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HomeMy WebLinkAbout103-Cooperative Agreement.pdfHighway 9 Phase II Cooperative Agreement Page 1 of 9 COOPERATIVE AGREEMENT FOR HIGHWAY 9 SAFETY IMPROVEMENTS – PHASE II THIS AGREEMENT, by and among the CITY OF SARATOGA, a municipal corporation (“Saratoga”), the TOWN OF LOS GATOS, a municipal corporation (“Los Gatos”), and the CITY OF MONTE SERENO, a municipal corporation (“Monte Sereno”) (collectively referenced herein as “parties” and individually referenced as a “party”) sets forth the terms of cooperation among the parties in proceeding with Phase II of the Highway 9 Safety Improvements.. RECITALS A. Phase II of the Highway 9 Safety Improvements (“Phase II” or “Project”) involves a Design Component and a Construction Component. The Design Component consists of design and engineering of the following features: pedestrian improvements along Highway 9 extending approximately from Oak Street in Saratoga to the Monte Sereno/Los Gatos City limits. The improvements include, but are not limited to, asphalt walkways, curbs, concrete sidewalks, retaining walls, roadway modifications, driveway modifications, and striping. The Project does not include the San Tomas Aquino Creek crossing. The Construction Component consists of constructing some or all of these features depending on fund availability. The features to be included in the Construction Component will be determined mutually by the parties to this agreement following completion of the Design Component in accordance with this Agreement. B. Except for connection with existing features and traffic lane closures in the Town of Los Gatos, the features included in Phase II are located within the territorial jurisdictions of the City of Saratoga, the County of Santa Clara and the City of Monte Sereno. During the project construction phase, certain features located in Los Gatos may be added to Phase II. The County of Santa Clara is not a party of this Agreement. A separate Agreement will be developed between the City of Saratoga and the County of Santa Clara for cost sharing purposes based on the jurisdictional location of the improvements. For the purpose of allocating design costs between the City of Saratoga and the City of Monte Sereno in this Agreement, costs attributable to the County of Santa Clara will be allocated to the City of Saratoga. C. Pursuant to Metropolitan Transportation Commission’s (“MTC”) Regional Bicycle and Pedestrian Program, Monte Sereno applied for and received approval for a federal Congestion Mitigation and Air Quality (“CMAQ”) grant for safety improvements to Highway 9 Phase I. Not all CMAQ grant funds were expended during Phase I. Unused Highway 9 Phase II Cooperative Agreement Page 2 of 9 CMAQ funds were transferred to Phase II and are available for the Design Component of Phase II. CMAQ funds are authorized for payment of eighty-eight and one half percent (88.5%) of the Final Design Cost as defined below. Saratoga and Monte Sereno agree to share the remaining portion of the Final Design Cost (the “Design Cost Local Share”) as set forth in this Agreement. The estimated cost of the Design Component is $522,000 of which $462,000 is available from CMAQ grant funds and the remaining $60,030 represents the estimated local share to be allocated between Monte Sereno and Saratoga pursuant to this Agreement. D. Pursuant to Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETY-LU), Saratoga has applied for and received approval for a Highway Safety Improvement Program (HSIP) grant for the Construction Component of Phase II. HSIP funds are authorized for payment of ninety percent (90%) of the Final Construction Cost as defined below. Saratoga and Monte Sereno agree to share the remaining portion of the Final Construction Cost (the “Construction Cost Local Share”) for the construction features located in each jurisdiction as set forth in this Agreement. The estimated cost of the Construction Component is $1,000,000 of which $900,000 is available from HSIP grant funds and the remaining $100,000 represents the estimated local share to be allocated between Monte Sereno and Saratoga pursuant to this Agreement. E. The California Department of Transportation (“Caltrans”) has authorized the parties to proceed with the Design Component using the CMAQ funds. The parties will seek Caltrans authorization to proceed with the Construction Component prior to undertaking work on that part of the Project. F. The Parties desire to execute this Agreement in order to delineate their respective rights and obligations concerning the administration, design, financing and construction of Phase II. Highway 9 Phase II Cooperative Agreement Page 3 of 9 AGREEMENT NOW, THEREFORE, the parties agree as follows: 1. Scope of Project. 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, Monte Sereno, and all local, state and federal agencies having jurisdiction over the Project or whose approval is otherwise required for receipt of CMAQ funds (with respect to Design Component approvals) and HSIP funds (with respect to Construction Component approvals). 2. 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, engineering, surveys, testing, inspections, topographic maps, geotechnical, soils and environmental surveys and reports, preparation, submitting and revision of all required permit applications, preparation of plans and specifications and other bid documents, publication, printing and advertising of the Project, and the personnel costs of Monte Sereno and Saratoga pursuant to section 4 of this Agreement based upon actual time expended in connection with the Design Component plus all applicable overhead expenses. The Final Design Cost shall be determined upon completion of the Design Component but in no event shall exceed $522,000 without the prior written consent of Monte Sereno and Saratoga. (b) The Design Cost Local Share shall be apportioned between Monte Sereno 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 as shown on the attached Exhibit A to this agreement. The Design Cost Local Share attributable to the County of Santa Clara will be allocated to the City of Saratoga. The parties estimate that Monte Sereno will pay 37% (thirty seven percent) or $22,104 of the local share and Saratoga will pay 63% (sixty three percent) or $37,926 of the local share, however this is an estimate only and the final allocation shall be based on the local share of the actual design 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 CMAQ and HSIP grants provided that it pays the additional design costs associated with those improvements and any resulting additional costs of administration. Highway 9 Phase II Cooperative Agreement Page 4 of 9 3. Scope of Construction Component. (a) It is expected that the total cost of constructing features included in the Design Component will exceed the funds available for the Construction Component. Following completion of the Design Component the parties will agree upon the features to include in the Construction Component and determine the Estimated Construction Cost. 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 11 of this Agreement. 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. (b) 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 the parties to this agreement and 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 11 of this Agreement. 4. 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, construction contract administration, notifications, construction staking, demolition, clearing, grubbing, grading, construction of pedestrian walkway, bridges, driveway approaches, crossings, and other structures as needed, testing, inspections, preparation of as-built plans, and the personnel costs of Monte Sereno and Saratoga based upon actual time expended in connection with the Construction Component plus all applicable overhead expenses. The Final Construction Cost shall be determined upon completion of the Construction Component but in no event shall exceed $1,000,000 without the prior written consent of Monte Sereno and Saratoga. (b) The Construction Cost Local Share shall be apportioned between Monte Sereno and Saratoga based on the cost of constructing the improvements that will be located within each jurisdiction stated as a percentage of the Final Construction Cost. The funds available for construction are not expected to be sufficient to construct all features designed in the design phase of the project. The parties will decide which features are going to be constructed in construction phase of the project when detailed construction cost estimate is available for the project. Final Highway 9 Phase II Cooperative Agreement Page 5 of 9 allocation of the construction cost shall be based on actual costs and the location of the construction. Payment of the Construction Cost Local Share shall be made in accordance with section 5 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 CMAQ and HSIP grants provided that it pays the additional construction costs associated with those improvements and any resulting additional costs of administration. 5. Payment of Project Costs. (a) In addition to its own share of the Final Design Cost and Final Construction Cost, and in anticipation of reimbursement by Caltrans through the release of the HSIP and CMAQ Grants, Saratoga shall periodically advance funds necessary to make payments that are intended hereunder to be paid with the HSIP and CMAQ Grants, 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. (b) Monte Sereno shall deposit with Saratoga $5,000 (five thousand dollars) of its 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 within 30 days after receipt of an invoice from Saratoga. Monte Sereno shall deposit half of its estimated Construction Cost Local Share with Saratoga within ten (10) days after receipt of an invoice from Saratoga following the award of a construction contract unless the bids will be rejected pursuant to this Agreement. (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 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 and Monte Sereno. In the event the accounting shows that the amount deposited by Monte Sereno is less than its share of the applicable cost, Monte Sereno shall pay the deficiency to Saratoga within thirty (30) days after the date the accounting is sent. Monte Sereno is obligated to pay any deficiency resulting from Project Changes it approved pursuant to this Agreement or any deficiency resulting from reasonable additional or unanticipated costs of administration incurred by Saratoga . 6. Project Administration. The parties agree that the Project will be managed cooperatively by the parties. Representatives of the parties shall work together to accomplish the Highway 9 Phase II Cooperative Agreement Page 6 of 9 Project. However, certain parties shall be responsible for administering certain portions of the Project as set forth below. (a) Saratoga shall be the lead agency for the Project for purposes of administering the HSIP and CMAQ Grants, 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. (b) Saratoga shall be responsible for overseeing construction of the Project. Saratoga shall provide oversight and inspection services for 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. (d) The Parties shall promptly review and respond to all materials submitted by one to the other for review and approval in connection with the Project. No approval in connection with the Project shall be unreasonably withheld. (e) For public meetings held in connection with the Project, each party is responsible for providing the notification of its residents that it determines is appropriate. 7. Right-of-way Acquisitions. 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. 8. Insurance Requirements. 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: (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 Highway 9 Phase II Cooperative Agreement Page 7 of 9 Sereno, and their respective officers, officials, boards, commissions, employees and volunteers as additional insured thereunder. (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, 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. (e) Liability insurance as required by the permitting agencies. 9. Bonding Requirements. 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. 10. 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 same shall be available for inspection by the parties at any time during usual business hours. Saratoga, as the project lead, shall provide other parties to this agreement, electronic and durable reproducible copies of the Design and As Built Construction documents related to project features located within their jurisdictions. 11. Termination of Agreement. (a) This Agreement is executed by the parties in reliance on the HSIP and CMAQ Grants. 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, 2010, 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 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 Highway 9 Phase II Cooperative Agreement Page 8 of 9 12. Limitation of Liability. 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 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. 13. Dispute Resolution. 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. 14. 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. 15. Assignment. 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. 16. Parties in Interest. 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. 17. Waiver. 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. 18. Amendment. No modification, waiver, termination, or amendment of this Agreement is effective unless made in writing and signed by all parties. 19. 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 Highway 9 Phase II Cooperative Agreement Page 9 of 9 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 is 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. 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, 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: _____________________ Orry Korb, Town Attorney Date:________________ P:\SARATOGA\Contracts\Hwy 9 Phase II coop agreement 11-11-09 (RST Comments 11-17-09).doc