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CC Resolution No. 98-173RESOLUTION NO. 98-173 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT BETWEEN THE CITY OF SANTA CLARA AND THE CITY OF CUPERTINO FOR CONSTRUCTION AND MAINTENANCE OF MEDIAN ISLAND LANDSCAPING ON STEVENS CREEK BOULEVARD BETWEEN TANTAU AVENUE AND STERN AVENUE WHEREAS, there has been presented to the City Council a proposed agreement between the City of Santa Clara and the City of Cupertino providing for construction and maintenance of median island landscaping on Stevens Creek Boulevard between Tantau Avenue and Stem Avenue; and WHEREAS, the provisions, terms, and conditions of said agreement 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 agreement and authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of July, 1998, by the following vote: Vote Members of the City Council AYES: Bumett, Dean, James, Station, Chang NOES: None ABSENT: None ABSTAIN: None ATTEST: cit AGREEMENT BETWEEN THE CITIES OF CUPERTINO AND SANTA CLARA FOR THE CONSTRUCTION AND MAINTENANCE OF MEDIAN ISLAND LANDSCAPING ON STEVENS CREEK BOULEVARD BETWEEN TANTAU AVENUE AND STERN AVENUE This ag~reement (herein "Agreement'~ is made and entered into this ~2'" day of · J,,,-, ~- ,1998, (heroin the "Effective Date") by and between the City of Santa Clara, California, a California municipal corporation (herein "SANTA CLARA'~ and the City of Cupertino, a California municipal corporation, (herein "CUPERTINO'S. SANTA CLARA and CUPERTINO may be referred to herein individually as a "Party" or a "City" or collectively as the "Padies", "Cities" or the "Parties to this Agreement". RECITALS WHEREAS: SANTA CLARA and CUPERTINO find that it is in the public interest to construct and maintain landscaping on Stevens Creek Boulevard between Tantau Avenue and Stem Avenue over which the cities have dual jurisdiction; B. Each Party has agreed to perform its portion of the work as described herein, under its direction, and; C. Upon completion of the landscaping, Cupertino has agreed to maintain the median as described herein, under its direction. In consideration of the above referenced recitals and the following mutual convenants, agreements and obligations of the Parties, SANTA CLARA and CUPERTINO agree as follows: AGREEMENT PROVISIONS 1. PROJECT DESCRIPTION: The work to be performed under this Agreement will consist of construction and maintenance of median island landscaping on Stevens Creek Boulevard between Tantau Avenue and Stem Avenue (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 the preparation of plans, specifications. contract documents and cost estimate; notification of local businesses; coordination with various agencies; obtain permits; obtain bids; award contract; administer construction contract; provide materials control and inspection services; and make progress payments to the contractor; B. To provide SANTA CLARA with final plans for review and approval pdor to obtaining bids for the PROJECT; To pay sixAy percent (60%) of the PROJECT cost, The PROJECT cost is defined as the actual amount paid to the contractor plus ten percent (10%) for engineering and construction administration; D. To maintain the landscaping project for the term of this agreement in a manner commensurate with Cupertino's street landscaping maintenance program; and E. To provide SANTA CLARA with reproducible copy of as-built drawings. 3. SANTA CLARA'S OBLIGATION: SANTA CLARA agrees as follows: To pay to CUPERTINO forty percent (40%) of the PROJECT cost upon invoicing by CUPERTINO after completion of the PROJECT, and upon receipt of appropriate documentation of costs, as requested by SANTA CLARA. However, in the event that the lowest responsive responsible bid received for the PROJECT is in excess of $175,000.00 CUPERTINO shall promptly notify SANTA CLARA of the amount of the bids received. Cupertino shall not proceed to award such bid without the wdtten approval of the bid amount by SANTA CLARA; and To pay to CUPERTINO $1,200.00 after completion of construction and acceptance of project, annually, on January I of each year of the term of this agreement in anticipation of the maintenance costs for that year, the amount of which will be increased annually thereafter in accordance with the CPI for all urban consumers (San Francisco-Oakland-San Jose 1982-84=100) for October of the previous year. 4. TERM OF AGREEMENT: Unless otherwise modified by a wdtten amendment to this Agreement, the term of this Agreement shall be twenty five (25) years beginning on the Effective Date. This Agreement may be renewed for successive terms with the wdtten agreement of both Parties. 5. OWNERSHIP: 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 Santa Clara will automatically be vested in SANTA CLARA, and ail 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. 6. CONTRACTOR HIRED BY EITHER PARTY 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 or entities employed by or who contract 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. NO PLEDGING OF EITHER CITY'S CREDIT: Under no circumstances shall either SANTA CLARA 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. 2 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 dght of action hereunder for any cause whatsoever. 9. AMENDMENTS No alteration or variation of the terms of this Agreement shall be valid unless made in wdting and signed by the Parties. 10. NOTICES: Notices are to be sent as follows: To SANTA CLARA: City Engineer/ADPW City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050 To CUPERTINO: Bert Viskovich Director of Public Works City of Cupertino 10300 Torte Avenue Cupertino, CA 95014 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. 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 a no cost street opening permit from SANTA CLARA. 13. HOLD HARMLESS/INDEMNIFiCATION: 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 undemtood and agreed ths pursuant to Califomia Govemment 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 SANTA CLARA 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 each 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 Pady to act for the Party. 14. CAPTIONS: The captions of the vadous 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. 15. INSURANCE REQUIREMENTS: It is mutually understood and agreed that during the term of the construction activities on the PROJECT, CUPERTINO will require the contractor(s) which per[on-ns any work on the PROJECT to carry commercial general liability insurance policy with policy limits in an amount not Jess than Two Million Dollars(S2,000,000); automobile liability insurance policy with policy limits in an amount not less than One Million Dollars(S1,000,000); and, a Workers' Compensation Insurance policy with policy limits in an amount not less than One Million Dollars(S1,000,000). CUPERTINO shall require that both SANTA CLARA and CUPERTINO, their officers, employees, and agents shall be named as additional insureds on such policy. 16. STATUTES AND LAW GOVERNING CONTRACT: This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. 17. OTHER AGREEMENTS: This Agreement shall not prevent either Party from entedng into similar agreements with others. 4 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 SANTA CLARA, CALIFORNIA A CHARTERED CALIFRONIA MUNICIPAL CORPORATION EO.iED AS TO FORM: Assistant City Atton~ ~JI~NNIFEi~ SPARACI~O ~..C~ty Manager 1500 Warbarton Avenue Santa Clara, CA 95050 Telephone: (408)984-3000 ATTEST: ~-'"--,~;)Y BOCCIGNO{~ City Clerk - Santa Clara CITY OF CUPERTINO, CALIFORNIA A CHARTERED CALIFORNIA MUNICIPAL CORPORATION APPROVED AS TO FORM: EILEEN MURRAY Deputy City Attorney A'FrEST: MICHAEL CHANG Mayor 10300 Tone Avenue Cupertino, CA 95014 Telephone: (408)777-3200 ROBERTA WOLFE Deputy City Clerk - Cupertino EXHIBIT "A" SCOPE OF WORK AND scm~DULE OF PERFORMANCE The Construction and Maintenance of Median Island Landscaping on Stevens Creek Boulevard Betwveen Tantau Avenue and Stem Avenue project consist of knproving an ex/sting median to bring it up to the standard of other medians on Stevens Creek Boulevard. The work includes having a contractor remove the ex/sting asphalt and other unsuitable material for planting and fill in with top soil and cobble stone areas where specified on the project plans. The project includes the installation of an irrigation system and landscaping that includes trees, shrubs, ground cover and bulbs. For more specific information please see sheet L-8.0 and I-8.0 of the project contract documents. The City of Cupertino is acting as the lead agency to administer the design and construction this project. Cupertino's cost share is 60% of the project cost. After the project is complete the City of Cupertino shall maintain this median, including the area within the City of Santa Clara for the term of the agreement. The City of Santa Clara's cost share is 40% of the project cost. The City of Santa Clara shall pay an annual maintenance cost in accordance with this agreement.