Manager must be calculated on a prorated basis based on the length of a project’s Years of Effectiveness.
Section 3. Administrative project costs
Administrative project costs are costs associated with the administration of a TFCA project, and do not include capital or operating costs. Sponsor must expend no more than six and a quarter percent (6.25%) of Grant Funds received hereunder on administrative costs.
Hourly labor charges for administrative project costs must be expressed based on hours worked on
the TFCA project. Administrative project costs are limited to the following activities that have
documented hourly labor and overhead: A. Costs associated with administering the TFCA Funding Agreement (e.g., responding to requests for information from Air District and processing amendments). Costs incurred in
preparation of a TFCA application or costs incurred prior to the execution of the Funding
Agreement are not eligible for reimbursement;
B. Accounting for TFCA funds;
C. Fulfilling all monitoring, reporting, and record-keeping requirements specified in the TFCA Funding Agreement, including the preparation of reports, invoices, and final reports; and
D. Documenting indirect administrative costs associated with administrating the Project(s),
including reasonable overhead costs of utilities, office supplies, reproduction, and managerial oversight. The costs to prepare proposals and/or grant applications are not eligible.
ATTACHMENT 2
If Sponsor requests reimbursement of administrative project costs, Sponsor must document and explain all such expenses in its invoices. Additionally, Sponsor must track these expenses to ensure that they do not exceed 6.25% of total TFCA funds received and provide auditable documentation to VTA. Upon notice, Sponsor must reimburse VTA for any administrative project costs deemed ineligible and returned by VTA to the Air District.
Section 4. Term
A. The term of this Agreement is retroactive beginning on July 1, 2022, until either the Project(s) are completed or terminated in accordance with Section 16C, but no later than June 30, 2024, without written approval as described below.
B. The Grant Funds must be expended within two (2) years of receipt of the first transfer of funds
from the Air District to the VTA in the applicable fiscal year, unless one of the following applies:
a. Multi-Year Funded Project: If VTA requests multi-year funding in compliance with the Guidance; and the Air District approves the request for multi-year funding.
b. Extensions of Expenditure Deadline: If VTA finds that a project will take a longer
period of time to implement or that significant progress has been made on a project, then VTA can approve no more than two one‐year schedule extensions for a project, as memorialized in writing by VTA. Any subsequent schedule extensions for projects may be given on a case‐by‐case basis only by written amendment to this Agreement, if the Air District finds that significant progress has been made on a
project, and the Funding Agreement is amended to reflect the revised schedule.
C. In addition to the specific term of this Agreement, Sponsor must maintain each Project for the Years of Effectiveness prescribed in Section 2D herein.
Section 5. Work Product
Sponsor must 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.).
Section 6. Acknowledgement of Funding Sources
A. Sponsor must acknowledge both VTA and Air District as funding sources during the
implementation of the Project(s) and must use the VTA and the Air District approved logos as
specified below:
(1) The logos must be used on signs posted at the site of any project construction;
(2) The logos must be displayed on any vehicles or equipment operated with or obtained as part of the Project(s);
ATTACHMENT 2
(3) The logos must be used on any material intended for public consumption associated with
the Project(s), such as websites and printed materials, including 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, equipment, construction signs, and copies of press releases, that the logos are used and displayed as required by this Section.
B. VTA will provide a copy of Air District and VTA logos to Sponsor for use in fulfilling Sponsor’s obligations under this Section.
C. Sponsor must acknowledge VTA and Air District as a funding source in any related articles, news releases, or other publicity materials for the Project(s) that are produced or caused to be produced by Sponsor.
Section 7. Indemnity and Insurance Requirements
A. Sponsor must indemnify, defend, and hold harmless VTA, the Air District, their respective officers, agents, employees, representatives, and successors-in-interest from any claim, liability, loss, expense, including reasonable attorneys’ fees, and/ or claims for injury or damage arising out of, or in connection with, performance of this Agreement by Sponsor and/or
its agents or employees or subcontractors, excepting only loss, injury or damage caused by the
gross negligence or willful misconduct of personnel employed by VTA.
B. Sponsor must adhere, throughout the term of this Agreement, to the insurance requirements specified in Attachment B “Insurance Requirements”, which are hereby incorporated by reference. In any agreement between Sponsor and a third party for purposes related in any way
to the subject matter of this Agreement (“Third Party Contract”), Sponsor must require that
VTA be named as (i) additional insured on all policies of insurance required by CITY in the Third-Party Contract and (ii) indemnified party in any indemnity provision contained in the Third-Party Contract. Such Third-Party Contracts must contain requirements for General Liability, Automobile Liability, Workers’ Compensation and Employer’s Liability, and
Pollution Liability.
Section 8. Invoicing
Sponsor must submit invoices at quarterly intervals to VTA for reimbursement of costs incurred to implement the Project(s). Sponsor must email requests for reimbursement to VTA Accounts Payable at VTA.AccountsPayable@vta.org. Sponsor must include relevant, auditable back-up
documentation (time sheets, bills, etc.) with each invoice.
Section 9. Reimbursement
A. All funds allocated by VTA to Sponsor will be paid on a cost-reimbursement basis only. VTA will pay no funds in advance.
B. Upon review and approval of invoices and documentation, VTA will, within fifteen (15) days
of receipt of an invoice that conforms to the requirements set forth in this Agreement, reimburse Sponsor for all eligible expenditures up to the maximum amount described in Section 1 of this Agreement. Only those expenses incurred by Sponsor on or after July 1, 2022, will be considered reimbursable expenditures.
ATTACHMENT 2
C. Funds for the Projects described in this Agreement, which are not submitted for reimbursement
prior to June 30, 2024, will not be available to reimburse Project costs unless a Project schedule, which extends the Project completion date beyond June 30, 2024, has been approved by VTA or the Air District, as set forth in Section 4B, above.
Section 10. Funds Subject to Appropriation/Allocation of Funds Contingent on
Appropriation
VTA’s obligations under the terms of this Agreement are contingent upon and subject to the allocation of TFCA funds to VTA by the Air District under VTA’s “23-SC” agreement with the Air District for approved projects during Fiscal Year 2022/23.
Section 11. Audit
This Agreement is 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 each Project(s) Years of Effectiveness. Audits may also be conducted by an auditor chosen by the Air District or VTA.
Section 12. Sponsor’s Record Keeping
Sponsor must:
A. Allow VTA and Air District staff, authorized representatives, and independent auditors, during the term of this Agreement and for five (5) years from the end of each Project(s) Years of Effectiveness, to conduct performance and financial audits and to inspect the Project(s). During audits, Sponsor must make available to the auditor, in a timely manner, all records relating to
Sponsor’s implementation of the Project(s). During inspections, Sponsor will provide, at the request of VTA or the Air District, access to inspect the Project(s) and related records.
B. Maintain employee time sheets documenting those hourly labor costs incurred in the implementation of the Project(s), including both administrative and implementation costs, or to establish an alternative method to document staff costs charged to the Project(s).
C. Keep all financial and implementation records necessary to demonstrate compliance with this Agreement and the TFCA Program. Such records must include documentation that demonstrates significant progress made for those Project(s) seeking extensions to the completion date. Sponsor must keep such documents in a central location for a period of five (5) years from the end of each Project’s Years of Effectiveness.
Section 13. Reporting Requirements.
A. Sponsor must submit an interim project report to VTA in each May and October until the Project(s) is/are completed, and all closeout requirements have been fulfilled. The interim report must utilize Air District-approved report forms. One form should be submitted for each
ATTACHMENT 2
Project listed in Attachment A. VTA will supply the Interim Project Report form to Sponsor
for this requirement.
B. Sponsor must submit a Final Report for each completed Project on the Air District-approved report form appropriate for the specific project type. Sponsor must also submit a post‐project Cost-Effectiveness spreadsheet. Post‐project evaluations should be completed using the version of the Cost‐Effectiveness worksheet for the year the purchased, installed, or
constructed project became available for use by the public. VTA will provide the Final Report Forms and spreadsheets for this requirement.
Section 14. Review
A. VTA will review Sponsor’s progress in implementing the Project(s) 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 any Project or to expend the funds within the period described in
Section 4, VTA will develop an action plan with Sponsor to ensure that the Grant Funds are not required to be repaid to VTA and/or the Air District. The action plan may include reprogramming funds to other projects within Santa Clara County to ensure their expenditure prior to the term expiration date described in Section 4.
Section 15. Non-Performance
A. If Sponsor causes all or part of these Grant Funds to be subject to repayment to the CPM Fund because of failure to complete the Project(s) according to the work scope described in Attachment A, Sponsor’s next grant allocation of any kind that is from or passes through VTA may be reduced by the amount that VTA repaid to the CPM Fund.
Section 16. General Terms and Conditions
A. Notices. Any notice required to be given by either Party, or which either Party may wish to give, must be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows:
To VTA: Santa Clara Valley Transportation Authority
Chief Planning & Programming Officer
3331 North 1st Street San José, CA 95134-1906 To SPONSOR: Town of Los Gatos Parks and Public Works Department
41 Miles Avenue
Los Gatos, CA 95030 B. Program Liaison. Within thirty (30) days from the Effective Date of this Agreement, Sponsor must notify VTA of Sponsor’s “Program Liaison” and provide the Program Liaison’s address,
telephone number, and email address. The Program Liaison must be the contact to VTA
pertaining to implementation of this Agreement and for information about the Project(s). Sponsor must notify VTA of the change of Program Liaison or of the Program Liaison’s contact information in writing no later than thirty (30) days from the date of any change.
C. Termination.
ATTACHMENT 2
Voluntary. Either Party may terminate this Agreement and/or a Project at any time by giving
written notice of termination to the other Party which must specify the effective date thereof. Notice of termination under this paragraph must be given at least ninety (90) days before the effective date of such termination unless the Parties mutually agree to an earlier termination date. This Agreement will also terminate at the end of the fiscal year during which VTA loses its designation as County Program Manager for Santa Clara County.
If VTA terminates this Agreement and/or a Project pursuant to this provision, the Sponsor must cease all work under this Agreement and cease further expenditures of Grant Funds received under this Agreement for the terminated Project immediately upon receipt of the notice of termination, excepting any work permitted to continue that is specified in the notice of termination. VTA will review the project to determine if it will still reduce emissions, and if it does, VTA may reimburse
Sponsor for eligible funds and no further Grant Funds will be provided for that Project.
If Sponsor terminates this Agreement and/or a Project pursuant to this provision, the Sponsor must return all Grant Funds provided by VTA for the specific Project up to and including the date of termination.
After Breach. VTA may terminate this Agreement and/or a Project for breach. Upon any breach,
VTA will deliver a written notice of termination for breach to Sponsor that specifies the date of termination, which will be no less than ten (10) business days from delivery of such notice and will provide the Sponsor an opportunity to contest such breach within that period of time. If Sponsor contests the notice of termination for breach, VTA will provide written notice of VTA’s determination of Sponsor’s contestation. If VTA upholds the termination for breach, the written
notice will specify the effective date of termination and Sponsor will have ten (10) business days to cure. If the breach is not cured within the allotted time, the Agreement will automatically terminate. The notice of termination will specify the Total Grant Funds VTA has paid to the Sponsor, which Sponsor must reimburse to the VTA within thirty (30) days of the effective date of termination.
D. Non-Waiver. The failure of either party to insist upon the strict performance of any of the terms, covenants, and conditions of this Agreement will not be deemed a waiver of any right or remedy that either party may have and will not be deemed a waiver of their right to require strict performance of all of the terms, covenants, and conditions thereafter.
E. Assignment: Sponsor must not assign, sell, license, or otherwise transfer any rights or
obligations under this Agreement without the prior written consent of VTA.
F. Integration. This Agreement, including all attachments and references, constitutes the entire Agreement between the Parties pertaining to the subject matter contained herein and supersedes all prior or contemporaneous agreements, representations, and understandings of the Parties relative thereto.
G. Amendments. Future amendments and modifications to this Agreement must be made in writing and signed by both parties.
H. Attachments. Each attachment hereto is incorporated into this Agreement as if fully set forth herein.
I. Severability. If any term, covenant, condition, or provision of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be held by a court of
ATTACHMENT 2
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms,
covenants, conditions, and provisions of this Agreement, or the application thereof to any person or circumstance, must remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
J. Warranty of Authority to Execute Agreement. Each Party to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has
the full authority to execute this Agreement on behalf of the entity that is a Party to this Agreement.
K. Survival. Any provision that, by its nature, extends beyond the term or termination of this Agreement will survive the expiration or termination of this Agreement.
ATTACHMENT 2
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date shown
below.
Town of Los Gatos Santa Clara Valley Transportation Authority (Sponsor) (VTA)
Dated: ____________________________ Dated: _____________________________
__________________________________ ___________________________________ Laurel Prevetti Carolyn Gonot
Town Manager General Manager and CEO
sponsor VTA Approved as to Form: Approved as to Form:
_________________________________ _________________________________ Gabrielle Whelan Jennifer Pousho Town Attorney Sr. Assistant Counsel
Recommended by:
_________________________________ Nicolle Burnham Director of Parks and Public Works
Attest: _________________________________
Wendy Wood Town Clerk
ATTACHMENT A: PROJECT INFORMATION SUMMARY
To be added after template approval .
ATTACHMENT B
INSURANCE REQUIREMENTS
INSURANCE Without limiting CITY’s obligation to indemnify and hold harmless VTA, CITY must procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by CITY, its agents, representatives, employees, or subcontractors. The cost of such insurance must be borne exclusively by CITY. In the event of any material change in the Agreement Scope of Services, VTA reserves the right to change the insurance requirements set forth herein. CITY must furnish complete
copies of all insurance policies, within three (3) business days of any request for such by VTA. A. Liability and Workers’ Compensation Insurance 1. Minimum Scope of Coverage
Coverage must be at least as broad as: a. General Liability coverage; Insurance Services Office “occurrence” form CG 0001. General Liability insurance written on a “claims made” basis is not acceptable. Completed Operations coverage must be continuously maintained for at least two (2) years after Final Acceptance of the Work. b. Business Auto Coverage, Insurance Services Office form number CA 0001, covering Automobile Liability, code 1 “any auto.” Auto Liability written on a “claims-made” basis is not acceptable.
c. Workers’ Compensation insurance, as required by the Labor Code of the State of California, and Employer’s Liability insurance.
d. Professional Liability, including limited contractual liability coverage, covering liability arising out of any negligent act, error, mistake or omission in the performance of Contractor’s services under this Contract. This coverage must be continuously maintained for a minimum of two (2) years following completion of this Contract. This coverage may be written on a “claims made” basis, if so, please see special provisions in Section B. e. Contractor’s Pollution/Environmental Impairment Liability: covering liability arising out of the treatment, handling, storage, transportation, or accidental release of any hazardous material. 2. Minimum Limits of Insurance a. CITY must maintain limits no less than:
1. General Liability (including umbrella/excess liability): $4,000,000 limit per
occurrence for bodily injury, personal injury, and property damage. If General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general
aggregate limit must be twice the required occurrence limit. This requirement may be satisfied by a combination of General Liability with Excess or Umbrella, but in no
event may the General Liability primary policy limit per occurrence be less than $2,000,000, unless Umbrella/Excess policies feature inception and expiration dates concurrent with the underlying General Liability policy, “Follow Form” coverage, and a “Drop Down” provision. 2. Automobile Liability (including umbrella/excess liability): $4,000,000 limit per accident for bodily injury and property damage. This requirement may be satisfied by a combination of Auto with Excess or Umbrella, but in no event may the Automobile Liability primary policy limit per occurrence be less than $2,000,000, unless Excess policies feature inception and expiration dates concurrent with the underlying auto liability policy, “Follow Form” coverage, and a “Drop Down” provision.
3. Workers’ Compensation and Employer’s Liability: Statutory Workers’ Compensation limits and Employer’s Liability limits of $1,000,000 per accident.
4. Professional Liability: $2,000,000 each occurrence/aggregate minimum limit per claim. This requirement may be satisfied by a combination of Professional Liability
insurance with Excess or Umbrella policies, but in no event may the Professional Liability primary policy limit per occurrence be less than $2,000,000, unless Umbrella/Excess policies feature inception and expiration dates concurrent with the underlying policy, “Follow Form” coverage, and a “Drop Down” provision. 5. Contractor’s Pollution/Environmental Impairment Liability: $3,000,000 per occurrence. This requirement may be satisfied by a combination of Pollution Liability insurance with Excess or Umbrella policies. Umbrella/Excess policies must feature inception and expiration dates concurrent with the underlying policy, “Follow Form” coverage, and a “Drop Down” provision.
b. Notwithstanding any language in this Agreement to the contrary, if CITY carries insurance limits exceeding the minima stated in Section 2(a)(1)-(5) immediately above, such greater limits will apply to this Agreement. 3. Self-Insured Retention
The certificate of insurance must disclose the actual amount of any deductible or self-insured retention for all coverages required herein. Any self-insured retention or deductible in excess of $250,000 must be declared to and approved by VTA. If CITY is a governmental authority such as a state, municipality or special district, self-insurance is permitted. To apply for approval for a level of retention or deductible in
excess of $250,000, CITY must provide a current financial report including balance sheets and income statements for the past three years, so that VTA can assess CITY’s ability to pay claims falling within the self-insured retention or deductible. Upon review of the financial report, if deemed necessary by VTA in its sole discretion, VTA may elect one of the following options: to accept the existing self-insured retention or
deductible; require the insurer to reduce or eliminate the self-insured retention or deductible as respects VTA, its directors, officers, officials, employees and volunteers; or to require CITY to procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses. Applicable costs resulting therefrom will be borne solely by CITY. CITY may request execution of a
nondisclosure agreement prior to submission of financial reports. B. Reserved. C. Claims Made Provisions Claims-made coverage is never acceptable for General Liability or Auto Liability. Claims-made may be considered for Professional, Environmental/Pollution, or Cyber. For coverage
written on a claims-made basis, it must be clearly stated on the Certificate of Insurance. In addition to all other coverage requirements, such policy must provide that: 1. The policy retroactive date must be no later than the date of this Agreement. 2. If any policy is not renewed or the retroactive date of such policy is to be changed, CITY must obtain or cause to be obtained the broadest extended reporting period coverage available in the commercial insurance market. This extended reporting provision must cover at least two (2) years. 3. No prior acts exclusion may be added to the policy during the Agreement period. 4. The policy allows for reporting of circumstances or incidents that might give rise to future claims. D. Other Provisions The policies must contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability
a. VTA, its directors, officers, officials, employees and volunteers are to be named as additional insureds as respects: liability arising out of activities performed by or on behalf of CITY, including VTA’s general supervision of CITY; products and completed operations of CITY and its subcontractors; premises owned, occupied or used by CITY; or automobiles owned, leased, hired or borrowed by CITY. The coverage must contain no special limitations on the scope of protection afforded to VTA, its directors, officers, officials, employees, or volunteers. Additional Insured endorsements must provide coverage at least as broad as afforded by the combination of ISO CG 20 10 10 01 and CG 20 37 10 01. b. Any failure to comply with reporting provisions of the policies may not affect coverage
provided to VTA, its directors, officers, officials, employees, or volunteers. c. CITY’s insurance must apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. d. The General Liability General Aggregate limit must apply per project, not per policy.
2. All Coverages
a. The insurer must agree to waive all rights of subrogation against VTA, its directors, officers, officials, employees, and volunteers for losses arising from work performed by CITY and its subcontractors for VTA.
b. CITY’s insurance coverage must be primary insurance as respects VTA, its directors, officers, officials, employees, and volunteers. Self-insurance or insurance that may be
maintained by VTA, its directors, officers, officials, employees, or volunteers may apply only as excess to CITY’s insurance. CITY’s insurance must not seek contribution from
VTA’s insurance program. 3. Other Insurance Provisions a. For all lines of coverage, the Certificate must disclose the actual amount of the Deductible or Self-Insured Retention. b. If any coverage forms or endorsements required by this Agreement are updated by their publishers, whether they be the insurance carrier(s), the Insurance Services Office, or the American Association of Insurance Services, during the duration of this Agreement, VTA reserves the rights to require CITY to procure said coverage forms or endorsements using
the updated versions upon the next renewal cycle. E. Acceptability of Insurers
Insurance and bonds must be placed with insurers with an A.M. Best’s rating of no less than A VII (financial strength rating of no less than A and financial size category of no less than VII), unless
specific prior written approval has been granted by VTA. F. Certificates of Insurance
City must furnish VTA with a Certificate of Insurance. The certificates for each insurance policy must be signed by an authorized representative of that insurer. The certificates must be issued on
a standard ACORD Form. City must instruct their insurance broker/agent to submit all insurance certificates and required notices electronically in PDF format to real.estate@vta.org. All endorsements must be attached to the ACORD certificate in a single PDF document.
The certificates must (1) identify the insurers, the types of insurance, the insurance limits, the
deductibles or lack thereof, and the policy term, (2) include copies of all the actual policy endorsements required herein, and (3) in the “Certificate Holder” box include:
Santa Clara Valley Transportation Authority (“VTA”) 3331 North First Street San Jose, CA 95134-1906 In the Description of Operations/Locations/Vehicles/Special Items Box, the VTA property leased must appear, the list of policies scheduled as underlying on the Umbrella/Excess policy must be listed, Certificate Holder must be named as additional insured, and Waiver of Subrogation must be indicated as endorsed to all policies as stated in the Agreement documents. It is a condition precedent to granting of this Agreement that all insurance certificates and endorsements be received and approved by VTA before Agreement execution. No occupancy may
be taken until insurance is in full compliance. VTA reserves the rights to require complete, certified copies of all required insurance policies, at any time. If City receives notice that any of the insurance policies required by this Exhibit may be cancelled or coverage reduced for any reason whatsoever, City must immediately provide written notice to VTA that such insurance policy required by this Exhibit is canceled or coverage is reduced.
G. Maintenance of Insurance
If City fails to maintain insurance as required herein, VTA, at its option, may suspend the Agreement until a new policy of insurance is in effect.