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04-044 City of Sunnyvale Cooperative Agreement Mary Ave Bike/Ped OvercrossingCOOPERATIVE AGRI=EMENT BETWEEN THE CITY OF CUPERTINO AND THE CITY OF SUNNYVALE CONCERNING THE MARY AVENUE BICYCLE/PEDESTRIAN OVERCROSSING The City of Cupertino (CUPERTINO) is a duly established municipal corporation organized under the laws of the State of California effective October 10, 1955. The City of Sunnyvale (SUNNYVALE) is now, and at all times relevant hereto has been, a duly established municipal corporation organised and existing under the laws of the State of California and municipal charter effective May 1 ~~, 1949. CUPERTINO is currently undertaking a project consisting of the planning, environmental analysis, design engineering, and construction of an overcrossing (bridge) for bicycles and pedestrians of Highway 280 at it's intersection with Mary Avenue (the Project). The bridge will effectively connect the south section of Mary Avenue located in Cupertino with the north section of Mary Avenue located in Sunnyvale, although the Project is located exclusively within CUPERTINO. CUPERTINO has requested financial participation by SUNNYVALE in the project. SUNNYVALE has participated in review of the existing plans for the Project, has considered the impacts and benefits of the project to SUNNYVALE and its' residents and businesses, and budgeted $ 110,000 for contribution to the Project. SUNNYVALE and CUPERTINO wish to proceed with the Project in a cooperative manner. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, SUNNYVALE and CUPERTINO agree as follows: 1. Financial Contribution SUNNYVALE agrees to make a $ 55,820 cash contribution, and pass through a $ 54,180 allocation of Transportation Development Act Article 3 Santa Clara County Sunnyvale 2004 local guarantee funds to CUPERTINO, as a fair share contribution towards the planning, design, environmental review, and/or construction of the Project. 2. Payment: CUPERTINO shall invoice S~JNNYVALE for $ 55,820 of the SUNNYVALE contribution upon execution of this Agreement. SUNNYVALE shall pay CUPERTINO within 30 days after receipt of a proper invoice. SUNNYVALE has requested allocation of $ 54,180 of Transportation Development Act Article 3 Santa Clara County Sunnyvale 2004 local guarantee funds by the Santa Clara Valley Transportation Authority to CUPERTINO for the Project. CUPERTINO shall follow the payment policies and procedures of the Metropolitan Transportation Commission to receive reimbursement of expenditures per the allocation of SUNNYVALE guarantee funds to CUPERTINO for the Project. 3. Future Cooperation: CUPERTINO and S~JNNYVALE will implement the terms contained in this Agreement in the most expeditious manner. CUPERTINO and SUNNYVALE further agree to cooperate in the resolution of any future issues that may arise. 4. Notices: Notices, demands, communications with respect to this Agreement shall be given by first class mail to the parties shown as follows, or such other addresses as the parties may designate in writing from time to time: SUNNYVALE A~larvin A. Rose, Director of Public Works City of Sunnyvale P'O Box 3707 Sunnyvale, CA 94088-3707 CUPERTINO: R;alph Clualls, Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 5. Waiver Of Claims Against Sunnyvale: CUPE:RTINO waives all claims by CUPERTINO its directors, supervisors, officers, employees, or agents against SUNNYVALE, its City Council, officers, and/or employees for damages, loss, injury and/or liability, direct or indirect, resulting from CUPERTINO's participation in the Project ~rnd/or the services provided to CUPERTINO by payment of funds by SUNNYVALE. CUPERTINO's waiver shall not apply to liability arising from and caused by the adjudicated or admitted negligence or willful misconduct of SUNNYVALE, its City Council, officers, and/or employees. 6. Indemnification And Defense: CUPERTINO agrees to indemnify, hold harmless and defend SUNNYVALE, its City Council, officers, and employees from any and all third party claims, demands, lawsuits, liability, loss, damagE:s, injury and/or liability, direct or indirect (including any and all costs and expenses in connection therewith), resulting from or in connection with provision of services to CUPERI-INO by payment of funds by SUNNYVALE. CUPERTINO's indemnification obligation shall n~~t apply to ~iabi~ity arising from and caused by the adjudicated or admitted negligence or willful misconduct of SUNNYVALE, its City Council, officers, agents, and employees. Other than financial contribution, SUNNYVALE has no responsibility for the project, and therefore no liability. 7. Severability: In the event that any of th~~ provisions or portions or applications thereof this Agreement are held to be unenforceable oar invalid by any court of competent jurisdiction, CUPERTINO and SUNNYVALE shall negotiate .an equitable adjustment in the provisions of the 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 shall not be affected thereby. 8. Severability: In the event that any of the provisions or portions or applications thereof this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, CUPERTINO and SUNNYVALE shall negotiate .an equitable adjustment in the provisions of the 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 shall not be affected thereby. 9. AMENDMENT.• Except as expressly provided herein, the provisions of this Agreement shall not be altered, modified or amended except through the execution of a written amendment executed by CUPERTINO and SUNNYVALE. 10. ENTIRE AGREEMENT.• This Agreement constitutes the entire agreement between CUPERTINO and SUNNYVALE relating to th~~ subject matter hereof and supersedes any previous agreements or understandings, oral or ~nrritten. City of Cupertino r~ ey: ~J Dave Knapp City Manager City of Sunnyvale ey: Amy Cha City Manager Date: L • ~ `r • ~`~ Attest: ~~ Kimberly Smith City Clerk Approved as to Form: Charles Kilian City Attorney Date: ~ un c 1 ~~ Zyv ~ Attest: Susan A. Ramos City Clerk Approved as to Form: s ,% i ~• ~ : - .C-i yey ~ IN WITNESS WHEREOF, The City of Cupertino and the City of Sunnyvale have caused their names to be subscribed hereto by their duly authorized representatives.