01-067 City of San Jose - Overlay
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AGREEMENT BETW)F;EN THE CITIES OF
CUPERTINO A1VD SAN JOSE
FOR THE OVERLAY OF
DE ANZA BOULEVARD
BETWEEN RAINBOW DRIVE AND PROSPECT ROAD
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This agreement (herein "Agreement") is made and entered into this (`-~ , day of ~n~, 2001,
(herein the "Effective Date") by and between the City of San Jose, a California munici~pa~orp"oration
(herein "SAN JOSE") and the City of Cuperti~io, a California municipal corporation, (herein
"CUPERTINO"). SAN JOSE and CUPERTINO may be referred to herein individually as a "Party" or a
"City" or collectively as the "Parties", "Cities" or the "Parties to this Agreement".
RECITALS
WHEREAS:
A. SAN JOSE and CUPERTINO find that it is in the public interest to overlay De Anza Boulevard
between Rainbow Drive and Prospect Road over which the Cities have dual jurisdiction; and
B. It is in the public interest for CUPERTINC~ and SAN JOSE to complete the PROJECT in a
cooperative and economical manner by consbucting both CUPERTINO and SAN JOSE portions
of the PROJECT together; and
C. Each Party has agreed to perform its portion o:Fthe work as described herein, under its direction.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the Parties, SAN JOSE and CUPERTINO agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The work to be performed under this Agreement will consist of overlaying approximately 10,000
square feet of De Anza Boulevard between Rainbow Dr. and Prospect Road (herein the
"PROJECT"). The work to be performed is more fully described in the document entitled "Scope
of Work and Schedule of Performance" set forth in Exhibit A, attached and incorporated by
reference.
2. CUPERTINO'S OBLIGATIONS:
CUPERTINO agrees as follows:
A. To act as the lead agency to administ~;r the design and construction of the PROJECT.
Administration shall include preparation of plans, specifications, contract documents and cost
estimate; notification of local businesses; coordination with various agencies; preparation of
all necessary environmental document; obtaining permits; obtaining bids; awarding the
construction contract; administering the construction contract; providing materials control and
inspection services; and making progress ~~ayments to the contractor.
B. To provide SAN JOSE with final plans and specifications for review and written approval
prior to obtaining bids for the PROJECT.
C. To pay CUPERTINO's share of the PROJECT cost. The PROJECT cost is defined as the
actual amount paid to the contractor plus ten percent (10%) for CUPERTINO's engineering,
construction and other administrative services. CUPERTINO's share of the Cost is 100% of
the PROJECT Cost for the CUPERTINO owned portion of the road.
AGREEMENT FAGE 1 OF 6
D. The designated project manager for CIJPERTINO for the duration of the PROJECT is
Carmen Lynaugh. CUPERTINO's project manager shall have all the necessary authority to
direct technical and professional work within the scope of the Agreement and shall serve as
the principal point of contact with SAN JI~SE.
3. SAN JOSE'S OBLIGATION:
SAN JOSE agrees as follows:
A. To pay CUPERTINO San Jose's share of the PROJECT cost, as defined in Section 2.C., up to
a maximum amount of $175,000. SAN JOSE's share of the Cost is 100% of the Project Cost
for the SAN JOSE owned portion of the road. In the event that the lowest responsive
responsible bid received for the PROJECT would cause SAN JOSE's share of the PROJECT
cost to exceed the maximum amount, CUPERTINO shall promptly notify SAN JOSE.
CUPERTINO shall not award the co~istruction contract without a written amendment
increasing the maximum amount of SAN JOSE's contribution.
B. To pay its share of the PROJECT cost within forty-five (45) days of receiving an invoice from
the CUPERTINO, provided that the following conditions are met:
1. The PROJECT has been completed and SAN JOSE has approved that portion of the work
in its jurisdiction; and
2. The invoice sets forth the cost of construction of all PROJECT work based on the actual
contract unit prices paid and negotiat~;d change order, if any.
C. The designated project manager for SAN JOSE for the duration of the PROJECT is Jim
Leitner. SAN JOSE's project manager shall have all the necessary authority to review and
approve and accept technical and professional work within the scope of the Agreement and
shall serve as the principal point of contact with CUPERTINO.
4. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement shall be one (1) year from the Effective Date or until the PROJECT acceptance by
both parties and final payments of all outstanding balances.
B. Consistent with City of San Jose Standard Specifications, Section 7-1.23, CUPERTINO shall
cause the contractor to provide a warranh~ period of at least one (1) year from the acceptance
date.
5. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under thi;~ Agreement, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT within the city limits of
SAN JOSE will automatically be vested in SAN JOSE, and all materials, equipment and
appurtenances installed as a part of the PROJECT within the city limits of CUPERTINO will
be vested in CUPERTINO, and no further agreement will be necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between CUPERTINO and
SAN JOSE with regard to maintenance, o.neration or future repair responsibility.
AGREEMENT F'AGE 2 OF 6
6. CONTRACTOR SHALL BE AN INDEPENLiENT CONTRACTOR:
Any contractor(s) hired by either Party to perform the work included in the PROJECT shall not be
an agent or employee of either Party and will. perform such work as independent contractor. All
persons employed by or contracted with such contractor(s) to furnish labor and/or materials in
connection with the work in the PROJECT shaill not be employees of either Party in any respect.
7. TERMINATION:
A. Either CUPERTINO or SAN JOSE may terminate the Agreement at any time prior to award
of the construction contract for the PROJECT upon thirty (30) days' written notice. If the
Agreement is terminated, SAN JOSE sh<<ll pay to CUPERTINO all actual costs incurred by
CUPERTINO up to the day of receipt of written notice of termination.
B. Once CUPERTINO has awarded the construction contract for the PROJECT, the Agreement
can be terminated only upon the mutual written consent and terms acceptable to both parties.
8. NO PLEDGING OF EITHER CITY'S CREDIT:
Under no circumstances shall either SAN J~~SE or CUPERTINO have authority or power to
pledge the credit of the other public entity or incur obligation in the name of the other public
entity.
9. NO THIRD PARTY BENEFICIARY:
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third
party or parties and no third party or parties shall have any claim or right of action hereunder for
any cause whatsoever.
10. AMENDMENTS:
No alteration or variation of the terms of this ~~greement shall be valid unless made in writing and
signed by the Parties.
11. NOTICES:
Notices are to be sent as follows:
To SAN JOSE Wayne Tanda
Director of Transportati~~n
City of San Jose
4 North 2nd Street, Suite 1000
San Jose, CA 95113
To CUPERTINO: Ralph A. Qualls, Jr.
Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
12. SEVERABILITY CLAUSE:
In case any one or more of the provisions contained herein shall, for any reason, be held invalid,
illegal, or unenforceable in any respect, it shall. not affect the validity of the other provisions which
shall remain in full force and effect.
AGREEMENTPAGE30F6
13. ENCROACHMENT PERMITS:
Both Parties to this Agreement will cooperate; and/or provide access to its consultants, engineers
and contractors for the PROJECT in the jurisdictional boundaries of each Party. Contractor shall
obtain street opening permit from SAN JOSI's and SAN JOSE shall provide such a permit at no
cost.
14. HOLD HARMLESS/INDEMNIMCATION:
Neither of the respective Parties, their respe~;tive City Council, employees, officers, agents and
assigns shall be responsible for any damage ~~r liability occurring by reason of anything done or
omitted to be done by the other Party in connection with the PROJECT.
It is understood and agreed that pursuant to California Government Code Section 895.4, the
respective Parties shall fully indemnify and hold the other harmless from any liability imposed for
injury (as defined in Government Code Section 810.8) by reason of anything done or omitted to be
done by CUPERTINO or SAN JOSE in connection with any work, authority or jurisdiction
delegated to the respective Party under this Agreement. This hold harmless and indemnification
provision shall apply to any activities, error or omission of the respective Party and/or the Party's
officers, employees, agents, consultants or co~itractor or any person or entity acting or omitting to
act for or on behalf of said City or such parson or entities as are specifically authorized and
empowered by the respective Party to act for the Party.
15. CAPTIONS:
The captions of the various sections, paragr:xphs and subparagraphs of this Agreement are for
convenience only and shall not be considered nor referred to for resolving questions of
interpretation of this Agreement.
16. INSURANCE REQUIREMENTS:
It is mutually understood and agreed that during the term of the construction activities on the
PROJECT, CUPERTINO will require the contractor(s) which performs any work on the
PROJECT to carry commercial general liability or funded self-insurance program in amounts of
not less than Two Million Dollars ($2,000,001)); automobile liability insurance policy with policy
limits in an amount not less than One Million Dollars ($1,000,000); and, a Workers' Compensation
Insurance policy with policy limits in an amount not less than One Million Dollars ($ 1,000,000).
CUPERTINO shall require that both SAN JOSE and CUPERTINO, their officers, employees, and
agents shall be named as additional insureds o~i such policy.
17. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be governed and construed in accordance with the statutes and laws of the
State of California.
18. WAIVER:
The parties' waiver of any term, condition or covenant, or breach of any term, condition or
covenant shall not be construed as a waiver oi' any other term, condition or covenant or breach of
any other term, condition or covenant.
19. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between CUPERTINO and SAN JOSE relating to
the PROJECT. Any prior agreements, promises, negotiations, or representations not expressly set
forth in this Agreement are of no force or effect.
AGREEMENT PAGE 4 OF 6
20. OTHER AGREEMENTS:
This Agreement shall not prevent either Party from entering into similar agreements with others.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by
the following signatures of their duly authorize°d representatives. It is the intent of the Parties that
this Agreement shall become operative on the effective date.
CITY OF SAN JOSE, CALIFORNIA
APfP~ROVED AS TO FORM: ATTEST:
1 ~ nn ~
GLENN D. SCHWARZ CH PATRICIA L. O'H ARN
Sr. Deputy City Attorney City Clerk -San Jose
CITY OF CUPERTINO, CALIFORNIA
APPRO ,~ AS TO F
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ARLES KILI Ralph A. Qualls, Jr.
City Attorney Director of Public Works
10300 Tone Avenue
Cupertino, CA 95014
Telephone: (408) 777-3200
ATTEST:
KIM SMITH
City Clerk -Cupertino
AGREEMENTF'AGESOF6
EXHII6IT "A"
SCOPE OF WORK AND SCHEDULE OF PERFORMANCE
The project consists of resurfacing approximately 11),000 square feet of De Anza Boulevard between
Rainbow Drive and Prospect Road by milling and filling 2.5 inches of asphalt concrete. The project shall
include traffic control, placing reinforcing fabric, replacing of all traffic striping, detector loops, pavement
restoration and lowering and raising manholes, water v,ilve boxes and monument as required.
SAN JOSE to provide striping/marking plan.
The work to be performed is fully described in the contract documents.
The contract documents are incorporated into this Agreement by reference.
AGREEMENT F'AGE 6 OF 6
t;~Q'
CITY OF
CUPE~TINO
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
Telephone: (408)777-3354
FAX: (408)777-3333
PUBLIC WORKS DEPARTMENT
May 10, 2001
City of San Jose
Wayne Tanda
Director of Transportation
4 North 2"d Street
. San Jose, CA 95113
Re: Pavement Overlay of De Anza Blvd. from Rainbow Drive to Prospect Road
Dear Mr. Tanda:
This letter refers to the Agreement between the City of San Jose and the City of
Cupertino relating to the cost sharing for the ~~verlay of De Anza Boulevard from
prospect Road to Rainbow Drive. As you know that portion of De Anza Blvd. is shared
by the City of Cupertino (west side) and the (:ity of San Jose (east side).
Glenn Schwartzbach, Deputy City Attorney i:n San Jose had raised a clarification matter
with the language of the agreement, specifically Section 7, Termination. Since the
agreement had already been approved by the Cupertino City Council on July 16, 2001,
and is scheduled for San Jose City Council approval in August, I am providing this letter
to act as a clarification of that section. The italicized language is the clarification
requested. The intent of the section is that, if the agreement is terminated, San Jose shall
pay to Cupertino all actual costs associated with the portion of the road owned by San
Jose incurred by Cupertino up to the date of'the written notice of termination. You may
feel free to include this information in your sl:aff report to Council.
If you have any questions please contact Carrnen Lynaugh at 408-777-3215.
Sincerely,
Ralph A. Qualls, Jr.
Director of Public Works
C: Glenn Schwarzbach, Deputy City Attorney
Ruffmo Ruiz, Transportation Division
Pr.~nted on Recycled Paper