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06-054, City of San Jose O~ -t)'!:'-,"/ ORIGINAL AGREEMENT BETWEEN THE CITIES OF CUPERTINO AND SAN JOSE FOR THE OVERLAY OF STERN AVENUE BETWEEN STEVEN CREEK BLVD. AND APPROX. 340 L.F. SOUTH OF STEVEN CREEK BLVD. );his agreement (herein" Agreement") is made and entered into this ;tL ~ay of .J ~~~ 2006, (herein the "Effective Date") by and between the City of San Jose, a California municipal corporation (herein "SAN JOSE") and the City of Cupertino, a California municipal corporation, (herein "CUPERTINO"). SAN JOSE and CUPERTINO may be referred to herein individually as a "Party" or a "City" or collectively as the "Parties", "Cities" or the "Parties to this Agreement". RECIT ALS WHEREAS: A. SAN JOSE and CUPERTINO find that it is in the public interest to overlay Stem Avenue between Stevens Creek Blvd. and approx. 340 L.F. South of Stevens Creek Blvd. over which the Cities have dual jurisdiction; and B. It is in the public interest for CUPERTINO and SAN JOSE to complete the PROJECT in a cooperative and economical manner by constructing both CUPERTINO and SAN JOSE portions of the PROJECT together; and C. 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, SAN JOSE and CUPERTINO agree as follows: AGREEMENT PROVISIONS 1. PROJECT DESCRlPTION: The work to be performed under this Agreement will consist of overlaying approximately 6,500 square feet of Stem Avenue between Stevens Creek Blvd. and approx. 340 L.F. South of Stevens Creek Blvd. (herein the "PROJECT"). The work to be performed is more fully described in the document entitled "Scope of Work and Schedule of Performance" set forth in Exhibit A, attached and incorporated by reference. 2. CUPERTINO'S OBLIGATIONS: CUPERTINO agrees as follows: A. To act as the lead agency to administer the design and construction of the PROJECT. Administration shall include preparation of plans, specifications, contract documents and cost estimate; notification of local businesses; coordination with various agencies; preparation of all necessary environmental document; obtaining permits; obtaining bids; awarding the construction contract; administering the construction contract; providing materials control and inspection services; and making progress payments to the contractor. B. To promptly provide SAN JOSE with final plans and specifications for review and written approval prior to obtaining bids for the PROJECT. C. To pay CUPERTINO's share ofthe PROJECT cost. The PROJECT cost is defmed as the actual amount paid to the contractor plus ten percent (10%) for engineering, construction and other administrative services. CUPERTINO's share of the Cost is 100% of the PROJECT Cost for the CUPERTINO owned portion of the road. D. CUPERTINO agrees to cooperate with SAN JOSE should SAN JOSE raise any issues concerning the work in SAN JOSE's jurisdiction that requires correction prior to acceptance or within the warranty period. E. The designated project manager for CUPERTINO for the duration of the PROJECT is Glenn Goepfert. CUPERTINO'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 SAN JOSE. 3. SAN JOSE'S OBLIGATION: SAN JOSE agrees as follows: A. To pay CUPERTINO San Jose's share of the PROJECT cost, as defmed in Section 2.C., up to a maximum amount of $ 16,000.00. SAN JOSE's share of the Cost is 100% of the Project Cost for the SAN JOSE owned portion of the road. In the event that the lowest responsive responsible bid received for the PROJECT would cause SAN JOSE's share of the PROJECT cost to exceed the maximum amount, CUPERTINO shall promptly notify SAN JOSE. CUPERTINO shall not award the construction contract without a written amendment increasing the maximum amount of SAN JOSE's contribution. B. To pay its share of the PROJECT cost within forty-five (45) days of receiving an invoice from the CUPERTINO, provided that the following conditions are met: 1. The PROJECT has been completed and SAN JOSE has approved that portion of the work in its jurisdiction; and 2. The detailed invoice sets forth the cost of construction of all PROJECT work based on the actual contract unit prices paid and negotiated change order, if any. C. The designated project manager for SAN JOSE for the duration of the PROJECT is John Burchfiel (phone number: 408-859-2047). SAN JOSE'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. SAN JOSE may request documentation of such cost, and may review the original invoices and weight certificates or request copies of same, which shall be provided within a reasonable time. 4. 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. B. Consistent with City of San Jose Standard Specifications, Section 7-1.23, CUPERTINO shall cause the contractor to provide a warranty period of at least one (I) year from the acceptance date. 5. OWNERSHIP AND MAINTENANCE: A. Upon completion of all work under this Agreement, ownership and title to all materials, equipment and appurtenances installed as a part of the PROJECT within the city limits of SAN JOSE will automatically be vested in SAN JOSE, and all materials, equipment and appurtenances installed as a part of the PROJECT within the city limits of CUPERTINO will be vested in CUPERTINO, and no further agreement will be necessary to transfer ownership. B. This Agreement does not change any authority or responsibility between CUPERTINO and SAN JOSE with regard to maintenance, operation or future repair responsibility. 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. 7. TERMINATION: A. Either CUPERTINO or SAN JOSE may terminate the Agreement at any time prior to award of the construction contract for the PROJECT upon thirty- (30) days' written notice. If the Agreement is terminated, SAN JOSE shall pay to CUPERTINO all actual costs incurred by CUPERTINO up to the day of receipt of written notice of termination. B. Once CUPERTINO has awarded the construction contract for the PROJECT, the Agreement can be terminated only upon the mutual written consent and terms acceptable to both parties. 8. NO PLEDGING OF EITHER CITY'S CREDIT: Under no circumstances shall either SAN JOSE or CUPERTINO have authority or power to pledge the credit of the other public entity or incur obligation in the name of the other public entity. 9. 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. 10. AMENDMENTS: No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties and incorporated into this Agreement. 11. NOTICES: Notices are to be sent as follows: To SAN JOSE Kevin 0' Connor Deputy Director of Transportation City of San Jose 1404 Mabury Rd San Jose, CA 95133 To CUPERTINO: Glenn Goepfert Assistant Director of Public Wodes City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 12. SEVERABILITY CLAUSE: In case anyone 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. 13. ENCROACHMENT PERMITS: Both Parties to this Agreement will cooperate and/or provide access to its consultants, engineers and contractors for the PROJECT in the jurisdictional boundaries of each Party. Contractor shall obtain street opening permit from SAN JOSE and SAN JOSE shall provide such a permit at no cost. 14. HOLD HARMLESS/INDEMNIMCATION: Neither of the respective Parties, their respective City Council, employees, officers, agents and assigns shall be responsible 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 understood and agreed that pursuant to California Government Code Section 895.4, the respective Parties shall fully indemnify and hold the other 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 CUPERTINO or SAN JOSE 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, error or omission of the respective Party and/or the Party's officers, employees, agents, consultants or contractor or any person or entity acting or omitting to act for or on behalf of said City or such person or entities as are specifically authorized and empowered by the respective Party to act for the Party. 15. 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. 16. INSURANCE REOUIREMENTS: It is mutually understood and agreed that during the term of the construction activities on the PROJECT, CUPERTINO will require the contractor(s) which performs any work on the PROJECT to carry commercial general liability insurance policy with policy limits in an amount not less than Two Million Dollars($2,000,000); automobile liability insurance policy with policy limits in an amount not less than One Million Dollars($l,OOO,OOO); and, a Workers' Compensation Insurance policy with policy limits in an amount not less than One Million Dollars($l,OOO,OOO). CUPERTINO shall require that both SAN JOSE and CUPERTINO, their officers, employees, and agents shall be named as additional insureds on such policy. 17. STATUTES AND LAW GOVERNING CONTRACT: This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. 18. 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. 19. ENTIRE AGREEMENT: 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. 20. 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. 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: CITY OF SAN JOSE, CALIFORNIA BY'~~ DEANNA SANTANA I D C. M Office of the City Manager eputy Ity anager CITY OF CUPERTINO, CALIFORNIA ~Jc)~;{' DAVID W. KNAPP Y City Manager 10300 Torre Avenue Cupertino, CA 95014 Telephone: (408) 777-3200 , . 2:+-, 0 G. ATTEST: . ~~ KIM SMITH City Clerk - Cupertino EXHIBIT" A" SCOPE OF WORK AND SCHEDULE OF PERFORMANCE The project consists of resurfacing approximately 6,500 square feet of Stern Avenue between Stevens Creek Blvd. and approx. 340 L.F. South of Stevens Creek Blvd. by milling and filling 2 inches of asphalt concrete. The project shall include traffic control, placing reinforcing fabric, replacing of all traffic striping, detector loops, pavement restoration and lowering and raising manholes, water valve boxes and monument as required. SAN JOSE to provide striping/marking plan. The work to be performed is fully described in the contract documents. The contract documents are incorporated into this Agreement by reference.