COOPERATIVE AGREEMENT BETWEEN

THE CITY OF CUPERTINO

AND

THE CITY OF SUNNYVALE

CONCERNING THE MARY AVENUE BICYCLE/PEDESTRIAN OVERCROSSING

          The City of Cupertino (CUPERTINO) is a duly established _______________

          The City of Sunnyvale (SUNNYVALE) is now, and at all times relevant hereto has been, a duly established municipal corporation organized and existing under the laws of the State of California and municipal charter effective May 18, 1949.

          CUPERTINO is currently undertaking a project consisting of the planning, environmental analysis, design engineering, and construction of an overcrossing (bridge) for bicycles and pedestrians of Highway 280 at it’s intersection with Mary Avenue (the Project). 

The bridge will effectively connect the south section of Mary Avenue located in Cupertino with the north section of Mary Avenue located in Sunnyvale, although the Project is located exclusively within CUPERTINO.

          CUPERTINO has requested financial participation by SUNNYVALE in the project.  SUNNYVALE has participated in review of the existing plans for the Project, has considered the impacts and benefits of the project to SUNNYVALE and its’ residents and businesses, and  budgeted $ 110,000 for contribution to the Project.  SUNNYVALE and CUPERTINO wish to proceed with the Project in a cooperative manner.

          NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, SUNNYVALE and CUPERTINO agree as follows:

1.       Financial Contribution  SUNNYVALE agrees to make a $ 55,820 cash contribution, and pass through a $ 54,180 allocation of Transportation Development Act Article 3 Santa Clara County Sunnyvale 2004 local guarantee funds to CUPERTINO, as a fair share contribution towards the planning, design, environmental review, and/or construction of the Project.

2.                  Payment:  CUPERTINO shall invoice SUNNYVALE for $ 65,695 of the SUNNYVALE

contribution upon execution of this Agreement and no later than June 30, 2004. SUNNYVALE shall pay CUPERTINO within 30 days after receipt of a proper invoice and no later than July 31, 2004.  SUNNYVALE has requested that $ 44,305 of Transportation Development Act Article 3 Santa Clara County Sunnyvale 2004 local guarantee funds, which are allocated and entitled to the City of Sunnyvale, be allocated by the Santa Clara Valley Transportation Authority to CUPERTINO for the Project.   CUPERTINO shall follow the payment policies and procedures of the Metropolitan Transportation Commission to receive reimbursement of expenditures per the allocation of SUNNYVALE guarantee funds to CUPERTINO for the Project.

3.                  Expenditure:  Funds paid or otherwise contributed by SUNNYVALE to CUPERTINO per

the terms of this Agreement shall be independently accounted for by CUPERTINO and expended for the planning, design, environmental review, and/or construction of the Project no later than June 30, 2007.  Any funds not expended by this date shall be returned to SUNNYVALE.

4.       Future Cooperation:  CUPERTINO and SUNNYVALE will implement the terms contained in this Agreement in the most expeditious manner.  CUPERTINO and SUNNYVALE further agree to cooperate in the resolution of any future issues that may arise.

5.       Notices:  Notices, demands, communications with respect to this Agreement shall be given by first class mail to the parties shown as follows, or such other addresses as the parties may designate in writing from time to time:

SUNNYVALE:	Marvin A. Rose, Director of Public Works City of Sunnyvale PO Box 3707 Sunnyvale, CA  94088-3707
CUPERTINO:	Ralph Qualls, Director of Public Works City of Cupertino 10300 Torre Avenue  Cupertino, CA  95014

6.       Waiver Of Claims Against Sunnyvale:  CUPERTINO waives all claims by CUPERTINO

its directors, supervisors, officers, employees, or agents against SUNNYVALE, its City Council, officers, and/or employees for damages, loss, injury and/or liability, direct or indirect, resulting from CUPERTINO’s participation in the Project and/or the services provided to CUPERTINO by payment of funds by SUNNYVALE.  CUPERTINO’s waiver shall not apply to liability arising from and caused by the adjudicated or admitted negligence or willful misconduct of SUNNYVALE, its City Council, officers, and/or employees.

7.       Indemnification And Defense:   CUPERTINO agrees to indemnify, hold harmless and defend

SUNNYVALE, its City Council, officers, and employees from any and all third party claims, demands, lawsuits, liability, loss, damages, injury and/or liability, direct or indirect (including any and all costs and expenses in connection therewith), resulting from or in connection with provision of services to CUPERTINO by payment of funds by SUNNYVALE.  CUPERTINO’s indemnification obligation shall not apply to liability arising from and caused by the adjudicated or admitted negligence or willful misconduct of SUNNYVALE, its City Council, officers, agents, and employees. 

Other than financial contribution, SUNNYVALE has no responsibility for the project, and therefore no liability.

8.  Severability:  In the event that any of the provisions or portions or applications thereof this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, CUPERTINO and SUNNYVALE shall negotiate an equitable adjustment in the provisions of the Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions or portions or applications thereof shall not be affected thereby.

9.       AMENDMENT:  Except as expressly provided herein, the provisions of this Agreement shall

not be altered, modified or amended except through the execution of a written amendment executed by CUPERTINO and SUNNYVALE.

10.     ENTIRE AGREEMENT:  This Agreement constitutes the entire agreement between CUPERTINO and SUNNYVALE relating to the subject matter hereof and supersedes any previous agreements or understandings, oral or written.                  

City of Cupertino	City of Sunnyvale
By:	By:
Dave Knapp      City  Manager	Amy Chan         City Manager
Date:	Date:
Attest:	Attest:
Kimberly Smith City Clerk	Susan A. Ramos City Clerk
Approved as to Form:	Approved as to Form:
Charles Kilian  City Attorney	Valerie J. Armento City Attorney

 

IN WITNESS WHEREOF, The City of Cupertino and the City of Sunnyvale have caused their names to be subscribed hereto by their duly authorized representatives.

City of Cupertino	City of Sunnyvale
By:	By:
Dave Knapp      City  Manager	Amy Chan         City Manager
Approved as to Form:	Approved as to Form:
By:	By:
Date of Signature:_____________	Date of Signature:_____________