15-051 September Drive Storm and Sanitary Sewer Improvement Project Cost Sharing Agreement OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE •CUPERTINO, CA 95014-3255
TELEPHONE: (408)777-3223•FAX: (408)777-3366
WEBSITE:www.cupertino.org
CUPERTINO
May 26, 2015
Cupertino Sanitary District
Attention: District Manager/Engineer
20863 Stevens Creek Blvd. Suite 100
Cupertino, CA 95014
Re: Cost Sharing Agreement
Enclosed for your records is a fully executed original copy of the agreement with the City
of Cupertino. If you have any questions, please contact the Public Works Department at
(408) 777-3354.
Sincerely, �f
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Public Works
AGREEMENT
f September Drive Storm and Sanitary Sewer Improvement Project
Cost Sharing Agreement
This AGREEMENT is made and entered into on \ I I , 2015, by and between the CITY of
Cupertino (CITY) and the CUPERTINO SANITARY DIST CT (CuSD), also referred to as Party or collectively
as PARTIES.
RECITALS
1. CITY has completed a storm drainage study entitled, "Elm Court Drainage Study", dated November 2014 and
is proposing to install new storm sewer system on a portion of McClellan Road west of September Drive and
on September Drive from McClellan Road to Festival Drive.
2. CuSD has performed a condition assessment of the existing sanitary sewer pipeline on September Drive and
desires to replace existing sanitary sewer pipeline on September Drive in the same location area as the City's
proposed storm sewer system; and
3. San Jose Water Company(SJWC) desires to replace existing water distribution lines on September Drive in the
same location area as the CITY proposed storm sewer system and CuSD proposed replacement sanitary sewer
pipeline; and
4. CITY has retained Mark Thomas & Co. Inc. to perform the design services for the new storm sewer system.
The title of this project is the "Bubb, Elm & McClellan Storm Drain Improvement Project." The design
services for this project are not within the scope of this cost sharing agreement; and
5. Mark Thomas & Co. Inc. is also the District Manager-Engineer for CuSD and will be performing design
services for CuSD; and
6. CITY and CuSD desires to construct storm sewer and sanitary sewer pipelines nearby within the same project
scope; and
7. CITY, due to the nature of CITY improvements on McClellan Road, will be the overall project manager for the
combined project; and
8. The combined project will be titled "Bubb, Elm &McClellan Drive Storm Drain/Sanitary Sewer Improvement
Project'; and
9. CuSD and CITY will co-sign the construction contract for the combined project; and
I
10. All storm drain related improvement work on McClellan Road west of September Drive is to be completed
between June 15, 2015 and August 14, 2015. Work on September Drive is to occur upon the completion of the
SJWC project and no later than October 1,2015.
NOW THEREFORE, in consideration of and upon the terms and conditions hereinafter specified, the Parties
agree as follows:
1. Project Description for Cost Sharing Agreement
The scope of the improvements is shown on the attached Exhibit A. The CITY and CuSD desires to
construct both the storm and sanitary sewer system in one construction contract to reduce disruption to the
neighborhood. The purpose of this Agreement is to provide the terms for construction implementation and cost
allocation.
2. Design Phase
CITY and CuSD will be separately responsible for all engineering/design costs associated with the CITY
storm sewer project and CuSD sanitary sewer project. CITY and CuSD will be responsible for California
Environmental Quality Act(CEQA) compliance for their own respective improvements.
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3. Pre-Construction Phase
CITY will bid, issue addenda as needed and award the combined project. CITY will complete and
coordinate the review/approval of submittals and responses to contractor requests for information. Prior to final
approval of submittals or responses to contractor, CITY will forward all sanitary sewer submittals and proposed
responses to contractor regarding the sanitary sewer submittals or requests for sanitary sewer information to CuSD.
CuSD will timely respond.
Due to compensating costs incurred by CuSD to pot hole and re-locate sanitary laterals for storm sewer
improvements, the CITY will issue to CuSD at no cost the encroachment permit required for sanitary sewer
improvement work.
4. Construction Phase
CITY is responsible for overall project management and contractor communication. CITY will provide
overall inspection/quality control for the combined project with CuSD providing inspection/quality control for the
sanitary sewer improvements. CITY will, upon communication from and coordination with CuSD, timely
communicate overall project management issues to the contractor and pay monthly contractor pay requests.
5.Warranty Phase
City will be responsible to identify any construction defects in the storm sewer improvements and CuSD
will be responsible to identity and forward to CITY any construction defects in the sanitary sewer improvements
that may arise within the one year warranty phase. CITY will coordinate with contractor in order for timely
completion of all warranty work identified. CITY is not responsible for warranty work of contractor on CuSD's
1 project,but will coordinate warranty work.
6. Outreach&Public Participation
CITYand CuSD will develop, implement and coordinate public information materials that inform the
public both before and during construction of the project.
7. Staff Support
CITY will provide staff support for the combined project during the pre-construction and warranty phase.
As determined by CuSD, CuSD will provide limited staff support during the pre-construction and warranty phase.
CITY will provide staff support for the combined project during the construction phase. As determined by
CuSD,CuSD will provide staff support for the sanitary sewer project during the construction phase.
Both CITY and CuSD, will at no additional cost to each other, coordinate with affected agencies and
parties, including attending project team meetings, attending public meetings, reviewing documents and reviewing
construction progress of project elements covered by this Agreement.
8. Cost Allocations
A. CuSD will reimburse CITY for actual costs incurred by CITY to complete pre-construction and warranty
phase work.
B. CITY will initially pay to contractor all combined project construction expenses. CuSD will monthly
reimburse CITY for 100% of all sanitary sewer improvement construction costs. CITY will pay 100% of
all storm drain construction improvement costs plus up to $26,000 for sanitary sewer lateral
improvements. All improvement costs shall be as determined by the CITY awarded competitively bid
combined project.
• For the lump sum item of mobilization, CITY and CuSD will each pay their proportional expense.
Proportional expense will be determine by multiplying the lump sum items by the ratio of tabulated
bid items of work competitively bid and separated by scope to be unique to CITY and CuSD.
• There will be two lump sum pay item for traffic Control (McClellan and September Drive). For the
lump sum item of traffic control for September Drive, CUSD will pay 30% of the competitively bid
item.
C. All staff costs, overhead and other expenses not specifically identified will be borne by the CITY or
CuSD,whichever incurs the cost.
9.Payments
A. CITY will invoice CuSD on a monthly basis for sanitary sewer improvements costs billed and incurred by
the contractor.
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B. CITY will invoice CuSD on a monthly basis for overall project management expenses.
C. CuSD will pay monthly invoices within 45 days.
D. CITY will invoice CuSD for any warranty service work that may be required following satisfactory
completion of work by contractor.
10.Term of the Agreement
Term of the Agreement will be for a period of 2 years from the effective date.
11. Insurance
CITY and CuSD their officers, employees, agents and contractors are to be covered as additional insureds
by the contractor as it concerns liability arising out of construction activities performed by or on behalf of, the
contractor and any operations or work of the contractor related to the project. The coverage shall contain no special
limitations on the scope of protection afforded to CITY,CuSD, or their officers,employees, agents and contractors.
12.Assignability
Without the written consent of the other,neither CITY nor CuSD will assign or transfer any interest in this
Agreement or any of the obligations hereunder except to contractors or consultants working directly for them. Any
unauthorized attempt by CITY or CuSD to,assign or transfer will be void and of no effect.
13.Indemnification
In lieu of, and notwithstanding the pro rata risk allocation which might otherwise be imposed between the
parties pursuant to Government Code Section 895.6,the parties agree that all losses or liabilities incurred by a party
shall not be shared pro rata but instead the City and CuSD agree that pursuant to Government Code Section 895.4,
each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, board members,
employees and agents,harmless from any claim, expense or cost, damage or liability imposed for injury(as defined
by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct
of the indemnifying party, its officers,board members, employees or agents,under or in connection with or arising
out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer,
board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of
the negligent acts or omissions or willful misconduct of other parties hereto, their officers, board members,
employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to
such other parties under this Agreement.
14.Nondiscrimination
CITY and CuSD will not discriminate, in any way, against any person in connection with or related to the
performance of this Agreement because he/she is a military veteran or because of a physical or mental disability
(including HIV and AIDS),nor on the basis of race, color,religion, gender,national origin, ancestry,marital status,
sexual orientation, age (over 40), medical condition(cancer)parental status,pregnancy, the exercise of family care
leave rights, or political affiliation.
15.Termination
A. Either CITY or CuSD has the right to terminate this Agreement, without cause,by giving not less than a
three-month written notice of termination to the other PARTY.
B. If either CITY or CuSD fails to perform any of its material obligations under this Agreement, in
addition to all other remedies provided by law, the other PARTY may terminate this Agreement
immediately upon written notice.
C. The City Manager of CITY and the District Manager/Engineer of CuSD are empowered to terminate
this Agreement on behalf of their respective agencies.
D. In event of termination, CITY and CuSD will deliver to the other PARTY, upon request, copies of
reports, documents, and other work performed by either PARTY under this Agreement. The cost of
work performed under this Agreement up to and including the date of termination will be due and
payable in proportion to the amount of work completed and in accordance with ProvisionII.5 (Payment).
16. Governing Law and Compliance with Laws
CITY and CuSD agree that California law will govern this Agreement. In the performance of this
Agreement CITY and CuSD will comply with all applicable laws, ordinances, codes and regulations of the federal,
state,and local government.
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17. Ownership of Materials
A. All reports, documents, or other materials developed or discovered by either CITY or CuSD or any other
person engaged directly or indirectly by them to perform the services required hereunder will be and
remain the mutual property of both PARTIES without restriction or limitation upon their use. CITY and
CuSD will make available to the other PARTY such other records under its control as may be
reasonably required for the PARTIES to perform under this Agreement.
B. CITY and CuSD will maintain all documents and records produced under this Agreement for a
minimum period of three years, of or any longer period required by law, from the date of termination or
completion of this Agreement.
18.Notification
Any and all notices or other communications required to be given hereunder will be deemed to have been
delivered upon deposit in the United States mail,postage prepaid, addressed as specified below or as later amended
in writing:
CITY (CuSD)DISTRICT
CITY of Cupertino Cupertino Sanitary District
10300 Torre Avenue 20863 Stevens Creek Blvd. Suite 100
Cupertino, CA 95014 Cupertino, CA 95014
Attn.: City Manager Attn.: District Manager/Engineer
19. Successors and Assigns
This Agreement, and all the terms, covenants, and conditions hereof, will apply to and bind the successors
and assigns of the CITY and CuSD.
20. Signing by Counterpart
This Agreement may be signed in counterpart and each signed document will constitute the whole as if a
single document was signed by both PARTIES.
21.Venue
In the event that suit is brought by either CITY or CuSD, each agrees that venue will be exclusively vested
in the state courts of the County of Santa Clara.
22.Disputes
A. This Agreement requires that CITY and CuSD work together in good faith to achieve the intent of this
Agreement. In the event that a dispute arises as to the proper interpretation of the respective obligations
and responsibilities of the parties under this Agreement, or as to any other aspect of this Agreement,
CITY and CuSD agree that they each will assign the appropriate individuals to meet and make good
faith efforts to negotiate in order to arrive at a resolution of the dispute.
B. If after employing this informal resolution process either CITY or CuSD may request an independent,
mutually agreed upon mediator to facilitate further negotiation with the costs shared equally between
each PARTY. However, nothing herein will prevent either CITY or CuSD from exercising any rights it
may have to enforce the terms of this Agreement at law or in equity.
23.Waiver
The CITY and CuSD agree that waiver by either PARTY of any breach or violation of any term or
condition of this Agreement will not be deemed to a waiver of any other term of condition contained herein or a
waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by a
PARTY of the performance of any work or services by the other PARTY will not be deemed to be a waiver of any
term or condition of this Agreement.
24.Amendments
This Agreement may be amended, upon mutual agreement of the City Manager of CITY and the District
Manager/Engineer of the CuSD in writing.
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CITY OF CUPERTINO DISTRICT
By: �/ '/�L�' By:
David Brandt Angela S. qen
City Manager President of the Board of Directors
Date: S " HCl ��� Date:
ATTEST: ATTEST:
City Clerk Secretary of the Board
APPROVED AS TO FORM: APPRO 'FORM:
City Attorney let C Ansel
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EXHIBIT A
Work includes providing all labor, materials, tools,and equipment necessary for
furnishing and installing approximately 2330 LF of storm drain and 570 LF
sanitary sewer pipelines and associated facilities, including but not limited to 70
LF of 40 inches diameter steel casing, storm drain manholes, sewer manholes,
sewer laterals, within the limits of a public roadway, and approximately 80 LF of
curb and gutter and sidewalk replacement, restrictor at manhole outlet, back water
valve, property line clean outs, and abandonment/removal of storm drain culvert,
sanitary sewer mains and manholes. Installation includes traffic control, excavation
of trenches, laying pipe materials and installation of structures, backfill trenches,
curb, gutter and pavement restoration and other pertinent work as. necessary to
construct the project as shown on the approved plans and specified in the project
specifications.
September Drive Storm and Sanitary Sewer Improvement Project
Cost Sharing Agreement—Exhibit A