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1997-139-Execute An Agreement For Implementation Of Silicon Valley Smart CorridorRESOLUTION 1997 - 139 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH THE CITY OF SAN JOSE, COUNTY OF SANTA CLARA, CITY OF CAMPBELL, CITY OF SANTA CLARA, CITY OF MILPITAS, SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, AND THE CALIFORNIA DEPARTMENT OF TRANSPORTATION (HEREINAFTER CONTRACTING AGENCIES) FOR IMPLEMENTATION OF SILICON VALLEY SMART CORRIDOR WHEREAS, the Silicon Valley Smart Corridor will benefit the Town and Participating Agencies by enabeling the effective management of non- recurring traffic congestion within the Highway 17 / Interstate 880 Corridor between Lark Avenue and State Route 237. RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into an agreement with Contracting Agencies for implementation of the Silicon Valley Smart Corridor, and that the Town Manager is authorized, and is hereby directed, to execute said agreement in the name and on behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 15th day of December, 1997 by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Jan Hutchins, Mayor Linda Lubeck NAYES: None ABSENT: None ABSTAIN: None SIGNED: `G2 a 1c c MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF PS GATOS LOS GATOS, CALIFORNIA liffi 0FMQF7M7ff~WQ 1- COOPERATION AGREEMENT FOR IMPLEMENTATION OF THE SILICON VALLEY SMART tiCTt7R`T —j BETWEEN THE CITY OF SAN JOSE, COUNTY OF SANTA CLARA, TOWN OF LOS GATOS, CITY OF CAMPBELL CITY OF SANTA CLARA, CITY OF MILPITAS, THE SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, AND THE CALIFORNIA DEPARTMENT OF TRANSPORTATION THIS AGREEMENT, dated for convenience November_, 1997, is made and entered into by and between the City of San Jose, a municipal corporation (hereinafter "San Jose "), and the County of Santa Clara, Town of Los Gatos, City of Campbell, City of Santa Clara, City of Milpitas, the Santa Clara Valley Transportation Authority and the California Department of Transportation (hereinafter collectively "Contracting Agencies "). RECITALS WHEREAS, San Jose and the Contracting Agencies, along with the Metropolitan Transportation Commission and the California Highway Patrol (hereinafter collectively "Participating Agencies "), desire to implement the Silicon Valley Smart Corridor Project (hereinafter "Project "); and WHEREAS, the Project will benefit San Jose and the Contracting Agencies by enabling the effective management of non - recurring traffic congestion within the Highway 17 /Interstate 880 Corridor between Lark Avenue in the Town of Los Gatos and Route 237 in the City of Milpitas, as more specifically described in Attachment "A" of this Agreement; and WHEREAS, in order to implement the Project, San Jose, the Contracting Agencies and the Participating Agencies executed an agreement, effective August 1, 1995, entitled "Memorandum of Understanding Among Town of Los Gatos, City of Campbell, City of San Jose, City of Santa Clara, City of Milpitas, Santa Clara County, Santa Clara Valley Transportation Authority, Metropolitan Transportation Commission, California Highway Patrol and California Department of Transportation for Silicon Valley Smart Corridor Project" (hereinafter "MOU "); and WHEREAS, at no cost to, and for the benefit of the Contracting Agencies, San Jose has taken the lead in implementing the Project by obtaining the necessary grant funding to fully implement the Project in each jurisdiction, and has and intends to enter into subcontracts to implement the Project; and WHEREAS, San Jose and the Contracting Agencies desire to enter into this Cooperation Agreement in order to set forth their respective rights, duties and 47056_2.DOC 1 Exhibit A obligations with regard to the implementation of the Project beyond the individual described actions set forth in the MOU. THE PARTIES HEREBY AGREE AS FOLLOWS: SECTION 1. TERM OF AGREEMENT. The term of this Agreement shall be retroactive to June 1, 1996, and shall continue until it terminates or expires pursuant to Section 9 of this Agreement. SECTION 2. DUTIES AND OBLIGATIONS A. General: On behalf of itself and each of the Contracting Agencies, San Jose shall be responsible for (1) obtaining the grant funding necessary to develop and implement the Project, (2) entering into the subcontracts necessary to develop and implement the Project in the respective jurisdiction of each Contracting Agency, and (3) coordinating the development and implementation of the Project among the Contracting Agencies. As consideration for San Jose's efforts, each Contracting Agency shall cooperate with San Jose and its agents with regard to the development and implementation of the Project. As set forth more specifically below, such cooperation shall include, but not be limited to, providing San Jose and its Agents with reasonable access and necessary approvals of various aspects of the Project. B. Environmental: As permitted under the California Environmental Quality Act, the Contracting Agencies hereby appoint San Jose to be the lead agency for purposes of conducting environmental review necessary to develop and implement the Project and agree to be responsible agencies. As responsible agencies, the Contracting Agencies shall provide all necessary review and approval of environmental documents in as expeditious a manner as reasonably possible. C. DKS Agreement: Each of the Contracting Agencies acknowledges that for their benefit and for the benefit of San Jose, San Jose entered into an agreement on June 25, 1997 with DKS Associates (hereinafter "DKS Agreement ") to develop and implement the Project. The DKS Agreement is attached hereto as Attachment "B" and incorporated herein as if fully set forth. The Contracting Agencies acknowledge that they have reviewed and are familiar with the terms, conditions and requirements of the DKS Agreement. Each of the Contracting Agencies further agrees to fully cooperate with San Jose and DKS Associates to fulfill the terms, conditions and requirements of the DKS Agreement, as it may be amended from time to time. This includes, but not limited to, doing each of the following: 47056_2.DOC 2 Each Contracting Agency shall provide DKS Associates with access to its facilities as necessary for DKS Associates to fulfill its obligations under the DKS Agreement. Each Contracting Agency shall provide acceptances, approvals and authorizations as described in the DKS Agreement and as necessary for DKS to fulfill its obligations under that Agreement. No Contracting Agency shall unreasonably withhold any acceptance, approval or authorization. 3. Each Contracting Agency shall provide review of plans, specifications and other documents, and shall participate in Project testing, as described in the DKS Agreement and as necessary for DKS to fulfill its obligations under that Agreement. All such review shall be completed in a timely manner. 4. Each Contracting Agency shall provide a qualified representative of that Agency to coordinate with and assist DKS Associates as described in the DKS Agreement and as necessary for DKS to fulfill its obligations under that Agreement. D. Santa Clara County Agreement: Each Contracting Agency acknowledges that for its benefit and for the benefit of San Jose, San Jose has entered into an agreement with Santa Clara County (hereinafter "Construction Agreement ") to implement the construction phase of the Project. The Construction Agreement is attached hereto as Attachment C. The construction element of the Project includes installation of system loops, CCTV cameras, dynamic message signs, extinguishable message signs, conduit, communication /signal interconnect cable, and fiber optic cable. The City and Contracting Agencies, agree that they shall have the following rights and responsibilities with regard to this element of the Project: Pursuant to the Construction Agreement, the County shall perform all construction work pursuant to the plans and specifications drafted by DKS and approved by the City and Contracting Agencies . 2. Pursuant to the Construction Agreement, the County will not finally approve any construction submittals or change orders without first submitting such submittals and /or change orders to the affected jurisdiction for that jurisdiction's written approval. a. All written approvals shall be provided to both the County and San Jose. Each jurisdiction shall review construction submittals and change orders provided to it and provide the necessay acceptances as 47056_2.DOC expeditiously as necessary to keep the construction element of the project on schedule. Any jurisdiction failing to provide such review of the submittals or change orders in a timely manner, or unreasonably failing to provide such acceptance is subject to having the related portion of construction work in that jurisdiction deleted due to schedule constraints. C. The obligation of San Jose and the County is limited to completing the construction phase of the Project as set forth in the approved plans and specifications, and to performing related review, inspection and testing. However, the Contracting Parties and San Jose have the right to request from the County changes in the approved plans and specifications. Such requests shall not unreasonably be denied, provided that a request to change the approved plans and specifications may be denied if (1) the requested change would significantly alter the approved plans and specifications or would otherwise significantly alter the functioning of the Project system, (2) the requested change would significantly impact the schedule for implementing the Project, or (3) the agency requesting the change fails to enter into a separate agreement with the County to pay the additional cost of the change. d. Before any construction work on a State right of way can occur, the County and its contractors must obtain an encroachment permit from Caltrans. Caltrans shall issue such an encroachment permit at no cost to the County or its contractors. 3. San Jose and each Contracting Agency shall make good faith efforts to facilitate construction work by the County within their respective jurisdictions. These good faith efforts shall include San Jose and each Contracting Agency providing the County, at no cost to the County, with all necessary rights of entry, encroachment permits and /or other agreements necessary for the County and its contractors to implement the construction element of the Project in that particular jurisdiction. The County shall comply with the conditions set forth in these documents. 4. Pursuant to the Construction Contract, the County shall not finally approve the construction work within San Jose or a particular Contracting Agency unless the work meets the approved plans and specifications, and until that jurisdiction provides San Jose and the County with written acceptance of the construction work in that jurisdiction. Neither San Jose nor any Contracting Agency shall unreasonably withhold its acceptance. San Jose and Contracting Agencies agree that, upon final acceptance, the items constructed shall be the property of the jurisdiction having control over the area in which each particular item was constructed. 47056_2.00c 4 E. The Contracting Agencies acknowledge that part of the Project provides for San Jose to enter into an agreement with the Santa Clara Valley Transportation Authority (hereinafter "VTA ") to perform a Smart Parks feasibility study. F. Subject to all warranties, each Contracting Agency shall be responsible for maintaining the portion of the Project system located in each Agency's respective jurisdiction. Likewise, subject to all warranties, San Jose shall be responsible for maintaining the portion of the Project system located within its jurisdiction. Each Contracting Agency may either enter into an agreement for maintenance of the system with San Jose, another Contracting Agency or an outside maintenance provider. G. As part of the Project, Operations and Maintenance Agreements and specifications for the Project system will be developed. San Jose and Contracting Agencies agree that the Operations and Maintenance Agreements and specifications shall be subject to approval of the Steering Committee and Policy Committee, which were created pursuant to, and are further described in the MOU. Once both of these Committees have approved the Operations and Maintenance Agreements and specifications for the Project system, each Agency shall proceed in a timely manner to present this document to its governing body for approval. The Operation and Maintenance Agreements will be developed before the completion of the Project and updated as appropriate by the Steering Committee, subject to approval of the governing bodies of the respective jurisdictions. H. Neither the San Jose nor any Contracting Agency shall at any time operate or maintain any portion of the system within its respective jurisdiction so as to limit the ability of that portion of the system to function, as designed, with all other portions of the system. I. Each Contracting Agency shall have the opportunity to participate in all training offered to it with regard to using various aspects of the Project system. J. Each Contracting Agency shall cooperate in providing all data necessary to evaluate the impact of the Project on traffic congestion. SECTION 3. ACCEPTANCES, APPROVALS AND AUTHORIZATIONS The following shall govern all acceptances, approvals and authorizations required by Section 2 of this Agreement: 1. Every such acceptance, approval or authorization shall be in writing and shall be made by an individual with the authority to make such acceptance, approval and authorization. 47056_2.DOC 5 2. Each acceptance, approval or authorization shall be delivered to San Jose with a copy delivered to (a) DKS when such acceptance, approval or authorization relates to work performed by DKS, (b) the County when such acceptance, approval or authorization relates to work performed by the County, or (c) any other entity hired by San Jose to perform work on the Project when such acceptance, approval or authorization relates to work performed by that entity. 3. San Jose and the Contracting Agencies shall resolve any dispute arising over an approval, authorization or acceptance in the following manner: a. The dispute shall be reviewed first by the Steering Committee. The members of the Steering Committee shall jointly prepare a statement of issues and options, which will serve as the basis for discussion by the Policy Committee. b. Once the Steering Committee has prepared a statement of issues and options, the dispute shall be submitted to the Policy Committee. A special meeting of the Policy Committee shall be convened for the purpose of deciding the dispute. The special meeting shall be convened in the manner set forth in the MOU. The Policy Committee shall make a recommendation on how the dispute can best be resolved. If resolution is not obtained after the Contracting Agencies review the recommendation, the dispute shall be presented to the governing board of the Contracting Agency or Agencies for resolution. SECTION 4. THIRD PARTY BENEFICIARIES. The Contracting Agencies acknowledge that (1) San Jose secured all grant funds necessary to implement the Project and entered into the agreements described in this Agreement for the benefit of each of the Contracting Agencies, and (2) the efforts of San Jose are providing the Contracting Agencies with a substantial benefit at little or no cost. Each of the Contracting Agencies acknowledges that it is a third -party beneficiary to the grant and all grant agreements. Each of the Contracting Agencies further acknowledges that it is a third -party beneficiary to the agreements entered into by San Jose and subcontractors for the implementation of the Project, including the Construction Agreement and DKS Agreement. As such, each Contracting Agency agrees that each Contracting Agency has the right to enforce the Construction Agreement, DKS Agreement and other agreements implementing the Project (hereinafter collectively "Project Agreements ") with regard to work performed under those agreements in their particular jurisdiction. 47056_2.DOC 6 SECTION 5. ASSIGNMENT A. San Jose hereby assigns to each Contracting Agency any and all claims that San Jose may have against DKS arising from any breach of the DKS Agreement by DKS in any manner relating to or arising from work performed by DKS in the jurisdiction of each Contracting Agency. The assignment to a particular Contracting Agency is limited to claims arising from a breach in any manner relating to or arising from work performed by DKS in that jurisdiction. Each Contracting Agency hereby agrees to accept this assignment. B. San Jose hereby assigns to each Contracting Agency any and all claims that San Jose may have against the County and its contractors arising from any breach of the Construction Agreement by the County in any manner relating to or arising from construction work performed in the jurisdiction of each Contracting Agency. The assignment to a particular Contracting Agency is limited to claims arising from a breach in any manner relating to or arising from construction work performed in that jurisdiction. Each Contracting Agency hereby agrees to accept this assignment. C. San Jose hereby assigns to each Contracting Agency any and all claims that San Jose may have against any other San Jose subcontractor arising from any breach of a Project Agreement by that subcontractor in any manner relating to or arising from work performed in the jurisdiction of each Contracting Agency pursuant to the Project Agreement. The assignment to a particular Contracting Agency is limited to claims arising from a breach relating to work performed by the subcontractor in that jurisdiction. Each Contracting Agency hereby agrees to accept this assignment. D. The claims assigned to each Contracting Agency and accepted by each Contracting Agency shall be referred to collectively as "Assigned Claims." SECTION 6. LITIGATION COOPERATION A. San Jose agrees to cooperate with any Contracting Agency in any litigation brought by a Contracting Agency against any one of the subcontractors engaged by San Jose and relating to an Assigned Claim. B. The Contracting Agencies agree to cooperate with San Jose in any litigation between San Jose and any one of the subcontractors engaged by San Jose to implement the Project. SECTION 7. LIMITED RELEASE Each of the Contracting Agencies agrees to release San Jose from any and all claims and causes of action that anyone of them may individually or collectively have against 47056_2.DOC 7 San Jose arising from or related in any manner to any validly Assigned Claims. Each Contracting Agency acknowledges that they have read and understood the following statutory language of Civil code Section 1542, which states: A general release does not extend to a claim which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Having been so apprised, each Contracting Agency elects to assume all risk for claims heretofore or hereafter, known or unknown, arising from the subject of this release. Furthermore, each Contracting Agency knowingly and voluntarily expressly releases San Jose from all liability, unknown or unsuspected, arising out of the subject matter of this release, except for claims or causes of action arising out of the gross negligence or willful misconduct of San Jose. SECTION 8. INDEMNIFICATION A. Except for Assigned Claims, San Jose shall defend, indemnify and hold harmless the Contracting Agencies, their officers, employees and agents against any claim, loss or liability arising out of or resulting in any way from the performance of this Agreement due to the willful or negligent acts (active or passive) or omissions by San Jose's officers or employees. B. Each Contracting Agency shall defend, indemnify and hold harmless San Jose, its officers and employees against any claim, loss or liability arising out of or resulting in any way from the performance of this Agreement due to the willful or negligent acts (active or passive) or omissions by that particular Contracting Agency's officers, employees or agents. SECTION 9. TERMINATION. This Agreement shall terminate upon agreement of all the Contracting Agencies. H H H H H H H H 47056_2.DOC SECTION 10. EXECUTION, This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. TO OF LOS GATOS By DAVID KNA Town Manager Approved As To Form CITY OF MILPITAS M GREG LARSON City Manager ATTEST: O KORB, Town Attorney MARIAN V. COSGROVE, TOWN CLERK CITY OF CAMPBELL BERNARD M.STROJNY City Manager COUNTY OF SANTA CLARA M JIM BEALL, Chairperson County Board Of Supervisors ATTEST: Clerk Of The Santa Clara County Board Of Supervisors APPROVED AS TO FORM: KATHY KRETCHMER Deputy County Council 47056_2.DOC 9 CITY OF SANTA CLARA m JUDY NADLER Mayor JENNIFER SPARACINO City Manager ATTEST: SANTA CLARA VALLEY TRANSPORTATION AUTHORITY 0 PETER M. CIPOLLA General Manager CALTRANS, DISTRICT 4 X HARRY Y. YAHATA District Director JUDY BOCCIGNONE City Clerk APPROVED AS TO FORM AND LEGALITY MICHAEL R. DOWNEY City Attorney CITY OF SAN JOSE m REGINA V.K. WILLIAMS City Manager APPROVED AS TO FORM: GLENN D. SCHWARZBACH Deputy City Attorney 47056_2.DOC 10