97-048 City of San Jose agreement re. De Anza Blvd. median island landscaping (between 85 & Prospect Rd.) Reso 9868EXECUTORY COPY FOV-QLLP&��.(�o
AGREEMENT BY AND BETWEEN THE CITY OF
SAN JOSE AND THE CITY OF CUPERTINO FOR
THE DESIGN, CONSTRUCTION AND
MAINTENANCE OF MEDIAN ISLAND
LANDSCAPING ALONG DEANZA BOULEVARD
BETWEEN ROUTE 85 AND PROSPECT ROAD
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THIS AGREEMENT is made and entered into as of this 1 day of
J(kta_ 1997, by and between the CITY OF SAN JOSE, a. municipal
corporation, (hereinafter "SAN JOSE"), and the CITY OF CUPERTINO, a
municipal corporation, (hereinafter "CUPERTINO").
RECITALS
WHEREAS, it is in the public interest to construct median island
landscaping improvements along DeAnza Boulevard between Route 85 and
Prospect Road, herein referred to as "PROJECT"; and
WHEREAS, a portion of the PROJECT, along DeAnza Boulevard, lies within
the jurisdictional limits of SAN JOSE; and
WHEREAS, a portion of the PROJECT, along DeAnza Boulevard, lies within
the jurisdictional limits of CUPERTINO; and
WHEREAS, it is in the public interest for SAN JOSE and CUPERTINO to
construct the PROJECT in a cooperative and economical manner by
constructing both the SAN JOSE portion and the CUPERTINO portion of the
PROJECT together; and
WHEREAS, SAN JOSE is willing to be the lead agency for the PROJECT and
to be responsible for the administration, design and construction of the
PROJECT; and
WHEREAS, CUPERTINO is willing to maintain the completed project to
preserve and keep the median in usable condition; and
Co-op Agreement (DeAnza) Page 1 of 9
WHEREAS, the PROJECT design is intended to be consistent with existing
landscaping within SAN JOSE and CUPERTINO along DeAnza Boulevard;
WHEREAS, CUPERTINO and SAN JOSE desire to share the costs of the
PROJECT;
NOW, THEREFORE, for and in consideration of their mutual promises and
agreements, and subject to the terms, conditions and provisions
hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1 . SCOPE OF PROJECT AND TERM
1.1 SCOPE OF PROJECT
1.1.1 The PROJECT consists of construction of median island
landscaping improvements along DeAnza Boulevard
between Route 85 and Prospect Road. The location of
PROJECT is more particularly described in EXHIBIT A,
attached and incorporated herein. The PROJECT includes
installation of landscaping within the median islands,
and incidental work associated with construction of the
improvements and installation of the landscaping.
(CEQA: Negative Declaration PP90-12-353, January 17, 1991)
1.2 TERM
1.2.1 The term of this agreement shall commence upon the
date of execution of the agreement by both parties and
shall terminate 25 years from the commencement date.
This agreement may be renewed for successive terms
with the- written agreement of both parties.
2. SCOPE OF WORK
2.1 SAN JOSE shall perform the following:
Co-op Agreement (DeAnza) Page 2 of 9
2.1.1 Act as lead agency to administer the PROJECT.
Administration shall include, but not limited to:
preparing plans and specifications in accordance with
the City of San Jose Standard Specifications and
Standard Details, dated July, 1992; preparing contract
documents and engineer's cost estimate; coordinating
with various agencies; obtaining bids; awarding the
construction contract; administering the construction
contract; and making progress payments to the
contractor. In the administration of the PROJECT, SAN
JOSE shall coordinate and consult with CUPERTINO staff.
2.1.2 Provide 65%, 90%, and 100% plans, specifications and
engineer's cost estimates to CUPERTINO for review and
approval prior to obtaining bids.
2.1.3 Maintain accurate records and an accounting of all costs
related to the PROJECT. Records and accounts shall be
kept for a minimum period of three years (or any longer
period required by law) after final payment to the
contractor constructing the PROJECT and may be
reviewed by CUPERTINO.
2.1.4 Furnish CUPERTINO with a set of "as -built" plans within
a reasonable time after completion of the PROJECT.
2.2 CUPERTINO shall perform the following:
2.2.1 Provide to SAN JOSE current information relative to
CUPERTINO's standards and requirements for the
PROJECT; staff overview throughout the PROJECT design
effort and construction; encroachment permits and rights
of entry; and necessary and appropriate coordination
with all affected departments of CUPERTINO and other
agencies.
Co-op Agreement (DeAnza) Page 3 of 9
2.2.2 Review and approve the plans and specifications, and
engineer's cost estimates within fifteen (15) days of
receipt of the same; attend the final walk- through of
the PROJECT and deliver a punch list of contract items
within 2 working days of walk-through.
2.3 In exercising this Agreement, SAN JOSE shall be the
administering agent and, as such, shall possess all powers
common to both CUPERTINO and SAN JOSE that may be
necessary to effectuate the purpose of this Agreement,
subject only to the manner of exercise of such powers provided
herein and the restrictions imposed by law upon SAN JOSE in
exercise of such powers.
2.4 The designated project manager for SAN JOSE for the duration
of PROJECT is Thomas McLauchlan. SAN JOSE'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 CUPERTINO.
The designated project manager for CUPERTINO for the
duration of the PROJECT is Carmen Lynaugh. CUPERTINO'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.
3. COST SHARING OF PROJECT
3.1 SAN JOSE shall bear the costs of performing the items
delegated to it under Section 2.1 of this agreement at its sole
expense.
3.2 CUPERTINO shall bear the expense of performing the items
delegated to it under Section 2.2 of this agreement at its sole
expense.
3.3 If the lowest responsive bid for the PROJECT, plus the amount
Co-op Agreement (DeAnza) Page 4 of 9
established as a contingency for the project by SAN JOSE
exceeds $150,000, SAN JOSE and CUPERTINO shall immediately
confer and determine whether to reduce the scope of the
PROJECT or to award to bid and amend this Agreement to
provide for more funding, or any combination of the foregoing.
3.4 SAN JOSE shall pay 50% of all actual construction costs of the
PROJECT including any costs associated with change orders.
3.5 CUPERTINO shall pay 50% of all actual construction costs of
the PROJECT including any costs associated with change
orders up to a maximum contribution of $75,000. If the
parties determine that CUPERTINO'S share of the PROJECT
costs will exceed $75,000, the parties shall promptly consult
regarding the appropriate means if any of containing
CUPERTINO'S share of PROJECT costs to $75,000. If it is not
feasible to reduce CUPERTINO'S share of PROJECT costs to fit
within $75,000, SAN JOSE shall have the right to reduce the
scope of the work for the CUPERTINO portion of the PROJECT,
unless CUPERTINO agrees to amend this Agreement to increase
CUPERTINO'S contribution to cover additional PROJECT costs.
3.6 Upon completion and acceptance of PROJECT by SAN JOSE, SAN
JOSE shall forward to CUPERTINO, within thirty (30) days, a
statement of all PROJECT costs and an invoice for funds due
SAN JOSE. This statement shall list the costs of all PROJECT
work based on the actual expenses incurred by SAN JOSE.
3.7 CUPERTINO shall make payment to SAN JOSE within 45 days of
billing.
4. MAINTENANCE AND OPERATION
Upon completion of the PROJECT, CUPERTINO shall, at its sole cost
and responsibility, perform maintenance and be responsible for all
operational costs of the PROJECT in perpetuity, including the areas
which are located in SAN JOSE for the term of this agreement.
Maintenance shall be defined as the preservation and keeping of the
Co-op Agreement (DeAnza) Page 5 of 9
median island structures in usable condition, including repairs and
cleaning, but does not include reconstruction. Maintenance shall
also include the care of and replacement of landscaping installed
within the median island as necessary to keep the landscaping in an
attractive appearance at tall times. Maintenance shall be performed
on regular basis and shall also include all those specific items of
work described in Exhibit B, attached hereto and made a part hereof.
SAN JOSE shall have no responsibility for maintenance or operation
of the facilities installed by the PROJECT.
5. OWNERSHIP
Upon completion of the PROJECT, CUPERTINO shall own all facilities
installed within jurisdictional limits of CUPERTINO and SAN JOSE
shall own all facilities installed within jurisdictional limits of SAN
JOSE. No further agreement shall be necessary to transfer
ownership. Both parties agree to execute such documents as are
necessary or convenient to accomplish proof of ownership.
6. INSURANCE AND INDEMNIFICATION
6.1 Neither SAN JOSE, nor any officer or employee thereof, shall be
responsible for any damage or liability occurring by reason of
anything done or omitted to be done by CUPERTINO under or in
connection with any work, authority or jurisdiction delegated
to CUPERTINO under this agreement. It is also understood and
agreed that, pursuant to Government Code Section 895.4,
CUPERTINO shall fully indemnify and hold SAN JOSE harmless
from any liability imposed for injury (as defined by
Government' Code Section 810.8) occurring by reason of
anything done or omitted to be done by CUPERTINO under this
agreement or in connection with any work, authority or
jurisdiction delegated to CUPERTINO under this agreement.
6.2 Neither CUPERTINO, nor any officer or employee thereof, shall
be responsible for any damage or liability occurring by reason
of anything done or omitted to be done by SAN JOSE under or in
connection with any work, authority or jurisdiction delegated
Co-op Agreement (DeAnza) Page 6 of 9
to SAN JOSE under this agreement. It is also understood and
agreed that, pursuant to Government Code Section 895.4, SAN
JOSE shall fully indemnify and hold CUPERTINO harmless from
any liability imposed for injury (as defined by Government
Code Section 810.8) occurring by reason of anything done or
omitted to be done by SAN JOSE under this agreement or in
connection with any work, authority or jurisdiction delegated
to SAN JOSE under this agreement.
6.3 It is understood that the foregoing indemnities do not extend
to liability for injury or claims arising from the acts or
omissions of the construction contractor, or its agents,
employees or subcontractors.
6.4 SAN JOSE shall require any contractor awarded a contract to
construct the PROJECT to secure and maintain in full force and
effect at all times during the term of any such contract, public
liability and property damage insurance in forms and limits of
liability acceptable to both SAN JOSE and CUPERTINO, naming
SAN JOSE and CUPERTINO and their respective officers,
employees and agents as additional insured from and against
all damages and claims, loss liability, cost or expense arising
out of or in any way connected with the consultant's or
contractor's activities with respect to the PROJECT. The
aforementioned policy(s) shall contain a provision that the
insurance afforded thereby to SAN JOSE and CUPERTINO and
their respective officers and employees shall be primary
insurance to the full limits of liability of the policy, and that
if CUPERTINO or SAN JOSE, or their respective officers and
employees, have other insurance against a loss covered by such
policy, that other insurance shall be excess insurance only.
7. ADDITIONAL PROVISIONS
7.1 The parties' waiver of any term, condition or covenant, or
breach of any term, condition or covenant shall not be
construed as a waiver of any other term, condition or covenant
or breach of any other term, condition or covenant.
Co-op Agreement (DeAnza) Page 7 of 9
7.2 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.
7.3 If any term, condition or covenant of this Agreement is held by
a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions of this Agreement
shall be valid and binding on CUPERTINO and SAN JOSE.
7.4 This Agreement shall be governed and construed in accordance
with the laws of the State of California.
7.5 This Agreement may be executed in counterparts and will be
binding as executed.
7.6 All changes or extensions to this Agreement must be in
writing in the form of an amendment and approved by both
parties.
8. NOTICES
Notices given under this Agreement may be delivered by first class
mail addressed to the appropriate party at the following addresses:
To SAN JOSE: 675 N. First Street, Suite 400
San Jose, CA 95112-5111
Rajeev Batra, Transportation Division
Manager
To CUPERTINO: 10300 Torre Avenue
Cupertino, CA 95014
Carmen Lynaugh, Public Works
Project Manager
Co-op Agreement (DeAnza) Page 8 of 9
WITNESS THE EXECUTION HEREOF the day and year first hereinabove
set forth.
"SANJOSE"
CITY OF SAN JOSE,
a municipal corporation
Patricia O'Hearn
City Clerk
APPROVED AS TO FORM:
Nellie Ancel
Deputy City Attorney
"CUPERTINO"
CITY OF CUPERTINO,
a municipal corporation
APPROVED AS TO F M:
------
i
-------- City Clerk-, C ty of Cupertino
Co-op Agreement (DeAnza) Page 9 of 9
EXHIBIT A
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EXHIBIT A
EXHIBIT B
Median island landscaping on DeAnza Boulevard between Prospect Road and Route
85 should be maintained at a level commensurate with the following list of tasks and
frequencies:
Maintenance Tasks
Pick up litter
Prune shrubbery
Trim groundcover
Corrective irrigation repairs
Check irrigation/clean heads
Water management
Fertilization
Pre -emergent weed control
Post -emergent weed control
Trim young trees
Disease/pest management
Plant material replacement
Graffiti abatement/vandalism
Minimum FrequencX
Weekly
Monthly
Monthly
Within 7 days
Monthly
As needed
Twice a year
Twice a year
As needed
3 years
As needed
As needed
As needed
RESOLUTION NO. 9868
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEMENT BETWEEN THE
CITY OF SAN JOSE AND THE CITY OF CUPERTINO
FOR THE DESIGN, CONSTRUCTION, AND MAINTENANCE OF MEDIAN
ISLAND LANDSCAPING ALONG DE ANZA BOULEVARD
BETWEEN ROUTE 85 AND PROSPECT ROAD
WHEREAS, there has been presented to the City Council a proposed agreement
between the City of San Jose and the City of Cupertino for the installation and
maintenance of the median island landscaping along De Anza Boulevard between
Route 85 and Prospect Road; and
WHEREAS, inasmuch as the roadway lies within joint jurisdictions, it is desirable
to establish the responsibilities of each entity; and
WHEREAS, the -terms and provisions of the agreement submitted have been
reviewed and approved by the Director of Public Works and the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementioned agreement and authorizes the Mayor and
the City Clerk to execute said agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at regular meeting of the City Council of the City of
Cupertino this 16th day of June, 1997, by the following vote:
Vote Members of the City Council
AYES: Burnett, Chang, Dean, Sorensen, Bautista
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Kimberly Smith
City Clerk
/s/ John Bautista
Mayor, City of Cupertino