09-149 Cupertino and Sunnyvale, Pavement Maintenance Work on various portions of Homestead RdCOOPERATIVE AGREEMENT BETWEEN THE CITIES OF
CUPERTINO ANI7 SUNNYVALE
FOR PAVEMENT MAINTENANCE WORK ON
VARIOUS PORTIONS O1~ HOMESTEAD ROAD
This agreement (herein "Agreement") is made and entered into this 5TH day of NvtrC~+for 2009,
(herein the "Effective Date") by and between the City of Sunnyvale, a California municipal corporation
(herein "SUNNYVALE") and the City of Cupertino, a California municipal corporation, (herein
"CUPERTINO"). SUNNYVALE 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".
R E C I T A L S
WHEREAS:
A. SUNNYVALE and CUPERTINO find that it is in the public interest to perform pavement
maintenance work on portions of Homestead Road over which the Cities have dual jurisdiction
(hereinafter the PROJECTS); and
B. It is in the public interest for CUPERTINO and SUNNYVALE to complete the -projects in a
cooperative and economical manner by constructing both CUPERTINO and SUNNYVALE
portions of the projects together; and
C. Each Party has agreed to perform its obligations as described herein.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the Parties, SUNNYVALE and CUPERTINO agree as follows:
AGREEMENT PROVISIONS
1. PROJECTS DESCRIPTION:
The work to be performed under this Agreement will consist of pavement rehabilitation and
maintenance work, including approximately 233,000 square feet of Homestead Road between
Mary Avenue and Franco Court. ,and approximately 282,000 of Homestead Road between De
Anza Boulevard and Wolfe Road. 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:
For the portion of Homestead between Mary Avenue and Franco Court:
A. To act as the lead agency to administer 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; secure performance,
labor/material and warranty bonds and making progress payments to the contractor.
B. To provide SUNNYVALE with final plans and specifications for the PROJECT.
AGREEMEN'T' PAGE 1 OF 8
C. To pay CUPERTINO's share of the project cost. The project cost is defined as the
actual amount paid to the project design consultant and the construction contractor.
CUPERTINO's share of the Cost is ]00% of the project cost for the CUPERTINO
owned portion of the road.
D. CUPERTINO agrees to cooperate with SUNNYVALE should SUNNYVALE raise
any issues concerning the work in SUNNYVALE's jurisdiction that requires
correction prior to acceptance or within the warranty period. Each party to provide
notice to the other party for opportunity to inspect the work supervised by the other
party prior to acceptance of the work.
E. The designated project manager for CUPERTINO for the duration of the project is
Glenn Goepfert (phone number {408) 777-3244). 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
SUNNYVALE. The CUPERTINO project manager shall consult with and obtain the
approval of SUNNYVALE point of contact on any change orders affecting areas
within the City of Sunnyvale.
For the portion of Homestead Road between De Anza Boulevard and Wolfe Road:
A. To pay SUNNYVALE CUPERTINO's share of the project cost, as defined in Section
2.C. CUPERTINO's share of the Co~:t is 100% of the project Cost for the CUPERTINO
owned portion of the road.
B. To pay its share of the project cost within forty-five (45) days of receiving an invoice
from SUNNYVALE, provided that the following conditions are met:
1 . The project has been completed and CUPERTINO has approved that portion of the
work in its jurisdiction; and
2. The detailed invoice sets forth tYie cost of construction of all project work based on
the actual contract unit prices paid and negotiated change order, if any.
F. C. The designated project manager for SUNNYVALE for the duration of the
project is Chuck Neumayer (phone number: 408-730-7834). SUNNYVALE'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. SUNNYVALE may request
documentation of such cost, and may review the original invoices and weight
certificates or request copies of same, which shall be provided within a reasonable
time. The SUNNYVALE project manager shall consult with and obtain the approval
of CUPERTINO point of contact on any change orders affecting areas within the City
of Sunnyvale.
For the purposes of this Agreement, Cupertino's share of the pavement maintenance cost of both
portions of Homestead Road, based on the estimated square footage of the areas proposed for
maintenance, shall be 36% of the cost of the two projects.
3. SUNNYVALE'S OBLIGATION:
SUNNYVALE agrees as follows:
For the portion of Homestead between Mary Avenue and Franco Court:
AGREEMENT PAGE 2 OF 8
A. To pay CUPERTINO SUNNYVALE's share of the project cost, as defined in Section
2.C. SUNNYVALE's share of the Cost is 100% of the project Cost for the
SUNNYVALE owned portion of the road.
B. To pay its share of the project cost within forty-five (45) days of receiving an invoice
from CUPERTINO, provided that the following conditions are met:
1. The project has been completed and SUNNYVALE has approved that portion of the
work in its jurisdiction; and
2. The detailed invoice sets forth the cost of construction of all project work based on
the actual contract unit prices paid and negotiated change order, if any.
C. The designated project manager for SUNNYVALE for the duration of the
project is Chuck Neumayer (phone number: 408-730-7834). SUNNYVALE's project
manager shall have all the necessary authority to review and approve and accept technical
and professional work within the scone of the Agreement and shall serve as the principal
point of contact with CUPERTINO. SUNNYVALE may request documentation of such
cost, and may review the original invoices and weight certificates or request copies of
same, which shall be provided within a reasonable time. The SUNNYVALE project
manager shall consult with and obtain the approval of CUPERTINO point of contact on
any change orders affecting areas within the City of Sunnyvale.
For the portion of Homestead Road between De Anza Boulevard and Wolfe Road:
A. To act as the lead agency to administer 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; secure performance, labor/material and
warranty bonds, and making progress payments to the contractor.
B. To provide CUPERTINO with final plans and specifications for the project.
C. To pay SUNNYVALE's share of the project cost. The project cost is defined as the
actual amount paid to the project design consultant and the construction contractor.
SUNNYVALE's share of the Cost is 100% of the project cost for the SUNNYVALE
owned portion of the road.
D. SUNNYVALE agrees to cooperate with CUPERTINO should CUPERTINO raise any
issues concerning the work in CUPERTINO's jurisdiction that requires correction prior
to acceptance or within the warranty period. Each party to provide notice to the other
party for opportunity to inspect the work supervised by the other party prior to acceptance
of the work.
E. The designated project manager for CUPERTINO for the duration of the project is Glenn
Goepfert (phone number 408-777-3244). 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 SUNNYVALE. The
SUNNYVALE project manager shall consult with and obtain the approval of
CUPERTINO point of contact on any change orders affecting areas within the City of
Sunnyvale.
AGREEMENT PAGE 3 OF 8
For the purposes of this Agreement, Sunnyvale's share of the pavement maintenance cost of both
portions of Homestead Road, based on the estimated square footage of the areas proposed for
maintenance, shall be 64% of the cost of the t~vo projects.
4. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement shall be (1) until acceptance of all covered projects by both parties and final
payments of all outstanding balances or (2) one year if no work on the projects has
commenced within one year of the Effective Date.
B. In case of any defect in the work, materials, apparatus or equipment, whether latent or patent,
revealed to CUPERTINO or SUNNYVALE, as administrator of a construction contract,
within one (1) year of the date of acceptance of completion of the projects by Cupertino, the
contractors awarded the projects construction contracts will forthwith remedy such defects
without cost to CUPERTINO or SU7~NYVALE, pursuant to Section 20, Contractor's
Guarantee, of the project contract documents.
5. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under this; Agreement, ownership and title to all materials,
equipment and appurtenances installed <rs a part of the projects within the city limits of
SUNNYVALE will automatically be ves~.ed in SUNNYVALE, and all materials, equipment
and appurtenances installed as apart of the projects 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
SUNNYVALE with regard to maintenance, operation or future repair responsibility.
6. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by either Party to perform the work included in the projects 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 suck contractor(s) to furnish labor and/or materials in
connection with the work in the projects shall not be employees of either Party in any respect.
7. TERMINATION:
A. The Agreement can be terminated only upon the mutual written consent and terms
acceptable to both parties.
8. NO PLEDGING OF EITHER CITY'S CREDI'R
Under no circumstances shall either SUNNYVALE or CUPERTINO have authority or power to
pledge the credit of the other public entity o~ 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.
AGREEMENT PAGE 4 OF 8
10. AMENDMENTS:
No alteration or variation of the terms of this .Agreement shall be valid unless made in writing and
signed by the parties and incorporated into this Agreement.
I ] . NOTICES:
Notices are to be sent as follows:
To SUNNYVALE: Chuck Neumayer
Senior Engineer
City of SUNNYVALE
456 West Olive Avenue
SUNNYVALE, CA 94088-3707
To CUPERTINO: Glenn Goepfert
Assistant 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.
13. ENCROACHMENT PERMITS:
Both Parties to this Agreement will cooperate and/or provide access to its consultants, engineers
and contractors for the projectsin the jurisdictional boundaries of each Party. Contractors shall
obtain an encroachment permits from SUNNYVALE and CUPERTINO, as required by
encroachments necessary to complete the work, and both cities shall provide such permits at no
cost.
14. HOLD HARMLESS/INDEMNIFICATION:
Neither of the respective Parties, their respective City Council, employees, officers, agents and
assigns shall be responsible for any damage or liability occurring by reason of anything done or
omitted to be done by the other Party in connection with the projects.
[t is understood and agreed that pursuant to C:~lifornia Government Code Section 895.4, the each
Party 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
the indemnifying Party in connection with any work, authority or jurisdiction delegated to the
indemnifying Party under this Agreement. This hold harmless and indemnification provision shall
apply to any activities, error or omission of each Party and/or the Party's officers, employees,
agents, consultants or contractor or any person or entity acting or omitting to act for or on behalf
of said City or such person or entities as are specifically authorized and empowered by the
respective Party to act for the Party.
AGREEMENT PAGE 5 OF 8
] 5. CAPTIONS:
The captions of the various sections, paragraphs 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 mutuaily understood and agreed that during the term of the construction activities on the
projects, Both cities will require the contrac~or(s) which performs any work on the projects to
carry commercial general liability insurance policy with policy limits in an amount not less than
Two Million Dollars ($2,000,000); automobile liability insurance policy with policy limits in an
amount not less than One Million Dollars ($].,000,000); and, a Workers' Compensation Insurance
policy with policy limits in an amount not less than One Million Dollars ($1,000,000). Both cities
shall require that both SUNNYVALE and CUPERTINO, their officers, employees, and agents
shall be named as additional insureds on 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 SUNNYVALE relating
to the projects. Any prior agreements, promis~~s, negotiations, or representations not expressly set
forth in this Agreement are of no force or effect.
20. OTHER AGREEMENTS:
This Agreement shall not prevent either Party ii-om 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 authorized representatives. It is the intent of the Parties that
this Agreement shall become operative on the effective date.
AGKEEMENT PAGE 6 OF 8
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by
the following signatures of their duly authorized representatives. It is the intent of the Parties that
this Agreement shall become operative on the Effective date:
CITY OF SUNNYVALE, CALIFORNIA
PRO D T FORM-
By:
DA D KAHN GA M. U BBERS
City Attorney Cit~la ger
City of SUNNYVALE
456 W. Olive Avenue
SUNNYVALE, CA 95070
ATTEST:
tvi~//~ ~
~athleen Franco-Simmo
City Clerk
CITY OF CUPERTINO, CALIFORNIA
OS TO FORM:
Carol Korade ~
City Attorney
`72.~Q ~~fLC~~
RALPH A. QUALLS, Jr
Director of Public Works
10300 Tone Avenue
Cupertino, CA 95014
Telephone: (408) 777-3200
ATTEST:
KIM SM[TH
City Clerk - Cupe ino
AGREEM ENI' YACiE 7 OF 8
EXHIBIT "A"
SCOPE OF WORK AND SCHE',DULE OF PERFORMANCE
The work to be performed under this Agreement will include pavement overlay of approximately 233,000
square feet of Homestead Road roadway between Franco Court and De Anza Blvd. and associated
activities. The project shall include traffic control, replacing of all traffic striping, crack sealing, as well as
incidental associated work that may be discovered during the project, as required.
The work to be performed under this agreement will also include pavement overlay of approximately
282,000,000 square feet of Homestead Road roadway between De Anza Blvd and Wolfe Road. and
associated activities. The project shall include traffic control, replacing of all traffic striping, crack sealing,
as well as incidental associated work that may be discovered during the project, as required.
The work to be performed is fully described in the contract documents.
The contract documents are incorporated into this Agreement by reference.
AGREEMENT PAGE 8 OF 8