HomeMy WebLinkAbout2010/03/02 Item 4
CITY COUNCIL
AGENDA STATEMENT
~f::. CITY OF
~ -c .~ (HULA VISTA
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
3/02110, ItemL
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING A REIMBURSEMENT AGREEMENT FOR
PAYMENT OF COSTS OF CONSTRUCTION AND INSTALLATION OF
DISTRICT FACILITIES BY AND BETWEEN THE OTAY WATER
DISTRICT AND THE CITY OF CHULA VISTA (OTAY LAKES ROAD
WIDENING, RECLAIMED W A~E PIPELINE, AND UTILITY
RELOCATION PROJECT)
DIRECTOR OF PUBLIC WORKS ~
ASSffiTANro:l OFENO ~
CITY MANAG
ASSIST ANT CITY ANAGER '? r
4/STHS VOTE: YES 0 NO lSI
SUMMARY
In May 2010, the City will begin construction on the first phase of the Otay Lakes Road widening
project (CIP No. STM-355) between Ridgeback Road/Canyon Drive and the first Southwestern
College driveway south of East H Street, including the widening of a portion of East H Street
between the college's East H Street entrance and Otay Lakes Road. The Otay Water District (OWD)
has plans to extend its recycled water pipeline rrom Telegraph Canyon Road to Bonita Vista High
School in order to provide recycled water to the college, Bonita Vista High School, and others. City
and OWD staff agree that it would be beneficial to the public to construct both projects
simultaneously to reduce the potential disruption that two separately constructed projects would have
on traffic, the schools, and the businesses (Attachment 1 describes the joint project in more detail).
The proposed reimbursement with OWD agreement (Attachment 2) provides for the City to bid and
construct both the roadway and recycled pipeline work, as well as water facility relocations
necessitated by the roadway work, and requires the OWD to place a deposit with the City equal to
I 10% of the bid amount for all work performed on their behalf.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed joint project agreement for
compliance with the California Environmental Quality Act (CEQA) and has determined that the
portion of the project involving street improvement work qualifies for a Class 1 categorical
exemption pursuant to Section 15301 [Existing Facilities] and the portion pertaining to the
installation of the recycled water pipeline qualifies for a Statutory Exemption pursuant to Section
21080.21 of the CEQA Guidelines, as determined by the Otay Water District as lead agency for this
portion of the project. Thus, no further environmental review is necessary at this time.
RECOMMENDATION
Council adopt the resolution.
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3/02/10, Item--1-
Page 2 of 2
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
Starting in May 2010, the City will be constructing improvements to Otay Lakes Road between
Canyon Drive/Ridgeback Road and Gotham Street and to East H Street, from Otay Lakes Road west
to the East H Street signalized entrance to Southwestern College. These improvements include, but
are not limited to, roadway widening, construction of curb, gutter, sidewalk, and median islands,
construction of retaining walls, relocation of utilities, and reconfiguration and new installation of
traffic signals and street lighting.
In early Summer 2009, Otay Water District (OWD) staff approached City Public Works staff and
requested that the City consider constructing a 12" diameter recycled water pipeline simultaneously
with the City's street improvement project. Staff determined that simultaneous construction of the
pipeline would benefit the City, OWD, and the general public. Benefits include, but are not limited
to, reductions or savings in terms of time, money, construction hazards, and traffic impacts. In
addition, because the City will oversee and manage the construction of the recycled water pipeline,
phasing of various construction activities and minimization of construction-related impacts will be
optimized.
The proposed agreement provides a mechanism by which the City may construct OWD's pipeline, as
well as relocate OWD's facilities in conflict with the City's street improvements. More importantly,
the agreement requires that OWD place a deposit with the City equal to 110% of OWD's facility
costs prior to the start of construction. This deposit will be used to repay the City for progress
payments paid to the contractor on behalf ofOWD on a monthly basis.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property which is the subject of this action.
FISCAL IMPACT
There will no impact to the General Fund as the Otay Water District will be required to deposit with
the City 110% of the pipeline and water facility relocation costs prior to the start of construction.
ONGOING FISCAL IMPACT
None. All recycled pipeline and relocated water facilities will be owned and operated by the Otay
Water District.
ATTACHMENTS
1. Joint Project Description
Prepared by: Kirk Ammerman, Principal Civil Engineer, Public Works - Engineering, 2-12-10, 11:25 am
M:IEngineerIAGENDA ICAS201 0\3-02-10ISTM-355 OWD Pipeline Agreement.doc
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Attachment 1
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CITY OF
(HULA VISTA
Public Works - En ineerin
OT A Y LAKES ROAD WIDENING, Phase 1
Rid eback Road to 750 Feet South of East H Street
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Proiect Need
These segments of Otay Lakes Road and East H Street are heavily congested during peak arrival and departure periods for
Bonita Vista High School and Southwestern College, This project will relieve current and future traffic congestion in the area,
Proiect Features
. Widening of Otay Lakes Road to six through,lanes (three lanes in each direction) between Ridgeback Road / Canyon Drive
to the first Southwestern College driveway south of East H Street
. An additional eastbound.to,northbound left-turn lane from East H Street to Otay Lakes Road, including lengthening of the
existing left,turn pocket to improve left,turn volumes through the intersection
. An additional eastbound-to'southbound right-turn & eastbound through / right-turn lane from East H Street, including street
widening from the Southwestern College entrance on East H Street to Otay Lakes Road
. Installation of a new traffic signal at Elmhurst Street and modification of the existing traffic signal at Gotham Street
. Installation of Recycled Water Pipeline from Telegraph Canyon Road to Bonita Vista High School (funded by the Otay
Water District), This pipeline will ultimately provide recycled water service to the college, high school, and shopping centers
Phase 1 Construction Cost & Fundinq
. Street Improvements: $3.5 to $4.2 million, funded by
Transportation Development Impact Fees (TDIF)
and subdivision assessment district funds
. Recycled Water Pipeline: Contact Ron Ripperger,
Otay Water District Project Manager, 619,670-2222
Proiect Manaqers
City of Chula Vista: Kirk Ammerman, 619-691,5115
Otay Water District: Ron Ripperger, 619.670.2222
Phase 1 Proiect Schedule
. Recycled Waterline Construction: May 2010 to August 2010
. Street Improvements: May 201 0 to January 2011
. Critical work will be coordinated to coincide with Bonita Vista
High School's Summer Break (June 5 to July 25) and
Southwestern College's Summer Break (May 21 to August 16)
For additional information on this and other projects in Chula Vista,
please visit: http://209.242,148,137/ArcGIS/CIP,html
RESOLUTION NO. 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT FOR PAYMENT OF COSTS OF
CONSTRUCTION AND INSTALLATION OF DISTRICT
FACILITIES BY AND BETWEEN THE OTAY WATER
DISTRICT AND THE CITY OF CHULA VISTA (OTA Y LAKES
ROAD WIDENING, RECLAIMED WATER PIPELINE, AND
UTILITY RELOCATION PROJECT)
WHEREAS, in early Summer 2009, Otay Water District (OWD) staff approached City
Public Works staff and requested that the City consider constructing a 12" diameter recycled
water pipeline simultaneously with the City's street improvement project; and
WHEREAS, staff determined that simultaneous construction of the pipeline would
benefit the City, OWD, and the general public; and
WHEREAS, starting in May 2010, the City will be constructing improvements to Otay
Lakes Road between Canyon Drive/Ridgeback Road and Gotham Street and to East H Street,
from Otay Lakes Road west to the East H Street signalized entrance to Southwestern College;
and
WHEREAS, the agreement provides a mechanism by which the City may construct
OWD's pipeline, as well as relocate OWD's facilities in conflict with the City's street
improvements; and
WHEREAS, the agreement requires that OWD place a deposit with the City equal to
110% of OWD's facility costs prior to the start of construction; and
WHEREAS, OWD's deposit will be used to repay the City for progress payments paid to
the contractor on behalf of OWD on a monthly basis.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve a reimbursement agreement for payment of costs of construction and
installation of District facilities by and between the Otay Water District and the City of Chula
Vista (Otay Lakes Road widening, reclaimed water pipeline, and utility relocation r jec .
Presented by
Richard A. Hopkins
Director of Public Works
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
T CITY OUNCIL/
Bart . Miesfeld
Cit Attorney
Dated: Z '1- 0
REIMBURSEMENT AGREEMENT FOR PAYMENT OF COSTS OF
CONSTRUCTION AND INSTALLATION OF DISTRICT FACILITIES
BY AND BETWEEN THE OT A Y WATER DISTRICT
AND THE CITY OF CHULA VISTA
OT A Y LAKES ROAD WIDENING, RECYCLED WATER PIPELINE,
AND UTILITY RELOCATION PROJECT
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REIMBURSEMENT AGREEMENT FOR PAYMENT OF COSTS OF
CONSTRUCTION AND INSTALLATION OF DISTRICT FACILITIES
BY AND BETWEEN THE OTA Y WATER DISTRICT
AND THE CITY OF CHULA VISTA, CALIFORNIA
(OTAY LAKES ROAD WIDENING, RECYCLED WATER PIPELINE, AND
UTILITY RELOCATION PROJECT)
THIS REIMBURSEMENT AGREEMENT FOR THE PAYMENT OF COSTS OF
CONSTRUCTION AND INSTALLATION OF DISTRICT FACILITIES, dated
, 2010, is entered into by and between the Otay Water District
("District") and the City of Chula Vista, a municipal corporation, ("City") to establish terms
and conditions pursuant to which City will bid and cause to be constructed certain District
Facilities, defined herein below, and District will reimburse City for all expenses related
thereto. District and City may be referred to herein individually as "Party" and collectively
as the "'Parties."
RECITALS
WHEREAS, District has approved, within its Capital Improvement Program (CIP),
the construction and installation of certain recycled water facilities ("District Facilities")
within the City of Chula Vista; and
WHEREAS, District is authorized, pursuant to applicable laws, to contract and to pay
for all or part of the cost of the installation and construction of any building, facility, structure
or other improvements required by District in connection with a District service; and
WHEREAS, City is constructing improvements to Otay Lakes Road between
Canyon DriveIRidgeback Road and Gotham Street and to East H Street, from Otay Lakes
Road west to the East H Street signalized entrance to Southwestern College; such
improvements include, but are not limited to, roadway widening, construction of curb, gutter,
sidewalk, and median islands, construction of retaining walls, relocation of utilities, and
reconfiguration and new installation of traffic signals and street lighting ("City
Improvements")]; and
WHEREAS, the construction of District Facilities concurrently with City
Improvements would constitute a substantial benefit to District and the City, which benefits
include, but are not limited to, reductions or savings in terms of time, money, construction
hazards, and traffic impacts; and
WHEREAS, in order to achieve such benefits, District desires that City incorporate
the construction and installation of District Facilities into the construction documents and
contract for City Improvements
WHEREAS, City is willing to do so, provided District submits complete plans and
specifications for said District Facilities and agrees to reimburse City for all associated costs;
and
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NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed by and between the Parties hereto, as follows:
ARTICLE I. DEFINITIONS
1.1 Definitions. Unless the context otherwise requires, the terms defined in this Section I
shall, for all purposes of this Reimbursement Agreement and of any amendment hereto,
and of any certificate, opinion, estimate or other document herein mentioned, have the
meanings herein specified.
"District" means the Otay Water District, a municipal water district duly organized and
existing under the Municipal Water District Law of 1911, as set forth in the California
Water Code.
"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 improvements to East H Street and Otay
Lakes Road (Phase I of City CIP Project No. STM-355).
"District Costs" means the total dollar amount of costs associated with the construction
and installation of the District Facilities, including, but not limited to, costs of materials,
labor, oversight, bidding, permits, change orders, and the fair share of Joint Costs.
"District Facilities" means, colle'ctively, the relocation of potable facilities and the
installation of a 12-inch recycled water pipeline as shown in Exhibit A hereto, as the
same may be amended from time to time.
"Joint Costs" means those costs of construction and installation of the Project, which,
due to their nature, cannot be attributed solely to District Facilities or City
Improvements, yet from which both derive benefit or those costs that both Parties would
have incurred had their respective facilities been constructed independently of each other
(e.g. slurry seal would have been necessary to cover the District's trench and would also
have been required for the City's street).
"Project" means, collectively, District Facilities and City Improvements.
ARTICLE II. PRECONSTRUCTION
2.1 Design and Specifications - Generally. Prior to advertisement of a Request for Proposals
("RFP") for the construction and installation of Project, District shall submit designs and
all associated plans and specifications (collectively "Construction Documents") for the
District Facilities to the City.
2.1.1 Approval. Prior to submission, an authorized representative of District shall
approve the Construction Documents, submittal of which shall indicate such
approval and grant to the City permission to include the Construction Documents
in the RFP.
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2.1.2 Costs. All costs associated with the design of a Party's facilities and the
preparation of Construction Documents shall be borne solely by such Party.
2.1.3 Bidding and Award - Generally, City shall be responsible for all aspects of
bidding and award of a contract for the construction and installation of the
Project ("Construction Agreement").
2.1.3.1 Bid Package. City shall be responsible for preparing and circulation the
bid package.
2.1.3.2 Meetings. City shall organize all pre-bid meetings and shall inform the
District of the time and date of such meeting, so that a representative of
the District may be present to clarify any issues related to and prepare
addenda for the construction of the District Facilities.
a. Additional Costs. Any additional costs associated with the failure
of District to attend meetings, clarify issues, or submit addenda to
City for distribution shall be the obligation of the District.
2.1.3.3 Selection of Lowest Responsible Bidder. City, at its sole discretion,
shall determine the lowest responsible bidder, which determination
shall be binding on the District.
2.1.3.4 Execution of Construction Agreement. City shall be responsible for
executing the Construction Agreement on the behalf of itself and the
District and ensure that the District is identified as a third-party
beneficiary of such agreement with the same rights and remedies as the
City.
ARTICLE III. CONSTRUCTION
3.1 Compliance with Specifications. City will include provisions in the Construction
Contract that require that all District Facilities furnished, constructed, and installed by
City's contractor shall be in strict compliance with the approved plans and specifications
provided by District, that all materials furnished by City's contractor must conform to
District's approved material list, and that any and all deviations from said plans and
specifications must be approved by District, in writing, prior to being incorporated into
the work.
3.1.1 Right to Enforce. District shall have the right to enforce the terms of Section 3.1
against the City's contractor in the same manner as the City, and pursuant to
Section 11.17 such rights shall be written into the Construction Contract.
3.2 Project Completion and Warranty. District and City anticipate that Project will be
completed on or about December 31, 2010. Project, however, will not be deemed
completed or accepted until both City and District have accepted their respective
facilities or improvements. The City's contractor shall warrant all work for a period of no
less than one year from the date of acceptance, which shall be deemed to be the latter of
the dates District and City accept their facilities. Acceptance will be evidenced by the
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filing of a Notice of Completion by the City with the County of San Diego Recorder.
The Construction Contract shall include this definition of project completion and
acceptance.
ARTICLE IV. REIMBURSEMENT OF COSTS
4.1 Deposit Account. Within thirty (30) calendar days of the Construction Agreement
award, District shall deposit with the City an amount equal to one hundred (100) percent
of the bid amount attributable to the construction and installation of District Facilities,
plus a ten (10) percent contingency ("District Deposit") for the purpose of reimbursing
the City for progress payments made by City to City's contractor for the installation of
District Facilities.
4.2 Invoice. City shall invoice the District for District Costs ("City Invoice") following the
receipt of an invoice from City's contractor on which such District Costs appear. The
City Invoice shall:
4.2.1 Include a copy of the contractor's invoice.
4.2.2 Identify those costs attributable to the District's Facilities.
4.2.3 Show calculations apportioning the District's fair share of Joint Costs.
4.2.3.1
Apportionment of Joint Costs. Joint Costs may be apportioned as
follows:
a. When a percentage of use can be determined, Joint Costs shall be
apportioned based on the respective percentages of use.
b. When work is equally necessary for both the installation and
construction of City Improvements and the District Facilities, Joint
Costs shall be divided equally.
c. Based on the respective percentages of Total Project Costs.
d. Other methods to which the Parties mutually agree.
4.2.4 Provide a net total charge payable by District.
4.3 District Approval. District shall review and approve the City Invoice within thirty (30)
calendar days of its receipt ("Review Period"). If District determines that all relevant
documents have not been submitted, District shall inform the City of the need for
additional information and specify the documents/information necessary to permit
review and approval.
4.3.1 Failure to Approve. If District fails to approve the City Invoice or request
additional information within the Review Period, the charges on the City Invoice
shall be deemed approved.
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4.4 Reimbursement. Following District approval of a City Invoice, City shall deduct the
invoice amount from the District Deposit for the purpose of reimbursing the City for
District Costs invoiced by and paid to City's contractor. District approval of a City
Invoice shall be deemed District's authorization for such reimbursement in the amount of
the City Invoice.
4.4.1 Withholding/Retention. From each payment to the contractor, City shall
withhold a minimum of ten (10) percent of the amount of the contractor's
invoice. Payment thereof shall not be made until final approval and acceptance.
A similar retention shall be withheld from the reimbursement to the City nom
District Deposit.
4.5 Use of Project Contingency. The Project Contingency may be used for unforeseen
changes in work; however it shall 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 negligence of contractor.
ARTICLE V. CHANGE ORDERS
5.1 Written Approval of Construction Changes and Change Orders. With the exception of
Emergencies, prior to the approval of a construction change or change order concerning
or affecting District Facilities, including any changes to City Improvements that might
affect District Facilities in any way, City shall obtain the written consent of District.
5.1.1 Approval of Change Orders. District shall respond to a change order request
within five (5) working days of the date it is received by District.
5.1.2 Additional Costs. District will bear any increased costs due to a delay in
approving a properly submitted construction change and/or change order request.
5.2 Changes in Emergencies. City may authorize contractor to proceed with any proposed
construction changes and or change orders, without consulting with District or obtaining
the District's written approval, if failure to act immediately would pose a danger to the
public, as determined in the sole discretion of the City, or result in delays and cost
overruns (collectively "Emergency"); however, the City shall use best efforts to
immediately, or as soon as reasonably possible, inform the District the changes. The
District shall be responsible for any increased costs of construction of its portion of
Project due to an Emergency.
5.3 Errors and Omissions. City shall not make payment to contractor or charge District for
any costs or expenses of a Change Order resulting from an error or omission for which
the contractor is solely responsible.
ARTICLE VI. INSPECTION
6.1 Inspection Team. District shall appoint an individual or team responsible for inspections
and approving installation of District Facilities.
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6.2 Inspection Stages and Obligations. District shall have the right to conduct inspections of
the District Facilities and construction methods pertaining thereto as deemed necessary
by District. District shall provide copies of all District inspections to City within five (5)
working days of an inspection. District shall be responsible for verifying that all work on
District Facilities is completed in accordance with the approved plans and specifications.
It is specifically understood that District's inspectors shall have the authority to enforce
District's plans and specifications for District Facilities, which authority shall include the
authority to require that any and all unacceptable materials, workmanship, and/or
installation be replaced, repaired, or corrected by City's contractor without cost to
District and/or City.
6.3 Inspection Costs. All inspection costs incurred by District will be borne by District.
6.4 Notification. The Parties agree to develop mutually acceptable procedures for
notification of inspections required or deemed necessary by either Party.
ARTICLE VII. INSURANCE
7.1 Contractor's Insurance. City shall ensure that its contractor provides evidence of
insurance coverage, as required by City, for the entire construction and, if applicable,
warranty period. Such insurance shall, at a minimum, include a comprehensive general
liability policy in an amount sufficient to cover all contractual obligations of the
contractor under the construction contract, and no less than $2,000,000. The policy of
insurance shall name District and City, and their respective employees, officers,
governing body members, and agents as additional insureds, require a waiver of
subrogation, and be primary insurance. Furthermore, City shall obtain evidence that the
contractor maintains worker's compensation insurance in accordance with applicable
requirements oflaw.
7.2 Parties' Insurance. District and City shall maintain 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, officers, and employees ("Indemnitees") from
and against any and all claims asserted or liability 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 harmless the other shall not include any claims or liability
arising from the sole negligence or willful misconduct of the other Indemnitee, its agents,
officers or employees. District and City agree that in the event of any joint or concurrent
negligence, they will apportion any established or agreed upon liability proportionate to
their respective degree of fault. For the purposes of this provision, the City's contractor
shall not be considered an agent of the City or District. Claims related to the actions or
omissions of the City's contractor shall be addressed through provisions in the
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Construction Contract, which provisions shall include indemnity, defense, and hold
harmless provisions from the City's contractor in favor of both the City and District.
8.2. Enforcement Costs. District agrees to pay its pro rata share costs City incurs enforcing
the indemnity and defense provisions set forth in Article V. These costs shall be
considered joint costs.
8.3. Survival. The Parties' obligations under Article V shall survive the termination of this
Agreement.
ARTICLE IX. RECORDS
9.1 Retention of Records. City shall require contractor to maintain data and records related
to this Construction Agreement for a period of not less than three (3) years following
receipt of final payment.
9.2 Audit of Records. City shall make available and shall require that its contractor make
available to District for examination at reasonable locations within the County of San
Diego and at any time during normal business hours and as often as the District deems
necessary, all of the data and records with respect to all matters covered by this
Agreement and the Construction Agreement. City and contractor will permit the District
to make audits 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. NOTICES
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 by law, any demand upon or notice
required or permitted to be given by one Party to the other Party shall be effective: (i)
on personal delivery, (ii) on the second business day 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 appropriate, 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:
10.3.1 District:
Otay Water District
2554 Sweetwater Springs Boulevard
Spring Valley, California 91978
Fax: 619-670-8920
Attention: District Project Manager
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1O.3.2City:
City of Chula Vista, Public Works - Engineering, 276
F ourth Avenue
Chula Vista, California 91910
Fax: (619) 691-5171
Attention: City Project Manager and Director of Public Works.
10.4 Change of Address(es). Notice of change of address shall be given in the manner set
forth in this Article.
ARTICLE XI. MISCELLANEOUS
11.1 Headings. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
11.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter
gender includes the masculine and the feminine genders and (ii) the singular number
includes the plural number.
11.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless
otherwise stated, to a section ofthis 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 this Agreement expressed as either
covenants or conditions on the part of the City or the District, shall be deemed to be
both covenants and conditions.
11.6 Integration. This Agreement and the Exhibits and references incorporated into this
Agreement fully express all understandings of the Parties concerning the matters
covered in this Agreement. No change, alteration, or 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 this 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 this Agreement unenforceable,
invalid, or illegal.
11.8 Drafting Ambiguities. The Parties agree that they are aware that they have the right to
be advised by counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether or not to seek advice of counsel with respect to
this Agreement is a decision that is the sole responsibjlity of each Party. This
Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting of the Agreement.
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11.9 Conflicts Between Tenns. If an apparent conflict or inconsistency exists between the
main body of this Agreement and the Exhibits, the main 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 cooperate 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 District 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 attached hereto and incorporated herein by
this reference:
Exhibit A
11.14 Controlling Law. The laws of the State of California shall govern and control the
terms and conditions of this Agreement.
11.15 Jurisdiction, Venue, and Attorney Fees. The venue for any suit or proceeding
concerning this Agreement, the interpretation or application of any of its tenns, or any
related disputes shall be in the County of San Diego, State of California. The
prevailing Party in any such suit or proceeding shall be entitled to a reasonable award
of attorney fees in addition to any other award made in such suit or proceeding.
11.16 AgencylMunicipal Powers. Nothing contained in this Agreement shall be construed as
a limitation upon the powers of the District or the City as a chartered city of the State
of California.
11.17 Third Party Relationships. Nothing in this Agreement shall create a contractual
relationship between City or District and any third party; however, the City shall
ensure that the District is an intended third party beneficiary of the Construction
Agreement and shall share all of the rights and benefits of the City with respect to the
contractor.
11.18 Limitation on District Remedies and Waiver of Claims. District understands that the
sole purpose of this Agreement is to establish a method to reimburse the City for
obligations of the District for payment of the costs of the installation and construction
of District Facilities, which costs would otherwise be due directly to the City's
contractor. In accordance with such purpose, the District agrees that its sole remedy
for construction defects, breach by City Contractor, damage to property or persons,
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including death, to district personnel or any third parties, or other claims arising out of
or related to the work performed to install and/or construct District Facilities shall be
against the City's 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 sole negligence or sole willful misconduct of the City.
District, hereby, expressly waives all claims against the City identified in Section
11.18: At, () liJ
DISTRlCT REPRESENT A TIVE: II/lL~ ttJ4/ U-
DATE: 2 _ID. 20fO
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 the District 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.
11.22 Administrative Claims Requirements and Procedures. 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 acted upon by the City in accordance
with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as
same may from time to time be amended, the provisions of which are incorporated by
this reference as if fully set forth herein, and such policies and procedures used by the
City in the implementation of same. Upon request by City, District shall meet and
confer in good faith with City for the purpose of resolving any dispute over the terms
of this Agreement. The City will meet and confer with the District in good faith before
filing a suit or arbitration action against the District.
11.23 Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the
breach thereof, the Parties, following the procedures required 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 accordance with Civil Code
Section 1717(b)(I) or any successor statute. The prevailing party will also be entitled
to its reasonable attorneys' fees and costs in any post-judgment proceedings to collect
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or enforce the judgment. This provision is separate and will survive the merger of this
Agreement into any judgment on this Agreement.
11.24 Administration of Contract. City hereby designates Kirk Ammerman, Principal Civil
Engineer, as City Project Manager for the construction of Project and as the primary
contact for all matters relating to this Agreement, including the submittal of City
invoices for reimbursement.
District hereby designates Ron Ripperger as District Project Manager for District
Facilities and as the primary contact for all matters relating to this Agreement,
including the processing, documenting, and approval of City invoices.
11.25 Signing Authority. The representative for each Party signing on behalf of such Party
hereby declares that authority has been obtained to sign on behalf of the City and/or
District, as applicable and agrees to hold the other Party or Parties hereto harmless if it
is later determined that such authority does not exist.
IN WITNESS WHEREOF, City and District 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
Otay Water District
Dated: 2./0. 2~rc>
By:!/t1e qffiJ[)
I
Mark Watton, General Manager
Dated:
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to form:
Approved as to form:
~f)~
Bart Miesfeld, City Attorney
District Counsel
Dated: ozJOq //0
I I
Dated:
11
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CIP P2496
CIP R2094
OTAY WATER DISTRICT
Otay Lakes Road Recycled Water Pipeline
and Utility Relocation Project
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