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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- -1- �t-v 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- -2- 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- -3- 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. -5- 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. -7- //-f 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. IM 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 -10- 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 -11- 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- -12- 1-0 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 -13- 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 -14- 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 -15- 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 //—/6