AGREEMENT BETWEEN THE CITY OF SARATOGA
AND THE CITY OF CUPERTINO
FOR PAVEMENT SEALING OF
PROSPECT RD BETWEEN DE ANZA BLVD AND STELLING RD
This Agreement ( “Agreement”) is made and entered into this ___ day of ____________,2022, (“Effective Date”) by and between the City of Saratoga, a California, municipal corporation, with its principal place of business located at 13777 Fruitvale Ave, Saratoga, CA 95070 ( “SARATOGA”), and the City of Cupertino, a California municipal corporation, with its principal place of business located at 10300 Torre Ave, Cupertino, CA 95014 ( “CUPERTINO”). SARATOGA and CUPERTINO may be referred to individually or collectively as the “Parties,” “Cities,” or the “Parties to this Agreement.”
RECITALS
WHEREAS:
SARATOGA and CUPERTINO contemplate placing a Rubberized Chip Seal on Prospect Road between De Anza Blvd and Stelling Road (“PROJECT”), over which SARATOGA and CUPERTINO have jurisdiction;
It is in the public interest for SARATOGA and CUPERTINO to complete the PROJECT (as defined in SECTION 1, below) in a cooperative and economical manner by constructing both portions of the PROJECT for SARATOGA and CUPERTINO at the same time; The Parties acknowledge CUPERTINO is the California Environmental Quality Act (“CEQA”) Lead Agency for the PROJECT, and CUPERTINO’s compliance with CEQA is a precondition to any construction of the PROJECT, including SARATOGA’s portion; and Each Party has agreed to perform its portion of the work as described herein, under its own direction.
In consideration of the above referenced recitals and the following mutual covenants, agreements and obligations of the parties, SARATOGA and CUPERTINO agree as follows:
AGREEMENT PROVISIONS
PROJECT DESCRIPTION:
The work to be performed under this Agreement will consist of rubberized chip seal, micro surfacing, replacement of traffic markings, and markers and legends. 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, attached and incorporated by reference.
The City limit between SARATOGA and CUPERTINO along Prospect Road between De Anza Boulevard and Stelling Road runs along centerline of Prospect Road. Approximately 50% of the project area is within SARATOGA's jurisdiction and 50% is within CUPERTINO’s jurisdiction. SARATOGA will be responsible for 100% of SARATOGA’s Construction Cost (as defined herein) within its jurisdiction.
CUPERTINO’s OBLIGATIONS:
CUPERTINO agrees as follows:
A. To act as the lead agency to administer the construction of the PROJECT. Administration shall include preparation of specifications, contract documents and cost estimate; notifications to local businesses; coordination with applicable 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.
To promptly provide SARATOGA with awarded final specifications and contract documents for the PROJECT.
To cooperate with SARATOGA should SARATOGA raise any issues concerning the work in SARATOGA’s jurisdiction that requires correction by the selected contractor prior to acceptance or within the warranty period of the PROJECT.
To assign as the designated project manager for CUPERTINO for the duration of the PROJECT Jo Anne Johnson (email: [email protected]). CUPERTINO’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 CUPERTINO.
To keep and maintain a complete copy of all records regarding 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 SARATOGA at any time during usual business hours.
To allow SARATOGA staff reasonable access to the PROJECT site, at all reasonable times and upon advance notice, to perform observation of any work on the SARATOGA portion of the PROJECT.
To provide SARATOGA with a copy of as-built record drawings for the PROJECT including specifically the SARATOGA portion thereof.
To include, in its contract with the contractor on the PROJECT, a requirement that the contractor include SARATOGA, its officials, officers, employees and agents as additional insureds, and that the contractor indemnify SARATOGA, its officials, officers, employees and agents to the same extent that CUPERTINO is indemnified.
To require the contractor on the PROJECT, obtain all required permits and approvals for all PROJECT work, including work associated with the SARATOGA portion thereof.
To provide a final accounting of all PROJECT costs associated with the SARATOGA portion of the PROJECT to SARATOGA within thirty (30) days after the Parties accept the PROJECT as complete.
SARATOGA’S OBLIGATIONS:
SARATOGA agrees as follows:
A.  Pay for 100% of SARATOGA's share of the Construction Cost. As used in this Agreement, the term “Construction Cost” is defined to mean the actual amount paid to the contractor for the PROJECT, plus ten percent (10%) for CUPERTINO’s engineering, construction management and other administrative services and, if necessary, a ten percent (10%) construction contingency, which construction contingency shall be used to provide funding for unanticipated work that may be necessary for the proper completion of the PROJECT. SARATOGA’s share of the Construction Cost is 100% of the Construction Cost for the SARATOGA owned portion of the road, provided, however, that total payments made by SARATOGA under this Agreement shall not exceed the maximum amount of One Hundred and Sixty-Five Thousand Dollars ($165,000) ('"Total Reimbursement A mount").
The PARTIES understand that the PROJECT cost is based upon the actual unit costs from bid scheduled and estimated quantities for the PROJECT, as set forth in Exhibit “B.” The maximum payment amount includes a 10% construction contingency which is consistent with CUPERTINO’s practice for public works construction contracts awarded to the lowest responsive and responsible bidder as an allowance for potential contract change orders. Should the total costs based upon the public work’s bid from CUPERTINO’s construction contractor exceed the Total Reimbursement Amount, prior to the award of any contract, this Agreement shall be amended to set forth a revised Total Reimbursement Amount or this contract shall be terminated.
To pay its share of the Construction Cost within forty-five (45) business days of receiving and approving the detailed invoice from CUPERTINO, provided that the following conditions are met:
The PROJECT has been completed and SARATOGA has approved the portion of the work in its jurisdiction. Acceptance by SARATOGA shall be made in writing to CUPERTINO. SARATOGA 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.
The detailed invoice sets forth the cos of construction of all PROJECT work based on the actual contract unit prices paid and negotiated change order(s), if any.
CUPERTINO shall invoice SARATOGA only one (1) time which shall occur after PROJECT completion, and this invoice shall be considered as the final detailed invoice for the PROJECT.
D. To assign as the designated project manager for SARATOGA for the duration of the PROJECT Emma Burkhalter (email: [email protected]). SARATOGA’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 CUPERTINO.
TERM OF AGREEMENT:
Unless otherwise modified by a written amendment to this Agreement, the term of this Agreement shall be until PROJECT acceptance by both parties and final payments of all outstanding balances.
Consistent with CUPERTINO Standard Specifications, Section 11.2, CUPERTINO shall cause the contractor to provide a warranty period of at least one (1) year from the acceptance date.
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 limits of CUPERTINO will automatically be vested in CUPERTINO, and all materials, equipment and appurtenances installed as a part of the PROJECT within the SARATOGA limits will be vested in SARATOGA, and no further agreement will be necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between SARATOGA and CUPERTINO with regard to maintenance, operation, or further repair responsibility for that portion of the PROJECT within each Cities’ limits.
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 an 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.
TERMINATION:
Once the Agreement for the PROJECT has been executed, the Agreement can be terminated only upon the mutual written consent and terms acceptable to both parties.
NO PLEDGING OF EITHER CITY’S CREDIT:
Under no circumstances shall either SARATOGA or CUPERTINO have authority or power to pledge the credit of the other public entity or incur obligation in the name of the other public entity.
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.
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 NOTICES:
Notices are to be sent as follows:
To CUPERTINO: Jo Anne Johnson
Project Manager
Department of Public Works
City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
To SARATOGA: Emma Burkhalter
Associate Engineer
City of Saratoga
13777 Fruitvale Ave
Saratoga, CA 95070
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.
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 a street opening permit from SARATOGA and SARATOGA shall provide such a permit at no cost.
HOLD HARMLESS/INDEMNIFICATION:
It is understood and agreed that pursuant to California Government Code Section 895.4, that each 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 the indemnifying Party 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, errors, or omissions of the indemnifying Party and/or that Party’s officers, employees, agents, or any person or entity acting or omitting to act for or on behalf of said Party or such person or entities as are specifically authorized and empowered by that Party to act for it. For the activities, errors and/or omissions of the contractor retained for the PROJECT, each Party shall defend, indemnify, and hold harmless the other Party to the fullest extent legally possible for all work performed in the indemnifying Party’s jurisdiction. The hold harmless and indemnification obligations set forth in this provision are limited and only applicable to the extent arising from the active negligence or willful misconduct of each 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:
CUPERTINO shall require any contractor awarded a contract for any portion of the work to be done on the PROJECT to secure and maintain in full force and effect at all times during construction and performance of the PROJECT, and until said PROJECT is accepted by all Parties, and any other time periods specified in the 2022 PAVEMENT MAINTENANCE PHASE 2 PROJECT contract documents, insurance coverage described below, at no additional cost to either CUPERTINO or SARATOGA, with coverage amounts, required endorsements, certificates of insurance, and coverage verifications satisfactory and acceptable to all Parties. SARATOGA, its respective City Council, commissions, officers, employees, volunteers, and agents shall be added as additional insureds on the commercial general liability policy with respect to liability arising out of the contractor's work for CUPERTINO on this Project.
It is mutually understood that during the term of the construction activities on the PROJECT, CUPERTINO will require the selected contractor to carry commercial general liability in amounts of not less than Two Million Dollars ($2,000,000) per occurrence ; automobile liability in an amount not less than One Million Dollars ($1,000,000) per accident; and a Workers' Compensation Insurance policy as required by the State of California, with Statutory and Employer's Liability Insurance limits of 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. CUPERTINO shall require that any contractor awarded a contract for any portion of the work to be done on the PROJECT comply with the requirements for prevailing wage under Labor Code Section 1770, et seq. The PROJECT shall be paid for and constructed in accordance with all ordinances, resolutions, rules, regulations, and laws of CUPERTINO to the extent they are consistent with state statutes.
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 CITY OF SARATOGA and CITY OF CUPERTINO for 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. [Continued next page]
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.
CITY OF SARATOGA, CALIFORNIA
13777 Fruitvale Ave
Saratoga, CA 95070
Phone: (408) 868-1239
APPROVED AS TO FORM:
_____________________________________ _____________________________________ RICHARD TAYLOR Date JAMES LINDSAY Date
City Attorney City Manager
ATTEST:
______________________________________
BRITT AVRIT Date
City Clerk
CITY OF CUPERTINO, CALIFORNIA
10300 Torre Ave
Cupertino, CA 95014
Phone: (408) 777-3354
APPROVED AS TO FORM:
_____________________________________ _____________________________________ Christopher Jensen Date PAMELA WU Date
City Attorney City Manager
ATTEST:
______________________________________
Kirsten Squarcia Date
City Clerk
EXHIBlT "A"
SCOPE OF WORK AND SCHEDULE OF PERFORMAN CE
The PROJECT consists of placing rubberized chip seal, micro surfacing, and replacement of affected traffic striping on Prospect Rd between De Anza Blvd and Stelling Rd. 50% of the project area is within CUPERTINO’s jurisdiction and 50% is within SARATOGA's jurisdiction.
CUPERTINO is to deliver the PROJECT and prepare contract documents and striping plans within the PROJECT limits.
The work to be performed is fully described in the 2022 PAVEMENT MAINTENANCE PHASE 2 contract documents.
The above-mentioned contract documents are herein incorporated to this Agreement by reference.
Figure: Project Limit and Location Map
PROSPECT RD (De Anza Blvd to Stelling Rd)
Attachment A