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Home My WebLink AboutNATIONAL RAILROAD PASSENGER CORPORATION; 2010-12-11;AGREEMENT FOR REIMBURSEMENT OF COSTS BETWEEN AMTRAK AND THE CITY OF CARLSBAD FOR THE CARLSBAD DOUBLE TRACK PROJECT FROM MP 229.4 TO MP 231.8 This Agreement for Reimbursement of Costs for the Carlsbad Double Track Project from Milepost ("MP") 229.4 to MP 231.8, dated as of £>grcgm£xy~ //-fa , 2010 ("Agreement") is made by and between the CITY OF CARLSBAD ("City") and NATIONAL RAILROAD PASSENGER CORPORATION ("Amtrak") ("Parties" to this Agreement) with reference to the following recitals: RECITALS A. Amtrak has entered into a contract with the North County Transit District to implement the Carlsbad Double Track Project from MP 229.4 to MP 231.8, ("Project"), which includes construction of an additional railroad track, extension of protective steel casings for various City-owned utilities, and protection of two (2) sewer manholes within the Project Area (as hereinafter defined). B. All references in this Agreement to the "Project Area" shall represent the area along the railroad corridor from MP 229.4 to 231.8, which is from just south of Carlsbad Village Drive to just south of Cannon Road. C. Amtrak has engaged J. L. Patterson & Associates to prepare Plans and Specifications for the Project ("Plans and Specifications") which have been reviewed and approved by the City. D. Amtrak has prepared an Engineer's Estimate for the Project. Schedule C of the Schedule, attached hereto as Exhibit "A," includes the estimate for the utility work ("Utility Work") to be performed by the Contractor (defined in Paragraph 2(b) below). The Parties acknowledge that the Engineer's Estimate is for estimation purposes only. E. Pursuant to various License Agreements between the City and owner of the railroad right of way, the City is responsible for paying for the Utility Work to be performed for the Project. Accordingly, the City's actual payments for the identified utility items under this Agreement will be based upon the actual payment made by Amtrak to the Contractor performing the Utility Work. NOW, THEREFORE, for and in consideration of the promises and the mutual covenants herein contained, and with the intent to be legally bound hereby, the City and Amtrak agree as follows: 1. Recitals. The Recitals, above, are true and correct and are incorporated herein by this reference. 2. General Amtrak Obligations. (a) Amtrak shall utilize the Plans and Specifications prepared by J. L. Patterson & Associates, which have been reviewed and approved by the City for the Project. 8-2-10 -2- (b) Amtrak shall solicit competitive bids for the Project. Amtrak shall contract with a qualified contractor experienced in utility protection and utility steel casing extensions (the "Contractor"). (c) Amtrak shall allow the City to review the Contractor's construction submittals for items related to the construction or protection of the City- owned utilities. (d) Amtrak shall notify the City of the Contractor's bid amounts for the items identified under Section 3(a) of the General City Obligations below and promptly provide the City with written notice of Amtrak's award of the Construction Contract (as hereinafter defined). (e) Amtrak is responsible for procuring all applicable permits and approvals from other agencies or stakeholders that may have jurisdiction. (f) In the event of any proposed change order under the contract between Amtrak and the Contractor (the "Construction Contract") which affects the City's utilities, Amtrak shall give the City written notice of the proposed change order and the opportunity to review and comment at least seven (7) business days prior to Amtrak's authorization or approval of the change order. 3. General City Obligations. (a) The City shall reimburse Amtrak for all of the work that has been performed on the utility items identified in Exhibit "A". (b) The City shall maintain steel casings and sewer manhole protection improvements that will be installed by the Contractor after the Project is complete and the Contractor's warranty period has expired. 4. Payment of Reimbursement Amount. (a) The City agrees to reimburse Amtrak for the actual Contractor costs plus the expense related to the Amtrak General and Administrative (G&A) services related to the Utility Work. The Amtrak G&A expense will be calculated based on Amtrak's then current G&A overhead rate percentage applied to the total actual Contractor costs. Amtrak's current G&A rate is 7.16%. (b) Amtrak shall submit an invoice to the City of Carlsbad for the items identified in section 4(a) every thirty (30) days commencing on November 1, 2010. Upon receipt, verification and confirmation of such billing, the City will promptly pay Amtrak the full amount invoiced but in no event later than thirty (30) days after the receipt of such invoice. Payments will be made by the City in full without deduction, setoff or counterclaim. (c) Payments not made by the City by the due date shall be subject to an interest charge of one and one-half (1 Vi) percent per month. Nonpayment of invoices pursuant to the terms of this Agreement shall constitute a material breach of this Agreement and shall be cause for 8-2-10 -3- Amtrak to cease all work on this Agreement. The City will be responsible for any and all costs incurred by Amtrak as a result of the City's breach. 5. Dispute Resolution In the event of a dispute between the Parties regarding any aspect of this Agreement or of the Project that cannot be resolved at the staff level, the Party raising the dispute shall provide the basis of the dispute in writing to the other Party for referral to the City's Transportation Director and to Amtrak's Chief Engineer or their respective designees. This writing shall include the substance of previous communications on the dispute. The Director and Chief Engineer shall meet within fifteen (15) working days of such referral and shall endeavor promptly to resolve the dispute in question. If the dispute is still not resolved within a reasonable time after such meeting, either Party may pursue any right or remedy available to it by law or may propose a method of alternative dispute resolution. 6. Assignment of Agreement. The City and Amtrak shall not assign this Agreement or any part thereof or any monies due hereunder without the prior written consent of the other Party, which approval shall not be unreasonably withheld. 7. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, addressed as shown below. Notices required to be given to Amtrak shall be addressed as follows: Amtrak Attention: Michael Albanese 603-C Garrison Street Oceanside, CA 92054-4845 Telephone: 760-757-3908 FAX: 760-757-5338 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Transportation Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760)602-8562 Each Party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 8. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 8-2-10 -4- 9. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 10. Complete Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 11. Amendment. This Agreement may be only amended by a written instrument executed by both Amtrak and the City. 12. Term. This Agreement shall be effective as of the date first above written, and shall extend for the life of the Project. 13. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a Party hereto, and the Parties hereto expressly disclaim any such third-Party benefit. 14. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first above written. NATIONAL RAILROAD PASSENGER CITY By ATTEST: By: IAN, Division Engineer California Notorial Loose Certificate ATTEST* attached , Mayor .- u. ^LORRAINE M. WOOD, Secretary E°(Sign here) (Proper notarial acknowledgment of execution by National Railroad Passenger Corporation must be attached). APPROVED AS TO FORM: RONALD R. BALL, City Attorney Depuly~City Attorney 8-2-10 -5-15° State of California County of before me, HA Notary Public, personally appeared _ _ personally known to me or proved to me oh the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand a AVNEET BED!COMM.# 1872388NOTARY PUBLIC-CALIFORNIA WORAKGECOUNTY . MVCOMM. EXP.DVc.26.203J State of California County of On before me, Public, personally appeared Claude Lewis _, Notary personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. 8-2-10 -6- EXHIBIT "A" C.1 C.2 C.3 C.4 C.5 C.6 C.7 C.8 Estimate of Bid Items SCHEDULE C - UTILITY PROTECTION & CASING EXTENSIONS Mobilization (5% or less of Schedule C total) Demobilization (2% or greater of Schedule C Total) Sewer Manhole Protection, for 2 Manholes Work includes, but is not limited to, excavation and backfill, procuring and installing steel jackets and concrete bases. Extend 16" Split Steel Casing Work includes, but is not limited to, excavation and recompaction, procuring and installing casing, backfill, welding, and replacement of surface hardscape, all to NCTD Standards. Extend 18" Split Steel Casing Work includes, but is not limited to, excavation and recompaction, procuring and installing casing, backfill, welding, and replacement of surface hardscape, all to NCTD Standards. Extend 20" Split Steel Casing Work includes, but is not limited to, excavation and recompaction, procuring and installing casing, backfill, welding, and replacement of surface hardscape, all to NCTD Standards. Extend 24" Split Steel Casing Work includes, but is not limited to, excavation and recompaction, procuring and installing casing, backfill, welding, and replacement of surface hardscape, all to NCTD Standards. Concrete Casing Work includes, but is not limited to, excavation and recompaction, procuring, forming, and installing reinforced concrete, backfill, and replacement of surface hardscape, and all associated work to complete the casing. Est Qty 1 1 1 38 31 16 30 25 Unit LS LS LS LF LF LF LF LF Unit Price $ 7,969 $ 3,984 $120,000 $ 225 $ 275 $ 300 $ 350 $280 Schedule C Construction Sub Total $171,328 Schedule C Bonds and Insurance $2,570 Schedule C Railroad & Liability Protective Ins $857 10% Contingency $17,133 SCHEDULE C CONTRACTOR PRICE $191,887 Amtrak G&A Cost $13,739 Total Estimated Cost $205,626 Total Price $7,969 $3,984 $120,000 $8,550 $8,525 $4,800 $10,500 $7,000 8-2-10 -7-