COST-SHARING AGREEMENT BETWEEN THE CITY OF SAN JOSE …

COST-SHARING AGREEMENT BETWEEN

THE CITY OF SAN JOSE AND

THE SANTA CLARA VALLEY TRANSPORTATION AUTHORITY FOR CONSTRUCTION OF IMPROVEMENTS TO THE EXISTING PAVEMENT AND

SIDEWALK AS PART OF THE ALUM ROCK/SANTA CLARA BUS RAPID TRANSIT (BRT)

PROJECT IN THE ALUM ROCK/SANTA CLARA CORRIDOR

This Agreement (hereinafter "AGREEMENT") is entered into by and between the Santa Clara Valley Transportation Authority (hereinafter "VTA"), a public agency of the State of California, and the City of San Jose, a municipal corporation (hereinafter "CITY"). The VTA and CITY may be referred to herein individually or collectively as the "PARTIES."

RECITALS

1. VTA has agreed to construct Bus Rapid Transit (BRT) improvements in the Alum Rock/Santa Clara corridor, herein referred to as the "BRT Project", of which will operate in the City of San Jose in the County of Santa Clara.

2. VTA and CITY have been and desire to continue to cooperate in constructing certain City improvements in the area of the BRT improvements ("PROJECT"), as further described in Section I, paragraph 2 and located in the "BRT Corridor" as shown in EXHIBIT "A" - Alum Rock/Santa Clara BRT Corridor Map.

3. In anticipation of the execution of this Agreement, VTA began working on the PROJECT in June 2014. VTA has completed a portion of the PROJECT consisting of roadway pavement improvements in the west-bound lanes and sidewalk, curb/gutter, ADA ramps and driveway improvements along Alum Rock Avenue from Interstate 680 to Highway 101, which improvements were completed under VTA construction contract "C830" and referred to herein as the "First Phase Improvements." Prior to execution of this Agreement City has conducted an inspection of the First Phase Improvements.

4. Pursuant to the PARTIES desire that VTA provide construction and construction administration for the remainder of the PROJECT (herein referred to as the "Second Phase.") The improvements to be constructed during the Second Phase are referred to herein as the "Second Phase Improvements" and will he constructed under VTA construction contract "C836." For puiposes of this AGREEMENT, "construction administration" or "administration" includes all work necessary to obtain bids, award the construction contract, monitor and administer the contracts, provide materials control, conduct survey and site inspection, make progress payments to contractors, and obtain all required permits and clearances.

Cost Share Agreement_Pavementcubramps_draftJVTA_KP_09-18-14 Pavement Cost Sharing Agreement_CSJ_VTA_Final_Septl42016

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

The PARTIES desire that construction of the Second Phase of the PROJECT continue and anticipate that such construction will be completed by December 2016.

It is in the public interest that the entire PROJECT is constructed by VTA in conjunction with the BRT Project, and CITY desires to pay VTA a portion of the PROJECT cost.

VTA and CITY mutually desire to set forth herein the terms and conditions under which the PROJECT is to be administered and constructed.

SECTION I

VTA OBLIGATIONS:

1. VTA has constructed, and shall continue to construct, the PROJECT in accordance with the Plans and Specifications and in accordance with the applicable requirements of the CITY, VTA, and State of California. VTA shall obtain any encroachment permits as necessary to construct the PROJECT.

2. The PROJECT includes the following scope of work, but is not limited to:

• Pavement reconstruction • Overlay and slurry seal • Installation of ramps that are complaint with the Americans with

Disabilities Act (ADA) • Sidewalk, driveway, curb and gutter improvements ® Cold in-place recycle paving.

3. VTA shall maintain for the term of this AGREEMENT insurance (or self-insurance) equivalent to that set forth in EXHIBIT "B," entitled "Insurance Requirements," and shall require any contractor hired to perform work that is funded in whole or in part under this AGREEMENT to maintain insurance as specified in EXHIBIT "B."

4. VTA shall include CITY as an active participant in VTA's project management process, and hold periodic meetings with CITY staff for assessing the progress of the Second Phase Improvements in order to address issues as they arise.

5. For Second Phase Improvements, VTA shall provide a written notice to CITY upon execution of construction contracts and commencement of construction, and shall provide CITY with a copy of each construction contract and a copy of the contractor's approved schedule for construction.

6. VTA shall include in the bid package for the Second Phase Improvements a timeframe for completion of the construction included in this AGREEMENT that is reasonable in light of the nature and scope of work. VTA shall include in the construction contract a requirement that the contractor provide VTA with a construction schedule for construction of the Second Phase Improvements, which conforms to the timeframe included in the PROJECT bid documents.

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7. For the Second Phase Improvements, VTA will conduct weekly meetings with the City and provide City with updates and a three week look ahead schedule. In addition, VTA will provide monthly updates to the CITY with the details of construction activities and expenditures. This update shall include:

(a) A cumulative and periodic statement of construction expenditures expressed in dollars and in terms of percent completed for the construction contract.

(b) A summary of construction change orders describing their nature and justification, their costs, their impact upon the construction schedule, and the extent to which VTA has allocated CITY funds to their costs.

(c) A summary of claims and potential claims for the PROJECT filed by the construction contractor and/or its subcontractors, which summary describes the nature and the impact that such claims may have on the construction costs and schedule.

8. VTA shall prepare and send an invoice to the CITY for its share of the First Phase Improvements in the lump sum amount not-to-exceed $1,800,000 (One Million Eight Hundred Thousand Dollars) upon execution of the AGREEMENT. By its execution of this Agreement, CITY agrees that it has inspected and approved the First Phase Improvements and that VTA shall not be required to do additional work thereon.

9. Commencing on the first day of the month following the execution of this Agreement by the PARTIES, the total Second Phase CITY contribution will be invoiced evenly over a period of six (6) months. VTA will therefore prepare and send a monthly invoice in the amount of $300,000 to the CITY for its share of the Second Phase Improvements. All invoices shall indicate the total invoiced to date and the total remaining after payment of the amount on the invoice.

10. VTA shall maintain all records related to the construction of the PROJECT and its work under this AGREEMENT for a period of three (3) years after the completion of the construction contract and final payment to the VTA under this AGREEMENT. During this period, the VTA shall make these records available to the CITY for inspection upon the CITY's request. This AGREEMENT shall be subject to examination and audit of the State Auditor pursuant to Government Code § 8546.7 for a period of three (3) years after final payment hereunder. VTA shall include in any contract for any part of the PROJECT a similar requirement and provision requiring its contractors to do likewise.

11. VTA shall arrange for a complete set of construction record drawings and related documents for the improvements included in this AGREEMENT to be delivered to the CITY upon completion of the PROJECT or within a reasonable time thereafter. The documentation required shall include at least the following:

0 Record drawings

• Bid documents issued for construction and change orders

• Close out report

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SECTION II

CITY OBLIGATIONS:

1. The CITY shall pay its share of the First Phase Improvements to VTA, in an agreed lump sum amount not-to-exceed $1,800,000 (One Million Eight Hundred Thousand Dollars), which amount is referred to herein as the "First Phase Payment." After receipt of VTA's invoice for the First Phase Improvements, CITY shall authorize payment for the amount presented therein within thirty (30) days of receipt thereof.

2. The CITY shall pay its share of the Second Phase Improvements to VTA no later than 30-days after receipt of an invoice from the VTA, as further set forth in Section I, above. The CITY's share of One Million Eight Hundred Thousand Dollars ($1,800,000) shall herein be referred to as "Second Phase Cost." After receipt of any invoice from VTA for the Second Phase Improvements, CITY shall authorize payment for the amount presented therein within thirty (30) days of receipt thereof, provided the aggregate total for such invoices does not exceed the Second Phase Cost.

3. At CITY's own expense, CITY may provide on-site representatives to consult and coordinate with the VTA's construction administration staff. If provided, these representatives shall be in addition to, and not in lieu of, the VTA's construction administration role and staff.

4. City shall provide timely reviews and approvals of submittals by VTA related to PROJECT per a schedule agreed upon by the CITY and VTA.

SECTION III

MISCELLANEOUS:

1. Entire Agreement. This AGREEMENT contains the entire understanding between the PARTIES with respect to the subject matter herein. There are no representatives, agreements, or understandings, oral or written, between the PARTIES relating to the subject matter of this AGREEMENT that are not fully expressed herein.

2. Project Manager. VTA and CITY shall each designate a "Project Manager" for PROJECT, who shall be responsible for monitoring and coordinating the performance of all its duties under this AGREEMENT. The PARTIES shall give written notice to the other in the event that there is ever a change in the designated Project Manager.

3. Changes in Scope.

(a) If VTA requests changes in the design or scope of the improvements in this AGREEMENT, VTA shall request written approval (via email) from the CITY's Project Manager. CITY shall respond promptly to such requests to avoid delays to the PROJECT and its approval shall not be unreasonably withheld.

(b) If the CITY requests changes in the design or scope of the improvements in this AGREEMENT, CITY shall request written approval (via email) from the VTA's

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Project Manager. VTA shall respond promptly to such requests to avoid delays to the PROJECT and its approval shall not be unreasonably withheld.

(c) Requests for changes in design or scope by either party shall be accompanied by cost estimates and funding instructions. Items added or changed solely at the CITY's request or convenience will be funded solely at the CITY's expense (and shall result in an increase in the amount due from CITY to VTA). Items added or changed solely at the VTA's request or convenience will be funded solely at the VTA's expense. No changes that exceed the CITY's financial contribution of Three Million Six Hundred Thousand Dollars ($3,600,000) may be authorized without amendment of this AGREEMENT.

4. Schedule: VTA will provide monthly schedule updates showing the schedule of the specific activities throughout construction. If it becomes necessary to revise dates, the CITY and VTA will cooperate in developing a revision.

5. Hold Harmless and Indemnification:

(a) VTA Indemnification of CITY. Neither CITY nor any of its officers or employees shall be responsible for any damage or liability by reason of anything done or omitted by VTA in connection with any work, authority or jurisdiction delegated to VTA under this AGREEMENT. Pursuant to Government Code Section 895.4, VTA shall fully indemnify and hold CITY harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted by VTA in connection with any work, authority or jurisdiction delegated to VTA under this AGREEMENT. This hold harmless shall apply to any activities, emors or omissions of the VTA and/or VTA's officers, employees, agents, consultants or contractors or any persons or entities acting or omitting to act for or on behalf of VTA where such persons or entities are specifically authorized and empowered by VTA to act for VTA.

(b) CITY Indemnification of VTA. Neither VTA nor any of its officers or employees shall be responsible for any damage or liability occurring by reason of anything done or omitted by the CITY in connection with any work, authority or jurisdiction delegated to the CITY under this AGREEMENT. Pursuant to Government Code Section 895.4, the CITY shall fully indemnify and hold VTA harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted by the CITY in connection with any work, authority or jurisdiction delegated to the CITY under this AGREEMENT. This hold harmless shall apply to any activities, errors or omissions of the CITY and/or its officers, employees, agents, consultants or contractors or any persons or entities acting or omitting to act for or on behalf of the CITY where such persons or entities are specifically authorized and empowered by the CITY to act for the CITY.

(c) VTA Contractors. VTA shall ensure that in all contracts entered into by VTA with respect to the improvements that each contractor, subcontractor, consultant, and subconsultant shall indemnify and hold the CITY harmless to the same extent that

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VTA is indemnified and held harmless. Further, VTA shall require that the CITY and its officers and employees be named as an additional insured on any liability insurance policy that VTA requires from its contractor, subcontractors, consultants, and subconsultants. .

(d) CITY Contractors. CITY shall ensure that in all contracts entered into by CITY with respect to the improvements that each contractor, subcontractor, consultant, and subconsultant shall indemnify and hold VTA harmless to the same extent that CITY is indemnified and held harmless. Further, CITY shall require that VTA and its officers and employees be named as an additional insured on any liability insurance policy that CITY requires from its contractor, subcontractors, consultants, and subconsultants.

6. Dispute Resolution: If a disagreement exists between the PARTIES as to the meaning or application of the provisions of this AGREEMENT or any other matter related to this AGREEMENT, the respective Project Managers of each PARTY shall meet informally to resolve the dispute. If resolution is not reached, senior management, as each PARTY shall designate, shall meet to seek a mutually acceptable resolution of the dispute. If resolution cannot, be reached, the PARTIES may seek resolution of the disagreement through any process(es) available to the PARTIES in the sole discretion of each respective PARTY, including arbitration, litigation or mediation.

7. Term of Agreement: Unless otherwise modified by a written amendment to this AGREEMENT, the term of this AGREEMENT shall be from the date this AGREEMENT is fully executed by the PARTIES until the PROJECT is accepted by both PARTIES and all obligations and final payments pursuant to this AGREEMENT are fulfilled.

8. Correspondence and Authorized Representatives: Correspondence and notices required by this AGREEMENT shall be sent to the authorized representative of the receiving PARTY at the address below. Written notification to the other PARTY shall be provided in advance of any changes in the name or address of such authorized representatives.

VTA: Carolyn Gonot, Director Engineering and Transportation Infrastructure Development Santa Clara Valley Transportation Authority 3331 North First Street, Bldg. A San Jose, CA 95134-1906

CITY: Jim Ortbal, Director Department of Transportation City of San Jose 200 E. Santa Clara Street, 8th Floor San Jose, CA 95113-1905 Attn: Thuy Nguyen

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IN WITNESS WHEREOF, VTA and the CITY have entered into this AGREEMENT effective as of the date it is fully executed by the PARTIES.

Santa Clara Valley Transportation Authority A California Public Agency

City of San Jose A Municipal Corporation

By. I. Fernandi

General Manager ez

Date if

By. Toni J. Taber, CMC City Clerk

Date

APPROVED AS TO FORM:

"V idfor^^^far^o SenioTA^sistant Counsel

APPROVED AS TO FORM:

y Jon Calegari Deputy City Attorney

Date Date

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EXHIBIT A Alum Rock/Santa Clara BRT Corridor Map


EXHIBIT B Insurance Requirements

VTA shall procure and maintain for the duration of the contract insurance or self-insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the work hereunder by the VTA, its agents, representatives, employees, contractors or subcontractors.

I. Minimum Scope of Insurance

Coverage shall be at least as broad as:

1. The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001); and

2. The coverage provided by Insurance Services Office form number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non-owned and hired automobiles; and

3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance; and

4. VTA's Pollution Liability Insurance, including coverage for all operations, completed operations and professional services.

There shall be no endorsement reducing the scope of coverage required above unless approved by the CITY's Risk Manager.

II. Minimum Limits of Insurance

VTA shall maintain limits no less than:

1. Commercial General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage.

3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident.

4. VTA's Pollution Liability: $1,000,000 each occurrence/aggregate limit.


III. Deductibles and Self-Insured Retentions

Any deductibles or self-insured retentions must be declared to, and approved by, the CITY. At the option of the CITY, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officials, employees, agents and contractors; or the VTA shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the CITY.

IV. Other Insurance Provisions

The policies are to contain, or be endorsed to contain, the following provisions:

1. General Liability and Automobile Liability Coverages

a. The CITY, its officials, employees, agents and contractors are to be covered as additional insureds as respects: liability arising out of activities performed by, or on behalf of, the VTA; products and completed operations of the VTA; premises owned, leased or used by the VTA; or automobiles owned, leased, hired or borrowed by the VTA. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officials, employees, agents and contractors.

b. The VTA's insurance coverage shall be primary insurance as respects the CITY, its officials, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officials, employees, agents or contractors shall be excess of the VTA's insurance and shall not contribute with it.

c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officials, employees, agents, or contractors.

d. Coverage shall state that the VTA's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

e. Coverage shall contain a waiver of subrogation in favor of the CITY, its officials, employees, agents and contractors.

2. Workers' Compensation and Employers' Liability

Coverage shall contain a waiver of subrogation in favor of the CITY, its officials, employees, agents and contractors.

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3. All Coverages

Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice has been given to the CITY; except that ten (10) days' prior written notice shall apply in the event of cancellation for non-payment of premium.

V. Acceptability of Insurance

If commercial insurance is acquired to insure activities under this Contract, such insurance is to be placed with insurers with an AM Best Rating of A VII or better."

VI. Verification of Coverage

VTA shall furnish the CITY with certificates of insurance and with original endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.

Copies of all the required ENDORSEMENTS shall be attached to the CERTIFICATE OF INSURANCE which shall be provided by the VTA's insurance company as evidence of the stipulated coverages.

Proof of insurance shall be either emailed in pdf format to: [email protected], or mailed to the following postal address (or any subsequent email or postal address as may be directed in writing by the Risk Manager):

City of San Jose - Finance Department Risk & Insurance 200 East Santa Clara St., 14th Floor San Jose, CA 95113-1905

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mailto:[email protected]


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COST-SHARING AGREEMENT BETWEEN THE CITY OF SAN JOSE …