2010-007-Highway 9 Safety Improvement - Phase IIRESOLUTION 2010-007
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
APPROVING A COOPERATIVE AGREEMENT
BY AND AMONG THE TOWN OF LOS GATOS AND
THE CITIES OF SARATOGA AND MONTE SERENO
FOR THE HIGHWAY 9 SAFETY IMPROVEMENTS -PHASE II
WHEREAS, the Town of Los Gatos and the Cities of Saratoga and Monte Sereno
desire to enter into a cooperative agreement for the Highway 9 Safety improvements- Phase II;
and
WHEREAS, it is in the public interest for all agencies to work together as a
reliable, timely, and cost effective means of completing this project; and
NOW, THEREFORE, BE IT RESOLVED that the Town Council does hereby
approve a Cooperative .Agreement (Exhibit A) between the Town of Los Gatos and the Cities of
Saratoga and Monte Sereno and hereby authorizes the Town Manager to execute said agreement.
PASSED AND ADOPTED at a regular meeting of the Towri Council of the
Town of Los Gatos held on the 19t~' day of January, 2010, by the following vote:
COUNCIL MEMBERS:
AYES: Joe Pirzynslci, Steve Rice, Barbara Spector, Milce Wasserman and Mayor Diane
McNutt
NAYS.:
ABSENT:
ABSTAIN:
SIGNED:
l~J~ I~I~rV ~'
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST
~;
CLE OF THE TOWN OF LOS GATOS
L ATOS, CALIFORNIA
EXHIBIT A
COOPERATIVE AGREEMENT
FOR HIG)IWAY 9 SAFETY IMPROVEMENTS -PHASE II
THIS AGREEMENT, by and among the CITY OF SARATOGA, a municipal
corporation ("Saratoga"), the TOWN OF LOS GATOS, a municipal corporation ("Los Gatos"),
and the CITY OF MONTE SERENO, a municipal corporation ("Monte Sereno") (collectively
.referenced herein as "parties" and individually referenced as a "party") sets forth the terms of
cooperation among the parties in proceeding with Phase II of the Highway 9 Safety
hmprovements..
RECITALS
A. Phase II of the Highway 9 Safety Improvements ("Phase II" or "Project") involves a
Design Component and a Canstruction. Component. The Design Component consists of
design and engineering of the following features: pedestrian improvements along
Highway 9 extending approximately from Oa1c Street in Saratoga to the Monte
Sereno/Los Gatos City limits. The improvements include, but are not limited to, asphalt
walkways, curbs, concrete sidewalks, retaining walls, roadway modifications, driveway
modifications, and striping. The Project does not include the San Tomas Aquino Creek
crossing. The Construction Component consists of constructing some or all of these
features depending on fund availability. The features to be included in the Construction
Component will be determined mutually by the parties to this agreement following
completion of the Design Camponent in accordance with this Agreement.
B. Except for connection with existing features and traffic lane closures in the Town of Los
Gatos, the features included in Phase II are located within the ten-itorial jurisdictions of
the City of Saratoga, the County of Santa Clara and the City of Monte Sereno. During
the project construction phase, certain features located in Los Gatos maybe added to
Phase II. The County of Santa Clara is not a party of this Agreement. A separate
Agreement will be developed between the City of Saratoga and the County of Santa Clara
for cost sharing purposes based on the. jurisdictional location of the improvements. For
the purpose of allocating design casts between the City of Saratoga and the City of Monte
Sereno in this Agreement, costs attributable to the County of Santa Clara will be .
allocated to the City of Saratoga.
C. Pursuant to Metropolitan Transportation Commission's ("MTC") Regional Bicycle and
Pedestrian Prograrrz, Monte Sereno applied far and received approval for a federal
Congestion Mitigation and Air Quality ("CMAQ") grant for safety improvements to
Highway 9 Phase I. Not all CMAQ grant funds were expended during Phase I. Unused
CMAQ funds were transferred to Phase II and are available for the Design Component of
Phase II. CMAQ funds are authorized for payment of eighty-eight and one half percent
(88.5%) of the Final Design Cost as defined below. Saratoga and-Monte Sereno agree to
share the remaining portion of the Final Design Cost (the "Design Cost Local Share") as
set forth in this Agreement. The estimated cost~of the Desilm Component is $522,000 of
which $462,000 is available from CMAQ gtant funds and the remaining $60,030
Highway 9 Phase II Cooperative Agreement Page 1 of 9
represents the estimated local share to be allocated between Monte Sereno and Saratoga
pursuant to this Agreement.
D. Pursuant to Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETY-LU), Saratoga has applied for and received approval for a Highway
Safety Improvement Program (HSIP) grant for the Construction Component of Phase II.
HSIP funds are authorized for payment of ninety percent (90%) of the Final Constnuction
Cost as defined below. Saratoga anal Monte Sereno agree to share the remaining portion
of the Final Construction Cost (the "Construction Cost Local Share") for the construction
features located in each jurisdiction as sat forth in this Agreement. The estimated cost of
the Construction Component is $1,000,000 of which $900,000 is available from HSIl'
grant funds and the remainng $100,000 represents the estimated local share to be
allocated between Monte Sereno and Saratoga pursuant to this Agreement. Construction
costs attributable to the County of Santa Clara will be allocated to the City of Saratoga.
E. The California Department of Transportation ("Caltrans") has authorized the parties to
proceed with the Design Component using the CMAQ funds. The parties will seek
Caltrans authorization to proceed with the Construction Component prior to undertaking
work on that part of the Project,
F. The Parties desire to execute this Agreement in order to delineate their respective rights
and obligations concerning the administration, design, financing and construction of
Phase II.
AGREEMENT
NOW, THEREk'ORE, the parties agree as follows:
.Scope of Project. The Project includes the design, engineering, and construction of the
highway improvements described in the recitals. All work shall be performed in
accordance with plans and specifications approved by Saratoga, Monte Sereno, and all
local, state and federal agencies having jurisdiction over the Project or whose approval is
otherwise required for receipt of CMAQ funds (with respect to Design Component
approvals) and HS1P funds (with respect to Construction Component approvals).
2. Allocation of Design Component Costs.
(a) The term "Final Design Cost," as used herein means the total of all expenditures
relating to the Design Component, including, but not limited to, engineering,
surveys, testing, inspections, topographic maps, geotechnical, sails and
environmental surveys and reports, preparation, subrnittuig and revision of all
required permit applications, preparation of plans and specifications and other bid
documents, publication, printing and advertising of the Project, and the personnel
Highway 9 Phase II Cooperative Agreement Page 2 of 9
costs of Monte Sereno and Saratoga pursuant to section 4 of this Agreernentbased
upon actual time expended in connection with the Design Component plus all
.applicable overhead expenses. The Final Design Cost shall be determined upon
completion of the Design Component Uut in no event shall exceed $522,000
without the prior written consent of Monte Sereno and Saratoga,
(b) The Design Cost Local Share shall be apportioned between Monte Sereno and
Saratoga based on the cost of designing the improvements that will be located
within each jurisdiction stated as a percentage of the Final Design Cost as shown
on the attached Exhibit A to this agreement, The Design Cost Local Share
attributable to the County of Santa Clara will be allocated to the City of Saratoga.
The parties estimate that Monte Sereno will pay 37% (thirty seven percent) or
$22,104 of the local share and Saratoga will pay 63 % (sixty three percent) or
$37,926 of the local share, however this is an estimate only and the final
allocation shall be based on the local share of the actual design costs. Payment of
the Design Cost Local .Share shall be made in accordance with section 4 of this
Agreement.
(c) Each party is permitted to approve additional improvements within their own
jurisdiction beyond the scope of the work approved for the CMAQ and HSIP
grants provided that it pays the additional design costs associated with those
improvements and any resulting additional costs of administration.
3. Scope of Construction Component.
(a) It is expected that the total cost of constructing features included in the Design
Component will exceed the funds available for the Construction Component.
Following completion of the Design Component the parties will agree upon the
.features to include in the Construction Component and deter-~nine the Estimated
Construction Cost. If no such agreement is reached by the ninetieth (90th) day
after completion of the Design Component, this Agreement shall automatically
terminate pursuant to section 11 of this Agreement. The "Estimated Construction
Cost" is the estimate of the construction costs determined prior to the opening of
Uids for the award of the constriction contract, plus an agreed additional amount
based an an estimation of project administrative costs pursuant to section 4 of this
Agreement.
(b) If, upon the opening of bids for the award of a construetion contract, there is a
cost overrtn of no more than ten percent (10%) of the Estimated Construction
Cost, the parties shall proceed with the Construction Component in accordance
with this Agreement. However, if such bids indicate a cost ovei~un exceeding ten
percent (10%) of the Estimated Construction Cost, Saratoga will reject all bids
and then the parties will work to obtain an agreement with the parties to this
agreement and Caltrans regarding an alternative project design. If no such
agreement is .reached by the sixtieth (60th) day after the opening of bids, this
Highway 9 Phase II Cooperative Agreement Page 3 of 9
Agreement shall automatically terminate pursuant to section 11 of this
Agreement.
4. Allocation of Construction Component Costs.
(a) The term "Final Construction Cost," as used herein means the total of all
expenditures relating to the Construction Component, including, but not limited
to, construction contract administration, notifications, construction staking,
demolition, clearing, gn•ubbing, grading, construction of pedestrian walkway,
bridges, driveway approaches, crossings, and ether structures as needed, testing,
inspections, preparation of as-built plans, and the personnel costs of Monte
Sereno and Saratoga based upon actual time expended in connection with the
Constriction Component plus all .applicable overhead expenses. The Final
Construction Cost shall be determined upon completion of the Construction
Component but in no event shall exceed $1,000,000 without the prior written
. consent of Monte Sereno and Saratoga.
(b) The Construction Cost Local Share shall be apportioned between Monte Sereno
and Saratoga based on the cost of constructing the improvements that will be
located withui each jurisdiction stated as a percentage of the Final Construction
Cost. The funds available for construction are not expected to be sufficient to
construct all features designed in the design phase of the project. The parties will
decide which features are going to be constructed in construction phase of the
project when detailed construction cost estimate is available for the lroject. Final
allocation of the construction cast shall be based on actual costs and the location
of the construction. Payment of the Construction Cost Local Share shall be made
in accordance with section 5 of this Agreement.
(c) Each party ~is permitted to approve additional improvements within their own
jurisdiction beyond the scope of the work approved for the CMAQ and HSIP
grants provided that it pays t11e additional construction costs associated with those
improvements and any resulting additional costs of administration.
5. Payment of Froject Costs.
(a) In addition to its own share of the Final Design Cost and Final Construction Cost,
and in anticipation of reimbursement by Caltrans through the release of the HSIl'
and CMAQ Grants, Saratoga shall periodically advance fiends necessary to make
payments that axe intended hereunder to be paid with the HSIP and CMAQ
Grants, provided, however, that in the event that Saratoga has not received full
reimbursement from Caltrans for any prior advance made, Saratoga may, at its
option, withhold any payment requiring that it advance funds if said payment is
not legally required to be made at that time.
(b) Monte Sereno shall deposit with Saratoga $5,000 {five thousand dollars) of its
Design Cost Local Share within thirty (30) days of execution of this agreement.
The remainder of the Design Cost Local Share shall be deposited by Monte
Highway 9 Phase II Cooperative Agreement Page 4 of 9
Sereno within 30 days after receipt of an invoice from Saratoga. Monte Sereno
shall deposit half of its estimated Construction Cost Local Share with Saratoga
within ten {10) days after receipt of an invoice fiom Saratoga following the award
of a construction contract unless the bids will be rejected pursuant to this
Agreement.
(c) Upon completion of the Design Component and the Construction Component,
respectively, Saratoga shall fiunish to Monte Sereno a detailed accounting of the
Final Design Cost and Final Construction Cost, as applicable. In the event the
accounting shows that the amount deposited by Monte Sereno exceeded its share
of the applicable final cost, the excess shall be reimbursed within thirty (30) days
after the accounting is completed and approved by Saratoga and Monte Sereno.
In the event. the accounting shows that the amount deposited by Monte Sereno is
less than its share of the applicable cost, Monte Sereno shall pay the deficiency to
Saratoga within thirty (30) days after the date the accounting is sent. Monte
Sereno is obligated to pay any deficiency resulting from Project Changes it
approved pursuant to this Agreement or any deficiency resulting from reasonable
additional or unanticipated costs of administration incurred by Saratoga not to
exceeding 10% of Construction Cost Local Share.
6. Project Administration. The parties agree that the Project will be managed cooperatively
by the parties. Representatives of the parties shall work together to accomplish the
Project. However, certain parties shall be responsible for administering certain portions
of the Project as set forth below.
(a) Saratoga shall be the lead agency for the Project for purposes of adminstering the
HSIl' and CMAQ Grants, preliminary engineering of the Project, which shall
include, but not be limited to, the Preliminary Study Report, the Project Report,
and compliance with CEQA and NEPA. Saratoga shall oversee the design and
bidding of the Project, shall award the contract for the Project and shall obtain all
permits necessary for the Project. Saratoga shall .enter into all contracts necessary
to implement the Project provided the contract is approved by the parties.
(b) Saratoga shall be responsible for overseeing construction of the Project. Saratoga
shall provide oversight and inspection services for the Project.
(c) The parties must each approve the plans and specifications for the Project.
Saratoga shall not enter into any contract in excess of $25,000 or increase any
contract by more than $25,000, fox the performance ofprofessional, consulting or
construction services without the prior written consent of Monte Sereno.
(d) The Parties shall promptly review and respond to all materials submitted by one
to the other for review and approval in connection with the Project. No approval
in cozu~ection with the Proj ect shall be unreasonably withheld.
Highway 9 Phase II Cooperative Agreement Page 5 of 9
(e} For public meetings held in connection with the Project, each party is responsible
for providing the notification of its residents that it determines is appropriate.
7. Right-o£--way Acquisitions. No right of way acquisitions are expected to be a part of the
Project. If it is determined that the acquisition ofanyright-of--way is required for the
Project, the party having territorial jurisdiction over the propezty to be acquired shall be
responsible for obtaining such right-of way and conducting any proceedings that maybe
necessary in connection thexewith; provided, however, no contract for legal services shall
be awarded and no eminent domain action shall be commenced without the prior
approval of the other parties and Caltrans. In the event acquisition of right-of way is
necessary to the base project, the City in which the right-of way is located shall pay for
the acquisition of the right-of--way. Any delay costs caused by the acquisition shall be
shared by the patties in proportion to their portion of the Design Cost Local .Share. In the
event a party desires to acquireright-of--way which is not necessary for the base project,
that party shall bear both acquisition and delay costs.
8.. Insurance Requirements. All contracts awarded for design or construction of the Project
shall include a requirement that the consultant and/or contractor, at all times during
design and construction and until final acceptance of the work, maintain in full force and
effect the following insurance policies:
(a) Broad form comprehensive liability insurance having a combined single limit of
not less than $ 2,000,000 per occurrence, naming Saratoga, Las Gatos, Monte
Sereno, and their respective officers, officials, boards, commissions, employees
and volunteers as additional insured thereunder.
(b) For construction contracts, builder's risk insurance covering the replacement cost
of the improvements, with a loss payable clause naming Saratoga, Los Gatos and
Monte Sereno, as their respective interests may appear.
(c) Worker's Compensation insurance as required by state law, together with
employer's liability insurance having a coverage limit of not less than $1,000,000
per accident.
(d) For design. consultants, professional liability insurance having a limit of not less
than .$1,000,000.
(e) Liability insurance as required by the permitting agencies.
9. Bonding Requirements. The contractor who is awarded the contract for construction of
the Project shall be required to provide performance and payment bonds in the amount of
one hundred percent (100%) of the contract price.
10. Project Records. The parties shall keep and maintain a complete copy of all costs .and
expenditures relating to the Project, together with a complete copy of all plans,
specifications, reports, contracts and other documents relating to the Project, and the
same shall be available .for inspection by the parties at any time during usual business
Highway 9 Phase II Cooperative Agreement Page 6 of 9
hours. Saratoga, as the project lead, shall provide other parties to this agreement,
electronic and durable reproducible copies of the Design and As Built Construction
documents related to project features located within their jurisdictions.
11. Te~7nination of Agreement.
(a) This Agreement is executed by the parties in reliance on the HSIP and CMAQ
Grants. In the event a grant agreement is not executed between Saratoga and
Caltrans, this Agreement shall automatically terminate and each of the parties
shall be released from any further obligation or liability hereunder.
(b) In. the event a contract for construction of the Project is not awarded pursuant to
section 2 of this Agreement or for any reason prior to December 30, 2010, this
Agreement shall terminate unless extended by mutual consent of all parties
hereto,
(c) Upon tei7nination in accordance with the terms of this section, Saratoga shall
refund to Monte Sereno any balance of its contributions remaining after deduction
of the costs incurred by Saratoga up to the date of termination and payable by
each party under the terms of this Agreement
12. Limitation of Liability. No party to this Agreement shall be responsible or liable to any
other party or parties for any act or omission made in good faith in connection with the
performance of its duties hereunder, nor shall any party be responsible or liable for any
act or omission by any consultant or contractor retained .for the performance of any
services related to the Project. Saratoga and Monte Sereno shall contribute equally
towards any loss, liability, expense, claim, costs (including costs of defense), suits, and
damages of every kind, nature and description directly or indirectly arising from the
performance of the Project. This paragraph shall not be construed to exempt anyparty,
including its employees and officers, from its own fraud, willfiil injury or violation of law
whether willful or negligent.
13. Dispute Resolution. The parties shall make a good faith effort to settle any dispute or
claim arising under this Agreement. Ifthe parties fail to resolve such disputes or claims,
they shall submit them to Hari-binding mediation in the County of Santa Clara, California,
or by mutual agreement in any other location. If mediation does not arrive at a
satisfactory result, arbitration, if agreed to by all parties, or litigation may be pursued. In
the event any of these dispute resolution processes are involved, each party shall bear its
own costs and attorneys fees.
14. Jurisdiction and Severability. This Agreement shall be admuustered and interpreted
under the laws of the State of California. Jurisdiction of litigation arising from this
Agreement shall be in the Superior Court of the County of Santa Clara. If any part of this
Agreement is found to conflict with applicable laws, such part shall be inoperative, null
and void insofar as it conflicts with said laws, but the remainder of this Agreement shall
be in full force and effect.
Highway 9 Phase II Cooperative Agreement Page 7 of 9
15, Assi~runent. Except as provided in section 6 of this Agreement, no party may assign any
right or obligation pursuant to this Agreement. Any attempted or purported assignment
of any right or obligation pursuant to this Agreement shall be void and of no effect.
Monte Sereno and Los Gatos acknowledge and accept that a portion of the project
management duties of Saratoga stated in section 6 of this Agreement will be provided by
contractors whose services will be engaged by Saratoga pursuant to this Agreement.
16. Parties in Interest. This Agreement is entered only for the benefit of the parties executing
this Agreement and not for thebenefit of any other individual, entity or person,
17. Waiver. No failure on the part of any party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of
a subsequent breach of the same or any other provision of this Agreement.
18. Amendment. No modification, waiver, termination, or amendment of this Agreement is
effective unless made in writing and signed by all parties.
19. Entire Agreement. This Agreement supersedes any and all agreements, either oral or
written, between the parties hereto with respect to the Project and contains all of the
covenants and agreements between the parties with respect to the rendering of such
services in any manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been
made by any party, or anyone acting on behalf of any party, which is not embodied
herein, and that no other agreement, statement orpromise not contained in this
Agreement shall be valid or binding. No alteration or variation of the tcnns of this
Agreement shall be valid unless .made in writing and signed by the parties hereto.
IN WiTNESS WHEREOF, the parties have executed this Agreement the day and year last
written below.
Ci of Sarato a Ci of 1dIonte Sereno Town of Los Gatos
By: By: By;
Dave Anderson;
City Manager
Date; Brian Lowenthal,
City Manager
Date: Greg Larson,
Town Manager
Date;
Attest: Attest: Attest:
Highway 9 Phase II Cooperative Agreement Page 8 of 9
Ann Sullivan,
City Clerk
Date: Andrea Chelemengos,
City Clerk
Date: Jackie Rose,
Clerk Administrator
Date:
Approved as to Form: Approved as to FoITn; Approved as to Form:
Richard Taylor,
City Attorney
Date: ~ Kirstin Powell,
City Attorney
Date: Michael Martello,
Interim Town Attorney
Date:
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