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OWNERSHIP, OPERATION, and MAINTENANCE AGREEMENT
Between
CITY/COUNTY ASSOCIATION OF GOVERNMENTS OF SAN MATEO COUNTY (C/CAG) and
THE CITY OF SOUTH SAN FRANCISCO
for the
SAN MATEO COUNTY SMART CORRIDORS PROJECT
This Agreement by and between the City/ County Association of Governments of San Mateo County, hereinafter referred to as “C/CAG”, and the City of South San Francisco, hereinafter referred to as “CITY,” is for the purpose of outlining and defining the roles, responsibilities, terms, and conditions for the ownership, operation, and maintenance of equipment and components that are incorporated and integrated into the San Mateo County Smart Corridors Project, hereinafter referred to as “Smart Corridors”, “Smart Corridors Project” or “the Project”.
CITY and C/CAG are sometimes individually referred to as a “Party” and collectively referred to as “Parties”.
RECITALS
A. C/CAG and CITY entered into a prior Memorandum of Understanding (MOU), on September 15, 2008, acknowledging an agreement to work cooperatively to develop and implement the Smart Corridors Project.
B. C/CAG and CITY entered into a Funding Agreement, on October 28, 2020, for the conduit purchase and installation for the Smart Corridors Project.
C. This Agreement is intended to identify the overall commitment and responsibilities regarding ownership, operations, and maintenance of the Smart Corridors Project’s unique equipment located within the CITY right-of-way during day-to-day operations and during major traffic incidents, as applicable.
D. The original Smart Corridors is located along predefined designated arterial routes, parallel and perpendicular to US-101, including and not limited to State Route (SR)-82 (El Camino Real) between Interstate 380 (I-380) and University Avenue in East Palo Alto. The expansion segments extend north along US-101 from I-380 to the San Francisco County line including South San Francisco and Brisbane and along I-280 from I-380 north to the San Francisco County line including Daly City and Colma.
E. The Smart Corridors Project enables the Project stakeholders to implement traffic management strategies through the deployment of Intelligent Transportation System (ITS) elements along state routes and major local streets.
F. In addition to CITY, other project stakeholders with access to selective Smart Corridors specific equipment currently include the Town of Atherton, City of Belmont, City of Brisbane, City of Burlingame, Town of Colma, City of Daly City, City of East Palo Alto,
EXHIBIT D
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City of Menlo Park, City of Millbrae, City of Redwood City, City of San Bruno, City of San Carlos, and City of San Mateo. These stakeholders, who are not signatories to this Agreement, have entered into or will enter into separate agreements with C/CAG for the maintenance and operation of Smart Corridors specific equipment located within their respective jurisdictional boundaries.
G. Caltrans District 4, who will have full access to Smart Corridors equipment throughout the Project limits, who is not a signatory to this Agreement, will enter into a separate agreement with C/CAG for the maintenance and operations of the Smart Corridors.
H. It is anticipated that Caltrans will enter into a separate agreement with CITY regarding the detailed operations of the Smart Corridors.
AGREEMENT
The Parties hereto agree as follows:
The new Intelligent Transportation System (ITS) elements to be installed in either CITY or Caltrans right-of-ways for the Smart Corridors Project, as depicted more particularly in Exhibit A attached hereto and incorporated herein, and referred to as New Equipment, are the following equipment and components:
• Directional signs (trailblazers and other)
• Fixed or pan-tilt-zoom (PTZ) closed-circuit television cameras (CCTV) • Communication facilities (conduit, fiber, copper, wireless, software, and associated equipment)
• Arterial changeable message signs (Arterial Dynamic Message Signs – ADMS) • Center-to-center communications between San Mateo County Hub (SMCHub) and District 4 Traffic Management Center (D4TMC)
• Power supply line and equipment
The following elements, located within CITY right-of-way, are considered existing CITY owned equipment that is being upgraded to meet the operational needs of the Smart Corridors, referred to as Upgraded Equipment:
• Traffic signal controllers, cabinets, signal interconnect equipment, vehicle detection systems and signal operating software systems The New and Upgraded Equipment are sometimes collectively referred to as “Smart Corridor equipment” in this Agreement.
When a major incident occurs on the US 101 such that capacity is severely reduced, it is anticipated that Caltrans will take over operations and control of both the New and Upgraded 3 of 8
Equipment. In the event that Caltrans does take over, such duration will be referred to as “during major traffic incidents” in this Agreement. Normal operations, without incidents, will be referred to as “during daily operations” in this Agreement.
Pursuant to a separate C/CAG-CITY Agreement, CITY will advertise, award, and administer the construction contract for portions of the Smart Corridors Project located on local arterials within the CITY boundaries.
Ownership
1. CITY shall continue to own the Upgraded Equipment located within CITY right-of-way, which were “Upgraded” by the Smart Corridor Project.
2. Upon completion of construction of the Smart Corridor Project, CITY shall own all New Equipment, which are, as listed above and shown in Exhibit A, the directional signs, CCTV cameras, communications (conduit, fiber, equipment), and vehicle detection system located within CITY right-of-way.
Operations
1. CITY shall continue to operate the Upgraded Equipment located within City right-of-way at CITY’s expense during daily operations.
2. Caltrans will be responsible for operating the New Equipment during major traffic incidents and CITY shall not be responsible for such operation during major traffic incidents. C/CAG shall coordinate with Caltrans and undertake reasonable steps to ensure: (a) the New Equipment remains operational to the extent feasible; and (b) that the CITY will have the ability to access the New Equipment system and view full system vehicle detection data, during both daily operations and during major traffic incidents.
The Parties acknowledge that control of the New Equipment during major traffic incidents will remain with Caltrans, but the CITY will have an opportunity to share control of the directional signs during daily operations under separate agreement with Caltrans.
3. The Parties acknowledge that additional agreements with Caltrans and possibly other municipalities may be necessary for operating Smart Corridors equipment located in the CITY limits during major traffic incidents. Both Parties agree to pursue such agreements as necessary.
Maintenance
1. CITY shall maintain the Upgraded Equipment at CITY’s expense.
2. CITY shall assume the associated electrical utility costs of the New and Upgraded Equipment located within CITY’s right-of-way.
3. Except for communication facilities identified above, C/CAG shall maintain the New Equipment, including directional signs, CCTV cameras, and vehicle detection system and the ADMS signs, located within CITY’s right-of-way to the extent that funding is 4 of 8
available. Except for communication facilities, CITY will not be held responsible for maintenance of the New Equipment. Maintenance service for the New Equipment shall be scheduled by C/CAG at least on an annual basis.
4. C/CAG agrees to seek to secure the necessary funding required for maintaining the New Equipment (except for communication facilities) located within CITY’s right-of-way.
5. C/CAG will not pay for graffiti removal on Smart Corridor equipment within the CITY’s right-of-way. CITY shall be responsible for graffiti removal on facilities and equipment located within CITY’s right-of-way.
6. C/CAG agrees to obtain a maintenance contractor that specializes in ITS equipment for maintenance of the New Equipment. C/CAG or its maintenance contractor will obtain an encroachment permit from the CITY for work within the CITY’s right-of-way.
7. C/CAG shall serve as lead agency to administer the maintenance service contract or to oversee administration of the maintenance service contract for its Smart Corridor maintenance responsibility. C/CAG may assign this oversight and administration responsibility to an alternate entity with consent from CITY, which consent shall not be unreasonably withheld.
8. If CITY is aware of Smart Corridor equipment damage caused by a third party, CITY will notify and reasonably assist C/CAG in pursuing a claim against the offending party.
9. Maintenance activities described hereunder shall include but are not limited to the following tasks: adopt a performance-based approach, establish a proactive annual maintenance program, perform regular maintenance, repairs, and replacements; assure equipment is functioning properly.
Maintenance programs established for the Smart Corridor equipment shall in no way be a standard of maintenance higher that that required by law.
10. For fiber conduits that do not interconnect signals, the City is responsible to protect the fiber communications lines by marking the location of these lines in the field during construction. The City will be responsible to repair any damage to the fiber communications lines caused by City Staff and contractors working for the City. The City will provide notice to C/CAG of any damage to fiber lines as soon as reasonably possible, but in no event more than two business days after City becomes aware of the damage. The City is also required to include the following language in any encroachment permits granted to any third party working in the City’s right of way. “Fiber optic communication lines are present in the City right of way. It is the responsibility of the contractor to protect the integrity of those fiber communication lines during construction. The contractor will be liable for all damages to the communication lines and the repair or restoration thereof. ”
11. For all fiber conduits not covered by Paragraph 10 above, the City is responsible to protect the fiber communications lines by marking the locations in the field during 5 of 8
construction. The City will be responsible to repair any damage to the communication lines caused by City staff, contractors working for the City, or any third party working under an encroachment permit issued by the City.
12. For any other communication facilities, the City shall maintain such facilities in a similar manner to that of other City-owned facilities in its ordinary course of municipal operations.
Insurance
During the term of this Agreement, both Parties shall ensure any Party or such Party’s contractors that is engaged in work on the Smart Corridors facility, at their respective sole cost and expense, furnish the other with certificates of insurance evidencing that they each have obtained and maintains insurance in the following amounts:
A. 1. Workers’ Compensation that satisfies the minimum statutory limits.
B. Commercial General Liability and Property Damage Insurance in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, completed operations and contractual liability coverage.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS ($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and non-owned vehicles.
Effective Date and Term
This Agreement shall be effective as of the _____ day of _________________, 2021 and continue until 2060, unless sooner terminated, or otherwise extended, by mutual consent of the Parties in writing. This Agreement may be modified only in writing and by mutual consent of both Parties.
Indemnity and Hold Harmless
1. To the fullest extent permitted by law, each Party to this Agreement shall indemnify and save harmless the other Party and the other Party’s officers, agents, employees and representatives from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of the indemnifying Party or its officers, agents, employees and representatives. The foregoing indemnification obligation shall not apply to the extent that the injury, loss of life, damage to property, or violation of law arises from the negligence or willful misconduct of the indemnified Party and its officers, agents, employees and representatives, or that the actions of indemnifying Party or its officers, 6 of 8
agents, employees and representatives have contributed in no part to the injury, loss of life, damage to property, or violation of law. The duty to indemnify and save harmless as set forth by this Section shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
2. This indemnification provision will survive termination or expiration of this Agreement.
Notice
All notices under this Agreement shall be in writing and shall be deemed validly given if sent by mail or national-recognized courier and shall be effective upon receipt. If any such notice or communication is not received or cannot be delivered due to a change in the address of the receiving party of which notice was not previously given to the sending party or due to a refusal to accept by the receiving party, such notice or other communication shall be effective on the date delivery is attempted. Notices should be addressed as follows:
City of South San
Francisco:
City of South San Francisco Public Works Department
550 N. Canal
South San Francisco, CA 94080
Attn: Public Works Director
C/CAG: City/County Associations of Governments of San Mateo County 555 County Center
Fifth Floor
Redwood City, CA 94063
Attn: Executive Director
Either Party may change the designated recipient of notices by so notifying the other Party in writing.
Miscellaneous
1. Nothing in this Agreement is intended to create any rights in any third parties.
2. If any provision of this Agreement is determined by a proper court to be invalid, illegal or unenforceable, such invalidity, illegality, or unenforceable shall not affect the other provisions of this Agreement and this Agreement shall remain in full force an effect without such invalid, illegal, or unenforceable provision.
3. If either party institutes any action or proceeding to enforce any of the provisions of this Agreement, then the prevailing party in any such action or proceeding shall be entitled to receive from the losing party the prevailing part’s reasonable attorney’s fees and disbursements and costs incurred in connection with such action or proceeding.
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4. Nothing contained in this Agreement is intended to create or shall in any event or under any circumstance be construed as creating a partnership or a joint venture between the Parties.
5. This Agreement shall benefit and bind the Parties and their respective permitted successors and assigns. This Agreement may be executed by electronic means and in counterparts, each of which shall be an original, but all of which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth above AGREED AND EXECUTED BY:
CITY OF SOUTH SAN FRANCISCO CITY/COUNTY ASSOCIATION OF
GOVERNMENTS OF SAN MATEO COUNTY
By: By:
Mike Futrell, City Manager Sean Charpentier, Executive Director Date: Date:
By: By:
City Attorney Melissa Andrikopoulos, Counsel
Date: Date:
By:
City Clerk
Date:
5039304.1
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Exhibit A