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HomeMy WebLinkAboutNorth Coast Railroad Authority (NCRA) 2018-04-02/Vo. )7[t -a(s THIRD PARTY PLAN REVIEW AGREEMENT THIS AGREEMENT is made and entered into this 2nd day of April, 2018, by, between and among North Coast Railroad Authority, a local government agency ("NCRA"), American Rail Engineers Corporation (ARE), a California corporation ("NCRA Plan Checker") and City of Ukiah ("Applicant"). RECITALS Whereas, NCRA has a program wherein an applicant to NCRA may contract directly with a qualified third party engineering firm to perform plan checking services on behalf of NCRA; Whereas, Applicant desires to enter into a third party agreement with NCRA Plan Checker to perform such plan checking services; Whereas, NCRA Plan Checker is experienced in providing such services for railroads and is able to provide experienced personnel to carry out the duties involved; NOW, THEREFORE, in consideration of the covenants and premises herein stated, it is agreed as follows: A. NCRA, pursuant to the authority set forth at Government Code Section 93023(f), does hereby appoint NCRA Plan Checker, in a contractual capacity, to perform services in accordance with the terms and conditions hereinafter set forth; with the authorities, responsibilities, governmental immunities, and consideration ordinarily granted to an officer of NCRA. B. Applicant intends to: Construct a trail within NCRA right-of- way called the Ukiah Rail Trail Phase 2 (hereinafter the "Project"). C. NCRA Plan Checker agrees to perform the following services for NCRA with respect to the project: provide plan check and construction oversight services. NCRA Plan Checker (ARE) 18 Technology Dr., STE 205, Irvine, CA 92660, (714) 943-4068 By Anderson, Pv al 1 D. NCRA Plan Checker shall be compensated for such services to NCRA by direct payment from Applicant. Notwithstanding that Applicant is to compensate NCRA Plan Checker directly, it is agreed that NCRA Plan Checker's duties with respect to this project are to NCRA as an official of the NCRA, and not to Applicant. The compensation shall be as follows: Applicant will be billed a retainer of $2,500.00 based on the rate schedule below. In the event the review extends beyond December 31, 2018, rates are subject to escalation to ARE's then current billing rates: Position Regular Rate Overtime Rate Project Manager $ 180 -- Senior Engineer $ 170 -- Inspector $ 85 -- Design Engineer $ 110 -- A final bill will be submitted to the Applicant within sixty (60) days after receiving written notice from Applicant that all Project work affecting NCRA's property has been completed. Such compensation to NCRA Plan Checker shall not be in lieu of other fees as may be charged by NCRA. IN WITNESS WHEREOF, the parties execute this agreement upon the terms and conditions stated above and the "PROVISIONS OF AGREEMENT," following the signatures below. NCRA 419 Talmage Rd, Ste M, Ukiah, CA 95482 BY \Aka Lk Slit Mitch Stogner, ecutive Director APPLICANT: Benjamin Kageyama, PE, Project Manager, City of Ukiah Public Works Department 300 Seminary Ave, Ukiah, CA 95482, (707) 463-6284, bkageyama@cityofukiah.com By Date: Name: 5 S tor it.& -t it 10 t&4 Q Title: PROVISIONS OF AGREEMENT APPEAR ON NEXT PAGE. '7• 0-C7 C t 1—Y t► -t PROVISIONS OF AGREEMENT 1. Plan Review Services. NCRA Plan Checker shall review the plans prepared by or on behalf of Applicant for compliance with NCRA policies and Standards normally enforced by NCRA. When NCRA so desires, NCRA Plan Checker may maintain a liaison with NCRA legal counsel and NCRA's operator in order to integrate the requirements of those parties into the plan comments. When satisfied that all conditions of acceptance and the appropriate requirements of NCRA's policies have been met, NCRA Plan Checker shall advise NCRA of its recommendation that permits may be issued by NCRA. When performing these services, Applicant acknowledges that NCRA Plan Checker shall be acting as NCRA's Project Engineer and afforded protection from liability as an NCRA Official. NCRA Plan Checker shall be deemed to have the same right to protection from liability, including without limitation the claims filing requirements and immunities provided under the laws of the State, to the maximum extent allowed by law as is provided to NCRA employees. 2. This agreement shall be binding upon the heirs, executors, administrators, successors and assigns of each of the parties. 3. This agreement shall not be assigned by any party without the prior written consent of the other parties. 4. This agreement contains the entire agreement between the parties relating to the provision of engineering plan checking services to the project. Any prior agreements, promises, negotiations or representations for plan checking services not expressly set forth in this agreement are of no force or effect. Subsequent modifications to this agreement shall be in writing and signed by all parties. 5. The waiver of any term, condition, or covenant, or breach of any term, condition, or covenant, shall not constitute the waiver of any other term, condition, or covenant, or the breach of any other term, condition, or covenant. 6. If any term, condition, or covenant of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this agreement shall be valid and binding. 7. This agreement shall be governed by and construed in accordance with the laws of the State of California. 8. All original papers, documents, drawings and other instruments of service of NCRA Plan Checker, and copies thereof, produced by NCRA Plan Checker pursuant to this agreement, except documents which are required to be filed with public agencies, shall remain the property of NCRA Plan Checker. 9. Applicant acknowledges that its right to utilize the services provided pursuant to this agreement will continue only so long as Applicant is not in default pursuant to the terms and conditions of this agreement and Applicant has performed all obligations under this agreement. 10. Upon written request, Applicant shall execute and deliver, or cause to be executed and delivered, such additional instruments, documents, governmental fees and charges which are necessary to perform the terms of this agreement. 11. NCRA Plan Checker makes no representations concerning Page lof 2 soil conditions unless specifically included in writing in this agreement, and NCRA Plan Checker is not responsible for any liability that may arise out of the making or failure to make soil surveys, or sub -surface soil tests, or general soil testing. NCRA Plan Checker makes no representation concerning the past, present or future presence of hazardous waste or asbestos on the Project, and NCRA Plan Checker is not responsible for any liability that may arise out of the making or failure to make tests or perform investigations concerning the same. 12. NCRA Plan Checker's review and approval of the Applicant's plans will in no way relieve Applicant from its responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the NCRA Plan Checker makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by Applicant on the plans is at the risk of Applicant. 13. NCRA Plan Checker has a right to complete all services agreed to be rendered under to this contract. In the event this contract is terminated prior to completion of all services, unless NCRA Plan Checker is responsible for such termination, Applicant shall release NCRA Plan Checker from all liability for work performed. 14. NCRA Plan Checker shall be entitled to immediately, and without notice, suspend the performance of any and all of its obligations under this agreement if Applicant files a voluntary petition seeking relief under the United States Bankruptcy Code or if there is an involuntary bankruptcy petition filed against Applicant in the United States Bankruptcy Court, and that petition is not dismissed within fifteen (15) days of its filing. Any suspension of services made pursuant to the provisions of this paragraph shall continue until such time as this agreement has been fully and properly assumed in accordance with the applicable provisions of the United States Bankruptcy Code and in compliance with the final order of judgment issued by the Bankruptcy Court. 15. This agreement shall not be construed to alter, affect or waive any lien or stop notice right which NCRA Plan Checker may have for the performance of services pursuant to this agreement. Applicant agrees to separately provide to NCRA Plan Checker the present name and address of the record owner of the project property. Applicant also agrees to separately provide NCRA Plan Checker with the name and address of any and all lenders who would loan money on the project and who are entitled to receive a preliminary notice. 16. If Applicant fails to pay NCRA Plan Checker within thirty (30) days after invoices are rendered, Applicant agrees NCRA Plan Checker shall have the right to consider such default a material breach of this entire agreement, and, upon written notice, the duties, obligations, and responsibilities of NCRA Plan Checker under this agreement are terminated. In such event, Applicant shall promptly pay NCRA Plan Checker for all fees, charges, and services provided by NCRA Plan Checker up to the date contract is terminated. 17. All fees and other charges are due upon completion of the first plan check unless otherwise specified in this agreement. 18. Applicant agrees that the periodic billings from NCRA Plan Checker to Applicant are correct, conclusive, and binding on client unless Applicant within fourteen (14) days from the date of receipt of such billing, notifies NCRA Plan Checker in writing of alleged inaccuracies, discrepancies, or errors in the billing. 19. Applicant agrees to pay a monthly late payment charge, which will be the lesser of, one and one-half percent (1-1/2%) per month, or a monthly charge not to exceed the maximum legal rate, which will be applied to any unpaid balance commencing thirty (30) days after the date of the original billing. 20. Applicant shall pay the costs of delivery, printing and reproductions, and all other direct charges related to providing the services of this Agreement. 21. In the event all or any portion of the work prepared or partially prepared by NCRA Plan Checker is suspended, abandoned, or terminated, Applicant shall pay NCRA Plan Checker for all fees, charges and services provided for the project, to the date of termination, not to exceed any contract limit specified herein. Applicant acknowledges if the project work is suspended, for a period of 60 days and restarts, there will be additional charges to suspension of the work which shall be paid for by Applicant as extra work. 22. NCRA Plan Checker is not responsible for delay caused by activities or factors beyond NCRA Plan Checker's reasonable control, including but not limited to, delays by reason of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure of Applicant to furnish timely information, faulty performance by Applicant or contractors or governmental agencies. When such delays beyond NCRA Plan Checker's reasonable control occur, Applicant agrees NCRA Plan Checker is not responsible for damages nor shall NCRA Plan Checker be deemed to be in default of this agreement. 23. In the event that any party institutes a suit against another, either by complaint or by way of cross-complaint, including a cross-complaint for indemnity, for alleged negligence, error, omission, or other failure to perform, the losing party will pay the prevailing party's attorneys fees and costs. Page 2 of 2 24. Applicant agrees that in the event Applicant institutes litigation to enforce or interpret the provisions of this agreement, such litigation is to be brought and adjudicated in the appropriate court in Sonoma County, and Applicant waives the right to bring, try or remove such litigation to any other county or judicial district. 25. Applicant acknowledges that NCRA Plan Checker is not responsible for the performance of work by third parties including, but not limited to, the construction contractor and its subcontractors. 26. Applicant agrees to save, keep harmless, indemnify and defend NCRA, NCRA Plan Checker and their officers, employees and agents from all claims, liability, damages and costs, including attorneys fees, caused by any negligent or willfully wrongful act, error or omission on the part of Applicant or on the part of its officers, employees, agents, consultants, contractors or subcontractors to the extent not caused by the negligent or willfully wrongful act or omission of NCRA or NCRA Plan Checker.