Item 9 - Annexation Agreement
PREPARED BY: Matt Morley
Parks and Public Works Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● 406-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/20/2019 ITEM NO: 9
DATE: August 12, 2019
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Negotiate and Execute an Agreement with
the County of Santa Clara for Road Maintenance Reimbursement in Annexed
County Pockets
RECOMMENDATION:
Authorize the Town Manager to negotiate and execute an agreement with the County of Santa
Clara for road maintenance reimbursement in annexed County pockets.
BACKGROUND:
On June 18, 2019, the Town Council adopted a resolution authorizing the annexation of certain
urban unincorporated islands with the Town of Los Gatos Urban Service Area. As a part of the
general annexation process, the County commits to bringing roads up to its County standard or
reimbursing the local agency for doing so.
DISCUSSION:
The County intends to implement preliminary work this year with its work crews completing
necessary repairs to ensure the stability of the existing roadways in the Town’s newly annexed
areas, such as dig outs and skin patches. The next step in the County standard process is the
application of a wear surface (microsurface) to further extend the life of the roadway. Both the
County and the Town roadway maintenance projects are already complete for this year. As
such, staff recommends reimbursement from the County to the Town in the amount of $83,609
to cover the cost the County would be required to contract for this work. Funds would go
toward the Town’s Streets Capital Improvement Program and Town staff will include the work
in these areas in future road maintenance projects bid by the Town. The agreement between
the Town and the County would memorialize this financial arrangement (Attachment 1).
PAGE 2 OF 2 SUBJECT: Authorize the Town Manager to Negotiate and Execute an Agreement with the
County of Santa Clara for Road Maintenance Reimbursement on Annexed County
Pockets DATE: August 12, 2019
DISCUSSION (continued):
The County has tentatively scheduled this item for an August Board of Supervisors
consideration. The Board’s consideration would coincide with an August 31, 2019 final
recordation by LAFCO of the annexation process.
CONCLUSION:
Approval of the staff recommendation will result in funds necessary for County standard road
maintenance in the recently annexed County pockets.
COORDINATION:
This report was coordinated with the County of Santa Clara.
FISCAL IMPACT:
The recommended action will result in additional funds in the Streets Maintenance Capital
Improvement Program. These funds will be programmed for maintenance of streets in
annexed County pockets.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
ATTACHMENT:
1. Draft Annexation Street Maintenance Agreement
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AGREEMENT BETWEEN THE COUNTY OF SANTA CLARA AND THE
TOWN OF LOS GATOS RELATED TO THE APPLICATION OF
MICROSURFACING TREATMENTS ON SPECIFIED ROADS IN
UNINCORPORATED POCKETS IN CONJUNCTION WITH THE POCKETS’
ANNEXATION BY TOWN
THIS AGREEMENT is made effective this ________day of________ , 2019
(“EFFECTIVE DATE”) by and between the County of Santa Clara, a political subdivision of
the State of California, hereinafter referenced to as "COUNTY" and the Town of Los Gatos,
a municipal corporation of the State of California, hereinafter referred to as "TOWN".
RECITALS
WHEREAS, the TOWN has met the legal requirements necessary to annex unincorporated
pockets into the TOWN as shown on Exhibit A (“UNINCORPORATED POCKETS”)
attached hereto and incorporated herein by reference; and
WHEREAS, COUNTY supports the annexation because it will decrease County road-
maintenance and related costs; and
WHEREAS, in order to improve local road conditions, the COUNTY agrees to pay the
TOWN a fixed not-to-exceed amount to pay the estimated costs for pavement
improvements (involving a microsurfacing treatment or some other pavement
rehabilitation) on the road segments within the UINCORPORATED POCKETS as
indicated in Exhibit B attached hereto and incorporated herein by reference (hereinafter
"PROJECT"); and
WHEREAS, TOWN agrees to accept payment from COUNTY and assume full responsibility
for performing the PROJECT using the COUNTY funding; and
WHEREAS, COUNTY requires a written agreement with TOWN to effectuate payment.
NOW, THEREFORE, in consideration of their mutual promises and agreements, and subject
to the terms, conditions, and provisions hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
1. COMPENSATION
COUNTY shall pay TOWN and TOWN shall accept from COUNTY a not to exceed
payment of a lump sum of Eighty-Three Thousand Six Hundred and Nine dollars ($83,609)
($2.05/SY x 40,785) for the estimated costs to complete the PROJECT. The not to exceed
lump sum amount of Eighty-Three Thousand Six Hundred and Nine dollars ($83,609) shall
cover all hard and soft costs, including but not limited to necessary materials and labor,
needed by the TOWN (“LUMP SUM AMOUNT”) to complete the PROJECT.
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2. COMPLETION OF PROJECT
TOWN shall have sole responsibility for completion of the PROJECT consistent with
applicable law including but not limited to the Labor Code and the Public Contract Code.
COUNTY will have no responsibility to perform the work. TOWN agrees to complete the
Project within five (5) years of the EFFECTIVE DATE, subject to extension by mutual
agreement of the Parties. If TOWN does not complete the Project within five (5) years of the
EFFECTIVE DATE (subject to any approved extensions), TOWN shall return the LUMP
SUM PAYMENT to the COUNTY. TOWN shall provide written notice to COUNTY upon
completion of the PROJECT.
3. INVOICE AND PAYMENT
Within thirty (30) calendar days of the EFFECTIVE DATE of this AGREEMENT, TOWN
shall forward to COUNTY a written invoice for the not to exceed LUMP SUM AMOUNT.
The invoice shall be delivered to the individual designated to receive notice on behalf of
COUNTY as set forth in Section 5 below. The COUNTY shall pay the invoice within 30
days.
4. HOLD HARMLESS/INDEMNIFICATION
To the fullest extent allowed by law, TOWN shall indemnify, defend, and hold harmless the
COUNTY, its officers, agents and employees from any claim, liability, loss, injury or damage
arising out of, or in connection with, performance of this Agreement by TOWN and/or its
agents, employees or TOWN, excepting only loss, injury or damage caused by the sole
negligence or willful misconduct of personnel employed by the COUNTY. It is the intent of
the parties to this Agreement to provide the broadest possible coverage for the COUNTY.
TOWN shall reimburse COUNTY for all costs, attorneys' fees, expenses and liabilities
incurred with respect to any litigation in which the TOWN is obligated to indemnify, defend
and hold harmless the County under this Agreement.
5. NOTICES
All correspondence relating to the AGREEMENT, including all notices required shall be
delivered by first class mail addressed to the appropriate party at the following addresses:
COUNTY: Harry Freitas, Director
Roads and Airports Department
101 Skyport Drive
San Jose, CA 95110
TOWN: Matt Morley, Director
Parks and Public Works
41 Miles Avenue
Los Gatos, CA 95030
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6. ADDITIONAL PROVISIONS
(a) If any term, condition or covenant of this AGREEMENT is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of
this AGREEMENT shall be valid and binding on COUNTY and TOWN.
(b) This AGREEMENT shall be governed and construed in accordance with the laws of
the State of California.
(c) Any change to this AGREEMENT must be in writing in the form of an amendment
and approved by both parties.
(d) 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.
(e) This Agreement shall not be construed or deemed 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.
(f) 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.
(g) This Agreement contains the entire agreement between TOWN and COUNTY related
to the Project. Any prior agreements, promises, negotiations, or representations not
expressly set forth in this agreement are of no force or effect.
7. COUNTY’S MANDATORY POLICY PROVISIONS:
7.1 Food and Beverage Standards
Except in the event of an emergency or medical necessity, the following nutritional standards
shall apply to any foods and/or beverages purchased by TOWN with County funds for
County-sponsored meetings or events. If food is to be provided, healthier food options shall
be offered. “Healthier food options” include (1) fruits, vegetables, whole grains, and low fat
and low calorie foods; (2) minimally processed foods without added sugar and with low
sodium; (3) foods prepared using healthy cooking techniques; and (4) foods with less than
0.5 grams of trans fat per serving. Whenever possible, TOWN shall (1) offer seasonal and
local produce; (2) serve fruit instead of sugary, high calorie desserts; (3) attempt to
accommodate special, dietary and cultural needs; and (4) post nutritional information and/or
a list of ingredients for items served. If meals are to be provided, a vegetarian option shall be
provided, and the TOWN should consider providing a vegan option. If pre-packaged snack
foods are provided, the items shall contain: (1) no more than 35% of calories from fat, unless
the snack food items consist solely of nuts or seeds; (2) no more than 10% of calories from
saturated fat; (3) zero trans fat; (4) no more than 35% of total weight from sugar and caloric
sweeteners, except for fruits and vegetables with no added sweeteners or fats; and (5) no
more than 360 mg of sodium per serving.
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If beverages are to be provided, beverages that meet the County’s nutritional criteria are (1)
water with no caloric sweeteners; (2) unsweetened coffee or tea, provided that sugar and
sugar substitutes may be provided as condiments; (3) unsweetened, unflavored, reduced fat
(either nonfat or 1% low fat) dairy milk; (4) plant-derived milk (e.g., soy milk, rice milk, and
almond milk) with no more than 130 calories per 8 ounce serving; (5) 100% fruit or
vegetable juice (limited to a maximum of 8 ounces per container); and (6) other low-calorie
beverages (including tea and/or diet soda) that do not exceed 40 calories per 8 ounce serving.
Sugar-sweetened beverages shall not be provided.
7.2 No Smoking
TOWN and its employees, agents and contractors, shall comply with the County’s No-
Smoking Policy, as set forth in the Board of Supervisors Policy Manual section 3.47 (as
amended from time to time), which prohibits smoking: (1) at the Santa Clara Valley Medical
Center Campus and all County-owned and operated health facilities, (2) within 30 feet
surrounding County-owned buildings and leased buildings where the County is the sole
occupant, and (3) in all County vehicles.
7.3 Compliance With All Laws, Including Nondiscrimination, Equal Opportunity, and
Wage Theft Prevention
(1) Compliance with All Laws. TOWN shall comply with all applicable Federal, State, and
local laws, regulations, rules, and policies (collectively, “Laws”), including but not limited to
the non-discrimination, equal opportunity, and wage and hour Laws referenced in the
paragraphs below.
(2) Compliance with Non-Discrimination and Equal Opportunity Laws: TOWN shall comply
with all applicable Laws concerning nondiscrimination and equal opportunity in employment
and contracting, including but not limited to the following: Santa Clara County’s policies for
TOWNs on nondiscrimination and equal opportunity; Title VII of the Civil Rights Act of
1964 as amended; Americans with Disabilities Act of 1990; the Age Discrimination in
Employment Act of 1967; the Rehabilitation Act of 1973 (Sections 503 and 504); the Equal
Pay Act of 1963; California Fair Employment and Housing Act (Gov. Code § 12900 et seq.);
California Labor Code sections 1101, 1102, and 1197.5; and the Genetic Information
Nondiscrimination Act of 2008. In addition to the foregoing, TOWN shall not discriminate
against any TOWN, employee, or applicant for employment because of age, race, color,
national origin, ancestry, religion, sex, gender identity, gender expression, sexual orientation,
mental disability, physical disability, medical condition, political belief, organizational
affiliation, or marital status in the recruitment, selection for training (including but not
limited to apprenticeship), hiring, employment, assignment, promotion, layoff, rates of pay or
other forms of compensation. Nor shall TOWN discriminate in the provision of services
provided under this contract because of age, race, color, national origin, ancestry, religion,
sex, gender identity, gender expression, sexual orientation, mental disability, physical
disability, medical condition, political beliefs, organizational affiliations, or marital status.
(3) Compliance with Wage and Hour Laws: TOWN shall comply with all applicable wage
and hour Laws, which may include but are not limited to, the Federal Fair Labor Standards
Act, the California Labor Code, and, if applicable, any local minimum wage, prevailing
wage, or living wage Laws.
(4) Definitions: For purposes of this Section 9.03, the following definitions shall apply. A
“Final Judgment” shall mean a judgment, decision, determination, or order (a) which is
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issued by a court of law, an investigatory government agency authorized by law to enforce an
applicable Law, an arbiter, or arbitration panel and (b) for which all appeals have been
exhausted or the time period to appeal has expired. For pay equity Laws, relevant
investigatory government agencies include the federal Equal Employment Opportunity
Commission, the California Division of Labor Standards Enforcement, and the California
Department of Fair Employment and Housing. Violation of a pay equity Law shall mean
unlawful discrimination in compensation on the basis of an individual’s sex, gender, gender
identity, gender expression, sexual orientation, race, color, ethnicity, or national origin under
Title VII of the Civil Rights Act of 1964 as amended, the Equal Pay Act of 1963, California
Fair Employment and Housing Act, or California Labor Code section 1197.5, as applicable.
For wage and hour Laws, relevant investigatory government agencies include the federal
Department of Labor, the California Division of Labor Standards Enforcement, and the City
of San Jose’s Office of Equality Assurance.
(5) Prior Judgments, Decisions or Orders against TOWN: By signing this Agreement, TOWN
affirms that it has disclosed any final judgments that (A) were issued in the five years prior to
executing this Agreement by a court, an investigatory government agency, arbiter, or
arbitration panel and (B) found that TOWN violated an applicable wage and hour law or pay
equity law. TOWN further affirms that it has satisfied and complied with – or has reached
Agreement with the County regarding the manner in which it will satisfy – any such final
judgments.
(6) Violations of Wage and Hour Laws or Pay Equity Laws During Term of Contract: If at
any time during the term of this Agreement, TOWN receives a Final Judgment rendered
against it for violation of an applicable wage and hour Law or pay equity Law, then TOWN
shall promptly satisfy and comply with any such Final Judgment. TOWN shall inform the
Office of the County Executive-Office of Countywide Contracting Management (OCCM) of
any relevant Final Judgment against it within 30 days of the Final Judgment becoming final
or of learning of the Final Judgment, whichever is later. TOWN shall also provide any
documentary evidence of compliance with the Final Judgment within 5 days of satisfying the
Final Judgment. Any notice required by this paragraph shall be addressed to the Office of the
County Executive-OCCM at 70 W. Hedding Street, East Wing, 11th Floor, San José, CA
95110. Notice provisions in this paragraph are separate from any other notice provisions in
this Agreement and, accordingly, only notice provided to the Office of the County Executive-
OCCM satisfies the notice requirements in this paragraph.
(7) Access to Records Concerning Compliance with Pay Equity Laws: In addition to and
notwithstanding any other provision of this Agreement concerning access to TOWN’s
records, TOWN shall permit the County and/or its authorized representatives to audit and
review records related to compliance with applicable pay equity Laws. Upon the County’s
request, TOWN shall provide the County with access to any and all facilities and records,
including but not limited to financial and employee records, that are related to the purpose of
this Subsection H, except where prohibited by federal or state laws, regulations or rules.
County’s access to such records and facilities shall be permitted at any time during TOWN’s
normal business hours upon no less than 10 business days’ advance notice.
(8) Pay Equity Notification: TOWN shall (1) at least once in the first year of this Agreement
and annually thereafter, provide each of its employees working in California and each person
applying to TOWN for a job in California (collectively, “Employees and Job Applicants”)
with an electronic or paper copy of all applicable pay equity Laws or (2) throughout the term
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of this Agreement, continuously post an electronic copy of all applicable pay equity Laws in
conspicuous places accessible to all of TOWN’s Employees and Job Applicants.
(9) Material Breach: Failure to comply with any part of this Subsection H shall constitute a
material breach of this Agreement. In the event of such a breach, the County may, in its
discretion, exercise any or all remedies available under this Agreement and at law. County
may, among other things, take any or all of the following actions:
(i) Suspend or terminate any or all parts of this Agreement.
(ii) Withhold payment to TOWN until full satisfaction of a Final Judgment concerning
violation of an applicable wage and hour Law or pay equity Law.
(iii) Offer TOWN an opportunity to cure the breach.
(10) Contractors: TOWN shall impose all of the requirements set forth in this section on any
contractors permitted to perform work under this Agreement. This includes ensuring that any
contractors receiving a Final Judgment for violation of an applicable Law promptly satisfies
and complies with such Final Judgment.
7.4 Living Wage
Unless otherwise exempted or prohibited by law or County policy, TOWNs that contract with
the County to provide Direct Services, as defined in County of Santa Clara Ordinance Code
Division B36 (“Division B36”) and Board Policy section 5.5.5.5 (“Living Wage Policy”),
and their contractors, where the contract value is $100,000 or more, must comply with
Division B36 and the Living Wage Policy and compensate their employees in accordance
with Division B36 and the Living Wage Policy. Compliance and compensation for purposes
of this provision includes, but is not limited to, components relating to fair compensation,
earned sick leave, paid jury duty, fair workweek, worker retention, fair chance hiring,
targeted hiring, local hiring, protection from retaliation, and labor peace. If TOWN and/or a
contractor violates this provision, the Board of Supervisors or its designee may, at its sole
discretion, take responsive actions including, but not limited to, the following:
i. Suspend, modify, or terminate the Direct Services Contract.ii. Require the TOWN and/or
contractor to comply with an appropriate remediation plan developed by the County.
iii. Waive all or part of Division B36 or the Living Wage Policy.
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This provision shall not be construed to limit an employee's rights to bring any legal action
for violation of the employee's rights under Division B36 or any other applicable law.
Further, this provision does not confer any rights upon any person or entity other than the
Board of Supervisors or its designee to bring any action seeking the cancellation or
suspension of a County contract. By entering into this contract, TOWN certifies that it is
currently complying with Division B36 and the Living Wage Policy with respect to
applicable contracts, and warrants that it will continue to comply with Division B36 and the
Living Wage Policy with respect to applicable contracts.
IN WITNESS WHEREOF, the parties have executed the AGREEMENT the day and year set
forth above.
TOWN OF LOS GATOS, a municipal corporation
By: ___________________________________________ Date: ___________
Laurel Prevetti
Town Manager
APPROVED AS TO FORM:
By: ___________________________________________ Date: ___________
Rob Schultz
Town Attorney
COUNTY OF SANTA CLARA
_______________________________
S. Joseph Simitian, President
Board of Supervisors
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of Supervisors.
Attest: ___________________________
MEGAN DOYLE
Clerk of the Board of Supervisors
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APPROVED AS TO FORM AND LEGALITY
_________________________________
Christopher R. Cheleden
Lead Deputy County Counsel
Exhibits to Agreement:
Exhibit A—Map of Pocket Annexations
Exhibit B—Microsurfacing Treatment Calculations