10-088 Agreement, Apple, Inc., Construction of a Concrete Island at the East End of Mariani Avenue AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND APPLE, INC.
FOR THE CONSTRUCTION OF A
CONCRETE ISLAND AT THE EAST END
OF MARIANI AVENUE
This agreement (herein "Agreement ") is made and entered into this � ' day of Q 0'`( , 2010 ,
(herein the "Effective Date ") by and between the City of Cupertino, a California municipal corporation,
(herein "CUPERTINO "), and Apple Inc., a California corporation (herein "APPLE "). CUPERTINO and
APPLE may be referred to herein individually as a "Party" or collectively as the "Parties ", or the "Parties to
this Agreement ".
RECITALS
WHEREAS:
A. APPLE and CUPERTINO find that it is in ':he public interest to construct a concrete island at the
east end of Mariani Avenue; and
B. Each Party has agreed to perform its portion of the 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, APPLE and CUPERTINO agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The work to be performed under this Agreement will consist of constructing a 1400 + square feet
concrete island at the eastern end of Mariani Avenue (herein the "PROJECT "). The work to be
performed is more fully described in the document entitled "Scope of Work" set forth in Exhibit A,
attached and incorporated by reference. APPLE shall require the contractor who is awarded the
contract for construction of the PROJECT to provide performance and payment bonds in the
amount of one hundred percent (100 %) of the contract price.
2. APPLE'S OBLIGATIONS:
APPLE agrees as follows:
A. To act as the lead agency to administer the construction of the PROJECT. Administration
shall include obtaining permits; obtaining bids; awarding contract; administering construction
contract; providing materials control, and making progress payments to the contractor;
B. To pay Apple's share of the PROJECT cost. The PROJECT cost is defined as 50% of the
actual amount paid to the contractor.
C. APPLE shall keep and maintain a complete copy of all costs and expenditures relating to the
PROJECT, together with a complete copy of all contracts and other documents relating to the
AGREEMENT PAGE 1 OF 6
PROJECT, and the same shall be available for inspection by CUPERTINO at any time during
usual business hours.
D. In the event that the lowest responsive responsible bid received for the PROJECT is in excess
of $25,000, APPLE shall promptly notify CUPERTINO of the amount of the bids received.
APPLE shall not proceed to award such bid without the written approval of the bid amount by
CUPERTINO.
E. The powers and duties herein conferred to APPLE, as the lead agency for the PROJECT,
shall not include the power:
(a) To make any material change in the approved plans and specifications for the
PROJECT, except for changes necessitated by unforeseen field conditions, without
the prior written consent of CUPERTINO; or
(b) To increase any contract cost relating to the PROJECT without the prior written
consent of CUPERTINO.
3. CUPERTINO'S OBLIGATION:
CUPERTINO agrees as follows:
A. To pay CUPERTINO's share of the PROJECT cost upon invoicing by APPLE after
completion of the PROJECT, and upon receipt of appropriate documentation of costs, as
requested by CUPERTINO. CUPERTINO's share of the project cost is defined as 50% of
the actual amount paid to the contractor.
B. To provide construction inspection services for the PROJECT.
4. TERM OF AGREEMENT:
Unless otherwise modified by a written amendment to this Agreement, the term of this Agreement
shall begin on the effective date of this Agreement and end on the date the work is accepted by
CUPERTINO.
5. OWNERSHIP:
Upon completion of all work under this Agreement, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT will automatically be vested in
CUPERTINO, and no further agreement will be necessary to transfer ownership.
6. CONTRACTOR SHALL BE AN INDEPENDENT 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 shall not be employees of either Party in any respect.
Contractor is required to pay State of California prevailing wages.
AGREEMENT PAGE 2OF6
7. 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 ;,hall have any claim or right of action hereunder for
any cause whatsoever.
8. AMENDMENTS
No alteration or variation of the terms of this Agreement shall be valid unless made in writing and
signed by the Parties.
9. NOTICES:
Notices are to be sent as follows:
To APPLE: Jacki Horton
Project Manager, Real Estate and Development
Apple Inc.
1 Infinite Loop MS 47 -2DDC
Cupertino, CA 95014
To CUPERTINO: Ralph A. Qualls, Jr.
Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
10. 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.
11. ENCROACHMENT PERMITS:
Contractor shall obtain a no cost encroachment permit from CUPERTINO.
12. HOLD HARMLESS /INDEMNIFICATION:
APPLE shall hold harmless, defend and indemnify CUPERTINO and its officers, officials,
employees, agents and volunteers from and against all claims, damages, losses and expenses
including attorney fees in connection with the PROJECT, to the extent caused by any negligent act
or omission of APPLE or anyone directly or indirectly employed or hired by it or for whose acts
APPLE may be liable.
CUPERTINO shall hold harmless, defend and indemnify APPLE and its officers, officials,
employees and agents from and against all claims, damages, losses and expenses including attorney
fees in connection with the PROJECT, to the extent caused by any negligent act or omission of
CUPERTINO or anyone directly or indirectly employed or hired by it or for whose acts
CUPERTINO may be liable.
AGREEMENT PAGE 3 OF 6
13. 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.
14. INSURANCE REQUIREMENTS:
APPLE shall require that the contractor(s) performing the work shall carry at all times, on all
operations hereunder, commercial general liability insurance with policy limits in an amount not
less than Two Million Dollars($2,000,000); automobile liability insurance with policy limits in an
amount not less than One Million Dollars($ 1,000,000); and Workers' Compensation Insurance
with policy limits in an amount not less thar, One Million Dollars ($1,000,000). Insurers must be
authorized to do business in the State of California and acceptable to the CUPERTINO. The
Insurers must also have an "A" or "A -" policyholder's rating and a financial rating of at least Class
VII in accordance with the current Best's Guide Rating, or that is otherwise acceptable to
CUPERTINO.
Before the contractor performs any work at, or prepares or delivers materials to, the site of
construction, APPLE shall require that the contractor furnish certificates of insurance evidencing
the foregoing insurance coverages and such certificates shall provide the name and policy number
of each carrier and policy and that the insurance is in force and will not be canceled without thirty
(30) days written notice to APPLE and CUPERTINO. The contractor shall maintain all of the
foregoing insurance coverages in force until the construction activities associated with the
PROEJCT are completed. The requirement for carrying the foregoing insurance shall not derogate
from the provisions for indemnification of APPLE and CUPERTINO by the contractor under this
Agreement and for the duration of the warranty period.
APPLE shall require the contractor's commercial general liability (CGL) and automobile liability
insurance to carry the following endorsements:
1. Name APPLE and the CUPERTINO, a Municipal Corporation of the State of California,
its City Council, and their employees, representatives, consultants, engineers (including
without limitation Consulting Engineer), and agents, as additional insureds, but only with
respect to liability arising out of the activities of the named insured..
2. Each such policy shall apply separately to each insured against whom claim is made or
suit is brought, except with respect to the limit of the insurance company's liability
required (Endorsement of Aggregate Limits of Insurance Per Project)
3. Insurance shall be primary and no other insurance or self - insured retention carried or held
by APPLE or CUPERTINO shall be called upon to contribute to a loss covered by
insurance for the named insured.
4. Insurance shall contain a provision requiring the insurance carriers to waive their rights of
subrogation against the APPLE and the CUPERTINO and all additional insureds, as well
as other insurance carriers for the W ork.
AGREEMENT PAGE 4 OF 6
15. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be govemed and constrt.ed in accordance with the statutes and laws of the
State of California.
16. 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 authorized :-epresentatives. It is the intent of the Parties that this
Agreement shall become operative on the effective date.
APPLE, INC.
li r
Si 10
Dan • hisenhunt
for Director, Real Estate and Development
CITY OF CUPERTJ[NO, CALIFORNIA
Dave Knapp
City Manager
Approved as to form:
.de
City Attorney
AGREEMENT PAGE 5 OF 6
EXHIBIT "A"
SCOPE OF WORK
The project consists of constructing a 1650 .} square feet of concrete island at the eastern
end of Mariani Avenue. An extruded curb will form the perimeter of the island, which
will be infilled with concrete having an exposed river rock aggregate finish. The project
shall include traffic control and raising any covers as required.
The work to be performed is fully described in the drawing labeled "Mariani Ave Island"
and dated June 28, 2010. The drawing is incorporated into this Agreement by reference.
AGREEMENT PAGE 6 OF 6