15-048 Funding agreement with Santa Clara Valley Transportation Authority, Apple Campus 2 Traffic Mitigation Improvements „ o
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FUNDING AGREEMENT
BETWEEN THE CITY OF CUPERTINO AND
THE SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
(Apple Campus 2 Traffic Mitigation Improvements)
THIS AGREEMENT ("Agreement") dated Mall g , 2015, for purposes of
reference, is made and entered into by and betwe n the CITY OF CUPERTINO, a
municipal corporation of the State of California ("CITY"), and the SANTA CLARA
VALLEY TRANSPORTATION AUTHORITY, a public agency organized as a special
district under California law ("VTA"). Hereinafter, CITY and VTA may be individually
referred to as "Party" or collectively referred to as "Parties".
RECITALS
A. CITY and VTA each recognize the need to improve traffic operations of
impacted freeway segments and provide added transportation capacity on parallel
facilities to relieve congestion and improve circulation in the City of Cupertino in the
County of Santa Clara.
B. In accordance with the Environmental Impact Report Mitigation Monitoring
and Reporting Program for the Apple Campus 2 development project, the CITY has
received from the developers of such project a contribution of ONE MILLION TWO
HUNDRED NINETY-TWO THOUSAND TWO HUNDRED AND FIFTEEN DOLLARS
($1,292,215), which is earmarked for regional transportation projects.
C. CITY wishes to use the aforementioned funds to pay for a portion of the
costs of certain traffic congestion relief and circulation improvement projects to be jointly
selected and mutually agreed upon by CITY and VTA as provided herein.
D. The Parties wish to set forth their respective obligations in regard to the
identification and planning of the traffic congestion relief and circulation improvement
projects and CITY's provision of funding to such projects.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, the Parties agree as follows:
AGREEMENT
1. Identification of PROJECTS. From time to time during the term of this Agreement,
VTA may prepare and submit to the CITY Public Works Director or his or her
designee for review and. approval, not to be unreasonably withheld, proposed
scopes of work (which may include planning, design and construction activities) and
associated budgets for one or more traffic congestion relief and circulation
improvement projects, or studies leading to such projects, in and around the City of
Cupertino which VTA desires to fund in part with CITY's Contribution (defined in
Section 2 below). The proposed projects or studies shall address, among other
things, the existing bottleneck on southbound 1-280 between EI Monte Road and
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Magdelena Avenue. VTA shall endeavor to incorporate any comments that CITY
may provide on such proposed scopes of work and budgets therefor. The projects
and studies, including scopes of work and budgets therefor, where concurrence is
reached by VTA and the CITY Public Works Director or his or her designee, are
referred to herein individually as a "PROJECT" and collectively as the "PROJECTS".
Once concurrence on a PROJECT has been reached with the CITY Public Works
Director or his or her designee, VTA shall proceed with such PROJECT in
accordance with the agreed upon scope of work. Any material amendments to the .
scope of work or budget as originally agreed upon by the Parties shall be subject to
review and concurrence by the CITY Public Works Director or his or her designee.
2. CITY's Financial Contribution for PROJECTS. CITY shall contribute to the
PROJECTS an amount not to exceed ONE MILLION TWO HUNDRED NINETY-
TWO THOUSAND TWO HUNDRED AND FIFTEEN DOLLARS ($1,292,215)
(hereinafter, "CITY's Contribution"). CITY, at its option, may elect to allocate
interest earned on CITY's Contribution prior to and following the date of this
Agreement, if any, towards funding of the PROJECTS. In the event City so elects,
the interest earnings shall be added to the CITY's Contribution and disbursed and
expended in accordance with this Agreement. CITY shall disburse the CITY's
Contribution to VTA in multiple disbursements to reimburse VTA for eligible
PROJECT costs and expenses as the work on the PROJECTS progresses.
Disbursement draw requests may be made by VTA from time to time during the term
of this Agreement but not more than once every 30 days. Each disbursement draw
request shall be accompanied by copies of invoices or other evidence reasonably
satisfactory to the CITY Public Works Director or his or her designee documenting
that VTA has incurred eligible PROJECT costs and expenses in an amount not less
than the amount of the draw request. CITY shall pay each draw request within thirty
(30) days of receipt of the request, together with supporting documentation
reasonably satisfactory to CITY.
3. Use of CITY's Contribution. VTA will use the CITY's Contribution and, if
applicable, the interest earned thereon for allowable costs and expenses related to
the agreed upon PROJECTS. In the event that one or more of the agreed to
PROJECTS is cancelled or is completed at less than the budgeted PROJECT cost,
the CITY's Director of Public Works, in his or her sole discretion, may authorize VTA
to use such excess funds for other of the PROJECTS if such PROJECTS end up
costing more than budgeted. Except as provided in the foregoing sentence, VTA
shall be solely responsible for cost overruns in the event one or more of the
PROJECTS cost more than the amounts estimated by VTA. CITY's funding
obligation in connection with the PROJECTS is limited to the amount of CITY's
Contribution.
4. VTA's Role in PROJECTS.
a. Tasks. VTA shall perform or cause the performance of the following tasks to
complete the PROJECTS:
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i. Serve as project manager for each of the PROJECTS;
ii. Coordinate with the State of California for its review and
concurrence and/or approval of the PROJECTS depending on the
nature of the PROJECT;
iii. Conduct planning, design and construction for the PROJECTS; and
iv. Obtain all necessary permits and rights of way for the PROJECTS.
The costs and expenses to perform the above tasks may be included in
proposed PROJECT budgets and once such budgets are agreed upon by the
Parties as provided in Section 1 above, shall be considered eligible for
reimbursement by City from CITY's Contribution as provided in this Agreement.
b. Consultants. VTA may retain design consultants and construction contractors to
perform any of the functions listed in Section 4a., above.
c. Other Proiect Management Duties. VTA shall include CITY staff as an active
participant within VTA's project management and design process, hold periodic
meetings as agreed upon by the project team(s) to assess the progress of design
and development for each PROJECT and address PROJECT issues as they
arise. VTA shall also prepare and deliver to CITY regular reports on activity and
progress of each PROJECT.
d. Project Cost Updates. VTA shall actively monitor actual expenditures for each
individual PROJECT to ensure that CITY's Contribution is used exclusively to
pay allowable PROJECT costs in accordance with the approved budget. If, at
any time, budgeted PROJECT expenditures are projected not to exceed the
portion of CITY's Contribution allocable to such PROJECT or if any of the
PROJECTS are delayed or cancelled, VTA shall immediately notify CITY of such
facts. In the event of PROJECT delay or cancellation, the Parties shall have the
following options:
i. VTA may formulate and implement a strategy to continue the
PROJECT or PROJECTS to the satisfaction of the CITY'S Director of
Public Works or his or her designee; or
ii. CITY may provide written notice to VTA pursuant to Section 13 below
that no further funding will be provided to such PROJECT.
iii. The Parties may terminate this Agreement as to the delayed or
cancelled PROJECT, which can be accomplished by either Party
giving written notice to the other party of such termination consistent
with Section 13 below.
5. Compliance with Governmental Requirements. VTA shall comply with all laws
and regulations pertaining to the PROJECTS.
6. Term of Agreement. This Agreement shall become effective upon full execution of
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the Agreement and shall remain in effect through December 31, 2018, unless
extended as provided below. The CITY's Director of Public Works and VTA's
General Manager, each in his or her sole discretion, are authorized to extend the
term of the Agreement for up to six (6) months. Any further extension of the term
must be approved by the City Council and VTA Board.
7. Written Termination. This Agreement may be terminated upon mutual written
agreement of the Parties or by either Party as to any individual PROJECT in the
event of delay or cancellation of such PROJECT as provided in Section 4.d.(iii)
above.
8. Refund of CITY Contribution. Any balance of CITY's Contribution, including
interest, if applicable, remaining after the first to occur of: (a) expiration of the term of
this Agreement, or (b) termination of this Agreement in its entirety or as to any
individual PROJECT as provided in Sections 4.d.(iii) and 7 above, or (c) completion
of the PROJECTS, less any amounts necessary to pay for eligible expenses
incurred prior to the date of completion of the PROJECTS or the effective date of the
expiration or termination of the Agreement, may be expended by CITY on other
transportation projects selected by CITY in its sole discretion. For purposes of this
Agreement a PROJECT shall be deemed complete only upon concurrence by both
Parties of such completion.
9. Audit and Record Retention. CITY may audit the expenses incurred in the
performance of this Agreement. VTA shall retain all records related to the
PROJECTS for three (3) years after the completion of the PROJECTS. During this
period, VTA shall make these records available within a reasonable time to the CITY
for inspection upon request. The Parties' obligations under this Section shall survive
expiration or termination of this Agreement.
10.Parties' Representatives. The General Manager of VTA or the General Manager's
designee is hereby made the representative of VTA for all purposes under this
Agreement. The Director of the Public Works for CITY or the Director's designee is
hereby made the representative of CITY for all purposes under this Agreement.
11.Indemnification. Neither CITY nor any officer, representative or employee thereof
shall be responsible for any damage or liability occurring by reason of anything done
or omitted to be done by VTA under or in connection with the PROJECTS. In
addition, pursuant to Government Code §895.4, VTA shall fully indemnify, defend
and hold CITY and its officers, representatives and employees harmless from any
and all claims, liabilities, demands and damages (including attorneys' fees and
costs) occurring or arising by reason of anything done or omitted to be done by VTA
under or in connection with the PROJECTS or any work, authority or jurisdiction
delegated to VTA under this Agreement. VTA's indemnity obligations under this
Section 11 shall not apply to the extent any claim, liability or damage arises from the
active negligence or willful misconduct of CITY or its officers, representatives or
employees.
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12.No Waiver. The failure of either Party to insist upon the strict performance of any of
the terms of this Agreement shall not be deemed a waiver of any right or remedy
that either Party may have, and shall not be deemed a waiver of its right to require
strict performance of all of the terms thereafter.
13.Notice. Any notice required to be given by either Party, or which either Party may
wish to give, shall 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
John H. Ristow, Chief, Congestion Management Agency
3331 North First Street, Bldg. B-2
San Jose, CA 95134-1906
To CITY: City of Cupertino
Timm Borden, Director of Public Works
Department of Public Works
10300 Torre Avenue
Cupertino, CA 95014
Notice shall be deemed effective on the date personally delivered or, if mailed, three
(3) days after deposit in the United States mail.
14. Dispute Resolution. If a question arises regarding interpretation of this Agreement
or its performance, or the alleged failure of a Party to perform, the Party raising the
question or making the allegation shall give written notice thereof to the other Party.
The Parties shall 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 or arbitration, may be pursued by mutual agreement. It is the
intent of the Parties to the extent possible that litigation be avoided as a method of
dispute resolution.
15. Entire Agreement. This Agreement 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.
16.Amendments. Future amendments to this Agreement shall be processed by mutual
written agreement of the Parties. Unless otherwise provided herein, any
amendments to this Agreement must be approved by the City Council and VTA
Board. Whenever possible, notice of request to amend this Agreement shall be
provided ninety (90) calendar days prior to the desired effective date of such
amendment.
17.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
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of the entity for which he or she has signed.
18.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 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, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth.
"CITY" "VTA"
City of Cupertino Santa Clara Valley Transportation
a municip corporation Authority
a public agency
By: By:
C,-
City Manager Nuria Fernandez
General Manager
APPROVED AS TO FORM: APPROVED AS TO FORM:
kuw"
By: By:
City Attorney G'icfior PWar o
Senio t Counsel
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