04-017, Department of Transportation
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STA TE O~ CALIFORNIA-BUSINESS. TRANSPORT A TION AND HOUSING AGENC?/ ARNOLD SCHW ARZENEGGER, Governor
DEPARTMENT OF TRANSPORTATION
III GRAND AVENUE
p, O. BOX 23660
OAKLAND, CA 94623-0660
PHONE (510) 286-5900
FAX (510) 286-5903
TTY (800) 735-2929
RECEIVED
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JUN 2 7 2001
PUBLIC WORKS DEPARTMENT
Flex your power!
Be energy efficient'
June 25, 2007
Mr. Glenn Goepfert
Assistant Director of Public Works
Public Works Department
City of Cupertino
10300 Torre A venue
Cupertino, CA 95014-3255
04-SCL-280 KP 16.5 (PM 10.3)
Mary A venue Pedestrian Overcrossing
04- 230-1 A510 1
District Agreement No. 4-2096
Dear Mr. Goefpert:
Enclosed for your use and file is a copy of the fully executed Cooperative Agreement, No. 4-2096,
between the State and the City of Cupertino, for the Mary A venue Pedestrian Overcrossing (Bicycle
Bridge) project on Route 280 within the City of Cupertino.
Sincerely,
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Patrick Ng ;;---
District Branch Chief
Design South, SHOPP Safety
Enclosures
"Caltrans improves mobility across California"
04-SCl-280-KP 16.5 (PM 10.3)
Mary Avenue Pedestrian Overcrossing
04- 230-1A51 00
District Agreement No. 4-2096
COOPERATIVE AGREEMENT
THIS AGREEMENT, ENTERED INTO EFFECTIVE ON J~ J, , 2007,
is between the STATE OF CALIFORNIA, acting by and through its Department of
Transportation, referred to herein as "STATE," and the
CIlY OF CUPERTINO, a body politic and a
municipal corporation of the State of Califomia,
referred to herein as "CIlY."
RECITALS
1. STATE and CIlY, pursuant to Streets and Highways Code sections 114 and 130, are
authorized to enter into a Cooperative Agreement for improvements to State Highways
within CI1Ys jurisdiction.
2. CIlY and STATE desire to construct a Pedestrian Overcrossing (Bicycle Bridge) on Route
280 at 0.46 kIn east of Route 85 and 280 Separation in the City of Cupertino, referred to
herein as "PROJECT."
3. CIlY is willing to fund all construction capital outlay and support costs, and STATE is
willing to provide Independent Quality Assurance (IQA) and source inspection and testing.
The PROJECT cost estimate is shown on Exhibit A, attached to and made a part of this
Agreement.
4. The Parties agree that CIlY will prepare the contract documents and advertise, award, and
administer the construction contract for PROJECT.
5. Project development responsibilities for PROJECT were covered in a prior Cooperative
Agreement executed by STATE and CIlY on December 23, 2005 (District Agreement No. 4-
2007) .
6. The Parties now define hereinbelow the terms and conditions under which PROJECT is to
be owned, constructed, financed, operated. and maintained.
SECTION I
CIlY AGREES:
1. To pay one hundred percent (100%) of the actual construction capital and support costs
except for IQA, source inspection and testing which will be paid for by STATE when
required for satisfactory completion of PROJECT.
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District Agreement No. 4-2096
2. To submit a written request for any "State-fumished material" identified in the PROJECT
plans, specifications, and estimates (PS&E) a minimum of forty-five (45) days in advance of
the need for such materials. To then pay STATE, within fifteen (15) days of receipt of
STATE's billing, the actual cost invoiced for the requested "State-fumished material." CIlY
may take delivery of the "State-fumished material" after STATE's receipt of CIlY's payment
at the location directed by STATE.
3. To advertise, award, and administer the construction contract for PROJECT in accordance
with requirements of the Local Agency Public Construction Act and the Califomia Labor
Code, including its prevailing wage provisions. Workers employed in the performance of
work contracted for by CIlY, and/or performed under encroachment permit, are covered
by provisions of the Labor Code in the same manner as are workers employed by STATE's
contractors.
4. Construction by CIlY of those portions of PROJECT which lie within the State Highway
right of way shall not commence until CIlY's PS&E involving such work, the utility
relocation plans, and the right of way certification have been reviewed and accepted by
STATE and encroachment permits have been issued to CIlY and CIlY's contractor.
5. CIlY's construction contractor shall maintain in force, until completion and acceptance of
the PROJECT construction contract, a policy of Contractual Liability Insurance, including
coverage of Bodily Injury Liability and Property Damage Liability, that complies with all
coverage requirements set forth in Section 7-1.12 of STATE's Standard Specifications.
Such policy shall contain an additional insured endorsement naming STATE and its
officers, agents, and employees as additional insureds. This insurance coverage shall be
evidenced by a Certificate of Insurance in a form satisfactory to STATE which shall be
delivered to STATE before the issuance of an encroachment permit to CIlY's construction
contractor.
6. To require the construction contractor to fumish both a payment and a performance bond
naming CIlY as obligee with both bonds complying with the requirements set forth in
Section 3-1.02 of STATE's Standard Specifications prior to performing any PROJECT
construction work. CIlY shall defend, indemnify, and hold harmless STATE and its
officers, agents, and employees from all claims by stop notice claimants related to the
construction of PROJECT.
7. To have PROJECT constructed by contract to the satisfaction of and subject to STATE's
acceptance in accordance with the STATE accepted PROJECT PS&E (contract plans).
8. Contract administration procedures shall conform to STATE's Construction Manual, Local
Assistance Procedures Manual (if Federal funds are used). and the PROJECT
encroachment permits.
9. Construction within the existing or ultimate State Highway right of way shall comply with
STATE's Standard Specifications, the PROJECT PS&E, and STATE's Construction Manual.
10. If any existing public and/or private utility facilities conflict with the construction of
PROJECT or violate STATE's encroachment policy, CIlY shall make all necessary
arrangements with the owners of such facilities for their protection, relocation, or removal
in accordance with STATE's policy and procedure for those facilities located within the
limits of the State Highway and in accordance with CIlY's policy for those facilities located
outside the State Highway. The cost of protection, relocation, or removal inside STATE's
right of way shall be apportioned between the utility owners and CIlY in accordance with
STATE's policy and procedure. CIlY shall require any utility owner performing relocation
work in the State Highway right of way to obtain an encroachment permit from STATE
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District Agreement No. 4-2096
prior to the performance of said relocation work. The requirements of the most current
version of STATE's "Policy on High and Low Risk Underground Facilities within Highway
Rights of Way" shall be fully complied with. Any relocated or new facilities shall be
correctly shown and identified with any unmodified facilities on the "As-Built" plans.
11. All survey work shall conform to the methods, procedures, and requirements of STATE's
Surveys Manual and STATE's Staking Information Booklet.
12. PROJECT material testing and quality control shall conform to STATE's Construction
Manual and STATE's Califomia Test Methods, and shall be performed, at CIlY's expense,
by a material-tester certified by STATE.
13. To fumish, at CIlY's expense and subject to the approval of STATE, a field site
representative who is a licensed civil engineer in the State of Califomia, to perform the
functions of a Resident Engineer. The Resident Engineer shall not be an employee or
subcontractor of the company, if any, that prepared the PROJECT PS&E or of the
construction contractor.
14. At CIlY's expense, to fumish sufficient qualified support staff, subject to the approval of
STATE, to assist the Resident Engineer in, but not limited to, construction surveys, soils
and foundation tests, measurement and computation of quantities, testing of construction
materials, checking shop drawings, preparation of estimates and reports, preparation of
"As-Built" drawings, and other inspection and staff services necessary to assure that the
construction is being performed in accordance with PROJECT PS&E. Said qualified
support staff shall be independent of the design engineering company and construction
contractor, except that the PROJECT designer may check the shop drawings, do soils
foundation tests, test construction materials, and do construction surveys.
15. Within one hundred eighty (180) days following the completion and acceptance of the
PROJECT construction contract, to fumish STATE with a complete set of "As-Built" plans
in accordance with STATE's then current CADD Users Manual, Plans Preparation Manual,
and STATE practice. The submittal must also include all contract records, including
survey documents and Records of Surveys (to include monument perpetuation per the
Land Surveyor Act, section 8771). CIlY shall also submit corrected full-sized hardcopy
structure plans.
16. To retain or cause to be retained for audit by STATE or other govemment auditors for a
period of four (4) years from the date of final payment under the contract, or for local
Federal-aid projects for a period of three (3) years from payment of the final voucher,
whichever is longer, all records and accounts relating to PROJECT construction. CIlY
shall retain records and accounts longer if required in writing by STATE.
17. To not open PROJECT to public access and use until a Maintenance Agreement has been
executed.
18. If CIlY cannot complete PROJECT as originally scoped, scheduled, and estimated, CIlY
will, only with STATE's prior written consent, amend the PROJECT PS&E for suitable
resolution to ensure a form of modified PROJECT that will at all times provide a safe and
operable State Highway System.
19. If CIlY terminates PROJECT prior to completion of the construction, STATE shall require
CIlY, at CIlY's expense, to retum the State Highway right of way to its original condition
or to a safe and operable condition satisfactory to STATE. If CIlY fails to do so, STATE
reserves the right to finish PROJECT or place PROJECT in a safe and operable condition.
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District Agreement No. 4-2096
STATE will bill CIlY for all actual expenses incurred and CIlY agrees to pay said bill
within thirty (30) days.
20. If cultural, archaeological, paleontological, or other protected materials are encountered
during PROJECT construction, CIlY shall stop work in that area until a qualified
professional can evaluate the nature and significance of the find and a plan is approved for
the removal or protection of that material. The costs for any removal or protection of that
material shall be covered as a PROJECT cost contemplated by this Agreement.
21. All PROJECT support services are to be performed by CIlY, except as noted in Article 13 of
this Section I. Should CIlY request that STATE perform any portion of those support
services, CIlY shall first agree to reimburse STATE for such work pursuant to an
amendment to this Agreement or a separate executed agreement.
22. To provide a Construction Zone Enhancement Enforcement Program (COZEEP) by
contracting directly with the Califomia Highway Patrol (CHP) for all traffic restrictions as
outlined in the STATE's Construction Manual.
SECTION II
STATE AGREES:
1. At no cost to CIlY, to provide IQA including PROJECT specialty testing for asphalt and
concrete plant certifications to assure that CIlY's PROJECT work is performed in full
compliance with the approved PROJECT PS&E and in accordance with STATE's then
effective policies, procedures, standards, and practices. This IQA function includes both
the obligation and the authority to reject noncompliant PROJECT work and materials
accepted by CIlY, to order any actions needed for public safety or the preservation of
property, and to assure compliance with all provisions of the encroachment permit(s)
issued to CIlY and CIlY's contractor.
2. STATE shall perform source inspection and testing as outlined in the Construction
Manual, at no cost to CIlY.
3. Upon proper application by CIlY and by CIlY's contractor, to issue, at no cost to CIlY and
CIlY's contractor, the necessary encroachment permits for required work within the State
Highway right of way, as more specifically defined elsewhere in this Agreement.
4. To provide, at CIlY's cost, any "State-fumished material" as shown on the PROJECT PS&E
or as determined during construction of PROJECT. Upon receipt of CIlY's request for any
such "State-fumished materials," STATE will order those materials and STATE's Project
Manager will have a bill submitted to CIlY for the costs of those materials. Upon receipt of
those materials and CI1Ys payment, STATE will make those "State-fumished materials"
available to CIlY at a STATE designated site.
SECTION III
IT IS MUTUALLY AGREED:
1. STATE's contractual obligations are subject to State Budget Act authority, the
appropriation of resources by the Legislature, and the allocation of funds by the Califomia
Transportation Commission.
4
District Agreement No. 4-2096
2. During PROJECT construction, representatives of CIlY and STATE will cooperate and
consult with each other to assure that all PROJECT work is accomplished according to the
PROJECT PS&E and STATE's applicable policies, procedures, standards, and practices.
Satisfaction of these requirements shall be verified by STATE's independent quality
assurance representatives who are authorized to enter CIlY's property during construction
for the purpose of monitoring and coordinating construction activities.
3. That STATE's IQA is defined as providing STATE policy and procedural guidance through
to completion of the PROJECT administered by CIlY. This guidance includes prompt
reviews by STATE to assure that all work and products delivered or incorporated into the
PROJECT by CIlY conform to existing STATE standards. IQA does not include any
PROJECT related work deemed necessary to actually develop and deliver the PROJECT,
nor does it involve any validation to verify and recheck any work performed by CIlY
and/or its consultants or contractors and no liability will be assignable to STATE, its
officers and employees by CIlY under the terms of this Agreement or by third parties by
reason of STATE's IQA activities. With the exception of the source inspection work, all
work performed by STATE that is not direct IQA shall be chargeable against PROJECT
funds as a service for which STATE will invoice its actual costs and CIlY will payor
authorize STATE to reimburse itself from then available PROJECT funds.
4. PROJECT PS&E changes shall be implemented by contract change orders that have been
reviewed and concurred with by STATE's representative. All changes affecting public
safety or public convenience, all design and specification changes, and all major changes
as defined in STATE's Construction Manual shall be approved by STATE in advance of
performing the work. Unless otherwise directed by STATE's representative, change orders
authorized as provided herein will not require an encroachment permit rider. All changes
shall be shown on the "As-Built" plans.
5. CIlY shall provide a construction contract claims process acceptable to STATE and shall
process any and all claims through CIlY's claims process. STATE's representative will be
made available to CIlY to provide advice and technical input in any claims process.
6. In the event that STATE proposes and/or requires a change in design standards,
implementation of new or revised design standards shall be done in accordance with
STATE's Highway Design Manual Section 82.5, "Effective Date for Implementing Revisions
to Design Standards." STATE shall consult with CIlY in a timely manner regarding effect
of proposed and/or required change on PROJECT.
7. Any hazardous material or contamination of an HM-1 category found within the existing
State Highway right of way requiring remedy or remedial action (as defined in Division 20,
Chapter 6.8 et seq. of the Health and Safety Code) shall be the responsibility of STATE.
Any hazardous material or contamination of an HM-1 category found within the local road
right of way requiring the same defined remedy or remedial action shall be the
responsibility of CIlY. For the purpose of this Agreement, hazardous material of HM-1
category is defined as that level or type of contamination which State or Federal regulatory
control agencies having jurisdiction have determined must be remediated by reason of its
mere discovery regardless of whether it is disturbed by PROJECT or not. STATE shall sign
the HM-1 manifest and pay all costs for remedy or remedial action within the existing
State Highway right of way, except that if STATE determines, in its sole judgment, that
STATE's cost for remedy or remedial action is increased as a result of proceeding with
construction of PROJECT, that additional cost identified by STATE shall be bome by CIlY.
As between CIlY and STATE, CIlY shall sign the HM-1 manifest and pay all costs for
required remedy or remedial action within a local road or other property. While STATE will
exert every reasonable effort to fund the remedy or remedial action for which STATE is
responsible, in the event STATE is unable to provide funding, CIlY will have the option to
5
District Agreement No. 4-2096
either delay further construction of PROJECT until STATE is able to provide funding or
CIlY may proceed with the remedy or remedial action as a PROJECT expense without any
subsequent reimbursement by STATE.
8. Any remedy or remedial action with respect to any hazardous material or contamination of
an HM-2 category found both within and outside the existing State Highway right of way
shall be the responsibility of CIlY, at CIlY's expense, as a consequence of proceeding with
PROJECT construction. For the purpose of this Agreement any hazardous material or
contamination of HM-2 category is defined as that level or type of contamination which
said regulatory control agencies would have allowed to remain in place if undisturbed or
otherwise protected in place had PROJECT not proceeded. CIlY shall sign any HM-2
manifest if construction of PROJECT proceeds and HM-2 material is removed in lieu of
being treated in place.
9. If hazardous material or contamination of either HM-1 or HM-2 category is found during
construction on new right of way acquired by or on account of CIlY for PROJECT, CIlY
shall be responsible, at CIlY's expense, for all required remedy or remedial action and/or
protection in the absence of a generator or prior property owner willing and prepared to
perform that corrective work.
10. The party responsible for funding any hazardous material cleanup shall be responsible for
the development of the necessary remedy and/or remedial action plans and designs.
Remedial actions proposed by CIlY on the State Highway right of way shall be pre-
approved by STATE and shall be performed in accordance with STATE's standards and
practices and those standards and practices mandated by those Federal and State
regulatory agencies.
11. STATE, in exercising its authority under section 591 of the Vehicle Code, has included any
and all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle
Code to the PROJECT areas open to public traffic. CIlY shall take all necessary
precautions for safe operation of CIlY's vehicles, the construction contractor's equipment
and vehicles and/or vehicles of personnel retained by CIlY, and for the protection of the
traveling public from injury and damage from such vehicles or equipment.
12. Upon satisfactory completion of all PROJECT work under this Agreement, as determined
by STATE, actual ownership and title to materials, equipment, and appurtenances
installed within the State Highway right of way will automatically be vested in STATE, and
materials, equipment, and appurtenances installed outside of the State Highway right of
way will automatically be deemed to be under the control of CIlY or an appropriate third
party as determined by CIlY. No further agreement will be necessary to transfer
ownership as hereinbefore stated.
13. Nothing within the provisions of this Agreement is intended to create duties or obligations
to or rights in third parties not a party to this Agreement or to affect the legal liability of
either party to the Agreement by imposing any standard of care with respect to the
development, design, construction, operation, or maintenance of State Highways and
public facilities different from the standard of care imposed by law.
14. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or
liability occurring by reason of anything done or omitted to be done by CIlY under or in
connection with any work, authority or jurisdiction conferred upon CIlY and arising under
this Agreement. It is understood and agreed that CIlY shall fully defend, indemnify and
save harmless STATE and all its officers and employees from all claims, suits or actions of
every name, kind and description brought forth under, including, but not limited to,
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District Agreement No. 4-2096
tortious, contractual, inverse condemnation and other theories or assertions of liability
occurring by reason of anything done or omitted to be done by CIlY under this Agreement.
15. Neither CIlY nor any officer or employee thereof is responsible for any injury, damage or
liability occurring by reason of anything done or omitted to be done by STATE under or in
connection with any work, authority or jurisdiction conferred upon STATE and arising
under this Agreement. It is understood and agreed that STATE shall fully defend,
indemnify and save harmless CIlY and all its officers and employees from all claims, suits
or actions of every name, kind and description brought forth under, including, but not
limited to, tortious, contractual, inverse condemnation and other theories or assertions of
liability occurring by reason of anything done or omitted to be done by STATE under this
Agreement.
16. Prior to the commencement of any construction activity within the State Highway right of
way, either STATE or CIlY may terminate this Agreement by written notice to the other
party .
17. No alteration or variation of the terms of this Agreement shall be valid unless made by a
formal amendment executed by the parties hereto and no oral understanding or agreement
not incorporated herein shall be binding on any of the parties hereto.
7
District Agreement No. 4-2096
18. Those portions of this Agreement pertaining to the completion of PROJECT shall terminate
upon completion and acceptance of the construction contract for PROJECT by CIlY, the
satisfactory completion of all post-construction obligations of CIlY, and delivery of
required PROJECT construction documents, with concurrence of STATE, or on December
31, 2009, whichever is earlier in time. However, the ownership, operation, maintenance,
indemnification, and claims clauses shall remain in effect until terminated or modified, in
writing, by mutual agreement. Should any construction-related or other claims arising out
of PROJECT be asserted against one of the parties, the parties agree to extend the
termination date of this Agreement.
STATE OF CALIFORNIA
Department of Transportation
CIlY OF CUPERTINO
WiLL KEMPTON
Director
By: Ml- an" th_ By: J1~{JL~"
Deputy District Director City anager ... I
Approved as to form and procedure:
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._~<Q~Wo\(L1_ ~~st: ~. _ _
Attomey City Clerk
Department of Transportation
Certified as to available funds:
City Attomey
~ ~ ,P.ftt
r District Budget anager
Certified as to financial terms and
policies:
8
RESOLUTION NO. 05-153
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE
ALL NECESSARY COOPERATAIVE AGREEMENTS WITH THE
CALIFORNIA DEPARTMENT OF TRANSPORTATION REQUIRED
FOR DESIGN OVERSIGHT, CONSTRUCTION AND MAINTENANCE IN
CONNECTION WITH THE MARY AVENUE BICYCLE FOOTBRIDGE PROJECT
WHEREAS, Mary Avenue Bicycle Footbridge Project consists of the design and
construction of a bicycle footbridge on Mary A venue over Interstate Route 280 in the
City of Cupertino; and
WHEREAS, the bridge will cross State right of way at Interstate Route 280 and
State law requires that the California Department of Transportation (Caltrans) conduct
oversight of the project in cooperation with the City; and
WHEREAS, in order to formally define both the City's and Caltrans' roles
regarding oversight activities, standard cooperative agreements for the project design and
construction phases, as well as for subsequent maintenance of the project, must be
executed.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby authorizes the City Manager to negotiate and execute all necessary
Cooperative Agreements with the California Department of Transportation required for
design oversight, construction, and maintenance in connection with the Mary Avenue
Bicycle Footbridge Project.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6h day of September, 2005, by the following vote:
Vote
Members of the City Council
THIS IS TO CERnFY THAT THE WITHIN
INSTRUMENT IS A TRUE AND CORRECT COPY
OF THE ORIGINAl ON FilE IN THIS OFFICE
ATTEST _ . 20f[]
CITY CL . K OF 'e-sf OF quP RTINO
AYES:
NOES:
ABSENT:
ABSTAIN:
Kwok, Lowenthal, Sandoval, Wang, James
None
None
None
BY
~ Cny CLERK
Mtih ~
Mayor, City of Cupertino
ATTEST: .
~f7~