REIMBURSEMENT AGREEMENT FOR COSTS RELATED TO THE
INSTALLATION OF GAS PIPELINE SUPPORTS
BY AND BETWEEN SAN DIEGO GAS & ELECTRIC COMPANY (SDG&E)
AND THE CITY OF CHULA VISTA, CALIFORNIA
(HERITAGE ROAD BRIDGE REPLACEMENT)
THIS REIMBURSEMENT AGREEMENT FOR COSTS RELATED TO T HE
INSTALLATION OF SAN DIEGO GAS & ELECTRIC GAS PIPELI NE SUPPORTS ("Agreement"), dated October 14, 2024, is entered into by and between SAN DIEGO GAS & ELECTRIC COMPANY ("SDG&E") a California corporation, and the City of Chula Vista, a chartered municipal corporation ("City") to establi sh terms and conditions pursuant to which City will bid and cause the installation of certain SDG&E Gas Pipeline Support, defined herein below, to be installed and SDG&E will reimburse the City for all expenses related thereto.
SDG&E and the City may be referred to herein individually as "Party" and collectively as the "Parties."
RECITALS
WHEREAS, City will be constructing improvements to replace Heritage Road Bridge; such improvements include, but are not limited to, replace an existing 4-lane timber deck bridge with 450-foot long bridge with 6 through-lanes, 2 left-turn lanes, 2 shoulder/bike lanes, 2 sidewalks, railings and a median (the “Project”); and
WHEREAS, SDG&E will approve and pay for the install ation of its SDG&E Gas Pipeline Supports and appurtenances as a part of the above-described Project; and
WHEREAS, the construction of SDG&E Gas Pipeline Supports (as defined below), in conjunction with the construction of the City Impro vements (as defined below), would be a substantial benefit to SDG&E and the City, which be nefits include, but are not limited to, reductions or savings in terms of time and costs; and
WHEREAS, in order to achieve such benefits, SDG&E d esires that City incorporate the construction and installation of SDG&E Gas Pipe line Supports into the City’s bid and contract documents for City Improvements; and
WHEREAS, City is willing to do so, provided SDG&E r eviews, approves, and provides the design of the SDG&E Gas Pipeline Suppo rts and SDG&E agrees to reimburse City for the SDG&E Costs in strict accordance with the terms and conditions of this Agreement; and
WHEREAS, SDG&E is authorized, pursuant to applicable laws, to contract and to pay for the installation and related services for the SDG&E Gas Pipeline Support based on the cost structure detailed in Article IV. Reimbursement of Costs.
NOW, THEREFORE, in consideration of the mutual cove nants herein contained, it is agreed by and between the Parties hereto, as follows:
ARTICLE I. DEFINITIONS
1.1 Definitions. Unless the context otherwise requi res, the terms defined in this Section 1 shall, for all purposes of this Agreement and of an y amendment hereto, and of any certificate, opinion, estimate or other document he rein mentioned, have the meanings herein specified.
"SDG&E" means San Diego Gas & Electric Company.
"City" means the City of Chula Vista, California, a chartered municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California.
"City Improvements" means, collectively, the construction to replace an existing 4-lane timber deck bridge with 450-foot long bridge with 6 through-lanes, 2 left-turn lanes, 2 shoulder/bike lanes, 2 sidewalks and a median, in a ccordance with the Contract Documents and Construction Agreement.
"SDG&E Costs" means: (a) one hundred-percent (100%) of the dollar amount of any and all costs for the construction, installation, a nd inspection of the SDG&E Gas Pipeline Supports, including, but not limited to, c osts of materials, labor, oversight, bidding, permits, change orders; and (b) one hundre d percent (100%) of the Pre- Construction Costs (as defined below).
"SDG&E Gas Pipeline Supports" means, collectively, the installation of new gas pipeline supports and related appurtenances and fac ilities as shown in Exhibit A and Exhibit B hereto, as the same may be amended from t ime to time via change order or otherwise.
"Project" means, collectively, the construction and installation of SDG&E Gas Pipeline Supports.
ARTICLE II. PRE-CONSTRUCTlON
2.1 Design and Specifications. Prior to advertiseme nt of the construction and installation of Project, an authorized representative of SDG&E shall review and approve all designs and all associated plans and specifications (collectively "Construction Documents") for the SDG&E Gas Pipeline Supports and such approval s hall not be unreasonably withheld. SDG&E shall be solely responsible for rev iew and approval of the Construction Documents for the SDG&E Gas Pipeline Supports. SDG&E shall provide approved Construction Documents for the SDG&E Gas P ipeline Supports by no later than twenty (20) working days after the same has be en requested by the City for advertisement purposes.
2.1.1 Pre-construction Costs. All costs associated with the design of SDG&E Gas Pipeline Supports and the preparation of Constructi on Documents, including
but not limited to incorporating technical specs, bid sheet, conformed plans and specs, preparation of agreements, therefor (“Precon struction Costs”) shall be borne by SDG&E. After award of the Construction Ag reement, the Preconstruction Costs shall be calculated proportio nately in the same manner and to the same extent as the construction costs fo r SDG&E Gas Pipeline Supports pursuant to the Construction Agreement. T he City shall submit an invoice to SDG&E for its Preconstruction Costs and SDG&E will reimburse City for those costs by no later than forty-five (4 5) calendar days after receipt of the invoice.
2.1.2 Bidding and Award. City shall bid and award a contract for the construction and installation of the Project ("Construction Agreement").
2.1.2.1 Bid Package. City shall prepare and circula te the bid package, provided that City will not be responsible for appr oving design or Construction Documents for any of the SDG&E Gas Pipeline Supports. However, after receipt of notice of an intent to bid the Project from City, SDG&E will provide City-approved design and construction documents by no later than sixty (60) days after receipt of said notice.
2.1.2.2 Meetings. City shall organize all pre-bid m eetings and shall inform SDG&E of the time and date of such meetings, so that a representative of SDG&E may be present to clarify a ny issues related to the design of and Construction Documents for the SDG&E Gas Pipeline Supports and prepare addenda (as needed) for the construction of the SDG&E Gas Pipeline Supports.
Additional Costs. Any additional costs associated with the failure of SDG&E to attend meetings, clarify issues related to the design of the SDG&E Gas Pipeline Supports or th e
Construction Documents for the SDG&E Gas Pipeline Supports, or submit addenda to City related to the constructi on or installation of the SDG&E Gas Pipeline Supports sha ll be the sole obligation of SDG&E.
2.1.2.3 Selection of Lowest Responsive and Responsi ble Bidder. City shall determine the lowest responsible bidder and s uch determination shall be binding on SDG&E. For purposes of the Agreement, the entity awarded a contract for the Project shall be referred to herein as the “Contractor”.
2.1.2.4 Execution of Construction Agreement. City s hall execute the Construction Agreement on behalf of itself and ensu re that SDG&E is identified as a third-party beneficiary of such Construction Agreement.
ARTICLE III. CONSTRUCTION
3.1 Compliance with Specifications. City will inclu de provisions in the Construction Agreement that require that all SDG&E Gas Pipeline Supports furnished, constructed, and installed by Contractor shall be in strict comp liance with the SDG&E Specifications provided by SDG&E, that all material s furnished by Contractor must conform to SDG&E’s approved material list, and that any and all deviations from said specifications must be approved by SDG&E, in writin g, prior to being incorporated into the work.
3.2 The Buy America requirements are further speci fied in the Moving Ahead for Progress in the 21st Century (MAP-21), section 1518.
3.3 Project Completion and Warranty. SDG&E and City anticipate that the Project will be completed on or about November 2024. Project, howev er, will not be deemed completed or accepted until both City and SDG&E hav e accepted their respective facilities or improvements; provide that such accep tance shall not be unreasonably withheld. The City shall require the Construction Agreement to provide that Contractor shall warrant all work for a period of no less than one (1) year from the date of acceptance. Acceptance will be evidenced by the fil ing of a Notice of Completion by the City with the County of San Diego Recorder.
3.4 As-Builts. SDG&E shall provide signed “As-Buil t” plans of the SDG&E Facilities to the City for its files.
ARTICLE IV. REIMBURSEMENT OF COSTS
4.1 Deposit Account. Within thirty (30) calendar d ays of the Construction Agreement award, SDG&E shall deposit with the City an amount equal to one hundred percent (100%) percent of the bid amount $52,532.00 attribu table to the construction and installation of SDG&E Gas Pipeline Supports, plus a five (5) percent contingency (“SDG&E Deposit”) for the purpose of reimbursing th e City for progress payments made by City to Contractor for the installation of SDG&E Gas Pipeline Supports total payment of $55,158.60. If during the course of the Project, the City becomes informed that the SDG&E Deposit is or will be insufficient t o cover the remaining costs for the construction and installation of the SDG&E Gas Pipeline Supports, SDG&E will make a further deposit in an amount necessary to ensure that the deposit balance is equal to one hundred percent (100%) of the remaining costs for the construction and installation SDG&E Gas Pipeline Supports (“Additional SDG&E Depo sit”). SDG&E shall make such Additional SDG&E Deposit within thirty (30) calendar days after receipt of notice from City of the need for the Additional SDG&E Deposit.
4.2 Invoice. City shall invoice SDG&E for SDG&E Cos ts ("City Invoice") following the receipt of an invoice from a consultant or the Contractor on which such SDG&E Costs appear. The City Invoice shall:
4.2.1 Include a copy of the consultant’s invoice or the Contractor's invoice.
4.2.2 Identify SDG&E’s Costs.
4.2.3 Identify all other costs attributable to the SDG&E Gas Pipeline Supports.
4.2.4 Provide a net total charge payable by SDG&E.
4.3 SDG&E Approval. SDG&E shall review and approve the City Invoice no later than twenty (20) calendar days of its receipt ("Review Period"). If SDG&E determines that all relevant documents have not been submitted, SDG &E shall inform the City of the need for additional information and specify the doc uments/information necessary to permit review and approval.
4.3.1 Failure to Approve. If SDG&E fails to approve the City Invoice or request additional information within the Review Period, th e charges on the City’s Invoice shall be deemed approved.
4.4 Reimbursement. Following SDG&E approval of a Ci ty Invoice, City shall deduct the invoice amount from the SDG&E Deposit for the purpo se of reimbursing the City for SDG&E Costs invoiced by and paid to Contractor. SDG&E approval of a City Invoice shall be deemed SDG&E’s authorization for such reimbursement in the amount of the City Invoice.
4.4.1 Withholding/Retention. From each payment to t he Contractor, City shall withhold a minimum of five (5%) percent of the amou nt of the Contractor's invoice. Payment thereof shall not be made until final approval and acceptance.
A similar retention shall be withheld from the reim bursement to the City from the SDG&E Deposit.
4.5 Use of Project Contingency. The Project Conting ency may be used for unforeseen circumstances or changes in the work; however, it s hall not be used for: (i) work required due to Contractor's failure to perform work or services according to the terms of the Construction Agreement and/or in compliance with the Construction Documents; or (ii) uninsured losses resulting from the neglige nce of Contractor. Any Project Contingency that will be used as it pertains to the SDG&E Gas Pipeline Supports shall be approved first by SDG&E prior to using the Proje ct Contingency. If SDG&E fails to approve the use of Project Contingency within twenty (20) calendar days after receipt of notice from City regarding the proposed use of P roject Contingency, the use of Project Contingency shall be deemed approved by SDG&E.
ARTICLE V. CHANGE ORDERS
5.1 Written Approval Required. With the exception o f Emergencies (defined in section 5.2 below), prior to the approval of a construction cha nge or change order concerning affecting SDG&E Gas Pipeline Supports, including any changes to City Improvements that might affect SDG&E Gas Pipeline Supports in any way, City shall obtain the prior written consent of SDG&E, and SDG&E shall not unreasonably withhold such written consent.
5.1.1 Approval of Change Orders. SDG&E shall respon d to a change order request within five (5) working days of the date on which t he construction change or change order request is received by SDG&E. If SDG&E fails to timely approve such change order request, such request shall be deemed approved.
5.1.2 Additional Costs. SDG&E will bear any increas ed costs due to an SDG&E delay in approving, or otherwise responding, to a p roperly submitted construction change and/or change order request.
5.2 Changes in Emergencies. City may authorize the Project contractor to proceed with any proposed construction changes and/or change orders, without consulting with SDG&E or obtaining SDG&E’s prior written approval, if failure to act immediately would pose a danger to the public safety or improvements, as d etermined in the sole discretion of the City, (collectively "Emergency"); however, the City shall use best efforts to immediately, or as soon as reasonably possible, inf orm SDG&E of the changes.
SDG&E shall be responsible for any increased costs of the SDG&E Gas Pipeline Supports due to an Emergency.
5.3 Errors and Omissions. City shall not make payme nt to Contractor or charge SDG&E for any costs or expenses of a change order resulti ng from an error or omission for which the Contractor is solely responsible.
ARTICLE VI. INSPECTION
6.1 Inspection Team. SDG&E shall appoint an individ ual or team responsible for inspections and approving installation of SDG&E Gas Pipeline Supports.
6.2 Inspection Stages and Obligations. SDG&E shall have the right to conduct inspections of the SDG&E Gas Pipeline Supports and constructio n methods pertaining thereto as deemed necessary by SDG&E. SDG&E shall provide copies of all SDG&E inspections to City within twenty-five (25) working days of an inspection. SDG&E shall be responsible for verifying that all work on SDG&E Gas Pipeline Supports is completed in accordance with the approved plans and specifications. It is specifically understood that SDG&E's inspectors shall have the authority to enforce SDG&E’s plans and specifications for SDG&E Gas Pipeline Supports, wh ich authority shall include the authority to require that any and all unacceptable materials, workmanship, and/or
installation be replaced, repaired, or corrected by Contractor without cost to SDG&E and/or City.
6.3 Inspection Costs. All inspection costs incurred by SDG&E will be apportioned by the parties as Joint Costs as provided above
6.4 Notification. The Parties agree to develop mutu ally acceptable procedures for notification of inspections required or deemed necessary by either Party.
ARTICLE VII. BONDS, PREVAILAING WAGE AND INSURANCE
7.1 Contractor's Insurance. City shall require in t he Contract Documents that its Contractor be required to provide evidence of faithful performance and labor and material bonding, comply with prevailing wage payments, and provide i nsurance coverage, as required by City and SDG&E for the entire construction and, if applicable, warranty period. The Parties shall be named as co-obligees on all bonds required for the Project, including but not limited to the payment and performance bond s for the Project. SDG&E shall be included as a beneficiary of all guarantees, warrantees, and maintenance obligations, required under the City’s construction Contract Documents. The City shall ensure that SDG&E and its directors, officers, employees, and a gents are listed as additional insureds under all insurance policies required by c ontractor for the Project. Such insurance shall, at a minimum, include a comprehens ive general liability policy in an amount sufficient to cover all contractual obligati ons of the contractor under the Construction Agreement, and no less than $2,000,000 . The policy of insurance shall require a waiver of subrogation and be primary insu rance. Furthermore, City shall obtain evidence that the Contractor maintains worke r's compensation insurance in accordance with applicable requirements of law.
7.2 Parties' Insurance. SDG&E and City shall mainta in insurance as customary in connection with their respective facilities.
ARTICLE VIII. INDEMNITY
8.1 Indemnity. Each Party hereto agrees to defend, indemnify, protect, and hold harmless ("Indemnitor") the other Party, its agents, officer s, and employees ("lndemnitees”) from and against any and all claims asserted or lia bility established for damages or injuries to any property or person, including death or dismemberment, which arise from or are caused by the negligent acts or omissions or willful misconduct of the Indemnitor's agents, officers, or employees, in performing the work or services herein and all expenses of investigation and defending against same; provided, however, that each Party's duty to defend, indemnify, and hold ha rmless the other shall not include any claims or liability arising from the sole negli gence or willful misconduct of the other Indemnitee, its agents, officers or employees. SDG&E and City agree that in the event of any joint or concurrent negligence, they w ill apportion any established or
agreed upon liability proportionate to their respective degree of fault. For the purposes of this provision, the Contractor and all subcontra ctors for the Project shall not be considered an agent of the City or SDG&E. Claims related to the actions or omissions of the Contractor or any subcontractors for the Pr oject shall be addressed through provisions in the Construction Agreement, which pro visions shall include indemnity, defense, and hold harmless provisions from the Contractor in favor of both the City and SDG&E and shall include a provision acknowledging t hat a portion of the work to be performed under the Construction Agreement is on be half of SDG&E and a provision acknowledging that SDG&E is an intended beneficiary under the provisions of the Construction Agreement.
8.2. Enforcement Costs. Each Party agrees that it s hall pay the costs the other Party incurs in enforcing the indemnity and defense provisions s et forth in this Article VIII in the event the enforcing Party is successful.
8.3 Insurance Proceeds. Indemnitor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Indemnitee, its directors, officials, officers, employees, agents, and/or volunteers.
8.4. Survival. The Parties' obligations under Artic le VIII shall survive the termination of this Agreement.
ARTICLE IX. RECORDS
9.1 Retention of Records. City shall require Contra ctor to maintain data and records related to the Construction Agreement for a period of not l ess than three (3) years following receipt of final payment.
9.2 Audit of Records. City shall make available and shall require that the Construction Agreement requires its Contractor to make available to SDG&E for examination at reasonable locations within the County of San Diego and at any time during normal business hours and as often as SDG&E deems necessar y, all of the data and records with respect to all matters covered by this Agreement and the Construction Agreement.
City and Contractor will permit SDG&E to make audit s of all invoices, materials, payrolls, records of personnel, and other data and media relating to all matters covered by this Agreement and the Construction Agreement.
ARTICLE X. NOTlCES
10.1 Writing. Any demand upon or notice required or permitted to be given by one Party to the other Party shall be in writing.
10.2 Effective Date. Except as otherwise provided b y law, any demand upon or notice required or permitted to be given by one Party to t he other Party shall be effective: (i) on personal delivery, (ii) on the second business d ay after mailing by certified or registered U.S. Mail, return receipt requested, (iii) on the succeeding business day after mailing by Express Mail or after deposit with a private delivery service of general use (e.g., Federal Express) postage or fee prepaid as a ppropriate, or (iv) upon successful transmission of facsimile.
10.3 Recipients. All demands or notices required or permitted to be given shall be sent to all of the following:
SDG&E:
San Diego Gas & Electric Company
488 8
th Ave, HQ10A
San Diego, CA 92101
Attention: Director of Supply Management
Email:
With copies to:
San Diego Gas & Electric Law Department
Attn: Asst. General Counsel Commercial Law
8330 Century Park Court, CP32B
San Diego, CA 92123
City:
City of Chula Vista, –Engineering & Capital Projec ts
276 Fourth Avenue
Chula Vista, CA 91910
Fax: (619) 691-5171
Attention: City Project Manager and Director of Engineering & Capital Projects.
10.4 Change of Address(es). Notice of change of add ress shall be given in the manner set forth in this Article.
ARTICLE XI. MISCELLANEOUS
11.1 Headings. All article headings are for conveni ence only and shall not affect the interpretation of this Agreement.
11.2 Gender and Number. Whenever the context requir es, the use herein of (i) the neuter gender includes the masculine and the feminine gend ers and (ii) the singular number includes the plural number.
11.3 Reference to Paragraphs. Each reference in thi s Agreement to a section refers, unless otherwise stated, to a section of this Agreement.
11.4 Incorporation of Recitals. All recitals herein are incorporated into this Agreement and are made a part hereof.
11.5 Covenants and Conditions. All provisions of th is Agreement expressed as either covenants or conditions on the part of the City or SDG&E, shall be deemed to be both covenants and conditions.
11.6 Integration. This Agreement and the Exhibits a nd references incorporated into this Agreement fully express all understandings of the P arties concerning the matters covered in this Agreement. No change, alteration, o r modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing by both Parties or an amendment to th is Agreement agreed to by both Parties. All prior negotiations and agreements are merged into this Agreement.
11.7 Severability. The unenforceability, invalidity , or illegality of any provision of this Agreement shall not render any other provision of t his Agreement unenforceable, invalid, or illegal.
11.8 Drafting Ambiguities. The Parties agree that t hey are aware that they have the right to be advised by counsel with respect to the negotiati ons, terms and conditions of this Agreement, and the decision of whether or not to se ek advice of counsel with respect to this Agreement is a decision that is the sole re sponsibility of each Party. This Agreement shall not be construed in favor of or aga inst either Party by reason of the extent to which each Party participated in the drafting of the Agreement.
11.9 Conflicts Between Terms. If an apparent confli ct or inconsistency exists between the main body of this Agreement and the Exhibits, the m ain body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement.
11.10 Prompt Performance. Time is of the essence of each covenant and condition set forth in this Agreement.
11.11 Good Faith Performance. The Parties shall coo perate with each other in good faith, and assist each other in the performance of the provisions of this Agreement.
11.12 Further Assurances. City and SDG&E each agree to execute and deliver such additional documents as may be required to effectuate the purposes of this Agreement.
11.13 Exhibits. Each of the following Exhibits is a ttached hereto and incorporated herein by this reference:
Exhibit “A” – One-Quarter size City Plans of Herita ge Road Bridge Replacement, Revision D”, prepared by SDG&E, dated 7/6/21
Exhibit “B” – Division of Responsibility, prepared by SDG&E, dated 7/8/2022
11.14 Controlling Law. The laws of the State of Cal ifornia shall govern and control the terms and conditions of this Agreement.
11.15 Jurisdiction, and Venue. The venue for any su it or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of San Diego, State of California.
11.16 Agency/Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers of SDG&E or the City a s a chartered city of the State of California.
11.17 Third Party Relationships. Nothing in this Ag reement shall create a contractual relationship between City or SDG&E and any third pa rty; however, the City shall ensure that SDG&E is an intended third-party benefi ciary of the Construction Agreement.
11.18 Limitation on SDG&E Remedies and Waiver of Claims. SDG&E understands that the sole purpose of this Agreement is to establish a method to reimburse the City for obligations of SDG&E for payment of the costs of the installation and construction of SDG&E Gas Pipeline Supports, which costs would otherwise be due directly to the Contractor. In accordance with such purpose, SDG&E agrees that its sole remedy for construction defects, breach by City contractor, damage to property or persons, including death, to SDG&E personnel or any third parties, or other claims arising out of or related to the work performed to install and/or construct SDG&E Gas Pipeline Supports shall be against the Contractor or its subcontractors and agents, and, hereby, waives any and all claims it may hereafter have against the City, arising out of the same, except for those claims arising out of the negligence or willful misconduct of the City.
The City agrees to cooperate with SDG&E on any claims SDG&E may have against the Contractor, including but not limited to granting the SDG&E an assignment of rights under the City’s contract with the Contractor.
SDG&E, hereby, expressly waives all claims against the City identified to SDG&E in Section 11.18:
Included in this release, SDG&E hereby waives the provisions of section 1542 of the California Civil Code, which states:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
SDG&E REPRESENTATIVE: ______
Kelli Fitzgerald
Planning and Project Management Manager- DPM
DATE:
11.19 Non-Assignment. Except as relates to the Construction Agreement, the City shall not assign the obligations under this Agreement.
11.20 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any Parties to the Agreement have been succeeded by another entity, and all rights and obligations created, by this Agreement shall be vested and binding on any Party's successor in interest.
11.21 No Waiver. No failure of either the City or SDG&E to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 10/14/2024
11.22 Administrative Claims Requirements and Proced ures. No suit or arbitration shall be brought arising out of this Agreement, against the City unless a claim has first been presented in writing and filed with the City and ac ted upon by the City in accordance with the procedures set forth in Chapter 1.34 of th e Chula Vista Municipal Code, as same may from time to time be amended, the provisio ns of which are incorporated by this reference as if fully set forth herein, and su ch policies and procedures used by the City in the implementation of same. Upon request by City, SDG&E shall meet and confer in good faith with City for the purpose of r esolving any dispute over the terms of this Agreement. The City will meet and confer wi th SDG&E in good faith before filing a suit or arbitration action against SDG&E.
11.23 Dispute Resolution. If a dispute arises out o f or relates to this Agreement, or the breach thereof, the Parties, following the procedures requ ired by Section 11.22, agree to engage in good faith negotiations to attempt to resolve the dispute. In the event of any action at law or in equity, including an action for declaratory relief, between the Parties arising out of or relating to this Agreement, then the prevailing Party in such action will be entitled to recover from the other Party a reasonable sum as attorneys’ fees and costs.
The prevailing Party will be determined in accordan ce with Civil Code Section I717 (b)(1) or any successor statute. The prevailing Par ty will also be entitled to its reasonable attorneys' fees and costs in any post-ju dgment proceedings to collect or enforce the judgment. This provision is separate an d will survive the merger of this Agreement into any judgment on this Agreement.
11.24 Administration of Contract. City hereby desig nates Rosina C. Flores as City Contract administrator, as City Project Manager for the cons truction of Project and as the primary contact for all matters relating to this Ag reement, including the processing, documenting, and approval of City Invoices.
SDG&E hereby designates Kelli Fitzgerald Planning and Project Management Manager- DPM, as SDG&E Project Manager for SDG&E Gas Pipeline Supports and as the primary contact for all matters relating to this Agreement, including the submittal of City Invoices for reimbursement.
11.25 Signing SDG&E. The representative for each Pa rty signing on behalf of such Party hereby declares that authority has been obtained to sign on behalf of the City and/or SDG&E, as applicable and agrees to hold the other P arty or Parties hereto harmless if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, City and SDG&E have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms:
City of Chula Vista S an Diego Gas & Electric Company
(SDG&E)
D
ated: Dated:
B
y: By:
John McCann, Mayor Kelli Fitzgerald
Planning and Project Management
Manager- DPM
A
ttest:
City Clerk
Approved as to form: Approved as to form:
Glen Googins Glenn Mueller
City Attorney Sr. General Counsel, for SDG&E
D
ated: Dated:
Exhibit A – SDGE Design Plans Revision D, prepared by SDG&E, dated 7/6/21.
Ex
hibit B – Division of Responsibility, prepared by SDG&E, dated 7/8/2022.
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