Attachment 1
Page 1 of 14
ATTACHMENT 1
AGREEMENT
BETWEEN
CITY OF CAMPBELL
AND
TOWN OF LOS GATOS
FOR THE PAVEMENT RESURFACING AND COST SHARING OF
DUAL JURISDICTION STREET SECTIONS
This Agreement for the Pavement Resurfacing and Cost Sharing of Dual Jurisdiction Street Sections
(herein “Agreement”) is made and entered into this ___ day of ____________, 2019, (herein the
“Effective Date”) by and between the City of Campbell, a California municipal corporation (herein
“CAMPBELL”) and the Town of Los Gatos, a California municipal corporation (herein “LOS GATOS”).
CAMPBELL and LOS GATOS may be referred to herein individually as “Party” or collectively as the
“Parties”).
RECITALS
WHEREAS:
A. CAMPBELL’S Pavement Management Program determines which streets are included
in CAMPBELL’S Annual Pavement Maintenance projects. In 2018, the Pavement
Management Program identified Winchester Boulevard in need of pavement
maintenance and, in May 2019, CAMPBELL issued a notice inviting bids for
Construction of Annual Street Maintenance Project No. 18-XX: Winchester Boulevard
Street Resurfacing Project (“Project No. 18-XX”).
B. The scope of work for Project No. 18-XX generally includes the following: tree
trimming; tree root pruning; PCC sidewalk, driveway, curb and gutter removal and
replacement; ADA compliant accessibility ramp and passageway installation; traffic
signal modification; removal and replacement of traffic striping, markers, and
pavement marking; asphalt concrete milling; asphalt concrete digouts; rubber chip
seal application; Microsurfacing seal application; rubberized asphalt concrete street
resurfacing; adjustment of utility and other appurtenances to finished grade; public
notification & outreach; utility coordination; Santa Clara Valley Transportation
Authority (VTA) – Bus Route Coordination; and associated traffic control, including
temporary signing and striping. Additive alternate bid items of work include: raising
utility company appurtenances to grade. Additional details are included in the
CAMPBELL Specifications, Notice Inviting Bids, Bid Proposal Forms, Contract Document
and Special Provisions and documents, specifications and plans incorporated by
reference therein (including, but not limited to the City of Campbell Standard
Specifications and Details for Public Works Construction, dated July 1994 (“CSS”), and
by reference therein the City of San Jose Standard Specifications and Standard Details,
dated July 1992 (“SJSS”), and by reference therein the State of California Standard
Specifications and Standard Plans, and the Labor Surcharge and Equipment Rental
Rates in effect on the date the work is accomplished) for Project No. 18-XX (collectively
Page 2 of 14
ATTACHMENT 1
“Construction Contract Documents”, which Construction Contract Documents are
incorporated herein by reference).
C. The section of Winchester Boulevard between Division Street and Knowles Drive has
dual jurisdiction between CAMPBELL and LOS GATOS.
The foregoing Dual Jurisdiction Section consists of approximately 0.10 miles (or 553
linear feet). Along the cross-sections of these streets, approximately half of the subject
street is typically owned by CAMPBELL and approximately half of the subject street is
typically owned by LOS GATOS.
D. CAMPBELL has included the Dual Jurisdiction Section owned and maintained by LOS
GATOS in Project No. 18-XX with the mutual understanding that LOS GATOS would pay
for the work pursuant to this Agreement. The Parties agree that the Dual Jurisdiction
Section is in need of rehabilitation given its current condition.
E. CAMPBELL and LOS GATOS find that it is in the public interest to, as part of Project No.
18-XX, resurface the roadway at the Dual Jurisdiction Section, over which LOS GATOS
and CAMPBELL have dual jurisdiction. The work to be performed under this Agreement
within LOS GATOS will generally consist of milling the street down 2.4 inches, removing
and replacing structurally failed areas up to 10.8 inches in depth, installing a stress
absorbing membrane interlayer consisting of a rubber chip seal, and then overlaying
the street with 1.8 inches of rubberized asphalt concrete along with constructing new
ADA compliant curb ramps, and the replacement of affected traffic striping of the LOS
GATOS portion of PROJECT. The work to be performed is more fully described in
Exhibit A and Exhibit B, attached hereto and incorporated herein by reference.
Approximately 50% of PROJECT section is within CAMPBELL’s jurisdiction and
approximately 50% is within LOS GATOS’ jurisdiction. (The foregoing is collectively
referred to herein as the “PROJECT”).
F. The contractor that submits the lowest responsive and responsible bid in compliance
with all the requirements prescribed in the Construction Contract Documents and is
awarded the contract for Project No. 18-XX (“Contractor”) will perform and construct
the PROJECT as part of Project No. 18-XX.
G. LOS GATOS has committed up to $130,000 to the PROJECT and CAMPBELL has agreed
to undertake the design, environmental review, permitting and construction of the
PROJECT (if the bids for Project No. 18-XX are within CAMPBELL’s approved budget and
Project No. 18-XX is awarded), subject to the terms and conditions of this Agreement ;
H. LOS GATOS has agreed to authorize CAMPELL access to those portions of the Dual
Jurisdiction Section owned and maintained by LOS GATOS for purposes of design,
environmental review, permitting and construction of the PROJECT, upon the terms
and conditions set forth herein;
Page 3 of 14
ATTACHMENT 1
I. It is in the public interest for CAMPBELL and LOS GATOS to complete the PROJECT in a
cooperative and economical manner as further described in and subject to the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the above referenced recitals, the following mutual covenants,
agreements and obligations of the Parties, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, CAMPBELL and LOS GATOS agree as follows:
AGREEMENT PROVISIONS
RECITALS. The above recitals are restated and incorporated herein as though fully set forth.
1. RIGHT TO ACCESS:
LOS GATOS hereby authorizes CAMPBELL and its consultants, engineers, contractors
(including, but not limited to, the Contractor), subcontractors, employees, representatives,
and agents to enter upon the Dual Jurisdiction Section and other property owned and
maintained by LOS GATOS and described in the Construction Contract Documents as a portion
of Project No. 18-XX, for the purposes and upon the terms and conditions described in this
Agreement.
2. PROJECT COST:
As used in this Agreement, the term “PROJECT Cost(s)” is defined to mean the actual amount
paid to the Contractor for the PROJECT, plus ten percent (10%) for CAMPBELL’s engineering,
construction management and other administrative services and a ten percent (10%)
construction contingency.
3. EXPRESS CONDITIONS PRECEDENT:
The following are express conditions precedent to CAMPBELL’s obligations to construct the
PROJECT under this Agreement:
A. The bids received by CAMPBELL for Project No. 18-XX (which includes, but is not
limited to, the PROJECT) must be within CAMPBELL’s approved budget; and
B. The contract for Project No. 18-XX must be awarded to a contractor and the contract
(which includes and incorporated the Construction Contract Documents) must be duly
executed by CAMPBELL and such contractor. CAMPBELL reserves the right to reject
any or all bids.
Page 4 of 14
ATTACHMENT 1
4. CAMPBELL’S OBLIGATIONS:
CAMPBELL agrees as follows:
A. To act as the lead agency to administer the design, environmental analysis, 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 contract;
administering the construction contract; providing materials control and inspection
services; and making progress payments to the Contractor. LOS GATOS acknowledges
that, as of the Effective Date, CAMPBELL (as part of Project No. 18-XX) has completed
the design and environmental review, prepared the specifications, contract documents
and cost estimate, and solicited bids for the PROJECT.
B. To provide LOS GATOS with final specifications and contract documents for the
PROJECT. LOS GATOS acknowledges that, as of the Effective Date, CAMPBELL has
provided and LOS GATOS has received a complete set of the Construction Contract
Documents for Project No. 18-XX provided to bidders, which Construction Contract
Documents, include the specifications and contract documents that will govern the
PROJECT.
C. To pay CAMPBELL’s share of the PROJECT Cost (as such term is defined in Section 2
above) as determined by CAMPBELL. CAMPBELL’s share of the PROJECT Cost is based
on the portions of the Dual Jurisdiction Section owned by CAMPBELL that are included
in the PROJECT.
D. To require the Contractor to provide a final guarantee for the work on the PROJECT
that is consistent with City of San José Standard Specifications (July 1992), Section 7-
1.23.
E. To require the Contractor to carry adequate insurance, including commercial general
liability insurance with contractual liability coverage, automobile liability insurance
(any auto), and workers compensation and employer’s liability insurance, in
accordance with applicable law and the Construction Contract Documents (including,
City of Campbell Department of Public Works Special Provisions for Project No. 18-XX
(“SP”), Section 5, CSS Section 7-1.122 “Insurance Requirements” and City of San José
Standard Specifications (July 1992), Section 7-1.01A (6) “Workers’ Compensation” and
Section 7-1.122 “Insurance Requirements” (as modified by CSS 7-1.122)).
F. To cooperate with LOS GATOS should LOS GATOS raise any issues concerning
Contractor’s work on the PROJECT in LOS GATOS’ jurisdiction that requires correction
prior to acceptance of the contract or within the applicable warranty or guarantee
period (as such are defined and described in the Construction Contract Documents).
Page 5 of 14
ATTACHMENT 1
G. CAMPBELL shall keep LOS GATOS apprised of current construction schedule, status,
delays and any disputes affecting the PROJECT.
H. The designated project manager for CAMPBELL for the duration of the PROJECT is Fred
Ho (phone number: 408-866-2156). CAMPBELL’s project manager shall have all the
necessary authority to review and approve and accept technical and p rofessional work
within the scope of this Agreement and shall serve as the principal point of contact
with LOS GATOS.
5. LOS GATOS’ OBLIGATION:
LOS GATOS agrees as follows:
A. To pay to CAMPBELL LOS GATOS’ share of the PROJECT Cost (as such term is defined in
Section 2 above) as determined by CAMPBELL and reflected in the final detailed
invoice referenced in Section 5(B), below. LOS GATOS’ share of the PROJECT Cost is
100% of the PROJECT Cost for the portions PROJECT located within the jurisdiction of
LOS GATOS. LOS GATOS has allocated and committed the amount of up to One
Hundred, Thirty Thousand and 00/100 Dollars ($130,000) for its share of the PROJECT
Cost (subject to Section 6 below). The estimated overall breakdown of LOS GATOS’
share of the PROJECT Cost is set forth in Exhibit C.
B. To pay its share of the PROJECT Cost within forty-five (45) business days of receiving
the detailed invoice from CAMPBELL, provided that the following conditions are met:
1. The PROJECT has been completed (as defined in the Construction Contract
Documents) and LOS GATOS has reasonably approved in writing the portion of
the PROJECT work located in its jurisdiction. LOS GATOS’ review and approval
of the PROJECT shall be completed within ten (10) business days of CAMPBELL’s
request for such approval; and
2. The detailed invoice sets forth LOS GATOS’ share of the cost of construction of
all PROJECT work based on the payment terms of the Construction Contract
Documents (including, but not limited to, the Bid Proposal, SP 10-1 “General
Measurement and Payment Requirements”, CSS Section 9 “Measurement and
Payment”, and SJSS Section 9 “Measurement and Payment” (as modified by
CSS Section 9 “Measurement and Payment”)).
LOS GATOS may request documentation of its share of the PROJECT Cost, and may
review the original invoices and weight certificates or request copies of same, which
shall be supplied to LOS GATOS within a reasonable time. In the event LOS GATOS
objects to any of the PROJECT Costs set forth in the detailed invoice , LOS GATOS must
notify CAMPBELL in writing no later than seven (7) business days after LOS GATOS
receives the invoice. Such written notice must state the basis for LOS GATOS’
Page 6 of 14
ATTACHMENT 1
objection. Pending resolution of any such objection, LOS GATOS shall timely pay to
CAMPBELL all undisputed amounts.
C. The designated project manager for LOS GATOS for the duration of the PROJECT is
………… (phone number: 408-XXX-XXXX). LOS GATOS’ project manager shall have all the
necessary authority to direct technical and professional work within the scope of this
Agreement and shall serve as the principal point of contact with CAMPBELL.
6. CHANGES AND CLAIMS:
A. Any changes to and/or claims on the PROJECT work shall be processed in accordance
with the change order, extra work, and claims provisions of the Construction Contract
Documents, including, but not limited to SP Section 7 “Claims”, SJSS Section 4-1.03
“Changes”, Section 4-1.07 “Differing Site Conditions”, and Section 9-1.04 “Notice of
Potential Claim”, and CSS Section 9-1.07B “Final Payment and Claims”. LOS GATOS
shall be responsible for the costs of any changes, extra work and/or claims relating to
the portions of the PROJECT located within the jurisdiction of LOS GATOS (including,
the portions of the Dual Jurisdiction Section owned by LOS GATOS that is included in
the PROJECT). CAMPBELL shall be responsible for the costs of any changes , extra work
and/or claims relating to the portions of the PROJECT located within the jurisdiction of
CAMPBELL (including, the portions of the Dual Jurisdiction Section owned by
CAMPBELL that are included in the PROJECT).
B. CAMPBELL will provide LOS GATOS with reasonable notice of any changes to the scope
of work of the PROJECT that are beyond the PROJECT description identified in this
Agreement and that may increase LOS GATOS’ share of the PROJECT Cost. The Parties
will cooperate in good faith to approve or reject any such changes and develop and
agree upon a funding plan for any approved changes.
C. LOS GATOS has committed the amount of up to One Hundred, Thirty Thousand and
00/100 Dollars ($130,000) to CAMPBELL for the PROJECT consistent with this
Agreement. The Parties mutually agree to cooperate in good faith to seek additional
funding or to revise the scope of the PROJECT if the estimated PROJECT Cost becomes
more costly than the funding committed by the Parties for their respective portions of
the PROJECT.
7. TERM OF AGREEMENT; TERMINATION:
A. This Agreement shall commence on the Effective Date and expire the later of (a) one
(1) year from the Effective Date or (b) the date the PROJECT has been accepted by
both Parties and final payments of all outstanding balances for the PROJECT have been
paid, unless otherwise modified by a written amendment to this Agreement .
B. Either Party may terminate this Agreement before CAMPBELL awards the contract for
Project No. 18-XX, by providing written notice of such termination to the other Party
Page 7 of 14
ATTACHMENT 1
(provided such notice is received by CAMPBELL prior to award of the contract for
Project No. 18-XX). After CAMPBELL awards the contract for Project No. 18-XX, this
Agreement may only be terminated by the mutual agreement of the Parties on terms
acceptable to both Parties.
8. OWNERSHIP AND MAINTENANCE:
A. Upon final completion and acceptance of all work on the PROJECT under this
Agreement, ownership and title to all materials, equipment and appurtenances
installed as a part of the PROJECT within the city limits of Campbell will automatically
be vested in CAMPBELL, and all materials, equipment and appurtenances installed as a
part of the PROJECT within the town limits of Los Gatos will be vested in LOS GATOS
(subject to LOS GATOS’ obligations to timely pay for such material, equipment and
appurtenances pursuant to the terms and conditions of this Agreement), and no
further agreement will be necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between CAMPBELL
and LOS GATOS with regard to maintenance, operation or further repair of streets and
property within their respective jurisdictional limits.
9. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by either Party to perform the work included in the PROJECT
(including, but not limited to, the Contractor) 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
PROJECT shall not be employees of either Party in any respect.
10. NO PLEDGING OF EITHER CITY’S CREDIT:
Under no circumstances shall either CAMPBELL or LOS GATOS have authority or power to
pledge the credit of the other public entity or incur obligation in the name of the other public
entity.
11. 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.
12. AMENDMENTS; ASSIGNMENT:
This Agreement may only be amended or modified in writing, signed by a duly authorized
representative of each of the Parties. Neither Party may assign this Agreement unless this
Agreement is amended in writing in accordance with this Section.
Page 8 of 14
ATTACHMENT 1
13. NOTICES:
As used in this Agreement, notice includes but is not limited to the communication of notice,
request, demand, approval, statement, report, acceptance, consent, and waiver. Whenever,
under the terms of this Agreement, it becomes necessary, appropriate, or desirable for a Party
to give notice to the other Party, said notice shall be in writing and shall be considered given
when personally delivered or given or mailed by commercial overnight courier service or by
registered or certified United States mail return receipt requested, with f irst class postage
prepaid, addressed as follows:
To CAMPBELL: Fredrick Ho
Department of Public Works
City of Campbell
70 North First Street
Campbell, CA 95008
Telephone: (408) 866-2156
To LOS GATOS: __________________________
Town of Los Gatos
41 Miles Avenue
Los Gatos, CA 95030
Telephone: ________________
Any Party may, by notice given at any time or from time to time, require subsequent notices
to be given to another individual person, whether a party or an officer or representative, or to
a different address, or both.
14. SEVERABILITY CLAUSE:
In case any one or more of the provisions contained in this Agreement shall, for any reason,
be held invalid, illegal, or unenforceable in any respect, it shall not affect the validity of the
other provisions of this Agreement which shall remain in full force and effect.
15. ENCROACHMENT PERMITS:
Each Party to this Agreement will cooperate and/or provide access to the other Party’s
consultants, engineers and contractors for the portions of the PROJECT located within each
Party’s respective jurisdictional boundaries. Any street opening or encroachment permits
required by LOS GATOS for the PROJECT work shall be provided by LOS GATOS at no cost.
16. HOLD HARMLESS/INDEMNIFICATION:
Neither Party (or its respective employees, officers, agents and/or 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.
Page 9 of 14
ATTACHMENT 1
It is understood and agreed that pursuant to California Government Code Section 895.4, each
the respective Party (hereinafter the “Indemnifying Party”) shall fully indemnify and hold the
other Party 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 such Indemnifying Party
in connection with any work, authority or jurisdiction delegated to the Indemnifying Party
under this Agreement. This hold harmless and indemnification provision shall apply to any
activities, error or omission of the respective Indemnifying Party and/or such Party’s officers,
employees, agents, consultants and/or contractors or any person or entity acting for or on
behalf of said Party or such person or entities as are specifically authorized and empowered
by the respective Party to act for that Party.
17. 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.
18. STATUTES AND LAW GOVERNING CONTRACT; VENUE:
This Agreement shall be governed and construed in accordance with the statues and laws of
the State of California. Any action or proceeding arising out of or relating to the Agreement
shall be brought in a state or federal court situated in the County of Santa Clara, State of
California.
19. WAIVER:
The Parties’ waiver of any term, condition or covenant, o r 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. No covenant, term, or condition of this
Agreement may be waived except by written consent of the Party against whom the waiver is
claimed and the waiver of any term, covenant or condition of this Agreement shall not be
deemed a waiver of any subsequent breach of the same or any other term, covenant or
condition of this Agreement.
20. RELATIONSHIP:
This Agreement between CAMPBELL and LOS GATOS does not create any relationship of co-
partner, joint venturer, principal and agent or employer and employee.
21. CONSTRUCTION:
Each Party acknowledges that it has reviewed this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
Page 10 of 14
ATTACHMENT 1
22. ENTIRE AGREEMENT:
This Agreement and the Construction Contract Documents contain the entire agreement
between CAMPBELL and LOS GATOS with respect to the matters described in this Agreement.
Any prior agreements, promises, negotiations, or representations not expressly set forth in
this Agreement on the Construction Contract Documents are of no force or effect.
23. OTHER AGREEMENTS:
This Agreement shall not prevent either Party from entering into similar agreements with
others.
24. COUNTERPARTS:
This Agreement may be executed in two (2) or more counterparts, each of which shall be
deemed an original as against the Party signing such counterpart, but which together shall
constitute one and the same instrument.
25. AUTHORIZATION:
Each of signatories to this Agreement represent that he/she is authorized to sign t he
Agreement on behalf of such Party and that all approvals, resolutions and consents which
must be obtained to bind such Party have been obtained and that no other approvals, acts or
consents are required to bind such Party to this Agreement.
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.
Page 11 of 14
ATTACHMENT 1
CITY OF CAMPBELL, CALIFORNIA, a California municipal corporation
APPROVED AS TO FORM:
____________________________________ By: _____________________________________
WILLIAM SELIGMANN TODD CAPURSO
City Attorney Director of Public Works
TOWN OF LOS GATOS, a California municipal corporation
APPROVED AS TO FORM:
_____________________________________ By: _____________________________________
NAME NAME
Deputy City Attorney Title
ATTEST:
______________________________________
NAME
Title
Page 12 of 14
ATTACHMENT 1
EXHIBIT “A”
SCOPE OF WORK AND SCHEDULE OF PERFORMANCE
The work to be performed under this Agreement within LOS GATOS will generally consist of the
following: installing an ADA compliant accessibility ramp; milling down the street 2.4 inches;
digging out and repairing any pavement failure areas to a depth of 10.8 inches; applying a stress
absorbing membrane interlayer such as a rubber chip seal; resurfacing the street with 1.8 inches
of rubberized asphalt concrete; installing permanent striping, pavement markings and marking;
adjusting utility appurtenances to finished grade; traffic control , public notification, and all other
associated work in LOS GATOS portion of PROJECT.
The work to be performed is fully described in CAMPBELL’s Annual Street Maintenance Project
No. 18-XX – Winchester Boulevard Street Resurfacing Project (“Project No. 18-XX”). The map
entitled “CAMPBELL- LOS GATOS Cost Sharing Agreement Work Description” is attached to this
Exhibit A for reference as Exhibit B.
CAMPBELL is scheduled to award the Project No. No. 18-XX contract in early July, 2019.
Page 13 of 14
ATTACHMENT 1
EXHIBIT “B”
PROJECT LOCATION MAP
Page 14 of 14
ATTACHMENT 1
EXHIBIT “C”
Estimated Breakdown of LOS GATOS’ share of PROJECT Cost