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Page 1 of 8 COOPERATIVE AGREEMENT FOR HIGHWAY 9 SAFETY IMPROVEMENTS – PHASE III THIS AGREEMENT, by and among the CITY OF SARATOGA, a municipal corporation (“Saratoga”), the CITY OF MONTE
SERENO, a municipal corporation (“Monte Sereno”), and the TOWN OF LOS GATOS, a municipal corporation (“Los Gatos”) (collectively referenced herein as “parties” and individually referenced
as a “party”) sets forth the terms of cooperation among the parties in proceeding with Phase III of the Highway 9 Safety Improvements. RECITALS A. Pursuant to Clean Air and Transportation
Improvement Act of 1990 (CATIA), Saratoga applied for and received approval for a Bicycle Program grant in the amount of $460,851 for safety improvements to Highway 9 Phase III between
Saratoga Avenue and Los Gatos Boulevard as specified in more detail below. B. The Project includes bicycle safety improvements at Highway 9 and Austin Way intersection, upgrade intersections
of Highway 9 and Fruitvale Avenue, Quito Road, North Santa Cruz Avenue, Alberto Way Way and Los Gatos Boulevard to include bicycle sensors, and design a new through bicycle lane to separate
the through/right turn conflict at Highway 9 and Los Gatos Boulevard. C. The Parties anticipate that five percent (5%) of CATIA funds will be used for the environmental and design work
and remaining ninety five percent (95%) will be used for the construction. In addition, other funds are available for payment of the environmental and design work as specified in the
attached Exhibit A -Design Cost Estimate. The parties have agreed to share the remaining environmental and design cost (the “Local Share”). D. The California Transportation Commission
(CTC) has executed Fund Transfer Agreement (FTA) P116B-2-41 for the project and authorized the City of Saratoga to proceed with the Design Component. The parties will seek Caltrans authorization
to proceed with the Construction Component prior to undertaking work on that part of the Project. E. The Parties desire to execute this Agreement in order to delineate their respective
rights and obligations concerning the administration, financing and construction of Phase III.
Page 2 of 8 AGREEMENT NOW, THEREFORE, the parties agree as follows: 1. Scope of Project2. . The Project includes the design, engineering, and construction of the highway improvements
described in the recitals. All work shall be performed in accordance with plans and specifications approved by Saratoga, Los Gatos and Monte Sereno, and all local, state and federal
agencies having jurisdiction over the Project or whose approval is otherwise required for receipt of CATIA funds. Allocation of Design Component Costs(a) The term “Final Design Cost,”
as used herein means the total of all expenditures relating to the Design Component, including, but not limited to, environmental work, engineering, surveys, testing, inspections, topographic
maps, geotechnical, soils and environmental surveys and reports, preparation of plans and specifications and other bid documents, publication, printing and advertising of the Project.
The Final Design Cost shall be determined upon completion of the Design Component but in no event event shall exceed $112,000 without the prior written consent of Monte Sereno, Los Gatos
and Saratoga. . (b) The Design Cost and the design funds available are shown in the attached Exhibit A -Design Cost Estimate. It is estimated that approximately $60,466 of the Final
Design Cost (Local Share) shall be apportioned between Monte Sereno, Los Gatos and Saratoga based on the cost of designing the improvements that will be located within each jurisdiction
stated as a percentage of the Final Design Cost. The parties estimate that Monte Sereno will pay 24% (twenty-four percent) or $14,613 of the local share, Los Gatos will pay 43% (forty-three
percent) or $26,230 and Saratoga will pay 33% (thirty-three percent) or $19,623 of the local share, however this is an estimate only and the final allocation shall be based on actual
costs. Payment of the Design Cost Local Share shall be made in accordance with section 4 of this Agreement. (c) Each party is permitted to approve additional improvements within their
own jurisdiction beyond the scope of the work approved for the CATIA grants provided that it pays the additional design costs associated with those improvements and any resulting additional
costs of administration. 3. Allocation of Construction Component Costs. (a) The term “Final Construction Cost,” as used herein means the total of all expenditures relating to the Construction
Component, including, but not limited to, management, supervision, labor, materials, tools, supplies, equipment,
Page 3 of 8 services, plant, construction engineering, staking, testing an/or any other act or thing required to diligently and fully perform and complete the work as described in the
construction bid documents. (b) Following completion of the Design Component the parties will determine the Estimated Construction Cost. The “Estimated Construction Cost” is the estimate
of the construction costs determined prior to the opening of bids for the award of the construction contract, plus an agreed additional amount based on an estimation of project administrative
costs pursuant to section 4 of this Agreement. It is expected that the “Final Construction Cost” of constructing features included in the Design Component will be paid from the remaining
available CATIA funds. No local match for the construction is required, however, if the total construction costs exceed available funds, the parties will agree upon the features to include
in the Construction Component. If no such agreement is reached by the ninetieth (90th) day after completion of the Design Component, this Agreement shall automatically terminate pursuant
to section 10 of this Agreement. (c) If, upon the opening of bids for the award of a construction contract, there is a cost overrun of no more than ten percent (10%) of the Estimated
Construction Cost, the parties shall proceed with the Construction Component in accordance with this Agreement. However, if such bids indicate a cost overrun exceeding ten percent (10%)
of the Estimated Construction Cost, Saratoga will reject all bids and then the parties will work to obtain an agreement with Caltrans regarding an alternative project design. If no such
agreement is reached by the sixtieth (60th) day after the opening of bids, this Agreement shall automatically terminate pursuant to section 10 of this Agreement. (d) Each party is permitted
to approve additional improvements within their own jurisdiction beyond the scope of the work approved for the CATIA grant provided that it pays the additional construction costs associated
with those improvements and any resulting additional costs of administration. 4. Payment of Project Costs(a) In addition to its own share of the Final Design Cost and Final Construction
Cost, if any, and in anticipation of reimbursement by Caltrans through the release of the CATIA Grant, Saratoga shall periodically advance funds necessary to make payments that are intended
hereunder to be paid with the CATIA Grant, provided, however, that in the event that Saratoga has not received full reimbursement from Caltrans for any prior advance made, Saratoga may,
at its option, withhold any payment requiring that it advance funds if said payment is not legally required to be made at that time. .
Page 4 of 8 (b) Monte Sereno and Los Gatos shall deposit with Saratoga 50% (fifty percent) of its estimated Design Cost Local Share within thirty (30) days of execution of this agreement.
The remainder of the Design Cost Local Share shall be deposited by Monte Sereno and Los Gatos within 30 days after receipt of an invoice from Saratoga. (c) Upon completion of the Design
Component and the Construction Component, respectively, Saratoga shall furnish to Monte Sereno a detailed accounting of the Final Design Cost and Final Construction Cost, as applicable.
In the event the accounting shows that the amount deposited by Monte Sereno and/or Los Gatos exceeded its share of the applicable final cost, the excess shall be reimbursed within thirty
(30) days after the accounting is completed and approved by Saratoga, Los Gatos and Monte Sereno. In the event the accounting shows that the amount deposited by Monte Sereno and Los
Gatos is less than its share of the applicable cost, Monte Sereno and/or Los Gatos shall pay the deficiency to Saratoga within thirty (30) days after the date the accounting is sent.
Monte Sereno and Los Gatos are obligated to pay any deficiency resulting from Project Changes approved pursuant to this Agreement or any deficiency resulting from reasonable additional
or unanticipated costs of administration incurred by Saratoga. 5. Project Administration(a) Saratoga shall be the lead agency for the Project for purposes of administering the CATIA
Grant, preliminary engineering of the Project, which shall include, but not be limited to, the Preliminary Study Report, the Project Report, and compliance with CEQA and NEPA. Saratoga
shall oversee the design and bidding of the Project, shall award the contract for the Project and shall obtain all permits necessary for the Project. Saratoga shall enter into all contracts
necessary to implement the Project provided the contract is approved by the parties. . The parties agree that the Project will be managed cooperatively by the parties. Representatives
of the parties shall work together to accomplish the Project. However, certain parties shall be responsible for administering certain portions of the Project as set forth below. (b)
Saratoga shall be responsible for overseeing construction and inspection services of the Project. (c) The parties must each approve the plans and specifications for the Project. Saratoga
shall not enter into any contract in excess of $25,000 or increase any contract by more than $25,000, for the performance of professional, consulting or construction services without
the prior written consent of Monte Sereno and Los Gatos.
Page 5 of 8 (d) The Parties shall promptly review and respond to all materials submitted by one of the cities for review and approval in connection with the Project. No approval in connection
with the Project shall be unreasonably withheld. 6. Right-of-way Acquisitions7. . No right of way acquisitions are expected to be a part of the Project. If it is determined that the
acquisition of any right-of-way is required for the Project, the party having territorial jurisdiction over the property to be acquired shall be responsible for obtaining such right-of-way
and conducting any proceedings that may be necessary in connection therewith; provided, however, no contract for legal services shall be awarded and no eminent domain action shall be
commenced without the prior approval of the other parties and Caltrans. In the event acquisition of right-of way is necessary to the base project, the City in which the right-of way
is located shall pay for the acquisition of the right-of-way. Any delay costs caused by the acquisition shall be shared by the parties in proportion to their portion of the Design Cost
Local Share. In the event a party desires to acquire right-of-way which is not necessary for the base project, that party shall bear both acquisition and delay costs. Insurance Requirements(a)
Broad form comprehensive liability insurance having a combined single limit of not less than $ 2,000,000 per occurrence, naming Saratoga, Los Gatos, Monte Sereno, and their respective
officers, officials, boards, commissions, employees and volunteers as insureds thereunder. . All contracts awarded for design or construction of the Project shall include a requirement
that the consultant and/or contractor, at all times during design and construction and until final acceptance of the work, maintain in full force and effect the following insurance policies:
(b) For construction contracts, builder’s risk insurance covering the replacement cost of the improvements, with a loss payable clause naming Saratoga, Los Gatos and Monte Sereno, Sereno,
as their respective interests may appear. (c) Worker’s Compensation insurance as required by state law, together with employer’s liability insurance having a coverage limit of not less
than $1,000,000 per accident. (d) For design consultants, professional liability insurance having a limit of not less than $1,000,000. 8. Bonding Requirements9. . The contractor who
is awarded the contract for construction of the Project shall be required to provide performance and payment bonds in the amount of one hundred percent (100%) of the contract price.
Project Records. The parties shall keep and maintain a complete copy of all 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
Page 6 of 8 same shall be available for inspection by the parties at any time during usual business hours. 10. Termination of Agreement(a) This Agreement is executed by the parties in
reliance on the CATIA Grant. In the event a grant agreement is not executed between Saratoga and Caltrans, this Agreement shall automatically terminate and each of the parties shall
be released from any further obligation or liability hereunder. . (b) In the event a contract for construction of the Project is not awarded pursuant to section 2 of this Agreement or
for any reason prior to December 30, 2012, this Agreement shall terminate unless extended by mutual consent of all parties hereto. (c) Upon termination in accordance with the terms of
this section, Saratoga shall refund to Monte Sereno and Los Gatos any balance of its contributions remaining after deduction of the costs incurred by Saratoga up to the date of termination
and payable by each party under the terms of this Agreement 11.. Limitation of Liability12. . No party to this Agreement shall be responsible or liable to any other party or parties
for any act or omission made in good faith in connection with the performance of its duties hereunder, nor shall any party be responsible or liable for any act or omission by any consultant
or contractor retained for the performance of any services related to the Project. Saratoga, Los Gatos and Monte Sereno shall contribute equally towards any loss, liability, expense,
claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the Project. This paragraph
shall not be construed to exempt any party, including its employees and officers, from its own fraud, willful injury or violation of law whether willful or negligent. Dispute Resolution13.
Jurisdiction and Severability. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement
shall be in the Superior Court of the County of Santa Clara. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null and void insofar
as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. . The parties shall make a good faith effort to settle any dispute or claim arising
under this Agreement. If the parties fail to resolve such disputes or claims, they shall submit them to non-binding mediation in the County of Santa Clara, California, or by mutual agreement
in any other location. If mediation does not arrive at a satisfactory result, arbitration, if agreed to by all parties, or litigation may be pursued. In the event any of these dispute
resolution processes are involved, each party shall bear its own costs and attorneys fees.
Page 7 of 8 14. Assignment15. . Except as provided in section 6 of this Agreement, no party may assign any right or obligation pursuant to this Agreement. Any attempted or purported
assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. Monte Sereno and Los Gatos acknowledge and accept that a portion of the project management
duties of Saratoga stated in section 6 of this Agreement will be provided by contractors whose services will be engaged by Saratoga pursuant to this Agreement. Parties in Interest16.
. This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other individual, entity or person. Waiver17. . No failure on
the part of any party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default
under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. Amendment18. . No modification, waiver, termination,
or amendment of this Agreement is effective unless made in writing and signed by all parties. Entire Agreement. This Agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the Project and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No alteration or variation
of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto.
Page 8 of 8 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year last written below. City of Saratoga City of Monte Sereno Town of Los Gatos By: _____________________
Dave Anderson, City Manager Date: ________________ By: _________________________ Brian Loventhal City Manager Date: ___________________ By: _________________________ Greg Larson Town
Manager Date: _____________________ Attest: ______________________ Ann Sullivan, City Clerk Date: ______________ Attest: _________________________ Andrea Chelemengos, City Clerk Date:
____________________ Attest: __________________________ Jackie Rose, Town Clerk Administrator Date: _____________________ Approved as to Form: _____________________ Richard Taylor, City
Attorney Date:________________ Approved as to Form: ________________________ Kirstin Powell, City Attorney Date: ____________________ Approved as to Form: __________________________
Judith Propp, Town Attorney Date: _____________________
EXHIBIT A -Design Cost Estimate25-Jan-11Highway 9 Safety Improvement Project -Phase III Total Design Costlocationdesign costlocationdesign costlocationdesign costAustin Way intersection
realignment40,990$ 60%24,594$ 40%16,396$ 0%-$ Bicycle loop impr. at Fruitvale Avenue7,515$ 100%7,515$ 0%-$ 0%-$ Bicycle loop impr. at Quito Road7,515$ 0%-$ 100%7,515$ 0%-$ Bicycle loop
impr. at N. Santa Cruz Ave.7,515$ 0%-$ 0%-$ 100%7,515$ Bicycle loop impr. at Alberto Way7,515$ 0%-$ 0%-$ 100%7,515$ Bicycle loop impr. at Los Gatos Blvd.7,515$ 0%-$ 0%-$ 100%7,515$ Hwy
9 at Los Gatos Blvd-new bike lane, ret. wall20,375$ 0%-$ 0%-$ 100%20,375$ Total design cost98,940$ 32,109$ 23,911$ 42,920$ % design cost per City32%24%43%Local match needed60,466$ 19,623$
14,613$ 26,230$ DESIGN FUNDS AVAILABLE:Grant funds available for design (5% of $460,851): 23,040$ VTA: 20,000$ Santa Clara County:8,494$ Local funds needed (see table above): 60,466$
Total design funds available112,000$ DESIGN COST (ESTIMATED):Engineering design cost98,940$ Environmental document10,752$ Bid documents, advertising, misc.2,308$ Total design cost (estimated)112,000$
City of SaratogaCity of Monte SerenoTown of Los Gatos