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CC Resolution No. 9076RESOLUTION NO. 9076 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE EXECUTION OF A COOPERATIVE AGREEMENT BETWEEN THE FOOTHILL-DEANZA COMMUNITY COLLEGE DISTRICT AND THE CITY OF CUPERTINO, RELATIVE TO A LOAN BY THE CITY TO THE DISTRICT FOR THE CONSTRUCTION OF AN EXIT FROM DEANZA COLLEGE TO STEVENS CREEK BOULEVARD AND ROUTE 85 WHEREAS, there has been presented to the City Council a proposed cooperative agreement between the Foothill-DeAnza Community College District, hereinafter referred to as "District", and the City of Cupertino, hereinafter referred to as "City", providing for the City to loan the District certain funds to construct an exit from DeAnza College to Stevens Creek Boulevard and Route 85; and WHEREAS, the provisions of said loan having been previously discussed and approved in concept by the City Council, and the City Attorney having prepared the aforementioned agreement based on the terms and conditions as authorized by the City Council; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cupertino hereby approves the agreement as submitted 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 18th day of April , 1994, by the following vote: Members of the Ci1y Council AYES: NOES: ABSENT: ABSTAIN: Burnett, Dean, Sorensen, Koppel Bautista None None APPROVED: I s I Barb Koppel Mayor, City of Cupertino ATTEST: Isl Kim Marie Smith City Clerk • \ COOPERATIVE AGREEMENT 'l'llis l\gr,rnment is entere,1 on the ..2._a.d_day of ~~~~~QL~~~~-' 1994, by and between the City of Cupertino, a municipal corporation of the State of California (refer- red to hereafter as "the City") and Poothil_l-De Anza Community College District of tile State of California (referred to he:~inafter as "the District"). RECITALS 1. The City has previously entered into a co- operative agreement (Cooperative Agreement number 6-CUP) with the Santa Clara County Trafic Authority (hereinafter referred to as the "Traffic Authority) wherein the Traffic Authority will construct improvements consisting of modi.fi- cations to a signal light and intersection at Stevens CrePk Hlvd. and DeAnza College, (hereinafter referred tu as ''the Project") a diagram identifying the location of the Project is attached hereto as Exhibit "A" a~d is hereby incor- porated by this reference. 2. Included in the project are certain improvernents which will be constructed on property owned by the District which will provide direct vehicular access from the DeAnza [02/C/D/A] ," ' ' ,, ,, ' • .. . ' '\. ' .. ', ' . ' . ,' . . . ' ' ' '' ' ~ j ., ' • ' • : > \ -• J • • • l,, '· ' • College campus to Stevens Creek Blvd. in the City of Cupertino. 3. It is the intent of the parties to this Agreement that Lhe District will be responsible for paying all costs of design, construction and construclion administration required to complete that portion of the Project which will be constructed on the District's property and that the City will be responsible for paying all costs of design, con- structio~ and construction administration required to com- plete that portion of the Project which wlll b:·· Jonstructed on City owned rights-of-way. A more specific description of the various improvements and the allocationof the costs of construction between the parties are attached as Exhibit "B" and are incorporated herein by this reference. 4. It is estimated by the parties that the total cost of the entire project will be approximately $125,000 of which the District's share will be approximately $100,000 and the City's share will be approximately $25,000. 5. Pursuant to the terms of Cooperative Agreement 6-CUP, the Traffic Authority will administer all design and construction contracts for the Project. 6. The City wishes to loan to the District and the District wishes to borrow from the City the sum necessary to cover its share of the costs of construction of the Project; however, said loan shall not exceed $100,000. Said loan funds shall be derived from a portion of those [ D2/C/D/A] 2 funds owed to the City by the Traffic Autltority under Cooperative Agreement No, 3-CUP previously entered into between the City and tht! ·rrafl:ic Authority; NOW, THEREFORE, in consid~ration oE the mutual covenants contained herein, the parties hereto agree as follows: 1, Permits, Easements and Clearances The parties shall provide to the Traffic Authority and to its contractors all permits, easements, and clearances necessary for Lhe completion of that portion of the Project which is to be constructed on and over each of their respective prqperties. 2, Allocation of Costs Each party shall be responsible for payment of the following percentage of tne actual costs of design, construction (including all materials, supplemental work, charges, and claims), and contract administration (esti- mated to be 101 of the total cost of construction of the Project): City -20% estimated to be $25,000 District -801 estimated to be $100,000 Each party shall be responsible for paying all actual costs of design, construction and construction administra- tion of the Project which exceed the estimated amounts above described which are attributable solely to those im- provements which are to be constructed on or over that party's property. If the total actual cost of design, con- [D2/C/D/A] 3 struction and construction administration of the Project exceeds the estimated total above described, and such in- crease cannot be attributable solely to any particular improvement or improvements, then each party's obligation under this Agreement is automatically increased to cover said actual costs based upon the above described percent- ages of participation (City -20%, District -801). 3. Loan The City shall loan to the District the sums necessary to meet the District's financial obligations under paragraph 2 of this Agreement not to exceed $100,000. The District shall be responsible for providing funding from sources other than the City to pay any financial obligations under this Agreement which exceed $100,000. 4. Possession and Use of the Loan Proceeds All proceeds advanced to the District by the City under this Agreement shall be held by the Traffic Authority to be paid to the Traffic Authority contractors as work on the project commences, continues, and is completed. All ' funds held by the Traffic Authority which have been loaned to the District under this Agreement will be used solely for the purpose of paying for the costs of the Project and shall not be distributed to the District for any other purpose. 5. Term of the Loan All sums loaned to the District by the City under the terms of this Agreement shall be repaid by the District '.D2/C/D/A] 4 i ., directly to the City witl,in three years from the date that a notice of acceptance of all improvements of the project is filed by tl,e ,,affic Authority. 6. Interest With respect to an) loan procePds which are advanced by the Traffic Authority to pay contractors for work on the Project o~ behalf of the District, said ad- vance, shall c~rn interest to be paid by the District to the City from the date any such advance is made .. The in- terest earned will equal the inter6st earned by the City for its other funds invested with the Local Agency Invest- ment_ fund. Th€. interest rate described her,ain will vary on a month-to-month basis and the City shall be responsible for monitoring the changes in said interest rate. Commencing one year after the Traffic Authority advances funds under tl1is Agreement on behalf of the District, and yearly thereafter until ~he principal of the loan is paid, the City will provide tc the District a record of the interest earned with respect to any advances made by the Traffic Authority under this Agreement. Within 30 days of receipt of said record, the District will pay directly to the City the accrued interest earned during the previous year on the amounts actually advanced by the Traffic Authority on the District's behalf under this Agreement. 7. Ho Prepayment -,, a 1 ty The District may ~' any portion of the principal ; and interest owed under the terms of this Agreement with- [ D2/C/D/A] 5 out prepay~ent penalty. 8. Termination of Agreement Should construction of the improvements described in Exhibit "A" for any reason not be commenced within twelve (12) months of the date of execution of this Agreement, this /\gre,ement becomes null and void and the City will have no further obligation to cause the Traffic Authority to advance funds under its terms. All funds which were advanced by the Traffic Authority on behalf of the District prior to tl1e Agreement's termi- nation under the provisions of this paragraph, will be repaid directly to the City, together with any interest earned thereon, within thirty (30) days from written Jemand for repayment sent from the City to the District. 9. Indemnification of the City by the District Neither City, nor any officer or employee of the City, shall be responsible for any damage or liabili- ty occurring by reason of anytl1ing done or omitted by the District or any contractor hired by the District, under or in connection with any work, authority, or jur- isdiction delegated to the District under this Agreement. It is also understood and ag~ced that, pursuant ta Government Code Section 895.4, the District shall fully indemnify and hold the City harmless from any liability imposed for injury as defined by Governme,,t Code Section 810.B, occurring by reason of J l anyt1 ng done or omitted by the District under this Agreement or in connection [D2/C/D/A] 6 with any work, authority or jurisdiction delegated to the authority und,:,r this Agreement. 1 0. Indemnification of the District by the City Neitl1er .District,, nor any officer or ·employee of the District, shall be responsible for any damage or liability occurring by reason of anything dona or omit- ted by the City or any contractor hired b_y the City, under or in connection with any work, authority, or jurisdiction delegated to the City under this Agreement. It is also understood and agreed that, pursuant to Government Code Section 895.4, the City shall Eully in- demnify and hold the District harmless from any liabili- ty imposed for injury as de~ined by Government Code Section 810.B, occurring by reason of anything done or omitted by the City under this Agreement or in connec- tion with any work, authority or jurisdiction delegated to the authority under this Agreement. 11. Entire Agreement The parties hereto agree that this Agreement constitutes the sole and only Agreement between them regarding the lending of money fu, '·'~'·' conct:n1ction of the improvements described in Exhibit "A''. 12. Attorney's Fees If an.y act ion arising out of or relating to this Agreement is commenced by either party, then the prevailing party shall be entitled to receive from the other party in addition to any other relief that may be [D2/C/D/A] 7 grant,?d, the reasonable attor,wy's fees, co>Jts, and expenses incurred in the action. 13. Notices Any and all notices or other communications required o~ permitted under this Agreement or by law be served on or given to either party by the other shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of personal service when mailed by first class mail, postage prepaid, addressed to the City c/o Don Brown, City Manager, at 10300 Torre Drive, Cupertino, CA ;95014 and to,the District c/o Milford A. Leal; Foothill College; 12345 El Monte Road; Los Altos Hills, CA 94022. Either party may change that party's address for these purposes by giving written notice of the change to the other party in the manner provided in this paragraph. 14. Assignments Prohibited Neither party shall assign its rights or dele- gate its duti0.s 11nder this Agr-eement without the express written consent of the other party. 15. Time of Essence Time is expressly declared to be of the essence. 16. Waiver The waiver of any breach of this Agreement by either party shall not constituce a continuing waiver or a waiver of any subsequent breach either of tl1e same or [D2/C/D/A] /l another provision of the llgn~,iment. 17. l\mendments This l\greement may be amended only by written instrument executed by the par~ies. 18. Representa1=ions.....B£9ard ing Legal Authority. 8ach party represents t? the other that each has the legal authority to execute this Agreement and to fulfill all of its terms. Executed California. on _L:2ay .2 1994, at Cupertino, FOOTHILL-DE ANZA COMMUNITY COLLEGE CITY OF CUPERTINO DISTRICT -~~L-c~& D¥'rector of Operations / . . L ( 11( ') I 1,.:i/J __ _ City Clerk [D2/C/D/A] 9 To CITY CLERK CITY OF CUPERTINO INTERDEPARTMENTAL Fron1 D,1te April 21, l 994 l'.l!llLIC WQRKS--SUMI 0 lnfonn..1tion ::J lmplcmcnt 0 lnvC'stigatc 0 Discuss I\IESSAGE: COOPERATIVE AGREEMENT <.Q: _4/ 1_8/94) 0 $('(' me 0 Reply RL•ply: _ FOOTHILL-DE ANZA CCH:-flJNITY COLLEGE DI STRICT TRANSMITTED ARE THREE SETS OF AGREEMENT FOR PROCESSING. PLEASE RETURN ALL COPIES TO THIS OFFICE AND WE WILL BE RESPONSIBLE FOR OBTAINING THE DISTRICT'S SIGNATURE. sm -------, ------------- ----- SIGNED: DATE Forward part J Retain part 2 ---------