23-087 MidPen City of Cupertino Cristo Rey Bike Lane Agreement1
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
FOR THE CRISTO REY DRIVE BIKE LANES PROJECT
THIS AGREEMENT is entered into by and between the CITY OF CUPERTINO, a
municipal corporation ("CITY") and the MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT (“DISTRICT”), and is effective on the last date signed below (“Effective Date”).
RECITALS
WHEREAS, DISTRICT’s mission is to acquire, restore, preserve and protect, in perpetuity,
open space land as part of the regional greenbelt, and to provide opportunities for ecologically
sensitive public enjoyment and education; and
WHEREAS, DISTRICT conducted the Rancho San Antonio Multimodal Access Study 2021
to explore and evaluate non-motorized mobility, transit options and parking alternatives for Rancho
San Antonio Preserve to encourage visitors to opt for greener forms of transportation and reduce
parking demand and traffic, while maintaining equitable access for both local and regional visitors;
and
WHEREAS, DISTRICT’s Study recommendations were scored and weighted on a series
of factors to develop three sets of strategies for implementation; and
WHEREAS, DISTRICT’s Board of Directors authorized the implementation of the first
priority set in April 2021 containing six strategies for improvement; and
WHEREAS, DISTRICT identified strategy New and Improved Bike Access which includes
collaboration between DISTRICT and CITY to implement bike access improvements along Cristo
Rey Drive, a CITY street; and
WHEREAS, CITY’s 2016 Bicycle Transportation Plan identifies a prioritized list of
projects that support and promote bicycling in Cupertino; and
WHEREAS, CITY’s 2016 Bicycle Transportation Plan identified implementation of Class
II bike lanes on Cristo Rey Drive as a Tier III improvement; and
WHEREAS, On January 18, 2023, CITY’s Bicycle and Pedestrian Commission approved
the implementation of Class II bike lanes on Cristo Rey Drive through a cost sharing agreement
with DISTRICT; and
WHEREAS, CITY and DISTRICT find it is in the public interest to share the PROJECT
costs due to the mutual benefit the Project will confer; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and obligations
contained herein, CITY and DISTRICT agree:
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1. PROJECT DESCRIPTION:
For purposes of this Agreement, the “PROJECT” shall consist of installing approximately
7,000 linear feet of Class II bike lanes through removal and replacement of traffic markings,
markers, and legends on Cristo Rey Drive, exclusively in the CITY’s jurisdiction, 150 feet
east of Cristo Rey Place to Canyon Oak Way.
2. PROJECT EXECUTION:
CITY agrees as follows:
A. To administer the construction of the PROJECT. Administration shall include
preparation of specifications, contract documents and cost estimate; notification of local
business; coordination with various agencies; preparation of all necessary environmental
documents; obtaining permits; obtaining bids; awarding the construction agreement;
administering the construction agreement; providing materials control and inspection
services; and making progress payments to the contractor.
B. Promptly provide DISTRICT with awarded final specifications and contract documents
for the PROJECT.
C. To pay CITY’s 50% share of the PROJECT COST. For purposes of this Agreement, the
“PROJECT COST” is defined as the actual amount paid to the contractor for construction
of the PROJECT.
D. To keep and maintain a complete copy of all records regarding costs and expenditures
relating to the PROJECT, together with a complete copy of all plans, specifications,
reports, contracts and other documents relating to the PROJECT.
DISTRICT agrees as follows:
A. To pay DISTRICT’s 50% share of the PROJECT COST to CITY, including
contingencies / change orders, subject to a total not-to-exceed amount of $15,000.
B. To pay its share of the PROJECT COST within forty-five (45) business days of receiving
and approving the detailed invoice from CITY, provided that both of the following
conditions are met:
1. The PROJECT has been completed and DISTRICT has verified in writing that the
CITY has accepted the PROJECT in accordance with the contract documents; and
2. The detailed invoice sets the cost of construction of all PROJECT work based on the
actual contract unit prices paid and negotiated change order(s), if any.
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3. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement shall be one (1) year from the Effective Date or until the PROJECT acceptance by
both parties and final payments of all outstanding balances, whichever is later.
B. CITY shall cause the contractor to provide a warranty period of at least one (1) year from the
acceptance date.
4. OWNERSHIP AND MAINTENANCE:
A. During the course, and upon completion, of the PROJECT, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT will be vested in CITY and
no further agreement will be necessary to transfer ownership.
B. As owner of the PROJECT, CITY shall be solely responsible for its ongoing maintenance,
operation and repair.
5. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by any Party to perform the work included in the PROJECT shall not be
an agent or employee of any 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 any Party in any respect.
6. TERMINATION:
Once CITY has awarded the construction contract for the PROJECT, the Agreement can be
terminated only upon the mutual written consent and terms acceptable to all Parties.
7. NO PLEDGING OF EITHER JURISDICTION’S CREDIT:
Under no circumstances shall either CITY or DISTRICT have authority or power to pledge the
credit of the other public entity or incur obligation in the name of the other public entity.
8. 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.
9. AMENDMENTS:
No alternation or violation of the terms of this Agreement shall be valid unless made in writing.
10. NOTICES:
Communications relating to this Agreement shall be in writing and shall be delivered
personally, sent by United States mail, first class postage prepaid, or by private
messenger or courier service:
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To CITY: David Stillman,
Transportation Manager
City of Cupertino
10300 Torre Ave.
Cupertino, CA 95014
To DISTRICT: Susanna Chan
Assistant General Manager
Midpeninsula Regional Open Space
District
5050 El Camino Real
Los Altos, CA 94022
11. 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.
12. HOLD HARMLESS/INDEMNIFICATION:
Neither of the respective Parties, their respective City Council, Board of Directors,
employees, officers, agents and assigns shall be responsible to the other Party for any
damage or liability occurring by reason of anything done or omitted to be done by the other
Party in connection with the PROJECT.
It is further understood and agreed that pursuant to California Government Code Section
895.4, that each Party shall fully indemnify and hold the other Party 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 respective Party under this Agreement. This hold
harmless and indemnification provision shall apply to any activities, errors or omissions of
the indemnifying Party and/or that Party’s officers, employees, agents, or any person or
entity acting or omitting to act for or on behalf of said Party or such person or entities as are
specifically authorized and empowered by that Party to act for it.
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:
CITY shall require any contractor awarded a contract for any portion of the work to be done
on the PROJECT to secure and maintain in full force and effect at all times during
construction and performance of the PROJECT, and until said PROJECT is accepted by all
Parties, bodily injury insurance, and property damage insurance, at no additional cost to
either DISTRICT, with coverage amounts, required endorsements, certificates of insurance,
and coverage verifications satisfactory and acceptable to all Parties.
It is mutually understood that during the term of the construction activities on the PROJECT,
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CITY will require the successful contractor to carry commercial general liability in amounts
of not less than Two Million Dollars ($2,000,000) per occurrence; automobile liability in an
amount not less than Two Million Dollars ($2,000,000) per accident; and a Workers’
Compensation Insurance policy as required by the State of California, with Statutory and
Employer’s Liability Insurance limits of not less than One Million Dollars ($1,000,000).
15. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be governed and construed in accordance with the statutes and laws of
the State of California. Any lawsuits filed related to this Agreement must be filed with the
Superior Court for the County of Santa Clara, State of California. CITY shall require that
any contractor awarded a contract for any portion of the work to be done on the PROJECT
comply with the requirements for prevailing wage under Labor Code Section 1770, et seq.
16. 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 of any other term, condition or covenant or
breach of any other term, condition or covenant.
17. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between CITY and DISTRICT relating to the
PROJECT. Any prior agreements, promises, negotiations, or representations not expressly
set forth in this Agreement are of no force or effect.
18. 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 representatives. It is the intent
of the Parties that this Agreement shall become operative on the effective date.
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IN WITNESS WHEREOF, CITY and DISTRICT execute this Agreement.
For the CITY OF CUPERTINO
By: _______________________ Date: _____________
City Manager
Attest: _____________________ Approved as to form for CITY: _________________
City Clerk City Attorney
For the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
By: _______________________ Date: _____________
General Manager
Attest: _____________________
District Clerk
Approved as to form for DISTRICT: __________________________
General Counsel
Jul 24, 2023
Christopher D. Jensen
Jul 26, 2023
MidPen & City of Cupertino Cristo Rey Bike
Lane Agreement
Final Audit Report 2023-07-28
Created:2023-07-24
By:Julia Kinst (juliak@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAA4fmOXZxrbH7IH5MnSpoC8oys5rVr__Rb
"MidPen & City of Cupertino Cristo Rey Bike Lane Agreement" H
istory
Document created by Julia Kinst (juliak@cupertino.org)
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Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen
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Agreement completed.
2023-07-28 - 1:57:23 AM GMT