CC Resolution No. 9104
RESOLUTION NO. 9104
A RESOLUTION OF THE CITY COUNCIL OF HE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEMENT BETWEEN THE STATE
OF CALIFORNIA AND THE CITY OF CUPERTINO PROVIDING FOR THE
WIDENING OF THE OVERCROSSING STRUCTURE ON ROUTE 280
AT DEANZA BOULEVARD
WHEREAS, there has been presented to the City Council an agreement between
the State of California and the City of Cupertino providing for the widening of the
overcrossing structure on Route 280 at DeAnza Boulevard; 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 said 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 June ,1994, by the following vote:
YQll: Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Bautista, Burnett, Sorensen, Koppel
None
Dean
None
APPROVED:
Isl Barb Koppel
Mayor, City of Cupertino
ATTEST:
Isl Kim Marie Smith
City Clerk
4-SC1-280 9.4/9.5
De Anza Boulevard OC
4276-132760
Dist. Agmt. No. 4-1574-C
Document No. SCL-43-
COOPERATIVE AGREEMENT
This AGREEMENT, entered into on
is
between the STATE OF CALIFORNIA, acting by and through its De-
partment of Transportation, referred to herein as STATE, and
CITY OF CUPERTINO,
a body politic and a municipal
corporation of the State of
California, referred to herein
as CITY.
RECITALS
(1) STATE and CITY, pursuant to Streets and Highways
Code Section 130, are authorized to enter into a Cooperative
Agreement for improvements to State highways within CITY.
(2) CITY desires to construct State highway improve-
ments consisting of widening the overcrossing structure on Route
280 at De Anza Boulevard (Route 85), referred to herein as
PROJECT, and is willing to fund one hundred percent (100%) of all
capital outlay and staffing costs, except that costs of STATE's
oversight of construction activities will be borne by STATE.
(3) It is anticipated that Federal -aid ISTEA funds will
be allocated for financing approximately 80% of the PROJECT con-
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District Agreement No. 4-1574-C
struction costs which are eligible for Federal -aid participation
and CITY will bear the remainder of the costs as set forth
herein.
(4) CITY desires to prepare the contract documents and
advertise, award and administer the construction contract for
PROJECT in order to bring about the earliest possible completion
of PROJECT.
(5) STATE is agreeable to CITY's proposal to prepare
the contract documents and advertise, award and administer the
construction contract for PROJECT.
(6) The parties hereto intend to define herein the
terms and conditions under which PROJECT is to be constructed,
financed and maintained.
(7) Project development responsibilities for PROJECT
were covered in a prior Cooperative Agreement executed by STATE
and CITY on July 6, 1993 (District Agreement No. 4-1401-C, Docu-
ment No. SCL-43-8898).
SECTION I
CITY AGREES:
(1) To advertise, award and administer the construction
contract for PROJECT in accordance with requirements of the Local
Agency Public Construction Act and the California Labor Code, in-
cluding its prevailing wage provisions. Workers employed in the
performance of work contracted for by CITY, and/or performed un-
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District Agreement No. 4-1574-C
der encroachment permit, are covered by provisions of the Labor
Code in the same manner as are workers employed by STATE's Con-
tractors. CITY shall obtain applicable wage rates from the State
Department of Industrial Relations and shall adhere to the appli-
cable provisions of the State Labor Code. Violations shall be
reported to the State Department of Industrial Relations. The
contract shall also include the Federal DBE requirements as con-
tained in Title 49 of CFR, Part 23.
(2) To apply for necessary encroachment permits for re-
quired work within State highway rights of way, in accordance
with STATE's standard permit procedures, as more specifically de-
fined in Articles (3), (4), (5), (6), (7) and (8) of Section III
of this Agreement.
(3) To require that the construction contractor furnish
both a payment and performance bond in CITY's name, with both
bonds complying with the requirements set forth in Section 3-1.02
of STATE's current Standard Specifications.
(4) To construct PROJECT in accordance with plans and
specifications of CITY, to the satisfaction of and subject to the
approval of STATE.
(5) Contract administration procedures shall conform to
the requirements set forth in STATE's Construction Manual, Local
Programs Manual and the Encroachment Permit for construction of
PROJECT.
(6) Construction within the existing or ultimate STATE
right of way shall comply with the requirements in STATE's Stand-
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District Agreement No. 4-1574-C
and Specifications and PROJECT Special Provisions and in conform-
ance with methods and practices specified in STATE's Construction
Manual.
(7) If CITY uses own staff to perform surveys, such
surveys shall conform to the methods, procedures, and require-
ments of STATE's Survey Manual.
(8) Material testing and quality control shall conform
to the State Construction Manual and the State Material Testing
Manual, and be performed, at CITY expense, by a certified mate-
rial tester acceptable to STATE. Independent assurance testing,
specialty testing, and off-site source inspection and testing
shall be performed by STATE, at no cost to CITY except as noted
herein. CITY shall reimburse STATE for any additional travel in-
curred by STATE for off-site inspection and testing performed by
STATE which is more than 300 airline miles from both Sacramento
and Los Angeles. Approval of type of asphalt and concrete plants
shall be by STATE, at STATE expense.
(9) To furnish, at CITY expense and subject to approval
of STATE, a field site representative, who is a licensed Civil
Engineer in the State of California, to perform the functions of
a Resident Engineer. The Resident Engineer shall be a public em-
ployee in accordance with Section 2-07 of the Local Programs Man-
ual.
(10) To pay one hundred percent (100%) of the actual
cost of construction required for satisfactory completion of
PROJECT, including changes pursuant to contract change orders
District Agreement No. 4-1574-C
concurred with by the STATE representative and any "State -
furnished material".
(11)_ At CITY expense, to furnish qualified support
staff, subject to approval of STATE, to assist the Resident Engi-
neer in, but not limited to, construction surveys, soils and
foundation tests, measurement and computation of quantities,
testing of construction materials, checking shop drawings, prepa-
ration 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 the plans and specifications. Said qualified support staff
shall be independent of the design engineering company and con-
struction contractor, except that the PROJECT designer may check
the shop drawings, do soils foundation tests, test construction
materials, and do construction surveys.
(12) To make progress payments to the contractor using
CITY funds and pay all costs for required staff services as de-
scribed in Articles (9) and (11) of this Section I. The STATE
representative shall review all contract progress pay schedules.
STATE does not assume responsibility for accuracy of itemization
on progress pay schedules.
(13) Within sixty (60) days following the completion
and acceptance of the PROJECT construction contract, to furnish
STATE a complete set of acceptable full-sized film positive re-
producible As -Built plans and all contract records, including
survey documents and microfilm copy of all structure plans.
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District Agreement No. 4-1574-C
(14) Upon completion of work under this Agreement,
CITY will assume maintenance and the expense thereof for any part
of PROJECT located outside of current STATE right of way until
acceptance of any such part of PROJECT into the State highway
system by STATE, approval by the Federal Highway Administration,
if required, and conveyance of acceptable title to STATE.
(15) To retain or cause to be retained for audit for
STATE or other government auditors for a period of three (3)
years from date of FHWA payment of final voucher, or four (4)
years from date of final payment under the contract, whichever is
longer, all records and accounts relating to construction.
(16) If CITY terminates PROJECT prior to completion of
the construction contract for PROJECT, STATE may require CITY, at
CITY expense, to return right of way to its original condition or
to a condition of acceptable permanent operation. If CITY fails
to do so, STATE reserves the right to finish PROJECT or place
PROJECT in satisfactory permanent operation condition. STATE
will bill CITY for all actual expenses incurred and CITY agrees
to pay said expenses within thirty (30) days or STATE, acting
through the State Controller, may withhold an equal amount from
future apportionments due CITY from the Highway User Tax Fund.
District Agreement No. 4-1574-C
SECTION II
STATE AGREES:
(1) To issue, at no cost to CITY and CITY's contractor,
upon proper application by CITY and by CITY's contractor, the
necessary encroachment permits for required work within the State
highway right of way, as more specifically defined in Articles
(3), (4), (5), (6), (7) and (8) of Section III of this Agreement.
(2) To provide, at no cost to CITY, a qualified STATE
representative who shall have authority to accept or reject work
and materials or 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 CITY and to
CITY's contractor.
(3) To provide at CITY expense, any "State -furnished
material" as shown on the plans for PROJECT and as provided in
the Special Provisions for PROJECT.
SECTION III
IT IS MUTUALLY AGREED:
(1) All obligations of STATE under the terms of this
Agreement are subject to the appropriation of resources by the
Legislature and the allocation of resources by the California
Transportation Commission.
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District Agreement No. 4-1574-C
(2) All applicable procedures and policies relating to
the use of Federal funds or State gas tax funds shall apply
notwithstanding other provisions of this Agreement.
(3) Construction by CITY of improvements referred to
herein which lie within STATE highway rights of way or affect
STATE facilities, shall not be commenced until CITY's original
contract plans involving such work and plan for utility relo-
cations have been reviewed and approved by signature of STATE's
District Director of Transportation, or the District Director's
delegated agent, and until an encroachment permit to CITY author-
izing such work has been issued by STATE.
(4) CITY shall obtain aforesaid encroachment permit
through the office of STATE District Permit Engineer and CITY's
application shall be accompanied by seven (7) sets of reduced
construction plans of aforesaid STATE approved contract plans,
and seven (7) sets of specifications. Receipt by CITY of the ap-
proved encroachment permit shall constitute CITY's authorization
from STATE to proceed with work to be performed by CITY or CITY's
representatives within proposed STATE rights of way or which af-
fects STATE facilities, pursuant to work covered by this Agree-
ment. CITY's authorization to proceed with said work shall be
contingent upon CITY's compliance with all provisions set forth
in this Agreement and said encroachment permit.
(5) CITY's construction contractor shall also be re-
quired to obtain an encroachment permit from STATE prior to com-
mencing any work within STATE rights of way or which affects
District Agreement No. 4-1574-C
STATE facilities. The application by CITY's contractor for said
Encroachment Permit shall be made through the office of STATE's
District Permit Engineer and shall include proof said contractor
has payment and performance surety bonds covering construction of
PROJECT.
(6) CITY shall provide a right of way certification
prior to granting of said encroachment permit by STATE, to cer-
tify that legal and physical control of right of way were ac-
quired in accordance with applicable State and Federal laws and
requlations.
(7) CITY shall not construct any portion of PROJECT
within the proposed STATE right of way until after an
encroachment permit.has been issued to CITY by STATE.
(8) CITY's construction contractor shall maintain in
force, until completion and acceptance of the PROJECT con-
struction contract, a policy of Contractual Liability Insurance,
including coverage of Bodily Injury Liability and Property Damage
Liability in accordance with Section 7-1.12 of State Standard
Specifications. Such policy shall contain an additional insured
endorsement naming STATE, its officers, agents and employees as
additional insureds. Coverage shall be evidenced by a Certif-
icate of Insurance in a form satisfactory to STATE which shall be
delivered to STATE before the issuance of an encroachment permit
to CITY's contractor.
(9) Prior to award of the construction contract for
PROJECT, CITY may terminate this Agreement by written notice.
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District Agreement No. 4-1574-C
(10) In construction of said PROJECT, representatives
of CITY and STATE will cooperate and consult, and all work pursu-
ant to PROJECT shall be accomplished according to approved plans,
specifications and applicable STATE standards. Satisfaction of
these requirements shall be verified by the STATE representative.
The STATE representative is authorized to enter CITY's property
during construction for the purpose of monitoring and coordinat-
ing construction activities.
(11) Changes to PROJECT plans and specifications shall
be implemented by contract change orders reviewed and concurred
with by the STATE 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 the STATE representative,
changes authorized as provided herein will not require an
encroachment permit rider. All changes shall be shown on the As -
Built plans referred to in Section I, Article (13) of this Agree-
ment.
(12) CITY shall provide a claims process acceptable to
STATE and shall process any and all claims through CITY's claim
process. The STATE representative will be made available to CITY
to provide advice and technical input in any claim process.
(13) If any existing public and/or private utility fa-
cilities conflict with PROJECT construction or violate STATE's
encroachment policy, CITY shall make all necessary arrangements
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District Agreement No. 4-1574-C
with the owners of such facilities for their protection, relo-
cation or removal in accordance with STATE policy and procedure
for those facilities located within the limits of work providing
for the improvement of the State highway and in accordance with
CITY policy for those facilities located outside of the limits of
work for the State highway. Total costs of such protection, re-
location or removal shall be determined in accordance with STATE
policy and procedure. CITY shall require any utility owner
and/or its contractors performing relocation work in STATE's
right of way to obtain a STATE encroachment permit prior to the
performance of said relocation work. Any relocated or new facil-
ities shall be correctly shown and identified on the As -Built
plans referred to in Section I, Article (13) of this Agreement.
(14) If any unforeseen potential hazardous waste sites
are encountered during construction of PROJECT, STATE and CITY
shall meet and confer on a course of action. The responsibil-
ities and costs for any action shall be covered by amendment to
this Agreement.
(15) Pursuant to the authority contained in Section 591
of the Vehicle Code, STATE has determined that within such areas
as are within the limits of PROJECT and are open to public traf-
fic, CITY shall comply with all of the requirements set forth in
Divisions 11, 12, 13, 14 and 15 of the Vehicle Code. CITY shall
take all necessary precautions for safe operation of CITY's vehi-
cles, the construction contractor's equipment and vehicles and/or
vehicles of personnel retained by CITY and for the protection of
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District Agreement No. 4-1574-C
the traveling public from injury and damage from such vehicles or
equipment.
(16) -Upon completion and acceptance of the PROJECT con-
struction contract by CITY to the satisfaction of the STATE rep-
resentative and subsequent to the execution of a maintenance
agreement, STATE will accept control of and maintain, at its own
cost and expense, those portions of PROJECT lying within STATE's
right of way, except local roads delegated to CITY for mainte-
nance. STATE will maintain, at STATE expense, the entire struc-
ture (vehicular overcrossing) below the deck surface.
(17) CITY will accept control and maintain, at its own
cost and expense, the portions of PROJECT lying outside STATE's
right of way. Also, CITY will maintain, at CITY expense, local
roads within STATE's right of way delegated to CITY for mainte-
nance and remaining portions of any local road overcrossing
structures, including the deck surface and above, as well as all
traffic service facilities that may be required for the benefit
or control of CITY street traffic.
(18) CITY will maintain and operate the traffic control
signal system and safety lighting as installed in accordance with
Agreement for Maintenance of State Highways in the City of
Cupertino executed on January 10, 1989. STATE shall reimburse
CITY for STATE's proportionate share of said maintenance costs,
including electrical energy costs.
(19) Upon completion of all work under this Agreement,
ownership and title to materials, equipment and appurtenances in-
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District Agreement No. 4-1574-C
stalled within STATE's right of way will automatically be vested
in STATE, and materials, equipment and appurtenances installed
outside of STATE's right of way will automatically be vested in
CITY. No further agreement will be necessary to transfer owner-
ship as hereinabove stated.
(20) Nothing in the provisions of this Agreement is in-
tended to create duties or obligations to or rights in third par-
ties not parties to this Agreement or affect the legal liability
of either party to the Agreement by imposing any standard of care
with respect to the maintenance of State highways different from
the standard of care imposed by law.
(21) Neither STATE nor any officer or employee thereof
is responsible for any damage or liability occurring by reason of
anything done or omitted to be done by CITY under or in con-
nection with any work, authority or jurisdiction delegated to
CITY under this Agreement. It is understood and agreed that,
pursuant to Government Code Section 895.4, CITY shall fully de-
fend, indemnify and save harmless the State of California, all
officers and employees from all claims, suits or actions of every
name, kind and description brought for or on account of injury
(as defined in Government Code Section 810.8) occurring by reason
of anything done or omitted to be done by CITY under or in con-
nection with any work, authority or jurisdiction delegated to
CITY under this Agreement.
(22) Neither CITY nor any officer or employee thereof
is responsible for any damage or liability occurring by reason of
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District Agreement No. 4-1574-C
anything done or omitted to be done by STATE under or in con-
nection with any work, authority or jurisdiction delegated to
STATE under this Agreement. It is understood and agreed that,
pursuant to Government Code Section 895.4, STATE shall defend,
indemnify and save harmless CITY from all claims, suits or
actions of every name, kind and description brought for or on ac-
count of injury (as defined in Government Code Section 810.8) oc-
curring by reason of anything done or omitted to be done by STATE
under or in connection with any work, authority or jurisdiction
delegated to STATE under this Agreement.
(23) No alteration or variation of the terms of this
Agreement shall be valid unless made in writing and signed by the
parties hereto and no oral understanding or agreement not incor-
porated herein shall be binding on any of the parties hereto.
(24) Those portions of this Agreement pertaining to the
construction of PROJECT shall terminate upon completion and ac-
ceptance of the construction contract for PROJECT by CITY with
concurrence of STATE, or on June 1, 1999, whichever is earlier in
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District Agreement No. 4-1574-C
time; however, the ownership, operation, maintenance, liability,
and claims clauses shall remain in effect until terminated or
modified in writing by mutual agreement.
STATE OF CALIFORNIA CITY OF CUPERTINO
Department of Transportation
JAMES W. VAN LOBEN SELS
Director of Transportation
A
Deputy District Director
APPROVED AS TO FORM AND PROCEDURE
ATTORNEY
Department of Transportation
CERTIFIED AS TO FUNDS AND PROCEDURE
District Accounting Administrator
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M
Attest:
Mayor
City Clerk
APPROVED AS TO FORM AND LEGALITY
ATTORNEY/
I hereby certify upon my own
personal knowledge that budgeted
funds are available for the
period and purpose of payment to
the construction contractor and
to qualified support staff
pursuant to this Agreement
Fiscal Officer
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