Attachment 1
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AGREEMENT
BETWEEN
THE TOWN OF LOS GATOS
AND
THE CITY OF SAN JOSE
FOR THE PAVEMENT REHABILITATION OF
NATIONAL AVENUE
FROM SAMARITAN DRIVE TO 350 FEET SOUTH OF CARLTON AVENUE
This Agreement (herein “Agreement”) is made and entered into this ___ day of ____________, 2019,
(herein the “Effective Date”) by and between the Town of Los Gatos, a California, municipal corporation
(herein “TOWN”), and City of San Jose, a California, municipal corporation (herein “CITY”). The
TOWN and CITY may be referred to herein individually or collectively as the “Parties”.
RECITALS
WHEREAS:
A. TOWN and CITY find that it is in the public interest to resurface the roadways at National
Avenue (between Samaritan Drive and 350 feet south of Carlton Avenue) over which the
TOWN and CITY have dual jurisdiction;
B. It is in the public interest for TOWN and CITY to complete the PROJECT in a
cooperative and economical manner by constructing both TOWN and CITY portions of
the PROJECT together; and
C. Each Party has agreed to perform its portion of the work as described herein, under its
direction.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the parties, TOWN and CITY agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The Town of Los Gatos is planning to have its contractor resurface the roadway at National
Avenue between Samaritan Drive and 350 feet south of Carlton Avenue over which the TOWN
and CITY have dual jurisdiction. The plan calls for resurfacing a total of 0.66 miles of National
Avenue between Samaritan Drive and Los Gatos-Almaden Road, which is owned and maintained
by the Town of Los Gatos. The TOWN has included the section of National Avenue that is
maintained by the CITY in their project with the understanding that the CITY would pay for the
work via this cost sharing agreement. This section of roadway is in need of rehabilitation given
its current condition. Based on StreetSaver, the pavement management system database used by
the TOWN, the average pavement condition index on National Avenue is 38.
ATTACHMENT 1
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The work to be performed under this Agreement within the CITY will consist of wedge grinding
the asphalt concrete, cold-in-place recycling the top 4 inches of the asphalt concrete, and then
overlaying it with 1.75 inches of rubberized hot mix asphalt along with, and adjustment of
existing utilities box and manholes. The work to be performed is more fully described in the
document entitled “Scope of Work and Schedule of Performance” set forth in Exhibit A and
Exhibit B, attached and incorporated by reference. Approximately 50% of National Avenue
between Samaritan Drive and 350 feet south of Carlton Avenue is within the TOWN jurisdiction
and 50% is within the CITY’s jurisdiction.
2. TOWN’S OBLIGATIONS:
TOWN agrees as follows:
A. To act as the lead agency to administer the design and construction of the PROJECT.
Administration shall include preparation of specifications, contract documents and cost
estimate; notification of local business; coordination with various agencies; preparation
of all necessary environmental documents; obtaining permits; obtaining bids; awarding
the construction agreement; administering the construction agreement; providing
materials control and inspection services; and making progress payments to the
contractor.
B. To provide CITY with final specifications and contract documents for the PROJECT.
C. To pay TOWN’s share of the PROJECT cost. The Project cost is defined as the actual
amount paid to the contractor plus ten percent (10%) for TOWN’s engineering,
construction and other administrative services.
D. To cause the contractor to provide a warranty period of at least two (2) years from the
acceptance date, consistent with Town of Los Gatos Construction Agreement.
E. To cooperate with CITY should CITY raise any issues concerning contractor’s work in
CITY’s jurisdiction that requires correction prior to acceptance or within the warranty
period.
F. The designated project manager for TOWN for the duration of the PROJECT is Kevin
Selfridge (phone number: 408-827-3549). TOWN’s project manager shall have all the
necessary authority to review and approve and accept technical and professional work
within the scope of the Agreement and shall serve as the principal point of contact with
CITY. CITY may request documentation of such costs, and may review the original
invoices and weight certificates or request copies of same, which shall be provided within
a reasonable time.
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3. CITY’S OBLIGATION:
CITY agrees as follows:
A. To pay CITY’s share of the PROJECT cost to TOWN. CITY’s share of the Cost is 100%,
of the PROJECT Cost, up to a maximum amount of $275,000, for the CITY-owned
portion of the road, which is located in the TOWN on National Avenue between
Samaritan Drive and 350 feet south of Carlton Avenue. Any changes to the scope of work
as identified by TOWN or CITY that is beyond the PROJECT description identified in
this Agreement that may increase design or construction costs shall receive prior written
approval and agreement on a funding plan from both TOWN and CITY. TOWN will not
authorize its contractors to perform work which would result in any additional cost above
and beyond the agreed amount as set forth in this Agreement without prior agreement and
written approval from CITY.
B. To pay its share of the PROJECT cost within forty-five (45) business days of receiving
and approving the detailed invoice from TOWN, provided that the following conditions
are met:
1. The PROJECT has been completed and CITY has approved the portion of the
work in its jurisdiction. Acceptance by CITY shall be made in writing to TOWN;
and
2. The detailed invoice sets forth the cost of construction of all PROJECT work
based on the actual contract unit prices paid and negotiated change order(s), if
any.
C. The designated project manager for CITY for the duration of the PROJECT is Binh Tran
(phone number: 408-794-6457). CITY’s project manager shall have all the necessary
authority to direct technical and professional work within the scope of the Agreement and
shall serve as the principal point of contact with TOWN.
4. TERM OF AGREEMENT:
Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement shall be one (1) year from the Effective Date or until the PROJECT acceptance by
both parties and final payments of all outstanding balances.
5. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under this Agreement, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT within the Town limits
of Los Gatos will automatically be vested in TOWN, and all materials, equipment and
appurtenances installed as a part of the PROJECT within the CITY limits will be vested
in CITY, and no further agreement will be necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between TOWN and
CITY with regard to maintenance, operation or further repair responsibility.
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6. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by either Party to perform the work included in the PROJECT shall not
be an agent or employee of either Party and will perform such work as independent contractor.
All persons employed by or contracted with such contractor(s) to furnish labor and/or materials
in connection with the work in the PROJECT shall not be employees of either Party in any
respect.
7. TERMINATION:
Once TOWN has awarded the construction contract for the PROJECT, the Agreement can be
terminated only upon the mutual written consent and terms acceptable to both parties.
8. NO PLEDGING OF EITHER TOWN’S CREDIT:
Under no circumstances shall either TOWN or CITY have authority or power to pledge the credit
of the other public entity or incur obligation in the name of the other public entity.
9. NO THIRD PARTY BENEFICIARY:
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third
party or parties and no third party or parties shall have any claim or right of action hereunder for
any cause whatsoever.
10. AMENDMENTS:
No alternation or violation of the terms of this Agreement shall be valid unless made in writing
and signed by the parties and incorporated into this Agreement
11. NOTICES:
Notices are to be sent as follows:
To TOWN: Kevin Selfridge
Town of Los Gatos
41 Miles Avenue
Los Gatos, CA 95030
To CITY: Binh Tran
City of San Jose
Department of Transportation
Infrastructure Maintenance Division
1404 Mabury Road
San José, CA 95133
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12. SEVERABILITY CLAUSE:
In case any one or more of the provisions contained herein shall, for any reason, be held invalid,
illegal, or unenforceable in any respect, it shall not affect the validity of the other provisions
which shall remain in full force and effect.
13. ENCROACHMENT PERMITS:
Both Parties to this Agreement will cooperate and /or provide access to its consultants, engineers
and contractors for the PROJECT in the jurisdictional boundaries of each Party. Contractor shall
obtain street opening permit from CITY and CITY shall provide such a permit at no cost.
14. HOLD HARMLESS/INDEMNIFICATION:
Neither of the respective Parties, employees, officers, agents and assigns shall be responsible for
any damage or liability occurring by reason of anything done or omitted to be done by the other
party in connection with the PROJECT.
It is understood and agreed that pursuant to California Government Code Section 895.4, the
respective Parties shall fully indemnify and hold the other harmless from any liability imposed
for injury (as defined in Government Code Section 810.8) by reason of anything done or omitted
to be done by TOWN or CITY in connection with any work, authority or jurisdiction delegated
to the respective Party under this Agreement. This hold harmless and indemnification provision
shall apply to any activities, error or omission of the respective Party and/or the Party’s officers,
employees, agents, consultants or contractor or any person or entity acting or omitting to act for
or on behalf of said TOWN or such person or entities as are specifically authorized and
empowered by the respective Party to act for the Party.
15. CAPTIONS:
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for
convenience only and shall not be considered nor referred to for resolving questions of
interpretation of this Agreement.
16. INSURANCE REQUIREMENTS:
It is mutually understood that during the term of the construction activities on the PROJECT,
TOWN will require the successful contractor to carry commercial general liability in amounts of
not less than Ten Million Dollars ($10,000,000); automobile liability in an amount not less than
One Million Dollars ($1,000,000); and, a Workers’ Compensation Insurance policy with policy
limits in an amount not less than One Million Dollars ($1,000,000).
17. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be governed and construed in accordance with the statues and laws of the
State of California.
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18. WAIVER:
The Parties’ waiver of any term, condition or covenant, or breach of any term, condition or
covenant shall not be construed as a waiver of any other term, condition or covenant or breach
of any other term, condition, or covenant.
19. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between TOWN OF LOS GATOS and CITY OF
SAN JOSE to the PROJECT. Any prior agreements, promises, negotiations, or representations
not expressly set forth in this Agreement are of no force or effect.
20. OTHER AGREEMENTS:
This Agreement shall not prevent either Party from entering into similar agreements with others.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by
the following signatures of their duly authorized representatives. It is intent of the Parties that
this Agreement shall become operative on the effective date.
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the
following signatures of their duly authorized representatives. It is the intent of the Parties that this
Agreement shall become operative on the Effective Date.
TOWN OF LOS GATOS, CALIFORNIA, a California municipal corporation
APPROVED AS TO FORM:
_____________________________________ By: _____________________________________
ROBERT SCHULTZ LAUREL PREVETTI
Town Attorney Town Manager
CITY OF SAN JOSE, CALIFORNIA, a California municipal corporation
APPROVED AS TO FORM:
_____________________________________ By: _____________________________________
JON CALEGARI
Deputy City Attorney Deputy City Manager
ATTEST:
______________________________________
NAME
Title
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EXHIBIT “A”
SCOPE OF WORK AND SCHEDULE OF PERFORMANCE
The work to be performed under this Agreement within CITY will consist of wedge grinding the
asphalt concrete, cold-in-place recycling the top 4 inches of the asphalt concrete, and then overlaying
it with 1.75 inches of rubberized hot mix asphalt along with, and adjustment of existing utilities box
and manholes of the CITY portion of National Avenue between Samaritan Drive and 350 feet south
of Carlton Avenue (herein the “PROJECT”). Approximately 50% of National Avenue between
Samaritan Drive and 350 feet south of Carlton Avenue is within the TOWN jurisdiction and 50% is
within the CITY’s jurisdiction. The Town-owned portion is the southbound lane on National Avenue
between Samaritan Drive and 350 feet south of Carlton Avenue. The City-owned portion is the
northbound lane on National Avenue between Samaritan Drive and 350 feet south of Carlton
Avenue.
Town to provide striping/marking plan for the City’s portion of National Avenue.
The service agreement documents are herein incorporated to this Agreement by reference.
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EXHIBIT “B”
PROJECT LOCATION MAP