16-147 Pacific Gas and Electric Company (PG&E), Slurry Seal of Orange AvenueAGREEMENT BETWEEN THE CITY OF
CUPERTINO AND PACIFIC GAS AND ELECTRIC COMP ANY
FOR THE SLURRY SEAL OF
ORANGE AVENUE
This Agreement (herein "Agreement") is made and entered into this 2-0"fhday of {!;[HV)c..v , 2016 , (herein
the "Effective Date") by and between the City of Cupertino, a chartered California municipal corporation, with
its principal place of business located at 10300 Torre Avenue, Cupertino , California 95014 (herein
"CUPERTINO") AND the Pacific Gas and Electric Company, a California corporation, (herein "PG&E") with
its principal place of business located at 77 Beale Street, San Francisco, CA 94105. CUPERTINO and PG&E
may be referred to herein individually as a "Party" or collectively as the "Parties", or the "Parties to this
Agreement".
RECITALS
WHEREAS:
A. CUPERTINO finds that it is in the public interest to slurry seal Orange Avenue, over which
CUPERTINO has jurisdiction, due to multiple underground improvements ; and
B. CUPERTINO has a p a vement cut moratorium that requires resurfacing or repaving of any
streets where pavement cut work occurs within 3 years of new pavement installation; and
C. It is in the public interest for CUPERTINO and PG&E to complete the PROJECT in a
cooperative and economical manner by constructing portions of the PROJECT together; and
D. Each Party has agreed to perform its portion of the work as described herein, under its direction.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the Parties, CUPERTINO and PG&E agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The work to be performed under this Agreement is to slurry seal the entire width of Orange A venue,
from Almaden Ave/Olive Ave to McClellan Road, to reestablish any pavement markings and to expose
utility structures accordingly (the "PROJECT").
2. CUPERTINO'S OBLIGATIONS:
CUPERTINO agrees as follows:
A. To pay CUPERTINO's share of the PROJECT cost of $14,341, as defined in Section 3 .C ., up to
a maximum amount of $15,775 including contingencies/change orders. PG&E shall not
approve change orders in excess of 10% of the project cost without the consent of
CUPE RTINO. CUPERTINO'S share of the costs includes 100% of the contractor costs for
work on the CUPERTINO street cut portion of the road , up to the maximum amount.
B . To p a y its share of the PROJECT cost within forty-five (45) business days of receiving and
approving the deta iled inv oice from PG&E, provided that the following conditions are met:
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1. The PROJECT has been completed and CUPERTINO has approved all work.
Acceptance by CUPERTINO shall be made in writing to PG&E; and
2 . The detailed invoice sets forth the cost of construction of all PROJECT work based on
the actual contract unit prices paid and negotiated change order(s), if any.
C. The designated project manager for CUPERTINO for the duration of the PROJECT is Roger
Lee (phone number: 408-777 -3350). CUPERTINO '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 PG&E.
CUPERTINO may request documentation of PROJECT costs, and may review the original
invoices and weight certificates or request copies of same, which shall be provided within a
reasonable time .
3. PG&E'S OBLIGATIONS:
PG&E agrees as follows:
A. To act as the lead Party to administer the design and construction of the PROJECT .
Administration shall include preparation of specifications, contract documents and cost
estimates; notification of local businesses; coordination with various agencies; preparation of all
necessary environmental documents; obtaining permits; obtaining bids; awarding the
construction agreement; administering the construction agreement ; providing mate1ials control
and inspection services; and making progress payments to the contractor.
B. To promptly provide CUPERTINO with awarded final specifications and contract documents
for the PROJECT.
C. To pay PG&E 's street cut share portion of the PROJECT cost. The PROJECT cost is defined as
the actual amount paid to the contractor for PG&E' s engineering, construction and other
administrative services .
D. PG&E agrees to cooperate with CUPERTINO should CUPERTINO raise any issues concerning
the work that require cotTection ptior to acceptance or within the watTanty period.
E . The designated project manager for PG&E for the duration of the PROJECT is Kyle Pleger
(phone number : 734-516 -1436). PG&E '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.
F. 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
CUPERTINO at any time during usual business hours for the tem1 of this Agreement.
4. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the tenn of this
Agreement shall be six (6) months from the Effective Date or until the PROJECT acceptance by
both Parties and final payments of all outstanding balances.
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B . Consistent with CUPERTINO Municipal Code, Section 14 .04 .010 .C.3, CUPERTINO shall
cause the contractor to provide a waiTant y period of at least one (1) year from the acceptance
date.
5. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under this Agreement, ownership and title to all mate1ials ,
equipment and appurtenances installed as a part of the PROJECT within the city limits of
CUPERTINO will automatically be v ested in CUPERTINO and no further agreement will be
necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between CUPERTINO and
PG&E with regard to maintenance, operation or further repair responsibility .
6. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by any Party to perform the work included in the PROJECT shall not be an
agent or employee of any Party and will perform such work as independent contractor. All persons
employed by or contracted with such contractor(s) to furnish labor and/or materials in connection with
the work on the PROJECT shall not be employees of any Party in any respect.
7. TERMINATION:
Once PG&E has awarded the construction contract for the PROJECT, the Agreement can be tenninated
only upon the mutual written consent and terms acceptable to all Parties .
8. NO PLEDGING OF EITHER CITY'S CREDIT:
Under no circumstances shall either CUPERTINO or PG&E have authority or power to pledge the
credit of the other Party or incur obligation in the name of the other Party .
9. 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.
10. AMENDMENTS:
No alteration or a mendment of the terms of this Agreement shall be valid unl ess made in writing and
signed by the Patties and incorporated into this A greement.
11. NOTICES:
Notices are to be sent as follows :
To CUPERTINO : Ro ger S . Lee
Assistance Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
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To PG&E: Kyle Pleger
Project Manager
PG&E
680 Dado Street
San Jose, CA 95131-1292
12. 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.
13. ENCROACHMENT PERMITS:
All Parties to this Agreement will cooperate and /or provide access to its consultants, engineers and
contractors for the PROJECT . Contractor shall obtain street opening permit from CUPERTINO and
CUPERTINO shall provide such a permit at no cost.
14. HOLD HARMLESS/INDEMNIFICATION:
Neither of the respective Parties, nor their respective City Council, employees, officers, agents and
assigns , as applicable, shall be responsible for any damage or liability occurring by reason of anything
done or omitted to be done by the other Party in connection with the PROJECT.
It is understood and agreed that the respective Parties shall fully indemnify and hold the other 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 CUPERTINO or PG&E 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, e1Tor or omission of the respective Party and/or
the 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 the respective
Party to act for the Party. For the activities , eITors, 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 on the Parties' behalf.
15. CAPTIONS:
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for
convenience only and shall not be considered nor refe1Ted to for resolving questions of interpretation of
this Agreement.
16. INSURANCE REQUIREMENTS:
PG&E 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 an y other time periods specified
bodily injury insurance and property damage insurance, at no additional cost to either CUPERTINO or
PG&E, with coverage amounts, required endorsements , certificates of insurance , and coverage
verifications satisfactory and acceptable to all Parties . CUPERTINO and PG&E, their respective City
Council, comnlissions , officers , employees , volunteers and agents , as applicable, are hereby added as
additional insureds on the commercial general liability policy with respect to liability arising out of
Contractor 's work for PG&E on this Project.
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It is mutually understood that during the term of the construction activities on the PROJECT, PG&E
will require the successful contractor to cany commercial general liability in amounts of not less than
Two Million Dollars ($2,000,000); automobile liability in an amount not less that One Million Dollars
($1,000,000); and, a Workers' Compensation Insurance policy with policy limits in an amount not less
than One Million Dollars ($ 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 . PG&E shall require that any contractor awarded a contract for any portion of the work to be
done on the PROJECT shall comply with the requirements for prevailing wage under Labor Code
Section 1770, et seq .
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 CUPERTINO and PG&E relating to 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 .
The Parties acknowledge and accept the tenns 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 .
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APPROVED AS TO FORM :
CITY OF CUPERTINO, CALIFORNIA,
10300 Torre Avenue
Cupertino , California 95014
Phone: (408) 777-3212
Fax : (408) 777 -3366
~HOM
i()~ tL
DAVID BRANDT
City Manager City Attorney
\~T:
Gusi,#
GRACE SCHIMDT / 0. l4 ./ b
City Clerk
APPROVED AS TO FORM :
JONATHAN PENDLETON
Senior Counsel
ATTEST:
ALBERT L E
Public Affairs
PACIFIC GAS AND ELECTRIC COMP ANY
RABIAH KHALID
Public Affairs
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EXHIBIT "A"
SCOPE OF WORK AND SCHEDULE OF PERFORMANCE
1) The project consists of applying a slurry seal over the entire width of Orange A venue, from Almaden
Ave/Olive Ave to McClellan Road, and the reestablishment of any pavement markings and to expose
utility structures accordingly . Sluny Seal shall be of a kind and shall be installed according to Caltrans
standard specifications .
2) If during the course of constructing the improvements, public interest requires a modification of/or a
departure from the City of Cupertino specifications or the scope of work contained herein, the City
Engineer shall have the authority to require such modification or departure and to specify the manner in
which the same is to be completed .
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AGENCY QUANTITY WORKSHEET
AGENCY QUANTITY WORKSHEET
i Discription Units . Unit Cost Qty Total Cost P6&E •Cost Cup ertino Cost ~.. .. .. .. .. .. .. . ... .. .. .. . ... ... . . .. . . . . .. ....................................... : ......................................... ":
J!.~ !:! r,J!,l c:>. ?,~r,.ipi f:1~.~~.'!lc:>Y,8, !\.~? . .. .. . . ; . .. . . . .. $?.,0.gO. .. . ....... .. ... . $1.,<J90.. .. . .... $1.~<:l~O
, ?.l~r..'Y ?.~?.1J1.~~5.'~9..l j?.~ .. :. .$<:1 '..~0.}~?.~5.: .......... $?.3.A?.?J ................ $~1.,?.~'9. .. . $~1.,?89.:
.. 1.?.'.'T~~.r.'!'.~?.!.r.ipil'I&.!~~ ....... • ........ $?'.?:?.• 188 ! .$1,363 • $682 • $682 .
. . . ~·:.:r.~~.r.'!'~ ?.!tiJ>.il'I&! '!. ............ . ~.'.?:?: . ······ 51 ................... $?.1.? . . . $~<?~ $.!~8
..... '.'?.~~P.'.' ~ 11 ~11 ?.Yf!i.~c:>I~-~?.. .. $275 .oo : .5. • .. .... ... ..... $.1.,}.?5. $688 : $688 •
. .T~~r.'!.1c:>.?.l:!!~P~~~_!~c3 $iso.oo • 1 $:t.50 1 $75 : $75
Total $28,682 $14,341 $14,341
Tota l + 10% Contingency $31,550 $15,775 $15,ns
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