2 FUNDING AGREEMENT
City Manager’s Office
701 Laurel St., Menlo Park, CA 94025
tel 650-330-6620
This Funding Agreement ("Agreement") is made this day of , ("Execution Date") by and between the City of Menlo Park ("City”) and the Town of Atherton (“Town”), each of which is referred to herein individually as "Party" and jointly as "Parties."
RECITALS:
WHEREAS, the City’s 2024 City-wide Slurry Seal Project (“Project”) includes installation of slurry seal, asphalt patching, signing and striping, and other incidental street improvement work along Valparaiso Avenue, from Elena Drive to El Camino Real, as shown in Exhibit A, and will be tentatively constructed this year; and WHEREAS, the City and Town’s jurisdictional boundary bisects Valparaiso Avenue along its centerline and the street is maintained by both Parties; and
WHEREAS, the portion of the proposed work north of Valparaiso Avenue’s centerline is within the Town’s right of way (“Town’s Section”); and
WHEREAS, the Parties agree that the project improvements are critical for public safety and the longevity of Valparaiso Avenue; and
WHEREAS, the Parties recognize that it would be more efficient, less disruptive, and more cost-effective for the City to construct the improvements under a single construction project covering both jurisdictions, subject to all the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the Parties agree as follows:
SECTION 1: SCOPE OF WORK AND REPORTING
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2 1.1 The City and Town shall be responsible for the following Scope of Work:
1.1.1 Design Phase: The Town shall make best efforts to sign this funding agreement prior to the project’s construction contract award. The City may exercise its right to remove the Town’s Section from the scope of work should the agreement not be executed 7 calendars days before the time of contract award. The City is responsible for designing the project’s construction bid package which includes plans, specifications, and cost estimates. Upon written request, the City will submit a draft of the construction bid package for the Town’s review prior to soliciting construction bids. The Town shall complete its review and provide comments, if any, to the City within 15 calendar days from its date of submittal. Modifications to this review timeline shall be mutually agreed to in advance by both the City and Town so far as it does not adversely impact the project’s bidding or construction schedule.
1.1.2 Bidding and Award Phase: The City is responsible for advertising construction bids and procuring a licensed contractor for the project pursuant to the Public Contracting Code. The Town will be notified of the bid results once the low bid is determined.
1.1.3 Pre-Construction Phase: The City will host a pre-construction meeting with the contractor prior to construction to discuss field operations including traffic control and sequencing of work. The Town shall be included as a participant in this meeting. City agrees to place and maintain suitable safeguards sufficient to prevent injury to any persons and to indemnify, defend and save harmless the Town as stipulated in Section 5.1.
1.1.4 Encroachment Permits: In the event that an encroachment permit from the Town is required, the Town shall waive all associated fees pertaining to the permit. Furthermore, the Town shall issue the permit in a timely manner, by a date mutually agreed to by the Parties, which does not impact timely delivery of the project. Any construction claims or change orders resulting from delays in the permit issuance is the Town’s responsibility and shall be invoiced to the Town pursuant to Section 3 of this Agreement.
Work approaching, and within, El Camino Real is subject to an encroachment permit from the California Department of Transportation (“Caltrans”). The City will be responsible for procuring the Caltrans permit for the project. In the event that permit issuance is delayed, or impacts timely delivery of the project, the City reserves the right to remove the section of work abutting El Camino Real by providing a written 7 day notice to the Town. The revised limit of work shall be mutually agreed to by the Parties and documented in the construction drawings.
Construction Phase: During construction, the City shall be responsible for procuring and handling all materials required to install the work. The City will provide construction management and inspections during construction per the project plans and specifications. The City shall also be responsible for managing administrative items including, but not limited to, change orders, submittals, daily reports, and invoices. If desired, the Town may elect to provide its own inspector, in addition to the City’s inspector, for the Town’s Section, at its sole expense.
The City will distribute material submittals and change orders, within the Town’s jurisdiction, for the Town’s approval prior to construction. Upon request, City shall also deliver copies of construction invoices for the Town’s reference and review. The Town shall review any material submittals, change orders, or invoice within seven calendar days its date of submittal. Extensions to this review timeline shall be mutually agreed to in advance by both the City and Town so far as it does not adversely impact the project’s construction schedule. Valparaiso Avenue serves as the main point of entry to the Sacred Heart School of Atherton. To minimize disruption to school schedules, the Parties shall perform the work during summer break and make best efforts to substantially finish construction prior to the 2024-25 school year (hereby designated as August 16, 2024).
Upon substantial completion of construction, the Town and City shall perform a punchlist walk to inspect the work and confirm that it has been satisfactorily completed. Thereafter, the Parties shall accept the work and the total cost incurred by the City will be invoiced to the Town pursuant to Section 3 of this Agreement.
1.1.5 Funding: The City acknowledges that public funds are being used to pay for the Project and shall ensure that any construction work related to the project includes payment of prevailing wages as required by law and the project specifications. The City will invoice the Town for construction costs incurred per Section 3 of this Agreement.
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2 SECTION 2: ACCESS TO RECORDS AND RECORD RETENTION
2.1 At all reasonable times, the City will permit, upon request, the Town to access all reports, designs, drawings, plans, specifications, schedules and other materials prepared, or in the process of being prepared, for the project by the City or any contractor or consultant of the City. City will provide copies of any documents and AutoCad drawings described in this Section to the Town upon request. The City and the Town will retain all records pertaining to the work for at least three years after completion of the Work.
SECTION 3: FUNDING AND PAYMENT
3.1 An engineer’s estimate of the Project’s probable construction costs is included per Exhibit B. The Town and City shall adhere to each Party’s funding contribution established in this document. The Parties acknowledge that the engineer’s estimate may not reflect actual project costs, or future change orders, which may vary based on contractor invoices received during construction.
3.2 Upon satisfactory completion of the project, the City will submit an invoice to the Town showing amounts paid by the City for the project, including fees pertaining to the Town’s Section. The Town shall pay the City for all costs incurred within the Town’s right of way. Construction invoices shall include itemized construction quantities, costs for work, change orders within the Town’s Section, and soft costs.
SECTION 4: TERM
4.1 Prior to the awarding of the construction contract, this agreement may be terminated by either Party in writing, with ten (10) days advance notice. After award of the construction contract, the Town will be responsible for all costs the City incurs for the Town’s jurisdiction of the Town’s Section of the project and this agreement may only be terminated with the express, written consent of the City. The terms of this agreement shall commence upon the Effective Date and shall end upon completion of the project unless terminated earlier.
SECTION 5: INDEMNIFICATION AND INSURANCE
5.1 City agrees, while engaged in the work provided for in this Agreement, to place and maintain suitable safeguards sufficient to prevent injury to any persons and to indemnify, defend and save harmless the Town, its officers, representatives, and employees from and against any and all claims for loss, injury or damage resulting from the prosecution of said work except to the extent any claim arises out of the sole negligence or willful misconduct of the Town. To the full extent required by applicable federal and state law, the City and its contractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto, and shall be solely responsible for carrying out the requirements of such provisions.
The City shall indemnify, defend and hold the Town and its elected and appointed officers, officials, employees, agents, consultants, and contractors harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages.
5.2 Town agrees, while engaged in the work provided for in this Agreement, to place and maintain suitable safeguards sufficient to prevent injury to any persons and to indemnify, defend and save harmless the City, its officers, representatives, and employees from and against any and all claims for loss, injury or damage resulting from the prosecution of said work except to the extent any claim arises out of the negligence or willful misconduct of the City.
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3 SECTION 6: MISCELLANEOUS
6.1 Notices. All notices required or permitted to be given under this Agreement must be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery or overnight courier to the appropriate address indicated below or at such other place(s) that either Party may designate in written notice to the other. Notices are deemed received upon delivery if personally served, one day after mailing if delivered via overnight courier, or two days after mailing if mailed as provided above.
To the Town: Town of Atherton
Attn: Director of Public Works
80 Fair Oaks Lane
Atherton, CA 94027
To the City: City of Menlo Park,
Attn: Public Works Director
701 Laurel Street
Menlo Park, California 94025-3409
Cc: City of Menlo Park
Attn: City Attorney
Burke, Williams & Sorensen, LLP
181 Third Street, Suite 200
San Rafael, CA 9490
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IN WITNESS WHEREOF, the Parties have hereunder subscribed their names the day and year indicated below.
CITY OF MENLO PARK, a municipal corporation
APPROVED AS TO FORM:
Nira F. Doherty, City Attorney Date
CITY OF MENLO PARK:
Justin I.C. Murphy, City Manager Date
ATTEST:
Judi A. Herren, City Clerk Date
TOWN OF ATHERTON, a municipal corporation
APPROVED AS TO FORM:
Robert Ovadia, Director of Public Works Date
Attachments:
Exhibit A: Site Plan of Shared Improvement Segment
Exhibit B: Engineer’s Estimate
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NOTE: THESE PLANS ARE FOR REFERENCE ONLY.
FINAL DESIGN MAY VARY
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Item Name Unit Unit Price Quantity Total Atherton Share Menlo Park Share 1 Mobilization LS $30,000 1 $30,000 $15,000 $15,000
2 Traffic Control LS $70,000 1 $70,000 $35,000 $35,0004 Slurry Reconstruction SY $4 19,444 $78,000 $39,000 $39,000 5 6-inch asphalt dig-out (Town) SF $20 3,000 $60,000 $60,000 $0 6 6-inch asphalt dig-out (City) SF $20 2,400 $48,000 $0 $48,000 7 Signing and Striping LS $100,000 1 $100,000 $50,000 $50,000 $386,000 $199,000 $187,000
10% Contingency $38,600 $19,900 $18,700
TOTAL $424,600 $218,900 $205,700
Valparaiso Avenue Slurry: Engineer's Estimate
Date: 3/25/24Prepared By: Michael Fu
EXHIBIT B
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