COOPERATIVE AGREEMENT (C-23-XXX)
FOR
99/ 120 INTERCHANGE PROJECT PHASE 1A
This Cooperative Agreement ("Agreement") is made and entered into this _____day of ____________, 2023 by and between the CITY OF MANTECA ("Sponsor") and the SAN JOAQUIN COUNCIL OF GOVERNMENTS acting as the Local Transportation Authority ("Authority"). Sponsor and Authority may each be referred to herein as "Party" or collectively "Parties".
RECITALS
WHEREAS, Authority and Sponsor desire to enter into a Cooperative Agreement for funding of transportation improvements in San Joaquin County pursuant to the authority provided by the San Joaquin County Local Transportation Improvement Plan and Ordinance ("LTIP"), which was approved by the voters of San Joaquin County on November 7, 2006; and WHEREAS, Sponsor desires to execute a PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT, Woodward Road, DOT 752435V, MP. 99.18 Fresno Subdivision and a PUBLIC HIGHWAY OVERPASS AGREEMENT, Austin Road, DOT 978386D, MP 99.50 – Fresno Subdivision, Manteca, San Joaquin County, California with the Union Pacific Railroad Company (UPRR), herein called "Construction and Maintenance Agreements" (C&M); and WHEREAS, Sponsor desires to execute said crossing agreements at no cost to the Sponsor for the design and construction of the railroad crossings as part of the 99/ 120 Interchange Project Phase 1A.
WHEREAS, Authority agrees to remit payment to UPRR for the actual costs incurred by UPRR for design and construction.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein made and the mutual benefits to be derived therefrom, the parties hereto represent, covenant, and agree as follows:
AGREEMENT
Section I
Covenants of Sponsor
Project Application. The Project description, scope of work and schedule is outlined in the C&M agreements.
Eligible Costs. Costs include only the actual costs invoiced by UPRR. No costs from the Sponsor's labor or mark-up are eligible for reimbursement. Sponsor will notify the Authority if UPRR amends their cost estimate or notifies the Sponsor of an increase in project costs.
Invoices. Sponsor will submit costs to Authority within 5 working days from receipt from UPRR.
Completion of Project. Sponsor will submit the "Public Crossing and Removal Agreement" for Austin Road after the new overhead is open to public traffic.
Maintenance. Sponsor will be responsible for the Annual Signal Maintenance Fee and the Annual Surface Maintenance fees due to UPRR.
Other Terms and Conditions. Sponsor will be responsible for the other non-monetary terms and conditions.
SECTION II
Covenants of Authority
2.1 Payments. Authority shall make direct payment to UPRR within 25 days receipt of invoice from the City.
2.2 Railroad Flagging. Authority will be responsible for UPRR flagging costs during the construction.
2.3 Project Construction. Authority will be responsible for the design and construction contract administration, up to final acceptance by Caltrans.
SECTION III
Mutual Covenants
3.1 Discharge Upon Completion of Project. This Agreement shall be discharged, and the Parties shall have no further obligation to each other, upon completion of the Project as certified by the Authority.
3.2. Notices. Any notice which may be required under this Agreement shall be in writing and shall be given by personal service, or by certified or registered mail, return receipt requested, to the addresses set forth below:
TO AUTHORITY:
TO SPONSOR:
Diane Nguyen
Executive Director
San Joaquin County Transportation Authority
555 E. Weber Avenue
Stockton, CA 95202
Toni Lundgren
City Manager
City of Manteca
1001 W. Center Street Manteca, CA 95337
Either Party may change its address by giving notice of such change to the other Party in the manner provided in this Section 3.2. All notices and other communications shall be deemed communicated as of actual receipt or after the second business day after deposit in the United States mail.
3.3. Additional Acts and Documents. Each Party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of the Agreement.
3.4. Integration. This Agreement represents the entire Agreement of the Parties with respect to the subject matter hereof. No representations, warranties, inducements or oral agreements have been made by any of the Parties except as expressly set forth herein, or in other contemporaneous written agreements.
3.5. Amendment. This Agreement may not be changed, modified or rescinded except in writing, signed by all Parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.
3.6. Independent Agency. Sponsor renders its services under this Agreement as an independent agency and the Authority is also an independent agency under the Agreement. None of the Sponsor's agents or employees shall be agents or employees of the Authority and none of the Authorities' agents or employees shall be agents or employees of Sponsor.
3.7. Assignment. The Agreement may not be assigned, transferred, hypothecated, or pledged by any Party without the express written consent of the other Party.
3.8. Binding on Successors. This Agreement shall be binding upon the successor(s), assignee(s) or transferee(s) of the Authority or as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Agreement other than as provided above.
3.9. Severability. Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either Party to enter into or carry out, such determination shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the Parties.
3.10. Counterparts. This Agreement may be executed in one or more counterparts and shall become effective when one or more counterparts have been signed by all of the Parties; each counterpart shall be deemed an original, but all counterparts shall constitute a single document.
3.11. Survival. The following provisions in this Agreement shall survive discharge:
a. Sponsor. As to Sponsor, the following sections shall survive discharge: Section 1.5 Maintenance, Section 1.6 Other Terms and Conditions. b. Authority. None
3.12. Attorneys' Fees. Should any litigation commence between the Parties concerning the rights and duties of any Party pursuant to, related to, or arising from, this Agreement, the prevailing Party in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorneys' fees and costs of such litigation, or in a separate action brought for that purpose.
3.13. Time. Time is and shall be of the essence of this Agreement and each and all of its provisions in which performance is a factor.
3.14. Remedies Cumulative. No remedy or election of remedies provided for in this Agreement shall be deemed exclusive but shall be cumulative with all other remedies at law or in equity. Each remedy shall be construed to give the fullest effect allowed by law.
3.15. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California.
3.16. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the provisions of this Agreement and shall not affect the Project or interpretation of any of its provisions.
3.17. No Continuing Waiver. The waiver by any Party of any breach of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same, or of any other provision of this Agreement.
3.18. No Rights in Third Parties. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any third party, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third party to any Party to this Agreement, nor shall any provision of this Agreement give any third party any right of subrogation or action over or against any Party to this Agreement.
3.19. Signatory's Warranty. Each Party warrants to each other that he or she is fully authorized and competent to enter into the Agreement in the capacity indicated by his or her signature and agrees to be bound by this Agreement as to the day and year first mentioned above upon execution of the Agreement by each other Party.
IN WHITNESS THEREOF, the undersigned Parties have executed this Agreement on the day and year first written above.
CITY OF MANTECA
SAN JOAQUIN COUNTY TRANSPORTATION AUTHORITY
By:_______________
By:_______________________
TONI LUNGREN
City Manager
GARY GIOVANETTI
Chair
ATTEST:
ATTEST
By:_________________
By:_____________________
CASSANDRA CANDINI-TILTON
City Clerk
DIANE NGUYEN
Executive Director
APPROVED TO FORM:
______________________
By:
________________________
By:
DAVID DEFOUSE
City Attorney
STEVE DIAL
Deputy Executive Director/ CFO
Attachments:
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT, Woodward Road, DOT 752435V, MP. 99.18 Fresno Subdivision Manteca, San Joaquin County, California PUBLIC HIGHWAY OVERPASS AGREEMENT, Austin Road, DOT 978386D, MP 99.50 Fresno Subdivision, Manteca, San Joaquin County, California
ATTACHMENT 2