Agenda packet — Safety and Communities Committee, February 14, 2022

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www.modestogov.com
AGENDA
City of Modesto

SAFETY AND COMMUNITIES COMMITTEE / COUNCIL

WORKSHOP
Held Via Teleconference
(To Access Meeting Please See Instructions Below)
Monday, February 14, 2022 at 5:00 PM
*Roll Call: Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
Alternates: Jenny Kenoyer, Tony Madrigal, David Wright, Bill Zoslocki * Please Note: In order to respond to COVID-19, and pursuant to AB 361, the City will hold this meeting via teleconference and Committee Members will be calling in.

THIS MEETING WILL NOT BE PHYSICALLY OPEN TO THE PUBLIC
In order to minimize the spread of the COVID-19 virus, this meeting will be conducted pursuant to AB 361, which amended the Brown Act’s teleconferencing provisions and will not be physically open to the public. You may observe and participate in the meeting via teleconference as indicated below.

PARTICIPATING IN COMMITTEE MEETINGS IN CONFORMANCE
WITH AB 361
The City of Modesto is providing alternatives to observe and participate in Committee meetings.

If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include - 1 -
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Agenda Item Number in the subject line). All comments will be shared with the Committee Members and placed in the record, but will not be read aloud during the meeting. Written comments must be received by 4:00 p.m. on the day of the meeting.

VIRTUAL PARTICIPATION BY ZOOM VIDEO

CONFERENCING AND TELEPHONE
Joining the Committee meeting via Zoom
The City of Modesto is now offering the ability to view and participate in Committee meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
 Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
 Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
 Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Committee meeting.

Joining the Committee meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can participate by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326
Providing Public Comment on Zoom and by Telephone
The Committee Chairman will request public comment during the Public Comment periods on the meeting agendas and during each Regular Calendar Item on the Committee Agenda. Once the Chairman has announced the public comment period, please do one of the following.

USING A COMPUTER OR SMART PHONE APP:
 Click on the “Raise Hand” feature in the webinar controls. This will notify City staff that you have raised your hand.
 City staff will unmute your microphone when it is your turn to provide public comment.
 A prompt will appear to confirm you would like to be unmuted and then you will have three minutes to provide public comment.
 Once your public comment has ended, you will be muted again.

USING A REGULAR PHONE (not using a computer or smart phone APP):
 Dial *9 (star 9), this will notify City staff that you have “raised your hand” for public comment.
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 City staff will unmute your microphone when it is your turn to provide public comment.
 You will hear “you are unmuted” and then you will have three minutes to provide public comment.
 Once your public comment has ended, you will be muted again.  If your phone is unmuted, and you are unable to be heard, the host may ask that you Dial *6 to toggle mute on/off in Zoom.

Additional Zoom resources/support
Please visit Zoom’s website support page on helpful tips to prepare for the meeting:
https://support.zoom.us/hc/en-us/categories/201146643
Council has not delegated directive or final approval authority to the Committees. Committee actions are recommendations to the full City Council, not final decisions on an issue. This meeting is also noticed as a City Council workshop.

PUBLIC COMMENTS
Please refer to special public comment instructions above.

Three minute time limit per speaker
Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.

Any and all of the following agenda items are subject to action by the Modesto City Council.

This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.
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In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

CONSENT
An item may be removed from consent and discussed at the request of an audience member or Councilmember.

1. Consider approving the Award of Bid and Agreement for Backflow Prevention Testing Services to Dan Ely Backflow Services, Turlock, CA for a two year Agreement with three one-year extension options, for an estimated annual amount of $25,000 and a total amount not to exceed $125,000 over five years, and forwarding to Council for approval. (Funding Source: General Fund, Airport and Centre Plaza Funds) PRN; Kelly Gallagher, 209-342-2270, [email protected]

2. Consider approving the Award of Bid and Agreement for Discing and Flail Mowing Services to Elite Maintenance & Tree Service, Inc., Clovis, CA for a two year Agreement with three one-year extension options, for an annual estimated cost of $151,335, and a total amount not to exceed $756,675 over five years, and forwarding to Council for approval. (Funding Source: Various Funds) PRN; Kelly Gallagher, 209-342-2270, [email protected]

3. Consider approving the First Amendment to the Memorandum of Understanding (MOU) between the La Loma Neighborhood Association and the City of Modesto for the Native Plant Garden on Encina Avenue, extending the term of the MOU from March 28, 2022 to March 28, 2027, and forwarding to Council for approval. (Funding Source: General Fund and Water Fund)
PRN; Kelly Gallagher, 209-342-2270, [email protected]

UNFINISHED BUSINESS

4. Presentation on High Voltage Circuit Conversion and Traffic Signal System Master Plan Update (Funding Source: Gas Tax Fund, Measure L, Congestion Mitigation and Air Quality, SB1)
PUBLIC WORKS; Scott Collins, 209-577-5431, [email protected] - 4 -
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NEW BUSINESS

5. Consider accepting an informational report providing an update regarding the City of Modesto Camera program including cameras used to reduce blight and illegal dumping. (Funding Source: Not Applicable)
POLICE; Brandon Gillespie, 209-572-9501, [email protected]

6. Consider accepting an informational report providing an update on crime in the City of Modesto (Funding Source: Not Applicable)
POLICE; Brandon Gillespie, 209-572-9501, [email protected]

MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.

ADJOURNMENT
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on at by
date time signature
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

February 14, 2022
Date: January 21, 2022
TO: Safety and Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods SUBJECT: Agreement for Backflow Testing and Emergency Repairs CONTACT: Kelly Gallagher, Park Operations Manager, [email protected], (209)342-2270
DESCRIPTION:

Consider approving the Award of Bid and Agreement for Backflow Prevention Testing Services to Dan Ely Backflow Services, Turlock, CA for a two (2) year Agreement with three (3) one-year extension options, for an estimated annual amount of $25,000 and a total amount not to exceed $125,000 over five years, and forwarding to Council for approval. (Funding Source: General Fund, Airport and Centre Plaza Funds)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto 2020-2025 Strategic Plan focus on Quality of Life, Goal D: provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

The State of California Health and Safety Code requires annual testing of each backflow prevention assembly owned and operated by the City. Pursuant to Modesto Municipal Code 11-

1.113 and California Health and Safety Codes 116800-116820, all backflow prevention assemblies are to be tested annually at the owner/water (City’s) account holder’s expense.

An informal bid for Backflow Prevention Testing Services was issued in 2016. At the time, it was estimated services would not exceed $10,000 annually. In 2018, a purchasing agreement for five years was executed under the City Manager’s authority, in an amount not to exceed $49,000.
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Safety & Communities Committee, February 14, 2022
Purchase Agreement for Backflow Prevention Testing Services

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On April 27, 2021, by Resolution 2021-160, Council approved an amendment to the Agreement to increase the amount of funding by $13,000 from $49,000 to a new total of $62,000 for the last year of the five-year agreement.

On October 12, 2021, by Resolution 2021-409, Council approved the second amendment increasing the agreement amount by $3,600 to a new total of $65,600 and extending the term of the agreement to April 30, 2022. This amendment was needed to allow enough time for the Request for Bids process.

The current five-year agreement for Backflow Prevention Testing Services expires on April 30, 2022. It is anticipated the new agreement will begin May 1, 2022.

DISCUSSION:

The City Manager authorized the Purchasing Manager to issue a formal Request for Bids (RFB) for backflow prevention testing services. The Purchasing division issued RFB 2122-03, for Backflow Prevention Testing Services on November 5, 2021. Seventeen (17) vendors downloaded the RFB.

Bids were formally due to the City Clerk’s office on December 28, 2021, by 11:00 a.m. One (1) bid was received by Dan Ely Backflow Services, Turlock, CA and was selected as the most responsive and responsible bidder. Purchasing staff and Park Operations staff evaluated the bid.

The Purchasing and Parks Operations divisions recommended the award of bid be forwarded to the City Council for approval of Backflow Prevention Testing services to Dan Ely Backflow Services, Turlock, CA.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow the formal bid procedures. An award of bid and agreement for Backflow Prevention Testing Services for Parks, Recreation & Neighborhoods department use to Dan Ely Backflow Services, Turlock, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Dan Ely Backflow Services was the lowest responsive and responsible bidder.

FISCAL IMPACT:

The following summarizes compensation paid for the current agreement ending April 30, 2022.

Department 2017 2018 2019 2020 2021 Total
Park Ops 10,350 10,525 10,900 10,525 12,546 54,846
Modesto Centre Plaza - 540 540 480 225 1,785
Public Works 1,375 350 240 400 425 1,900
Modesto Fire Dept. 375 375 375 375 400 2,790
Total 12,100 11,790 12,055 11,780 13,596 $61,321
The following summarizes the proposed compensation for the new agreement. This includes increases for the Consumer Price Index and for future development requiring backflow installations and maintenance.
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Purchase Agreement for Backflow Prevention Testing Services

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Department Annual 5-Years
Park Ops 19,500 97,500
Other Depts 1,500 7,500
Emergency Repairs (Labor Only) 4,000 20,000
TOTAL 25,000 125,000
Approved by:

Laurie A. Smith, Director of Parks, Recreation &
Neighborhoods
Joseph P. Lopez, City Manager
Attachments:

1. Backflow Prevention Testing Services Agreement - Dan Ely Backflow Services

2. Agreement – Dan Ely Backflow Services

3. Financial Interest Disclosure

4. RFB 2122-03 Backflow Testing and Emergency Repairs

5. Bid Submittal – Dan Ely Backflow Services
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AGREEMENT

DAN ELY BACKFLOW SERVICES

FOR BACKFLOW TESTING AND EMERGENCY REPAIRS
This Agreement, made and entered into in the City of Modesto, State of California, this 8th day of March, 2022, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Dan Ely Backflow Services hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2022-_______ authorizing the award of bid and contract for the furnishing of BACKFLOW TESTING AND EMERGENCY REPAIRS to Dan Ely Backflow Services,
attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal to RFB 2122-03 for BACKFLOW TESTING AND EMERGENCY REPAIRS that best meets CITY needs, and
WHEREAS, the CONTRACTOR shall provide services to CITY as defined in the “Submittal”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of BACKFLOW TESTING AND EMERGENCY REPAIRS, as described in RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof, and NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish BACKFLOW TESTING AND
EMERGENCY REPAIRS, in strict accordance with the conditions of the complete Contract. #1..
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b. CONTRACTOR shall do and perform the work in a professional and businesslike manner under the direction of and to the satisfaction of the CITY. c. CONTRACTOR shall perform its duties under this Agreement in accordance with the standard(s) of care prevailing in its industry. d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the contract.
e. CONTRACTOR shall maintain a CITY business license for the duration of the contract.
f. CONTRACTOR shall furnish the services at the following agreement rates, estimated amount of $ 25,000 and a total amount not to exceed $125,000.

AGREEMENT PRICING

PER SINGLE UNIT IN EACH SIZE CATEGORY

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer/Type over 90% are Febco, however the City may contain devices from other manufacturers such as Ames, Rain Bird, Watts and Wilkins List Unit Price (Per Test)
Estimated
Annual Quantity:
6 +/- 50 +/- 65 +/- 130 +/- 13 +/- 50 +/- 6 +/-
Size: ¾" 1" 1-½" 2" 3" 4" 6"
Double Check
(DC) $45.00 $45.00 $45.00 $45.00 $45.00 $45.00 $45.00
Pressure Vaccum
$45.00 $45.00 $45.00 $45.00 $45.00 $45.00 $45.00
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Breaker (PVB)
Reduce Pressure
(RP) $45.00 $45.00 $45.00 $45.00 $45.00 $45.00 $45.00
Please provide your parts markup percentage 10% (NTE 10%).

Hourly rate for emergency repairs $75.00.

Modesto Fire Department

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer / Type over 90% are Febco, for Parts/Materials however the City may contain devices from other manufacturers such as Ames, Rain, Watts and Wilkins List Unit Price (Per Test)
Estimated
Annual
Quantity:
2 1 2 9 1
Size: ¾" 1-1/4” 1-½" 2" 8”
Double Check
(DC) $45.00 $45.00 $45.00 $45.00 $45.00
Double Check
Detector
Assembly
(DCDA) $45.00 $45.00 $45.00 $45.00 $45.00
Pressure
Vacuum
Breaker (PVB) $45.00 $45.00 $45.00 $45.00 $45.00
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Reduce
Pressure (RP) $45.00 $45.00 $45.00 $45.00 $45.00

PRICING SCHEDULE
City Business/Delivery License No.1162908 Expiration Date: __________ Contractor License No. N/A Expiration Date: N/A
DIR Registration No. PW-LR-1000844993 Expiration Date: 6/1/2022 Stated pricing is subject to (_2 %) cash discount if invoice is paid within 15 days after acceptance of service.

THE PAYMENT OF PREVAILING WAGES IS REQUIRED.

2. PREVAILING WAGES:

The payment of prevailing wages is required for maintenance under this agreement and all provisions of Section 7.04 of the General Provisions contained with the City standards shall apply.

DIR Project ID# 402556

3. CITY CONTACT:

Kathy Crandall, Buyer Ph: (209) 577-5420
Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

4. TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options.

Year 1: May 1, 2022 through April 30, 2023
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Year 2: May 1, 2023 through April 30, 2024
Year 3: May 1, 2024 through April 30, 2025
Year 4: May 1, 2025 through April 30, 2026
Year 5: May 1, 2026 through April 30, 2027
This Agreement may be renewed for three (3) additional one-year terms by mutual, written agreement of the parties. Such renewal shall be in written form. Price will remain firm for the first two (2) years of the contract. Price increases for subsequent contract years three (3) through five (5) shall not exceed the Consumer Price Index (CPI) in any one contract year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by CONTRACTOR in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the City. The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

5. LIABILITY INSURANCE:

The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of #1..
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CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
(a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000
(b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 aggregate for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent Contractors and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage.

This insurance shall cover any automobile for bodily injury and property damage.
period of one year.

Waiver of Subrogation – CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain #1..
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any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.

Additional Insured Status-endorsement – The City of Modesto its officers, officials, employees, agents and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONTRACTOR including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONTRACTOR’S insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).

If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance, or if a company issuing such policy shall be unsatisfactory to CITY, CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager of CITY for approval and submit a certificate thereof as herein above provided. Upon failure of CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended, or terminated.

Failure of CONTRACTOR to obtain and/or maintain any required insurance shall not relieve CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of CONTRACTOR concerning indemnification. CITY, and its agents, officers, officials, #1..
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employees, and volunteers shall be named as an additional insured on all insurance polices required herein, except Workers’ Compensation, Professional Liability and Financial Institution’s Fidelity.

The Workers’ Compensation insurer shall agree to waive all rights of subrogation against CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for CITY. CONTRACTOR’S insurance policy(ies) shall include a provision that the coverage is primary as respects CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best’s rating of A:VII or with approval of the Risk Manager of CITY. The CONTRACTOR must deliver certificates evidencing existence of the insurance to the City prior to the time contract is signed.

For any claims related to this project, the CONTRACTOR’S insurance coverage shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any #1..
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insurance or self-insurance maintained by the Entity, its agents, officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’S insurance and shall not contribute with it.

CONTRACTOR further agrees that the amount of insurance required may from time to time be adjusted by CITY’s Risk Manager and CONTRACTOR agrees to file a new insurance certificate with CITY’s City Clerk evidencing the new amounts after a thirty (30) day written notice from CITY’s Risk Manager.

6. PAYMENT:

CONTRACTOR shall invoice CITY on a monthly basis. All invoices shall be paid in full within thirty (30) days after completion and acceptance of the service by the City, and receipt of a properly prepared invoice in duplicate, subject to cash discounts allowed and stated in this proposal document. The City is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

At a minimum invoice shall state the following:
 Reference Agreement #216569
 City department/division name and address
 Billing period
 Unit price, extended price, sales tax and total

7. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, #1..
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losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

CONTRACTOR’S obligation to defend, indemnify, and hold the CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for CONTRACTOR to procure and maintain a policy of insurance.

In the indemnity clause contained herein CONTRACTOR agrees to defend, indemnify and hold CITY harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third party suits, arising out of or relating to the operation of CITY owned vehicles by CONTRACTOR’S employees is apportioned to CONTRACTOR in accordance with the provisions contained in Indemnity 6.

8. ARBITRATION:

The Arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto, California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

9. GOVERNING LAW:

This Agreement shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of laws provisions or principles.

10. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as soon as possible after receipt of the Notice to Proceed for this contract. The Notice to Proceed shall not be issued until the contract administrator receives and has on file:

Executed Agreement;
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a. Resolution No. 2022- attached hereto as Exhibit “A” and made a part hereof;
b. Bid Submittal, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License

11. TERMINATION OF SERVICES:

Termination by City for Convenience
The City may also terminate the CONTRACTOR’S performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination. #1..
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Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Contractor shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subcontractors, but in no event shall recovery by any Contractor or subcontractor include lost profits for portions of the Work not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing the Work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Work as has not been terminated;
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g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Contractor shall provide sufficient oral or written status reports to make City reasonably aware of the status of Contractor's work on the project.
i. The Contractor understands and agrees that City may, in City's sole discretion, refuse to pay Contractor for that portion of Contractor's services which were performed by Contractor on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.

City will pay Contractor an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Contractor after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subcontractor agreements or contracts for materials; b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Contractor as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Contractor.

Authorization to Terminate Agreement
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Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Contractor to appeal the City Manager, or his/her designee’s, decision to the City Council. The Contractor shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement.

In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

12. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and herein referred to, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

13. AGREEMENT DOCUMENTS:

The complete contract between the parties hereto consists of this agreement, and all exhibits, and the following documents which are incorporated herein by this reference:
a. Resolution No. 2022-___________ attached hereto as Exhibit “A” and made a part hereof;
b. CONTRACTOR Bid Submittal, attached hereto as Exhibit “B” and made a part hereof;
c. RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License
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These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division). All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

14. NOTICES:

Any notice, payment or instrument required or permitted by this Contract to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR Dan Ely/Owner
Dan Ely Backflow Services
902 Bennington Ave
Turlock, CA 95382
(209) 678-7024
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

15. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the contract and has/have full authority to execute this contract.

16. ASSIGNMENT:
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Neither this agreement nor any portion thereof shall be subcontracted or assigned without the written consent of the CITY in each and every instance.

17. WAIVER:

The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.

18. HEADINGS NOT CONTROLLING.

Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement

19. MISCELLANEOUS:

Time is of the essence in every provision of this contract.

20. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

21. PARTIAL INVALIDITY.
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If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

0. 2122-0
REP JR
FINANCIAL I EREST OlSCLO URE FOR1'.·1
AD pe on · luded wi · th meanin of eit f th followiin • te ts have a m,lteria1 financiri1 interest in an agreement or application for deve]opment rights. submitted for approva] or disap rnval by the City Coll.llcil, and shaU be identified by the appljcant, by name.

Tests of Materiality:
l . \ hether it is foreseeable to a r-easonahle person that the value of the ir intere t in property available for use by an applicant, or their interest in the apphcant itself, may increase or decrease by an amount greater than $2 000.00 as , direct or 'ndirect result of Council actfon on the app]icanfs agreement or application for development ri hts.

2. Wbetber it is for.es eabl t.o a rea.sonabJe person that the person s gross · come from the applicant may increase or decrease by a sum greater than $2,000;00 as a direct or indir ct result of Council action on the agreement or application for development ·gh , It i the ]egal obligation of aU applicants for a.pprova] of an agreement or of au app,H ation for devdopment rights to verify in writing, under penalty of pei.-j u.ry, that the identity of each persom having a material tm~mciel internst in the agre,ement or application or development rights is tru , correct and complete.

By .signing below~ the applicant understands tlmt this information i.s provided under penalty of pe1jmy, and tltat 'ntentiona]ly suppl · g mi · onnation o deception may result in either invalidation of the agreement or ► application, or criminal pro ecution for mhidcmcanor violation of the Iodesto Mu icipal Co<l or both.

Negligent provision •Of misinformation shaU be grounds fo1· inva.lidatfon. In accordance ith the Modesto Municipal Code each ap 1icant has a continuit1g obligation to ntaintain the truth, accuracy and completeness o the financial interest disdosure infonnation provided below unti1 after final consideration by the City Council of atte a ising out o or eat' g to the agreemen r application.

By signing this documeut I agree to the info mation contained within.

COMP ANY NAME:

TE( IG ):
n~~ EL" low N E::B
APPLIC T S NAME/TITLE (PRINT):
15 Questio concerning the applic:atio of either test to partkular facts should be reso]ved 1n dvance of ouncil ac ion by agreement ith the department he-ad recommending approval of its agreement/application. 14 #1..
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1 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03
FOR

BACKFLOW TESTING AND EMERGENCY REPAIRS

THE PAYMENT OF PREVAILING WAGE IS REQUIRED
BID OPENING: DECEMBER 14, 2021 at 11:00 A.M.

CITY OF MODESTO CONTACT: Kathy Crandall, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5420
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2 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

TABLE OF CONTENTS
Page
. Notice to Bidders..................................................................................................................3 . City Contacts ........................................................................................................................4 . Calendar of Events ...............................................................................................................4 . Offer and Acceptance...........................................................................................................4 . Bid Submittal Checklist .......................................................................................................5 . REQUIRED DOCUMENT
. Bid Acknowledgement (Signature)....................................................................................6 . Pricing Schedule (Signature)..............................................................................................9 . Exceptions, Clarifications, Amendments (if applicable) ..................................................10 . References ..........................................................................................................................11 . Financial Interest Disclosure Form (Signature Form) ....................................................14 . Support of Local Vendors (if applicable) ..........................................................................16 . Company History Statement .............................................................................................17 . Addenda Acknowledgement Page (if applicable) ............................................................18 . TECHNICAL REQUIREMENTS
. Scope of Work....................................................................................................................19 . Technical Specifications ....................................................................................................19 . Required Licenses ..............................................................................................................22 . Insurance.............................................................................................................................22 . GENERAL REQUIREMENTS
. Bid Submittal......................................................................................................................25 . Acceptance/Rejection of Irregular Bids.............................................................................25 . Complete Bid Document....................................................................................................25 . Compliance.........................................................................................................................26 . Prevailing Wages................................................................................................................26 . Pricing Format....................................................................................................................26 . Pricing Schedule.................................................................................................................26 . Award of Bid ......................................................................................................................27 . Term of Contract ................................................................................................................27 . Termination of Services .....................................................................................................27 . Quantities............................................................................................................................28 . Funding...............................................................................................................................28 . Other Government/Publicly Funded Agencies..................................................................28 . Protest and Appeal Procedures ..........................................................................................30 . Payment ..............................................................................................................................34 . ATTACHMENTS
. Sample Annual Agreement …………………………………………………………...35
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3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California, will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed bids for the furnishing of BACKFLOW TESTING AND EMERGENCY REPAIRS for the City of Modesto, Parks, Recreation & Neighborhoods Division.

All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto. Bids can be downloaded from the City’s Purchasing website at http://www.modestogov.com/257/Contracting-Bid-Opportunities; such bids shall include all necessary specifications.

Each bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, December 14, 2021 at 11:00 A.M., at which time bids will be opened, read and recorded. All bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.

Bids will be received only at the address shown above, and prior to the time indicated. Any bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the bidder unopened.

All bids, whether delivered by an employee of the bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated. The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of bids.

The City of Modesto assumes no responsibility for delay in the delivery of the bid.

On the outside of the bid envelope and courier envelope, if any, the bidder shall indicate the following:

NAME AND ADDRESS OF BIDDER
SPECIFICATION NUMBER 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS
BID OPENING DATE: DECEMBER 14, 2021 AT 11:00 A.M.

MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK

CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET, SUITE 6600
MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all bids or to waive any informalities or minor irregularities in a bid.

No bidder may withdraw his/her bid for a period of ninety (90) days after the date set for the opening thereof.

Note: Deliver or mail bids to the referenced address, only, as indicated in the Notice to Bidders. #1..
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4 CITY CONTACTS
All questions regarding these specifications, terms, and conditions shall be submitted in writing to Kathy Crandall, Buyer, via email at: [email protected] All contact during the bid process shall be through the Purchasing Division. Attempts by the bidder to contact department representatives may result in disqualification of the bidder from the bid process.

CALENDAR OF EVENTS
Event Date
Bid Issued NOVEMBER 4, 2021
Written Questions Due NOVEMBER 16, 2021
Addendum Issued (if required) NOVEMBER 23, 2021
Bid Opening BEFORE 11:00 A.M. on Tuesday, DECEMBER 14, 2021 Bid Award Approximately April 2022
It is the responsibility of each bidder to be familiar with all of the specifications, terms and conditions and the site condition (if applicable). The bidder agrees and acknowledges all RFB specifications, terms, and conditions and indicates the ability to perform by submission of a bid. By the submission of a bid, the bidder certifies that if awarded a contract they will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.

CALIFORNIA LABOR CODE SECTION 1771.1 (a)
1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.

OFFER AND ACCEPTANCE:

Seller represents his/her acceptance to provide products and/or services as follows: City's offer to purchase products and/or services is expressly conditioned upon Seller's assent to the terms and conditions set forth in City purchase order documents, specifications, supporting data, and these articles. Seller agrees that Seller's Order Acknowledgement terms and conditions received prior to, during, or after order placement by City are hereby rejected. City purchase orders signed by the City's Purchasing Manager or designated agent and issued to Seller constitutes written notification to Seller of City's rejection of any and all of Seller Order Acknowledgements, counter offers and change to the City's terms and conditions. #1..
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5 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

SUBMITTAL CHECKLIST

BID SUBMITTAL CHECKLIST
The bidder shall provide a complete bid in a sealed envelope before 11:00 A.M. on the bid opening date.

Failure to provide all the required documents may cause the bid to be considered non-responsive.

BACKFLOW TESTING AND EMERGENCY REPAIRS
COMPLETE BID Page No.
. Bid Acknowledgement (Signature Form).........................................................................6 . Pricing Schedule (Signature Form) ...................................................................................9 . Exceptions, Clarifications, Amendments (if applicable) ..................................................10 . References ..........................................................................................................................11 . Financial Interest Disclosure Form (Signature Form) ....................................................14 . Support of Local Vendors (if applicable) ..........................................................................16 . Company History Statement .............................................................................................17 . Addenda Acknowledgement Page (if applicable) ............................................................18 #1..
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6 BACKFLOW TESTING AND EMERGENCY REPAIRS

BID ACKNOWLEDGEMENT
The City is soliciting bids from qualified Bidders to furnish its requirements per the specifications, terms and conditions contained in the above referenced bid number. This Bid Acknowledgement must be completed, signed by a responsible officer or employee, dated and submitted with the bid response.

Obligations assumed by such signature must be fulfilled.

1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the bid. (b) Quote price as specified in bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.

2. Failure to Submit Bid: If you are not submitting a bid but want to remain on the mailing list and receive future bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.

3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the RFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the Agencies; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the Agencies are exempt from certain Federal excise taxes. The Agencies will furnish an exemption certificate.

4. Award: (a) Unless otherwise specified by the bidder or the RFB gives notice of an all-or-none award, the City may accept any item or group of items of any bid. (b) Bids are subject to acceptance at any time within thirty (30) days of opening, unless otherwise specified in the RFB. (c) A valid, written purchase order mailed, or otherwise furnished, to the successful bidder within the time for acceptance specified results in a binding contract without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.

5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un-patented invention, article or appliance furnished or used in connection with the contract or purchase order.

6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the bidder’s expense.

7. Rights and Remedies of Agencies for Default: (a) In the event any item furnished by the bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the bidder with its bid, the City may reject the same, and it shall thereupon become the duty of the bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the bidder fail, neglect or refuse so to do the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items and to deduct from any moneys due or that may there after come due to vendor the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the bidder. (c) The rights and remedies of the Agencies provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.

8. Discounts: (a) Terms of less than ten (10) days for cash discount will be considered as net. (b) In connection with any discount offered, time will be computed from date of complete, satisfactory delivery of the supplies, equipment or services specified in the RFB, or from date correct invoices are received by the City at the billing address specified, if the latter date is later than the date of delivery. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing the City’s check.

9. California Government Code Section 4552: In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder.

10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded in on this order.

11. Two “Inked” Signed Original Bid Document Requested: Failure to furnish at least one “inked” signed original bid document may result in disqualification.

THE undersigned acknowledges receipt of the referenced RFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the bidder indicated below, in accordance with the specifications, terms and conditions of this RFB and Bid Acknowledgement, for the pricing indicated on the Pricing Schedule.

Firm:

Address:

City/State/Zip:

Signature/Title/Date:
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7 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW PREVENTION TESTING & REPAIRS
PRICING SCHEDULE PAGE 1
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, and Amendments page”.

All labor, materials/hardware, tools, equipment, licenses, mileage and insurance necessary to perform the required job shall be included in bid pricing. Quote shall include cost to conduct annual testing and certification (averaging approximately 40-45 units per month), make minor adjustments and prepare written diagnosis with recommendations for corrective measures as necessary. Monthly communication with contract administrator for units tested and or emergency repairs needed. Provide hourly cost for emergency repairs per size of unit.

ENTER QUOTE PER SINGLE UNIT IN EACH SIZE CATEGORY

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer / Type over 90% are Febco, however the City may contain devices from other manufacturers such as Ames, Rain Bird, Watts and Wilkins List Unit Price
Estimated
Annual Quantity:
6 +/- 50 +/- 65 +/- 130 +/- 13 +/- 50 +/- 6 +/-
Size: ¾" 1" 1-½" 2" 3" 4" 6"
Double Check
(DC) $ $ $ $ $ $ $
Pressure Vaccum
Breaker (PVB) $ $ $ $ $ $ $
Reduce Pressure
(RP) $ $ $ $ $ $ $
TOTAL $ $ $ $ $ $ $
Please provide your markup percentage _________% NTE 10%. #1..
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8 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING & EMERGENCY REPAIRS
PRICING SCHEDULE PAGE 2
Modesto Fire Department
All labor, materials/hardware, tools, equipment, licenses, mileage and insurance necessary to perform the required job shall be included in bid pricing. Quote shall include cost to conduct annual testing and certification (averaging approximately 2 units per month), make minor adjustments and prepare written diagnosis with recommendations for corrective measures as necessary. Monthly communication with contract administrator for units tested and or emergency repairs needed. Provide hourly cost for emergency repairs per size of unit.

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer / Type over 90% are Febco, for Parts/Materials however the City may contain devices from other manufacturers such as Ames, Rain, Watts and Wilkins List Unit Price (Per Test)
Estimated
Annual
Quantity:
2 1 2 9 1
Size: ¾" 1-1/4” 1-½" 2" 8”
Double
Check (DC) $
Double
Check
Detector
Assembly
(DCDA) $
Pressure
Vacuum
Breaker
(PVB) $
Reduce
Pressure (RP) $
TOTAL $ $ $ $ $ $ $
Please provide your markup percentage _________% NTE 10%.

Company Name (Bidder):
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9 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

PRICING SCHEDULE
City Business/Delivery License No. __________ Expiration Date: __________ Contractor License No. __________ Expiration Date: __________ DIR Registration No. _______________________________ Expiration Date:

Stated pricing is subject to (______ %) cash discount if invoice is paid within ______ days after acceptance of service.

THE PAYMENT OF PREVAILING WAGES IS REQUIRED.

A City Business License
is not required at the time of the bid, however, please note the License No. if bidder should already have one. (See Section 1.3 for further details)
Does bidder accept the City’s Epay Payment Program? Please check one: Yes ____ No ____ Information regarding the program is provided in Section 2.25 Payment.

Company Name (Bidder):

By (Person Submitting Bid): (Print)
By (Person Submitting Bid): (Signature)
Title of Person Submitting Bid:

Business Address
(City/State/Zip):

E-Mail Address:

Telephone Number:

Fax Number:

Date:
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10 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

EXCEPTIONS, CLARIFICATIONS, AMENDMENTS
Exceptions, Clarifications, Amendments
List requests for bid clarifications and exceptions below, if any, sign and submit with your bid response. This form is not required to be returned, unless an Exception, Clarification, or Amendment is requested by the bidder. Any requested exception, clarification or amendment may not be accepted and may deem the bidder as non-responsive.

Item
No.

Reference To: Description
Page No. Paragraph No.

Company Name (Bidder):
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11 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

REFERENCES
All Bidders must provide a list of five (5) current or former clients in the area provided below, identifying prior experience with similar type of services requested by the City under Scope of Work.

References shall have similar volume and requirements to those outlined in these specifications, terms and conditions. Bidders failing to provide references may be deemed as non-responsive.

The City may contact some or all of the references provided in order to determine the bidders’ performance record on work and equipment similar to that described in this bid. The City reserves the right to contact references other than those provided in the response and to use the information gained from them in the award process.

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
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12 Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name (Bidder):
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13 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

FINANCIAL INTEREST DISCLOSURE

REQUIRED DISCLOSURE BEGINNING THE COUNCIL MEETING
OF JANUARY 7, 2003
The ordinance requiring financial interest disclosure by all parties having a direct or indirect interest of $2,000 or more (except for certain publicly traded companies) will be effective at the Council meeting of January 7, 2003. This means that any Council action on a contract, agreement or development right must be accompanied by a FINANCIAL INTEREST DISCLOSURE FORM listing by name all parties that have a material financial interest in the agreement, contract or development right.

PLEASE NOTE, any Council action that requires a FINANCIAL INTEREST DISCLOSURE cannot be considered by the City Council until the required reporting is made. That means that Agenda Items without the DISCLOSURE will be removed from the Council Agenda.

FinDisclosure12-19
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14 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

FINANCIAL INTEREST DISCLOSURE FORM
All persons included within the meaning of either of the following tests have a material financial interest in an agreement, or application for development rights, submitted for approval or disapproval by the City Council, and shall be identified by the applicant, by name.

Tests of Materiality:

1. Whether it is foreseeable to a reasonable person that the value of their interest in property available for use by an applicant, or their interest in the applicant itself, may increase or decrease by an amount greater than $2,000.00 as a direct or indirect result of Council action on the applicant’s agreement or application for development rights.

2. Whether it is foreseeable to a reasonable person that the person’s gross income from the applicant may increase or decrease by a sum greater than $2,000.00 as a direct or indirect result of Council action on the agreement or application for development rights.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the agreement or application or development rights is true, correct and complete.

By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both.

Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.

By signing this document I agree to the information contained within.

COMPANY NAME: ____________________________________________________ __________________________________
APPLICANT’S NAME (SIGNATURE):
__________________________________
APPLICANT’S NAME/TITLE (PRINT):
__________________________________
DATE:____________________________
Applicable Names: (if any, use page 15)
Questions concerning the application of either test to particular facts should be resolved in advance of Council action by agreement with the department head recommending approval of its agreement/application. #1..
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15 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

FINANCIAL INTEREST DISCLOSURE FORM
COMPANY NAME: __________________________________________ NAMES
Signature / Print:

Signature / Print:

Signature / Print:
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16 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

SUPPORT OF LOCAL VENDORS

REQUEST FOR DECLARATION
of

LOCAL BUSINESS
Should the bidder that submits the lowest responsive bid or quote and would otherwise normally qualify to receive the bid pursuant to Sections 8-3.203 and 8-3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest bid or quote submitted by a local business that is within five percent (5%) of the lowest bid or quote, whether or not that bidder is the second lowest bidder, may be deemed to be the lowest bidder if the local bidder agrees to reduce its bid to match the bid or quote of the lowest bidder in writing within five (5) business days after notification by City Purchasing staff, provided that said local bidder is deemed to be a responsible bidder as determined by the Purchasing Manager.

To qualify as a local bidder, the bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

This document is only required should the bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.

I declare I am a local business per the above criteria

SUPPORT OF LOCAL VENDORS

DECLARATION OF ELIGIBILITY
Company Name:

Street Address:

Telephone Number:

Business License Number:

Under penalty of perjury, The Undersigned declares that the foregoing information is true and correct:

Print/Type Name:

Title:

Signature:

Date:
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17 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

COMPANY HISTORY STATEMENT
Your company shall have been in business for a minimum of three (3) continuous years (immediately prior to the time of the RFB submittal date) providing the types of services requested herein.

The company history statement shall be prepared on company letterhead and provided with the bid submittal. #1..
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18 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

ADDENDA ACKNOWLEDGEMENT
The bidder shall check the RFB listing on the City or PlanetBid website, periodically, and in any event, no later than the day prior to bid opening to obtain any addenda information. The changes identified in the addenda modify this request for bid and specifications. The addenda now become a part of this request for bid and specifications. Signing the Bid on the signature portion thereof, the bidder is acknowledging that the bidder has confirmed that he or she has received all addenda issued for this request for bid and specifications, and has included costs for such in the bid submitted. Failure to list and acknowledge all addenda numbers may cause the bid to be considered nonresponsive. Do not attach any of the addenda to this sheet nor include them with the bid.

This document is only required to be returned should addenda have been issued.

The Bid is submitted with respect to the changes to the request for bid and specifications included in addenda numbers:

LIST ALL ADDENDA NUMBERS:_____________________________________________________ Company Name (Bidder):
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19 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.0 SCOPE OF WORK:

The City of Modesto is requesting quotations on Backflow Testing & Emergency Repair Services for backflow units. Pricing shall include the costs to conduct annual testing and certification; prepare written diagnosis with recommendations for corrective measures as necessary; and make emergency repairs as requested. Monthly communication with Contract Administrator for units tested and/or repairs needed. Approximately 450 tests and certifications will be conducted per year. The successful CONTRACTOR will arrange pickup and return of the backflow test reports with Contract Administrator.

The Scope of Work includes 14 fire service backflow prevention assemblies. For the purpose of this scope of work, the main and detector backflow prevention assemblies on fire services shall be considered separate backflow prevention assembly tests for billing purposes as noted in the Pricing Schedule of this Request for Bid under “Modesto Fire Department”.

A. BACKFLOW TESTING:

Conduct annual testing for approximately 450 backflow prevention assemblies managed by the City of Modesto. Assemblies may range in size from ¾” to 8”. This includes, but not limited to, devices from Ames, Febco, Rainbird, Wilkins, and Watts. The majority of devices are Febco (90%) B. ASSIGNMENT OF WORK:

Contract Administrator will notify CONTRACTOR which backflows require testing the first Tuesday of each month.

C. TESTING PROCEDURES:

1. CONTRACTOR will test backflow device according to the California Code of Regulations for Recycled Water and apply tag certifying device has passed. In the event that a device does not pass the initial test, Backflow Tester will make all reasonable attempts to retest the device. Examples would be to “exercise” the device and open and close shut off valves if valves are not closing tight.

Retesting of the device after such attempts will not be considered an additional test. “California Drinking Water-Related Laws”. California State Water Resources Board. California Code of Regulations: Title 17, Division 1, Chapter 5, Group 4, Articles 1 and 2, Sections: 7583- 7586,7601-7605.
https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/Lawbook.html “California Drinking Water-Related Laws”. California State Water Resources Board. California Code of Regulations: Title 17, Division 1, Chapter 5, Group 4, Articles 1 and 2, Sections: 7583- 7586,7601-7605.

For Fire protection systems, CONTRACTOR will test fire protection system assemblies in accordance with National Fire Protection Association Standard 25, 2013 California Edition. https://catalog.nfpa.org/NFPA-25-Standard-for-the-Inspection-Testing-and-Maintenance-of-WaterBased-Fire-Protection-Systems-with-California-Amendments-P17438.aspx #1..
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20 2. CONTRACTOR shall furnish all labor, materials, tools, equipment, supplies, facilities, vehicle and supervision necessary to provide annual test.

3. Within twenty-four (24) hours of test, CONTRACTOR will provide written notification to Contract Administrator and the City’s Water Department Backflow Administrator ([email protected]) via email of illegal cross-connections, incorrect installations, or any other potential hazard to the water system observed during backflow prevention assembly test.

D. EMERGENCY REPAIR PROCEDURES:

1. During testing, CONTRACTOR will perform repairs as needed at a cost not to exceed those identified in the table below. If the cost of the repair is estimated to exceed these amounts, CONTRACTOR must submit a full repair quote to the Contract Administrator for approval. If requested by Contract Administrator, CONTRACTOR will provide a quote for device repair within 48 hours of request.

Size 0” – 1 ½” 2” 3” 4” and up
Cost $150 $200 $250 $500

2. Quotes for device repairs will require a “Parts List”. The Parts List will consist of any materials and/or supplies needed to complete the repair. These parts will be procured by CITY and provided to CONTRACTOR to complete the quoted repair.

E. RECORDKEEPING AND DELIVERABLES:

1. CONTRACTOR must submit completed Test Report forms which are accurate, readable and complete to the Contract Administrator. Awarded CONTRACTOR to provide copy of their Test Form to the City’s Water Department for approval.

2. Provide Contract Administrator with an electronic PDF file of each completed Test Report form within ten (10) days of passing test. The name of the PDF file must include:
i. Site
ii. Equipment location and street or cross-street. E.g. “Graceada Park – Corner of Stoddard and Sycamore Ave.”

3. Submit the Test Report in a format acceptable to the water purveyor. Test Report forms must be submitted at least three (3) working days before the test due date.

4. All test reports are required to be received by the end of the reporting month. A copy must be submitted to the Contract Administrator and the City’s Water Department.

5. CONTRACTOR shall keep a record of all test reports for three (3) years per the American Water Works Association (AWWA) and make these available to the CITY upon request.

F. GENERAL NOTES:

1. CONTRACTOR shall accomplish any other duties or requirements not included in the Scope of Work but required as per the test procedures identified in Section F, number 2, to ensure the satisfactory completion of the aforementioned testing goals.

2. Test procedures shall be those identified by the California State Water Resources Control Board in the most current edition of the University of Southern California Foundation for Cross-Connection Control book. As of March 2021, the 10th Edition is most current. #1..
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21 California State Water Resources Board
https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/Publications.html

3. At the start of work, CONTRACTOR shall provide Contract Administrator with annual test kit calibration documentation for all test kits used prior to annual expiration date.

4. Work Hours – CONTRACTOR will conduct all work during the CITY’s regular business hours Monday – Friday (8:00 am – 5:00 pm). The CONTRACTOR shall be required to receive prior written authorization from the Contract Administrator for any testing outside the CITY’s regular business hours. Such authorization, if granted, would be provided for isolated circumstances and should not be considered to be a standard practice during the performance of this scope of work.

G. COMPENSATION:

CONTRACTOR shall submit an invoice and attach a hard copy for each test report. Invoices shall be submitted within thirty (30) days of test date. To decrease paperwork, CONTRACTOR is encouraged to include multiple test reports with one invoice. A maximum of two (2) invoices can be submitted during any one month.

H. MINIMUM QUALIFICATIONS:

1. All CONTRACTORS are required to hold a current California-Nevada American Water Works Association (CA/NV AWWA) Prevention Assembly Tester certification. A complete list of all testers and a copy of their current certification will be required prior to testing. No testing or test reports will be accepted if certification has expired.

CA/NV American Water Works Association – Certification: https://www.ca-nvawwa.org/canv/CNS/Professional_Certification/CNS/Certification/Certification.aspx?hkey=08011bb 7-c2de-4282-81ea-4d7875e10b84
The Awarded CONTRACTOR must also have a City of Modesto business license.

2. All required certifications expiring during contract period must be renewed and copies supplied to CITY a minimum of thirty (30) days prior to expiration date.

3. Test kits must be those approved by the University of Southern California Foundation for CrossConnection Control and approved by appropriate water purveyors. It is the responsibility of the CONTRACTOR to ensure that test equipment being used is approved by the appropriate water purveyor and that all records of calibrations of said devices are submitted to the water purveyor at the assigned intervals as required by the water purveyor.

USC Foundation for Cross-Connection Control and Hydraulic Research – List of Approved Field Test Kits: https://fccchr.usc.edu/fieldtestkitslist.html

1.1 CITY REPRESENTATIVE:

Work under any resulting contract shall be performed under the general technical guidance and direction of the City "City Representative". The City Representative is not authorized to commit the City to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be affected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

1.2 CALIFORNIA LABOR CODE SECTION 1771.1 (a)
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22 1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.

Workers must be paid no less than the prevailing wage rate as published by the DIR, and Contractor shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.dir.ca.gov, or call the DIR, Labor Research and Statistics Unit, Prevailing Wage Unit at (415)-703-4774.

1.3 REQUIRED LICENSES:

Prior to beginning any service that shall be furnished under this specification, the bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389.

The successful bidder shall maintain a City of Modesto business license for the duration of the contract.

1.4 INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.

A. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.

B. General Liability - insurance with a minimum limit of liability per occurrence of $2,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations.

C. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.

D. Pollution Liability – Pollution liability and/or errors & omissions applicable to the work being performed, with a limit no less than $1,000,000 per claim or occurrence.

If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager for approval and submit a certificate thereof as hereinabove provided.

Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the CITY, may be forthwith declared suspended, or terminated.

The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.

The CONTRACTOR's insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager. For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

CONTRACTOR shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or contract.

The successful bidder shall maintain proper insurance with the City for the duration of the contract.

1.5 CONTRACTOR’S RESPONSIBILITY FOR WORK:

Until the formal acceptance of the work by the City Representative, the Contractor shall be responsible for and have care, custody, and control of the work and of the parts, materials and equipment to be used therein, including parts, materials and equipment delivered to the work site. The Contractor shall bear full risk of loss, injury or damage to any part of the work and parts, material or equipment by action of the elements, or from any other cause, whether arising from the execution or non-execution of the work. The Contractor shall rebuild, repair, restore and make whole, all loss or damage to any portion of the work, parts or materials, before final acceptance, and shall bear the expense thereof, except for such loss or damage caused by the acts of the City, State, or Federal Government, or by an act of God as defined in Section 4150 of the California Government Code.

Suspension of work for any cause whatsoever shall not relieve the Contractor of his/her responsibility for the work or parts and materials as specified on the work request.

The Contractor shall be responsible for any damage his/her activities cause to adjacent public or private property. The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the project activities.

1.6 CHARACTER OF WORKERS:

If any person employed by the Contractor fails or refuses to carry out the direction of the City Representative or appears to be incompetent or acts in a disorderly or improper manner, that person shall be discharged immediately from the job on the request of the City Representative or Purchasing Manager, and such person shall not again work on any City job.
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24 1.7 LABOR FORCE AND SUPERVISION:

The Contractor shall provide sufficient labor at all times to carry out the work properly and shall ensure that competent workers who are skilled in the type of work required are employed. The Contractor shall ensure that supervision is provided at all times while any work under this contract is being performed. If, in the judgment of the City, any person is incompetent or disorderly, Contractor shall promptly remove such person from the work for the duration of the contract.

1.8 DELAY BY THE CITY:

Any act or omission of any kind by the City of Modesto, its officers, agents or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work, but shall give the Contractor no damages for such delay.

1.9 ADDITIONAL AND EMERGENCY PROTECTION:

Whenever, in the opinion of the City Representative, the Contractor has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the work site, the City Representative may provide suitable protection with or without first notifying the Contractor. The cost and expense of such protection provided by the City shall be borne by the Contractor. The City shall deduct the cost of such protection from any monies due or to become due to the Contractor.
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25 REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING AND EMERGENCY REPAIRS

GENERAL TERMS AND CONDITIONS

2.0 BID SUBMITTAL:

Bidders should submit two “inked” (preferably blue ink) signed original bid documents, plus two (2) copies of the signed original bid document and One (1) electronic copy submitted via USB. The original bid document shall be clearly marked. Photocopies do not constitute an original bid.

FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.

It is the responsibility of the bidders to identify information in their bid responses that they consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.

All costs associated with the preparation of this bid shall be borne by the bidder.

All exceptions taken to these specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form. Failure to comply with this provision may deem the bid as nonresponsive.

Please review the Sample Annual Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes.

Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or services with exceptions.

2.1 ACCEPTANCE/REJECTION OF IRREGULAR BIDS:

A contract shall be awarded to the bidder whose bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all bids or to waive any informalities or minor irregularities in a bid.

2.1.1 COMPLETE BID DOCUMENT:

The following forms constitute the makeup of a complete bid document:
 Bid Acknowledgement (Signature Form)
 Pricing Schedule (Signature Form)
 Exceptions, Clarifications, Amendments (if applicable)  References
 Financial Interest Disclosure (Signature Form)
 Support of Local Vendors (if applicable)
 Company History Statement
 Addenda Acknowledgement Page (if applicable)
Failure to furnish any of these documents may result in disqualification. #1..
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26 2.1.2 BID PRESENTATION:

Bid submittals should be presented in the order as listed in Section 2.1.1 Complete Bid Document.

2.2 COMPLIANCE:

Bidders are required to sign the “Pricing Schedule and Bid Acknowledgement Form” of this bid document, thereby acknowledging they are in full compliance with all requirements of Bid No. 2122-03, and any addendum to such bid. Failure to comply may result in disqualification.

The bidder guarantees that the offered equipment, material or services meet all safety requirements applicable in accordance with Cal-OSHA regulations and any other rule or regulation required by the City of Modesto.

All permits and licenses necessary for the prosecution of the scope of work shall be secured and paid for by the Contractor, except those secured by the City and so noted.

2.3 PREVAILING WAGES:

The payment of prevailing wages is required for maintenance under this contract and all provisions of Section

7.04 of the General Provisions contained within the City standards shall apply.

2.4 PRICING FORMAT:

All labor, equipment, fuel, licenses, permits and insurance necessary to perform the required services shall be included in bid pricing.

Unless otherwise stated, the bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.

The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pickup materials.

2.5 PRICING SCHEDULE:

Bidders shall use the pricing schedule provided in this document to present bid pricing. No other form or format shall be accepted

2.6 AWARD OF BID:

Contracts may be awarded to more than one company in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs.

The City reserves the right to decline to award a contract if it is determined that the proposed pricing is not competitively priced based on similar contracts with public agencies within the State of California.

The City reserves the right to select that bid, which best suits the City’s needs. Regardless of City staff’s recommendation, the City Council reserves the right to award a contract to the bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.

2.7 INSPECTION AND ACCEPTANCE:

Whenever the product or service provided by the supplier has been delivered to the Modesto, California, delivery point, the designated agent shall make the final inspection and acceptance. #1..
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27 If upon initial inspection the product or service is found to be defective in its construction or deficient in any of the requirements of this specification, the supplier shall remedy or remove said product in an acceptable manner at the supplier's expense. No compensation shall be allowed for such correction of product, labor, or transportation of product.

2.8 SUPPORT OF LOCAL VENDORS:

Should the bidder that submits the lowest responsive bid or quote and would otherwise normally qualify to receive the bid pursuant to Sections 8-3.203 and 8-3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest bid or quote submitted by a local business that is within five percent (5%) of the lowest bid or quote, whether or not that bidder is the second lowest bidder, may be deemed to be the lowest bidder if the local bidder agrees to reduce its bid to match the bid or quote of the lowest bidder in writing within five (5) business days after notification by City Purchasing staff, provided that said local bidder is deemed to be a responsible bidder as determined by the Purchasing Manager. To qualify as a local bidder, the bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

2.9 TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options at the sole discretion of the City, for a total of five (5) years.

A. Pricing shall remain firm (other than fuel) for the first two (2) years of any contract, which may be awarded pursuant to this RFB.

B. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the City.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

Web site: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/,California data.

C. Price increases (other than fuel) for subsequent contract years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one (1) contract year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by Contractor(s) in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year.

2.10 TERMINATION OF SERVICES:

The City reserves the right to discontinue services with the provider upon failure to meet contractual expectations and/or obligations, as recommended by the site supervisor or his/her agent. Cancellation of services shall be determined by the collaborative efforts of the Purchasing Manager, or designee, and using department after reviewing the incident(s) of failure to perform.

The City reserves the right to review the service providers’ performance at any time with or without the knowledge or consent of the provider.

The City may terminate the agreement at any time with or without cause. #1..
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28 2.11 QUANTITIES:

No minimum or maximum is guaranteed or implied.

2.12 FUNDING:

All annual extensions are based upon continuous funding for that purpose by the City Council. Failure to fund any annual extension shall result in an immediate termination of the agreement without redress.

2.13 OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.

2.14 NON-DISCRIMINATION:

A. During the performance of this contract, Contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), or sexual orientation. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. Contractor and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full.

B. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.

C. Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract.

D. Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the City upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or City shall require to ascertain compliance with this clause.

2.15 NON-DISCRIMINATION OF THE HANDICAPPED:

CERTIFICATION OF BIDDER REGARDING NON-DISCRIMINATION OF THE HANDICAPPED By executing this agreement, the bidder hereby certifies that he/she is in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the agreement and any extensions thereof.
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29 2.16 DRUG FREE WORKPLACE:

Bidder/Contractor certifies that he/she is in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act. Every person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

2.17 INDEMNITY:

The Contractor shall hold the city, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Contractor, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this bid. Contractor’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this bid for Contractor to procure and maintain a policy of insurance. In the indemnity clause contained herein Contractor agrees to defend, indemnify and hold city harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of city owned vehicles by Contractor’s employees is apportioned to Contractor in accordance with the provisions contained in indemnity.

2.18 ASSIGNMENT OF RIGHTS:

CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the purchase of goods, services, or materials pursuant to this contract or any subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY tenders final payment to CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).

2.19 CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve the bidder of his/her responsibility to furnish the required items and service meeting all specifications contained herein.

2.20 BIDDER/SELLER REPRESENTATION:

The bidder/seller represents that:

A. He/She has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant purchase order and supporting data, and that he/she has, from the information contained in such documents, specifications, and data, fully acquainted him/her with all conditions relevant to the work.

B. He/She has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work.

C. He/She will complete the work for the compensation stated above.

D. He/She assumes full and complete responsibility for all conditions relevant to the work and all risks in connection therewith.
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30 E. In addition, thereto, the bidder/seller represents that he/she is fully qualified to do the work in accordance with the terms of any Purchase Order or agreement issued within the time specified in it.

2.21 FAILURE TO PERFORM SATISFACTORY:

It is agreed and understood that if the CONTRACTOR fails to perform the work as specified herein, CITY's representative may (1) consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors, (2) have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or (3) recommend termination of contract between said CONTRACTOR and the City of Modesto. Those discrepancies and deficiencies in the work that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence. Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the work not corrected or completed.

2.22 CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

If CONTRACTOR damages any property belonging to the CITY or private property by the Contractor or his employees or agents, the Contractor will be required to make repairs immediately. The CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or require CONTRACTOR to repair the damage to the satisfaction of the CITY at CONTRACTOR's expense.

2.23 LABOR FORCE AND SUPERVISION:

CONTRACTOR shall provide sufficient labor at all times to carry out the project properly and shall ensure that fully experienced competent licensed workers who are skilled in the type of work required are employed.

CONTRACTOR shall ensure that supervision is provided at all times while any work under this contract is being performed. If, in the judgment of the CITY, any person is incompetent or disorderly, CONTRACTOR shall promptly remove such person from the work for the duration of the contract.

2.24 PROTEST AND APPEAL PROCEDURES:

Potential offerors, bidders, contractors, and subcontractors wishing to protest or appeal a procurement or contracting decision by the City of Modesto must follow the procedures provided by the section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.

DEFINITIONS
For the purposes of this procedure: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Filing Date" or "Submission Date" means the date of receipt by the City Clerk’s office of the City of Modesto. "Interested Party" means an actual or prospective bidder or offeror, or any contractor or subcontractor identified by name in any bid or proposal.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that an Interested Party may lodge a protest.

Procurements valued at $50,000 or less normally will not have an Announced Decision. #1..
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31 A. PROTEST PROCEDURES

1. Any interested party may lodge a written protest to an Announced Decision with the City of Modesto's Purchasing Manager no later than ten (10) days after the Announced Decision.

3. The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS) or in such other sum as the City may establish, made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.

4. The protest filed with the Purchasing Manager shall:
a. Include the name, address, and business telephone number of the protestor; b. Identify the project under protest by name, Request for Bid (RFB)/Request for Proposal (RFP) number, and bid/RFP date;
c. Contain a concise statement of the grounds for protest; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.

All protests shall either be delivered to:

City Clerk’s Office
Attn: Purchasing Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Purchasing Manager
PO Box 642
Modesto CA 95353
B. PROTEST REVIEW (ANNOUNCED DECISION)

1. Protest to Purchasing Manager
Upon receipt of a complete and timely protest, the Purchasing Manager shall review all the submitted materials and shall create and retain a written record of the review. The Purchasing Manager shall respond at least generally to each material issue raised in the protest not later than ten (10) days after receipt of the protest. Notice of the Purchasing Manager's decision may be given by letter mailed through U.S. Postal Service.

2. Appeal to Deputy City Manager
The Purchasing Manager's decision may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten (10) days after the date of the Purchasing Manager’s Decision. #1..
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32 The scope of the appeal shall be limited by the issues raised in the initial protest to the Purchasing Manager. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any, and the written record of the protest review by the Purchasing Manager.

A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of his or her decision to the protestor within ten (10) days after receipt of appeal.

All protest appeals shall either be delivered to:

City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353

3. Appeal to City Council
Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than fifteen (15) business days after the date of the Deputy City Manager's decision.

The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05.

The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing, or provide other direction to staff. In such cases, staff cannot reverse a City Council decision.

All protests shall either be delivered to:

City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
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33 C. PROTESTS OF PROCUREMENTS EXCEEDING $250,000.00
Interested parties protesting procurements exceeding $250,000.00 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager, a protestor may request that the protest be heard and decided at an administrative hearing.

A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS; Refer to Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14) payable to the City of Modesto, and shall be received by the Purchasing Manager not later than fifteen (15) days after dispatch of the Purchasing Manager's decision. The request for hearing shall include the specific grounds of the appeal.

The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three (3) days of notice to protestor of the name of the hearing officer.

The protest shall be heard not later than twenty (20) days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not heard in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.

The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses.

The decision of the hearing officer shall be deemed as the final decision of the City, and no other appeal to City Staff or body shall be permitted.

D. PROCUREMENTS OBTAINED WITH FEDERAL FUNDS

1. If the protested procurement involves federal funds, e.g., from the Federal Transit Administration (FTA) of the United States, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven (7) business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. Appeals to the Federal Transit Administration (FTA) shall comply with FTA Circular 4220.1E and the amendments and supplements thereto. Additional information regarding protesting procurements obtained with Federal Funds can be found in the Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14.

2. The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing before Council on the procurement at hand. In such cases, no internal appeal is possible since staff may in no #1..
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34 case reverse a City Council decision. In such an event, a disappointed transit bidder or a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the Federal Transit Administration.

2.25 PAYMENT:
 Paper Payment Method:

All invoices shall be paid in full within thirty (30) days after completion and acceptance of the vehicles by the City, and receipt of a properly prepared invoice in duplicate, subject to cash discounts allowed and stated in this bid document.
 Electronic Payment Method:

The City of Modesto provides an Epay Program which involves payment of invoices by a secure Visa account number assigned to the supplier after award of bid or contract. Notification of payments and required invoice information are issued to the supplier’s designed Accounts Receivable contact by email remittance advice at time of payment.

During the bid evaluation process preference may be shown to bidders that agree to accept Epay for payment of invoices. Please indicate on the Pricing Schedule whether or not your company will accept the City’s Epay Program.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]

2.26 SAMPLE ANNUAL AGREEMENT:

Please review the Sample Agreement. This Agreement may be modified and subject to change. #1..
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35 SAMPLE AGREEMENT
This Agreement, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2022, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and ______________ hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2022-_______ authorizing the award of bid and contract for the furnishing of Backflow Testing & Repair Services to ______________________ attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal to RFB 2122- 03 for Backflow Testing & Repair Services that best meets CITY needs, and WHEREAS, the CONTRACTOR shall provide services to CITY as defined in the “Submittal”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of Backflow Testing & Repair Services, as described in RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish Backflow Testing & Repair Services, in strict accordance with the conditions of the complete Contract. b. CONTRACTOR shall do and perform the work in a professional and businesslike manner under the direction of and to the satisfaction of the CITY. c. CONTRACTOR shall perform its duties under this Agreement in accordance with the standard(s) of care prevailing in its industry.
d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the contract.
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36 e. CONTRACTOR shall maintain a CITY business license for the duration of the contract.
f. CONTRACTOR shall furnish the service defined for the following contracted rates, not to exceed $__________ annually:

2. CITY CONTACT:

Kathy Crandall, Buyer Ph: (209) 577-5420
Purchasing Department Ph: (209) 577-5405
Changes of a contractual or business nature shall be affected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

3. TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options.

Price will remain firm for the first two (2) years of the contract. Price increases for subsequent contract years three (3) through five (5) shall not exceed the Consumer Price Index (CPI) in any one contract year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by CONTRACTOR in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the City.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

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37 4. LIABILITY INSURANCE:

CONTRACTOR shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the Risk Manager. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
(a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 aggregate for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent Contractors and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Waiver of Subrogation - Form required
(e) Additional Insured Status-endorsement – The City of Modesto its officers, officials, employees, agents and volunteers are to be covered as additional insureds. #1..
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38 If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance, or if a company issuing such policy shall be unsatisfactory to CITY, CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager of CITY for approval and submit a certificate thereof as herein above provided. Upon failure of CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended, or terminated. Failure of CONTRACTOR to obtain and/or maintain any required insurance shall not relieve CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of CONTRACTOR concerning indemnification. CITY, and its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance polices required herein, except Workers’ Compensation, Professional Liability and Financial Institution’s Fidelity. The Workers’ Compensation insurer shall agree to waive all rights of subrogation against CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for CITY. CONTRACTOR’S insurance policy(ies) shall include a provision that the coverage is primary as respects CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best’s rating of A:VII or with approval of the Risk Manager of CITY. The CONTRACTOR must deliver certificates evidencing existence of the insurance to the City prior to the time contract is signed.

Every endorsement shall identify the policy number.

CONTRACTOR shall provide CITY with separate an endorsement evidencing proof of the CITY’s additional insured status as to the general liability insurance policy. In addition, CONTRACTOR shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number. #1..
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39 For any claims related to this project, the CONTRACTOR’S insurance coverage shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by the Entity, its agents, officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’S insurance and shall not contribute with it.

CONTRACTOR further agrees that the amount of insurance required may from time to time be adjusted by CITY’s Risk Manager and CONTRACTOR agrees to file a new insurance certificate with CITY’s Risk Services Division evidencing the new amounts after a thirty (30) day written notice from CITY’s Risk Manager.

5. PAYMENT:

The City is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

At a minimum invoice shall state the following:
 Reference Annual Agreement #: _____________________
 City department/division name and address
 Billing period
 Unit price, extended price, sales tax and total

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or #1..
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40 damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

7. ARBITRATION:

Any dispute or claim arising or related to this Agreement, its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One Arbitrator shall be selected using AAA procedures. The Arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The Arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The Arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto, California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as #1..
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41 well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

8. GOVERNING LAW:

9. COMMENCEMENT AND COMPLETION OF THE WORK:

Proofs of insurance (approved by Risk Management);
Executed Agreement;
a. Resolution No. ____________ attached hereto as Exhibit “A” and made a part hereof; b. Bid Submittal, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof;

10. TERMINATION OF SERVICES:

Termination by City for Default of CONTRACTOR
Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to CONTRACTOR. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Contractor, dishonesty or theft.

Termination by City for Convenience
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42 The City may also terminate the CONTRACTOR’S performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason.

The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, sub-contractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such Sub-contractors, but in no event shall recovery by any CONTRACTOR or Sub-contractors include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the Work whether completed or in process;
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43 e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work; h. If City so requests, and at City's cost, CONTRACTOR shall provide sufficient oral or written status reports to make City reasonably aware of the status of CONTRACTOR’S work on the project.
i. The CONTRACTOR understands and agrees that City may, in City's sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR’S services which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.

City will pay CONTRACTOR an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subcontractor agreements or contracts for materials; b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the CONTRACTOR to appeal the City Manager, or his/her designee’s, decision to the #1..
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44 City Council. The CONTRACTOR shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

11. COMPLIANCE WITH ALL LAWS:

12. CONTRACT DOCUMENTS:

The complete contract between the parties hereto consists of this agreement, and all exhibits, and the following documents which are incorporated herein by this reference:
a. Resolution No. ____________ attached hereto as Exhibit “A” and made a part hereof; b. Response to Request for Bid (RFB) and Specifications NO. 2122-03 For Backflow Prevention Testing & Repairs, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2122-03, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License
These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division). All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

13. NOTICES:
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45 Any notice, payment or instrument required or permitted by this Contract to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR _______________________
_______________________
_______________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

14. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the contract and has/have full authority to execute this contract.

15. ASSIGNMENT:

Neither this agreement nor any portion thereof shall be subcontracted or assigned without the written consent of the CITY in each and every instance.

16. WAIVER.

17. HEADINGS NOT CONTROLLING.

Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement

18. MISCELLANEOUS:
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46 Time is of the essence in every provision of this contract.

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Consultant and City.

Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

20. PARTIAL INVALIDITY.

If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by City Manager and attested by its City Clerk under authority of Resolution No. _________, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2022 and _____________________has caused this Agreement to be duly executed. #1..
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47 A municipal corporation
By:__________________________ By:_________________________________ JOSEPH P. LOPEZ (Signature)
CITY Manager
By:_________________________________
(Name & Title)
ATTEST: Date:_______________________________
By:______________________ By:_________________________________ DANA SANCHEZ (Signature)
Interim City Clerk
By: _________________________________
(SEAL) (Name & Title)
Date:_______________________________
APPROVED AS TO FORM:

By:_________________________________
JOSE M. SANCHEZ
Acting City Attorney
By:_____________________________
CHRISTINA D. ALGER
City Human Resources Manager (Risk)
Signature Requirements
Corporation:

1.Signature of two (2) officers
or

2.Signature of one (1) officer plus the
corporate seal.

Partnership: Signature of one partner
Sole Proprietorship: Signature of proprietor
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48 PRICING SCHEDULE PAGE 1
REQUEST FOR BID AND SPECIFICATIONS NO. 2122-03

BACKFLOW TESTING & EMERGENCY REPAIRS
PRICING SCHEDULE PAGE 1
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, and Amendments page”.

ENTER QUOTE PER SINGLE UNIT IN EACH SIZE CATEGORY

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer / Type over 90% are Febco for parts/materials, however the City may contain devices from other manufacturers such as Ames, Rain Bird, Watts and Wilkins List Unit Price
Estimated
Annual Quantity:
6 +/- 50 +/- 65 +/- 130 +/- 13 +/- 50 +/- 6 +/-
Size: ¾" 1" 1-½" 2" 3" 4" 6"
Double Check
(DC) $ $ $ $ $ $ $
Pressure Vaccum
Breaker (PVB) $ $ $ $ $ $ $
Reduce Pressure
(RP) $ $ $ $ $ $ $
TOTAL $ $ $ $ $ $ $
Please provide your markup percentage _________% NTE 10%. #1..
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49 PRICING SCHEDULE PAGE 2
Modesto Fire Department
All labor, materials/hardware, tools, equipment, licenses, mileage and insurance necessary to perform the required job shall be included in bid pricing. Quote shall include cost to conduct annual testing and certification (averaging approximately 2 units per month), make minor adjustments and prepare written diagnosis with recommendations for corrective measures as necessary. Monthly communication with contract administrator for units tested and or emergency repairs needed. Provide hourly cost for emergency repairs per size of unit.

PAYMENT OF PREVAILING WAGES REQUIRED
Manufacturer / Type over 90% are Febco, for Parts/Materials however the City may contain devices from other manufacturers such as Ames, Rain, Watts and Wilkins List Unit Price (Per Test)
Estimated
Annual
Quantity:
2 1 2 9 1
Size: ¾" 1-1/4” 1-½" 2" 8”
Double
Check (DC) $
Double
Check
Detector
Assembly
(DCDA) $
Pressure
Vacuum
Breaker
(PVB) $
Reduce
Pressure (RP) $
TOTAL $ $ $ $ $
Please provide your markup percentage _________% NTE 10%. #1..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

February 14, 2022
Date: January 25, 2022
TO: Safety and Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods SUBJECT: Agreement for Discing and Flail Mowing Services CONTACT: Kelly Gallagher, Park Operations Manager, [email protected], (209)342-2270
DESCRIPTION:

Consider approving the Award of Bid and Agreement for Discing and Flail Mowing Services to Elite Maintenance & Tree Service, Inc., Clovis, CA for a two (2) year Agreement with three (3) one-year extension options, for an annual estimated cost of $151,335 and a total amount not to exceed $756,675 over five years, and forwarding to Council for approval. (Funding Source:

Various Funds)
STRATEGIC PLAN ELEMENT:

BACKGROUND:

Discing and flail mowing services are needed on open fields to control the overgrowth of weeds and grasses. Park Operations uses these services for various departments on a quarterly basis in several parks and open areas throughout the City.

On March 3, 2015, by Resolution 2015-63, Council approved the award of bid for discing and flail mowing services to Scoto Farming for a five-year agreement not to exceed $210,000.

On April 28, 2020, by Resolution 2020-199, Council approved an amendment for an extension to the Agreement to extend the term from March 2, 2020 to September 2, 2020.

On April 13, 2021, by Resolution 2021-137, Council approved another amendment for an extension to the Agreement from September 2, 2020 to October 31, 2021. #2..
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Safety & Communities Committee, February 14, 2022
Agreement for Discing and Flail Mowing Services

Page 2 of 3 ends

The City Manager authorized the Purchasing Manager to issue a formal Request for Bids (RFB) for Discing and Flail Mowing services. The Purchasing division issued RFB 2021-46, for Discing and Flail Mowing Services on June 11, 2021. Fifteen (15) vendors downloaded the RFB.

Bids were formally due to the City Clerk’s office on July 20, 2021, by 11:00 a.m. One (1) bid was received. After reviewing the bid, staff determined that the original Scope of Services should be amended to make the specifications broader for a more competitive bidding process.

On November 2, 2021, by Resolution 2021-431, Council approved rejecting all bids received for Request for Bids no. 2021-46 for Discing and Flail Mowing services and to issue the RFB at a later date.

On November 2, 2021, by Resolution 2021-432, Council also approved the third amendment increasing the funding for the current agreement for Discing and Flail Mowing services by $5,390 from $210,000 to a new total of $215,390, and extending the term of the agreement from October 31, 2021 to April 30, 2022. This action was to allow time to re-issue RFB 2021-46.

DISCUSSION:

The current agreement for Discing and Flail Mowing Services expires on April 30, 2022. It is anticipated the new agreement will begin May 1, 2022.

The City Manager authorized the Purchasing Manager to re-issue a formal RFB for Discing and Flail Mowing services. The Purchasing division issued RFB 2021-46RB on November 5, 2021.

Eighteen (18) vendors downloaded the document.

An addendum was issued on November 18, 2021, to address bidder questions and post a bid opening change from December 14, 2021, to December 21, 2021.

Bids were formally due to the City Clerk’s office on December 21, 2021 by 11:00 a.m. Three (3) bids were received and Elite Maintenance & Tree Services, Inc. was selected as the most responsive and responsible bidder. Purchasing staff and Park Operations staff evaluated the cost abstract.

Based on the lowest commensurate cost, the Purchasing division recommended the award of bid be forwarded to the City Council for approval of Discing and Flail Mowing services to Elite Maintenance & Tree Services, Inc., Clovis, CA.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow the formal bid procedures. An award of bid and agreement for Discing and Flail Mowing Services for Parks, Recreation & Neighborhoods department use to Elite Maintenance & Tree Services, Inc., Clovis, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Elite Maintenance & Tree Services was the lowest responsive and responsible bidder.

FISCAL IMPACT:

The following summarizes compensation paid for the current agreement ending April 30, 2022. #2..
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Safety & Communities Committee, February 14, 2022
Agreement for Discing and Flail Mowing Services

Page 3 of 3 ends

Dept./Div. 2015 2016 2017 2018 2019 2020 2021 (ext.) Total PRN.TRRP $ 12,960 $ 12,960 $ 12,960 $ 12,960 $ 14,520 $ 13,870 $ 12,970 $ 93,200 PRN.Park Ops $ 5,720 $ 5,720 $ 5,720 $ 5,520 $ 6,520 $ 6,520 $ 6,520 $ 42,240 PW.Streets $ - $ 2,400 $ 2,600 $ 3,300 $ 4,150 $ 3,100 $ 3,100 $ 18,650 UTL.Water $ - $ 6,250 $ 3,450 $ 3,600 $ - $ - $ - $ 13,300 PW.Solid Waste $ 1,120 $ 1,120 $ 1,620 $ 1,120 $ 1,120 $ 1,120 $ - $ 7,220 Other Depts. $ 1,650 $ 2,300 $ 2,000 $ 1,700 $ 900 $ 900 $ 900 $ 10,350 Total $ 21,450 $ 30,750 $ 28,350 $ 28,200 $ 27,210 $ 25,510 $ 23,490 $184,960 The following summarizes the proposed compensation for the new agreement. This includes increases for increased acreage, added sites and increases in the Consumer Price Index. The expenses will be budgeted annually as part of the individual Department and Divisions operating budget.

Dept./Div. Annual 5-Years
PRN.TRRP 77,130 385,650
PRN.Park Ops 56,925 284,625
PW.Streets 2,955 14,775
UTL.Water 9,525 47,625
PRN.Mary Grogan 4,800 24,000
TOTAL $151,335 $756,675
Approved by:

Laurie A. Smith, Director of Parks, Recreation &
Neighborhoods
Joseph P. Lopez, City Manager
Attachments:

1. Discing and Flail Mowing Services Agreement – Elite Maintenance & Tree Services

2. Attachment A – Site Maps

3. Bid Submittal - Elite Maintenance & Tree Services

4. RFB 2021-46RB Discing & Flail Mowing Services

5. Financial Interest Disclosure

6. Cost Abstract
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AGREEMENT
ELITE MAINTENANCE & TREE SERVICE INC.,

FOR DISCING & FLAIL MOWING SERVICES
This Agreement, made and entered into in the City of Modesto, State of California, this day of , by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Elite Maintenance & Tree Service Inc., (EMTS, Inc.) hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2022-_______ authorizing the award of bid and contract for the furnishing of DISCING & FLAIL MOWING SERVICES to Elite Maintenance & Tree Service Inc.,
attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal to RFB 2021-46RB for DISCING & FLAIL MOWING SERVICES that best meets CITY needs, and
WHEREAS, the CONTRACTOR shall provide services to CITY as defined in the “Submittal”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of DISCING & FLAIL MOWING SERVICES, as described in RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof, and NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish DISCING & FLAIL MOWING
SERVICES, in strict accordance with the conditions of the complete Contract. #2..
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b. CONTRACTOR shall do and perform the work in a professional and businesslike manner under the direction of and to the satisfaction of the CITY. c. CONTRACTOR shall perform its duties under this Agreement in accordance with the standard(s) of care prevailing in its industry. d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the contract.
e. CONTRACTOR shall maintain a CITY business license for the duration of the contract.
f. CONTRACTOR shall furnish the services at the following agreement rates, estimated amount of $151,335 annually and a total amount not to exceed $756,675.

PRICING SCHEDULE FOR MOWING SERVICES
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included.

Site # Site Mowing Cost (Per Service)
1 Blue Gum Avenue Site 1.45 ac $145.00 _____________ _/Svc 2 Carpenter Road (East) Site 14 ac $1,400.00____________ _/Svc 3 Carpenter Road (West) Site 29.75 ac $2,975.00 ___________ _/Svc 4 Claratina Avenue Site (1 of 2) 4.2 ac $420.00 ____________ __/Svc 5 Claratina Avenue Site (2 of 2) 4.2 ac $420.00_____________ _/Svc 6 Crater Avenue (West) Site 1 ac $100.00_______________/Svc 7 Dry Creek – McClure Site 11 ac $1,100.00 ____________/Svc 8 Dry Creek – Trees for Tots Site (1 of 4)

85.25 ac
$2,131.25____________ _/Svc
9 Dry Creek - Trees for Tots Site (2 of 4) $2,131.25 _____________/Svc 10 Dry Creek – Trees for Tots Site (3 of 4) $2,131.25 _____________/Svc 11 Dry Creek – Trees for Tots Site (4 of 4) $2131.25______________/Svc 12 Frazine Road Site – Water Dept 12.25 ac $1,225.00 _____________/Svc 13 Gateway Park Site 50.5 ac $5,050.00_____________/Svc #2..
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14 Hetch Hetchy Site (1 of 5) 3 ac $300.00 ______________/Svc 15 Hetch Hetchy Site (2 of 5) 7 ac $700.00 ______________/Svc 16 Hetch Hetchy Site (3 of 5) 3.5 ac $350.00 ______________/Svc 17 Hetch Hetchy Site (4 of 5) 7.5 ac $750.00 ______________/Svc 18 Hetch Hetchy Site (5 of 5) 6.25 ac $625.00 ______________/Svc 19 Legion Park Site 13 ac $1,300.00_____________/Svc
20 Litt Road Site – Water Dept 19.5 ac $1,950.00_____________/Svc 21 Mary Grogan Park Site 16 ac $1,600.00_____________/Svc 22 Neece Drive Site 1 ac $100.00 ______________/Svc
23 TRRP Bird Sanctuary Site 14 ac $1,400.00_____________/Svc 24 TRRP Park Entrance Site 7 ac $700.00 ______________/Svc 25 TRRP Podesto Site 3 ac $300.00 ______________/Svc
26 TRRP Undeveloped Picnic Area Site 7 ac $700.00 ______________/Svc

PRICING SCHEDULE FOR DISCING SERVICES
Discing Services
Site # Site Discing Cost (Per Service)
1 Carpenter Road (East) Site 47.75 ac $4,775.00_____________/Svc 2 Claus Road Expressway Site (1 of 3) 5 ac $500.00 ______________/Svc 3 Claus Road Expressway Site (2 of 3)
3 11.5 ac $1,150.00_____________/Svc
4 Claus Road Expressway Site (3 of 3) 6.5 ac $650.00 ______________/Svc 5 Garst Road Site 8.25 ac $825.00 _____________/Svc
6 Gomes Property Site 9 ac $900.00 ____________/Svc
7 John Street (Bellenita Park) Site 6.75 ac $675.00 ______________/Svc 8 Legion Park Site 16 ac $1,600.00____ ________/Svc
9 Neece Drive Site 10.5 ac $1,050.00_____________/Svc
10 Robertson Road Site 27.75 ac $2,775.00 ____________/Svc 11 Sutton Park Site 26 ac $2,600.00_____________/Svc
12 Transit (Amtrak) Site 1.6 ac $160.00 _____________/Svc 13 TRRP Undeveloped Picnic Area Site 6.5 ac $650.00 ______________/Svc

2. CITY CONTACT:

Kathy Crandall, Buyer Ph: (209) 577-5420
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Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

3. TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options.

Year 1: May 1, 2022 through April 30, 2023
Year 2: May 1, 2023 through April 30, 2024
Year 3: May 1, 2024 through April 30, 2025
Year 4: May 1, 2025 through April 30, 2026
Year 5: May 1, 2026 through April 30, 2027
This Agreement may be renewed for three (3) additional one-year terms by mutual, written agreement of the parties. Such renewal shall be in written form. Price will remain firm for the first two (2) years of the contract. Price increases for subsequent contract years three (3) through five (5) shall not exceed the Consumer Price Index (CPI) in any one contract year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by CONTRACTOR in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the City. The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

4. LIABILITY INSURANCE:
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CONTRACTOR shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the Risk Manager. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
(a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000
(b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 aggregate for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent Contractors and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. #2..
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This insurance shall cover any automobile for bodily injury and property damage.
period of one year.

Additional Insurance Provisions
Waiver of Subrogation – CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.

If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance, or if a company issuing such policy shall be unsatisfactory to CITY, CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager of CITY for approval and #2..
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submit a certificate thereof as herein above provided. Upon failure of CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended, or terminated.

Failure of CONTRACTOR to obtain and/or maintain any required insurance shall not relieve CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of CONTRACTOR concerning indemnification. CITY, and its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance polices required herein, except Workers’ Compensation, Professional Liability and Financial Institution’s Fidelity.

CONTRACTOR agrees to provide CITY with a separate endorsement evidencing proof of City’s additional insured status required herein (both general and automobile liability) as well as a separate endorsement for the Workers’ Compensation insurer’s waiver of all subrogation rights as stated above. Every endorsement shall identify the policy number.
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CONTRACTOR shall provide CITY with separate an endorsement evidencing proof of the CITY’s additional insured status as to the general liability insurance policy. In addition, CONTRACTOR shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

For any claims related to this project, the CONTRACTOR’S insurance coverage shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its agents, officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’S insurance and shall not contribute with it.

5. PAYMENT:

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
[email protected]
CONTRACTOR shall establish a separate billing account number for each CITY department and/or division.
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At a minimum invoice shall state the following:
 Reference Agreement # 216381
 City department/division name and address
 Billing period
 Unit price, extended price, sales tax and total

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

7. ARBITRATION:

The Arbitrator shall render a written decision within thirty (30) calendar days of the hearing.

8. GOVERNING LAW:
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This Agreement shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of laws provisions or principles.

9. COMMENCEMENT AND COMPLETION OF THE WORK:

Executed Agreement;
a. Resolution No. 2022- attached hereto as Exhibit “A” and made a part hereof;
b. Bid Submittal, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License
f. Attachment “A” with Site Maps

10. TERMINATION OF SERVICES:

For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Contractor, dishonesty or theft. #2..
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Termination by City for Convenience
The City may also terminate the CONTRACTOR’S performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Contractor shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subcontractors, but in no event shall recovery by any Contractor or subcontractor include lost profits for #2..
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portions of the Work not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing the Work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Contractor shall provide sufficient oral or written status reports to make City reasonably aware of the status of Contractor's work on the project.
i. The Contractor understands and agrees that City may, in City's sole discretion, refuse to pay Contractor for that portion of Contractor's services which were performed by Contractor on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.

City will pay Contractor an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Contractor after termination #2..
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for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subcontractor agreements or contracts for materials; b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Contractor as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Contractor.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Contractor to appeal the City Manager, or his/her designee’s, decision to the City Council. The Contractor shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement.

11. COMPLIANCE WITH ALL LAWS:

12. AGREEMENT DOCUMENTS:
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The complete contract between the parties hereto consists of this agreement, and all exhibits, and the following documents which are incorporated herein by this reference:
a. Resolution No. 2022-___________ attached hereto as Exhibit “A” and made a part hereof;
b. CONTRACTOR Bid Submittal, attached hereto as Exhibit “B” and made a part hereof;
c. RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License
f. Attachment “A” with Site Maps
These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division). All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

13. NOTICES:

CONTRACTOR
Derik Jakusz/General Manager
Elite Maintenance & Tree Service Inc.,
2972 Larkin Ave
Clovis, CA 93612
(559) 558-4705
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CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353

Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

14. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the contract and has/have full authority to execute this contract.

15. ASSIGNMENT:

Neither this agreement nor any portion thereof shall be subcontracted or assigned without the written consent of the CITY in each and every instance.

16. WAIVER:

17. HEADINGS NOT CONTROLLING.

Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement

18. MISCELLANEOUS:

Time is of the essence in every provision of this contract.

19. ENTIRE AGREEMENT.
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This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

20. PARTIAL INVALIDITY.

ATTACHMENT A
REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING AND FLAIL MOWING SERVICES

SITE LIST & LOCATION MAPS
A. SITE LIST:

Site # Site Mowing Discing Notes
1 Blue Gum Avenue Site 1.45 ac -
2 Carpenter Road (East) Site 14 ac 42.75 ac
3 Carpenter Road (West) Site 29.75 ac -
4 Claratina Avenue Site (1 of 2) 4.2 ac -
5 Claratina Avenue Site (2 of 2) 4.2 ac -
6 Claus Road Expressway Site (1 of 3) - 5 ac
7 Claus Road Expressway Site (2 of 3) - 11.5 ac
8 Claus Road Expressway Site (3 of 3) - 6.5 ac
9 Crater Avenue West Site 1 ac -
10 Dry Creek - McClure Site 11 ac -
11 Dry Creek - Trees for Tots Site (1 of 4) 85.25 ac - Dry Creek - Trees for Tots Sites (1-4) collectively equal

85.25 acres 12 Dry Creek - Trees for Tots Site (2 of 4) 85.25 ac - 13 Dry Creek - Trees for Tots Site (3 of 4) 85.25 ac -
14 Dry Creek - Trees for Tots Site (4 of 4) 85.25 ac -
15 Frazine Road Site - Water Dept. 12.25 ac -
16 Garst Road Site - 8.25 ac
17 Gateway Park Site 50.5 ac -
18 Gomes Property Site - 9 ac
19 Hetch Hetchy Site (1 of 5) 3 ac -
20 Hetch Hetchy Site (2 of 5) 7 ac -
21 Hetch Hetchy Site (3 of 5) 3.5 ac -
22 Hetch Hetchy Site (4 of 5) 7.5 ac -
23 Hetch Hetchy Site (5 of 5) 6.25 ac -
24 John Street (Bellenita Park) Site - 6.75 ac
25 Legion Park Site 13 ac 16 ac
26 Litt Road Site - Water Dept. 19.5 ac -
27 Mary Grogan Park Site 16 ac -
28 Neece Drive Site 1 ac 10.5 ac
29 Robertson Road Site - 27.75 ac
30 Sutton Park Site - 26 ac
31 Transit (Amtrak) Site - 1.6 ac
32 TRRP Bird Sanctuary Site 14 ac -
33 TRRP Park Entrance Site 7 ac -
34 TRRP Podesto Site 3 ac -
35 TRRP Undeveloped Picnic Area Site 7 ac 6.5 ac
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BLUE GUM AVENUE SITE
(Mow - 1.45 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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CARPENTER ROAD (EAST) SITE
(Mow - 14.00 ac, Disc - 42.75 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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CARPENTER ROAD (WEST) SITE
(Mow - 29.75 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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LEGEND
MOW
DISC
CLARATINA AVENUE SITE (1 of 2)
(Mow - 4.2 ac, Disc - 0.0 ac)

ATTACHMENT A
#2..
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CLARATINA AVENUE SITE (2 of 2)
(Mow - 4.2 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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CLAUS ROAD EXPRESSWAY SITE ( 1 of 3)
(Mow - 0.0 ac, Disc - 5.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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CLAUS ROAD EXPRESSWAY SITE ( 2 of 3)
(Mow - 0.0 ac, Disc -11.5 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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CLAUS ROAD EXPRESSWAY SITE ( 3 of 3)
(Mow - 0.0 ac, Disc - 6.5 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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LEGEND
MOW
DISC

CRATER AVENUE (WEST) SITE
(Mow - 1.0 ac, Disc - 0.0 ac)

ATTACHMENT A
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DRY CREEK - McCLURE SITE
(Mow - 11.0 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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DRY CREEK - TREES FOR TOTS SITE ( 1 OF 4)
(Mow - 85.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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DRY CREEK - TREES FOR TOTS SITE ( 2 OF 4)
(Mow - 85.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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DRY CREEK - TREES FOR TOTS SITE ( 3 OF 4)
(Mow - 85.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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DRY CREEK - TREES FOR TOTS SITE ( 4 OF 4)
(Mow - 85.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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FRAZINE ROAD SITE
(Mow - 12.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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GARST ROAD SITE
(Mow - 0.0 ac, Disc - 8.25 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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GATEWAY PARK SITE
(Mow - 50.5 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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GOMES PROPERTY SITE
(Mow - 0.0 ac, Disc - 9.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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HETCH HETCHY SITE (1 of 5)
(Mow - 3.0 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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HETCH HETCHY SITE (2 of 5)
(Mow - 7.0 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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HETCH HETCHY SITE (3 of 5)
(Mow - 3.5 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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HETCH HETCHY SITE (4 of 5)
(Mow - 7.5 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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HETCH HETCHY SITE (5 of 5)
(Mow - 6.25 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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JOHN STREET (BELLANITA PARK) SITE
(Mow - 0.0 ac, Disc - 6.75 ac)
LEGEND
MOW
DISC

ATTACHMENT A
#2..
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LEGION PARK SITE
(Mow - 13.00 ac, Disc - 16.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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LEGEND
MOW
DISC

LITT ROAD SITE
(Mow - 19.5 ac, Disc - 0.0 ac)

ATTACHMENT A
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MARY GROGAN PARK SITE
(Mow - 16.0 ac, Disc - 0.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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NEECE DRIVE SITE
(Mow - 1.0 ac, Disc - 10.5 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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ROBERTSON ROAD SITE
(Mow - 0.0 ac, Disc - 27.25 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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SUTTON PARK SITE
(Mow - 0.0 ac, Disc - 26.0 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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TRANSIT (AMTRAK) SITE
(Mow - 0.0 ac, Disc - 1.6 ac)
LEGEND
MOW
DISC

ATTACHMENT A
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LEGEND
MOW
DISC

TRRP BIRD SANCTUARY SITE
(Mow - 14.0 ac, Disc - 0.0 ac)

ATTACHMENT A
#2..
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LEGEND
MOW
DISC

TRRP PARK ENTRANCE SITE
(Mow - 7.0 ac, Disc - 0.0 ac)

ATTACHMENT A
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LEGEND
MOW
DISC

TRRP PODESTO SITE
(Mow - 3.0 ac, Disc - 0.0 ac)

ATTACHMENT A
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LEGEND
MOW
DISC

TRRP UNDEVELOPED PICNIC AREA SITE
(Mow - 7.0 ac, Disc - 6.5 ac)

ATTACHMENT A
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1 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB
FOR

DISCING & FLAIL MOWING SERVICES
BID OPENING: DECEMBER 14, 2021 at 11:00 A.M.

CITY OF MODESTO CONTACT: Kathy Crandall, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5420
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2 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

TABLE OF CONTENTS
Page
. Notice to Bidders................................................................................................................ 3 . City Contacts...................................................................................................................... 4 . Calendar of Events.............................................................................................................. 4 . Offer and Acceptance......................................................................................................... 4 . Submittal Checklist............................................................................................................. 5 . REQUIRED DOCUMENT
. Bid Acknowledgement (Signature Form)........................................................................ 6 . Pricing Schedule (Signature From).................................................................................. 9 . Exceptions, Clarifications, Amendments (if applicable)................................................. 10 . References......................................................................................................................... 11 . Financial Interest Disclosure (Signature Form ................................................................ 14 . Support of Local Vendors (if applicable)......................................................................... 16 . Company History Statement ........................................................................................... 17 . Addenda Acknowledgement Page (if applicable) ........................................................... 18 . TECHNICAL REQUIREMENTS
. Scope of Work.................................................................................................................. 19 . Technical Specifications................................................................................................... 19 . Liability Insurance............................................................................................................ 21 . Required Licenses............................................................................................................. 22 . GENERAL REQUIREMENTS
. Bid Submittal.................................................................................................................... 25 . Acceptance/Rejection of Irregular Bids........................................................................... 25 . Complete Bid Document.................................................................................................. 25 . Compliance....................................................................................................................... 26 . Pricing Format.................................................................................................................. 26 . Pricing Schedule............................................................................................................... 26 . Award of Bid .................................................................................................................... 26 . Term of Contract .............................................................................................................. 27 . Termination of Services ................................................................................................... 27 . Quantities.......................................................................................................................... 27 . Funding............................................................................................................................. 27 . Other Government/Publicly Funded Agencies................................................................ 28 . Protest and Appeal Procedures......................................................................................... 30 . Payment ............................................................................................................................ 33 . ATTACHMENTS
. Sample Agreement ……………………………………………………………............ 35 #2..
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3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California, will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed bids for the furnishing of Discing & Flail Mowing Services for the City of Modesto, Parks, Recreation & Neighborhoods Division.

The City of Modesto assumes no responsibility for delay in the delivery of the bid.

On the outside of the bid envelope and courier envelope, if any, the bidder shall indicate the following:

NAME AND ADDRESS OF BIDDER
SPECIFICATION NUMBER 2021-46RB

DISCING & FLAIL MOWING SERVICES
BID OPENING DATE: DECEMBER 14, 2021 AT 11:00 A.M.

MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK

No bidder may withdraw his/her bid for a period of ninety (90) days after the date set for the opening thereof.

Note: Deliver or mail bids to the referenced address, only, as indicated in the Notice to Bidders. #2..
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4 CITY CONTACTS
All questions regarding these specifications, terms, and conditions shall be submitted in writing to Kathy Crandall, Buyer, via email at: [email protected] All contact during the bid process shall be through the Purchasing Division. Attempts by the bidder to contact department representatives may result in disqualification of the bidder from the bid process.

CALENDAR OF EVENTS
Event Date
Bid Issued November 3, 2021
Written Questions Due November 16, 2021
Addendum Issued (if required) November 23, 2021
Bid Opening BEFORE 11:00 A.M. on Tuesday, December 14, 2021 Bid Award April, 2022
Note: Award date is approximate.

It is the responsibility of each bidder to be familiar with all of the specifications, terms and conditions and the site condition (if applicable). The bidder agrees and acknowledges all RFB specifications, terms, and conditions and indicates the ability to perform by submission of a bid. By the submission of a bid, the bidder certifies that if awarded a contract they will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.

OFFER AND ACCEPTANCE:

Seller represents his/her acceptance to provide products and/or services as follows: City's offer to purchase products and/or services is expressly conditioned upon Seller’s assent to the terms and conditions set forth in City purchase order documents, specifications, supporting data, and these articles. Seller agrees that Seller's Order Acknowledgement terms and conditions received prior to, during, or after order placement by City are hereby rejected. City purchase orders signed by the City's Purchasing Manager or designated agent and issued to Seller constitutes written notification to Seller of City's rejection of any and all of Seller Order Acknowledgements, counter offers and change to the City's terms and conditions. #2..
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5 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

SUBMITTAL CHECKLIST

BID SUBMITTAL CHECKLIST
The bidder shall provide a complete bid in a sealed envelope before 11:00 A.M. on the bid opening date.

Failure to provide all the required documents may cause the bid to be considered non-responsive.

DISCING & FLAIL MOWING SERVICES
COMPLETE BID Page No.
. Bid Acknowledgement (Signature Form)........................................................................ 6 . Pricing Schedule (Signature Form).................................................................................. 9 . Exceptions, Clarifications, Amendments (if applicable)................................................. 10 . References......................................................................................................................... 11 . Financial Interest Disclosure Form (Signature Form)................................................... 14 . Support of Local Vendors (if applicable)......................................................................... 16 . Company History Statement ........................................................................................... 17 . Addenda Acknowledgement Page (if applicable) ........................................................... 18 #2..
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6 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

Obligations assumed by such signature must be fulfilled.

10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded in on this order.

11. Two “Inked” Signed Original Bid Document Requested: Failure to furnish at least one “inked” signed original bid document may result in disqualification.

Firm:

Address:

City/State/Zip:

Signature/Title/Date:
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7 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

PRICING SCHEDULE
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, and Amendments page”.

Mowing Services (Monday – Friday from 7:00A.M.to 6:00P.M.

SEE ATTACHMENT “A” FOR SITE MAPS
Site # Site Mowing Cost (Per Service)
1 Blue Gum Avenue Site 1.45 ac $____________________/Svc 2 Carpenter Road (East) Site 14 ac $____________________/Svc 3 Carpenter Road (West) Site 29.75 ac $____________________/Svc 4 Claratina Avenue Site (1 of 2) 4.2 ac $____________________/Svc 5 Claratina Avenue Site (2 of 2) 4.2 ac $____________________/Svc 6 Crater Avenue (West) Site 1 ac $____________________/Svc 7 Dry Creek – McClure Site 11 ac $____________________/Svc 8 Dry Creek – Trees for Tots Site (1 of 4)

85.25 ac
$____________________/Svc
9 Dry Creek - Trees for Tots Site (2 of 4) $____________________/Svc 10 Dry Creek – Trees for Tots Site (3 of 4) $____________________/Svc 11 Dry Creek – Trees for Tots Site (4 of 4) $____________________/Svc 12 Frazine Road Site – Water Dept 12.25 ac $____________________/Svc 13 Gateway Park Site 50.5 ac $____________________/Svc
14 Hetch Hetchy Site (per Site) 3 ac $____________________/Svc 15 Hetch Hetchy Site (per Site) 7 ac $____________________/Svc 16 Hetch Hetchy Site (per Site) 3.5 ac $____________________/Svc 17 Hetch Hetchy Site (per Site) 7.5 ac $____________________/Svc 18 Hetch Hetchy Site (per Site) 6.25 ac $____________________/Svc 19 Legion Park Site 13 ac $____________________/Svc
20 Litt Road Site – Water Dept 19.5 ac $____________________/Svc 21 Mary Grogan Park Site 16 ac $____________________/Svc 22 Neece Drive Site 1 ac $____________________/Svc
23 TRRP Bird Sanctuary Site 14 ac $____________________/Svc 24 TRRP Park Entrance Site 7 ac $____________________/Svc 25 TRRP Podesto Site 3 ac $____________________/Svc
26 TRRP Undeveloped Picnic Area Site 7 ac $____________________/Svc Totals for Sites 1-26 $____________________/Svc
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8 PRICING SCHEDULE PAGE 2 FOR
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, Amendments page”.

Discing Services (Monday – Friday from 7:00A.M.to 6:00P.M.

SEE ATTACHMENT “A” FOR SITE MAPS
Site # Site Discing Cost (Per Service)
1 Carpenter Road (East) Site 47.75 ac $____________________/Svc 2 Claus Road Expressway Site (1 of 3) 5 ac $____________________/Svc 3 Claus Road Expressway Site (2 of 3)
3 11.5 ac $____________________/Svc
4 Claus Road Expressway Site (3 of 3) 6.5 ac $____________________/Svc 5 Garst Road Site 8.25 ac $____________________/Svc
6 Gomes Property Site 9 ac $____________________/Svc
7 John Street (Bellenita Park) Site 6.75 ac $____________________/Svc 8 Legion Park Site 16 ac $____________________/Svc
9 Neece Drive Site 10.5 ac $____________________/Svc
10 Robertson Road Site 27.75 ac $____________________/Svc 11 Sutton Park Site 26 ac $____________________/Svc
12 Transit (Amtrak) Site 1.6 ac $____________________/Svc 13 TRRP Undeveloped Picnic Area Site 6.5 ac $____________________/Svc Total for Sites 1 - 13 $____________________/Svc
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9 EQUIPMENT PARTS AND COMPONENT COSTS
List the size of equipment proposed to perform the services Discing:

Flail Mowing:

City Business/Delivery License No. __________ Expiration Date: __________ Stated pricing is subject to (______ %) cash discount if invoice is paid within ______ days after acceptance of service.

A City Business License is not required at the time of the bid, however, please note the License No. if bidder should already have one. (See Section 1.6 for further details) Does bidder accept the City’s Epay Payment Program? Please check one: Yes ____ No ____ Information regarding the program is provided in Section 2.24 Payment.

Company Name (Bidder):

By (Person Submitting Bid): (Print)
By (Person Submitting Bid): (Signature)
Title of Person Submitting Bid:

Business Address
(City/State/Zip):

E-Mail Address:

Telephone Number:

Fax Number:

Date:
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10 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

Item
No.

Reference To: Description
Page No. Paragraph No.

Company Name (Bidder):
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11 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

References shall have similar volume and requirements to those outlined in these specifications, terms and conditions. Bidders failing to provide references may be deemed as non-responsive.

The City may contact some or all of the references provided in order to determine the bidder’s performance record on work and equipment similar to that described in this bid. The City reserves the right to contact references other than those provided in the response and to use the information gained from them in the award process.

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
#2..
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12 Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business:

Date of Service:

Annual Contract Value $
Company Name (Bidder):
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13 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

FINANCIAL INTEREST DISCLOSURE

FinDisclosure12-19
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14 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

Tests of Materiality:

By signing this document, I agree to the information contained within.

DATE:__________________________
Applicable Names:
(See attached list)
Questions concerning the application of either test to particular facts should be resolved in advance of Council action by agreement with the department head recommending approval of its agreement/application. #2..
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15 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

FINANCIAL INTEREST DISCLOSURE FORM
COMPANY NAME: __________________________________________ NAMES
Signature / Print:

Signature / Print:

Signature / Print:
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16 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

SUPPORT OF LOCAL VENDORS

REQUEST FOR DECLARATION
of

To qualify as a local bidder, the bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

This document is only required should the bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.

I declare I am a local business per the above criteria

SUPPORT OF LOCAL VENDORS

DECLARATION OF ELIGIBILITY
Company Name:

Street Address:

Telephone Number:

Business License Number:

Under penalty of perjury, The Undersigned declares that the foregoing information is true and correct:

Print/Type Name:

Title:

Signature:

Date:
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17 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

The company history statement shall be prepared on company letterhead and provided with the bid submittal. #2..
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18 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

This document is only required to be returned should addenda have been issued.

The Bid is submitted with respect to the changes to the request for bid and specifications included in addenda numbers:

LIST ALL ADDENDA NUMBERS:____________________________________________________ Company Name (Bidder):
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19 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.0 SCOPE OF WORK:

The City of Modesto is seeking bids for discing and flail mowing services for various locations throughout the City of Modesto on an as needed basis for undeveloped park land and/or undeveloped right-of-ways.

Pricing shall include all labor, materials, equipment, tools, fuel, and insurance necessary to do the work.

Various locations throughout the City of Modesto can have as little as one (1) acre and as large as eightyfive (85) acres.

A. DISCING AND FLAIL MOWING CYCLE:

A complete discing or flail mowing consists of one (1) complete pass. Height and acreage will be determined at time of each cycle by City’s Technical Liaison. Four (4) cycles are anticipated each year for each site location listed in this RFB.

1. Cycle Calendar:
• March
• June
• October
• To be determined by the City depending on weather conditions

2. Once the successful Contractor receives the cycle starting date for a given section, all work in that section shall be completed within fifteen (15) working days. Exceptions taken shall be due to delays caused by the City or from adverse weather conditions. There shall be no financial responsibility to the City for any delays caused by the City or from adverse weather conditions. After a cycle has been completed, the Contractor shall notify the City’s Technical Liaison of the completion of the work within three (3) calendar days.

3. The Technical Liaison shall notify the Contractor at least fourteen (14) calendar days in advance of the start of a cycle.

4. Discing and flail mowing shall be performed Monday through Friday from 7:00 A.M. to 6:00 P.M., excluding all major holidays (noted below), and only on non-windy days. Only by written permission from the Technical Liaison may work be performed beyond these hours and days.

New Year’s Day Labor Day
Martin Luther King, Jr. Day Veterans’ Day Observed
Presidents’ Day Thanksgiving Day
Memorial Day Day after Thanksgiving
Independence Day Christmas Day
B. TECHNICAL SPECIFICATIONS:

1. All turns shall be disced at a proper depth to turn over soil and weeds. Depth may vary depending on soil moisture. As such, proper depth is defined as deep enough to uproot existing weeds/grasses, depth to be sufficient to not cause regrowth for the next season.

2. Cuts shall be no closer than four (4) feet from sidewalks, curbs or prepared roadways. #2..
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20 3. Discing shall be within 1-1/2 feet from fences and tree bases. Discing shall remain outside the drip line around the base of mature oak trees.

4. All sites with houses within two (2) blocks of the work site shall be disced using some type of effective water attachment capable of keeping the dust down (dust control).

5. Contractor shall be responsible for the full replacement cost of all trees and other permanent vegetation, paving or fixed facilities damaged by the Contractor.

6. Contractor shall clean up any/all dirt or debris left on sidewalks or roadways as a result of discing or flail mowing.

7. Flail mower shall be set for a cut of two (2) inches above the ground in all flail mow sites unless terrain inhibits depth. If terrain inhibits depth, please notify the City Liaison.

8. All firebreaks shall be disced clean to a width of sixteen (16) feet.

9. Contractor shall be responsible for reasonable dust control on all sites immediately adjacent to major streets and residential areas as becomes necessary at other sites. Sites requiring dust control are noted. Contractor must use dust control apparatus, either tractor mounted or driven independently, using a Water tank/truck when needed.

C. SITE/LOCATION MAPS:

Site/location maps are provided in Attachment A.

D. INSPECTION OF WORK PERFORMED:

The Technical Liaison may inspect all sites after the Contractor has given notice of completion. If the technical specifications for discing or flail mowing have not been met, the Technical Liaison shall advise the Contractor in writing of any and all deficiencies. All deficiencies shall be corrected by the Contractor before payment is made.

E. SITE RESPONSIBILITY OF THE CITY:

The City shall make all reasonable efforts to remedy any hazardous or impractical site situations so that the work can proceed on schedule. Any inspections or corrections performed by the City do not preclude the Contractor from making their own inspection prior to the start of discing or flail mowing.

Any contact with surrounding neighbors resulting from discing or flail mowing shall be directed to the Technical Liaison within forty-eight (48) hours.

F. SITE RESPONSIBILITY OF THE CONTRACTOR:

The Contractor shall be responsible for checking each site for debris, holes, obstructions, etc., prior to discing or flail mowing. It shall be the Contractors’ responsibility to notify the City, within 24 hours, if circumstances prevent the discing or flail mowing for a particular site. The Contractor shall not leave any equipment unattended on a site for any length of time. Any requests to leave equipment at work sites must be approved in advance by the City Liaison.

G. UTILITIES:
a. The Contractor shall be responsible for locating all above and below ground utilities that may be affected by discing or flail mowing. Any and all damages caused by the Contractor shall be the responsibility of the Contractor to remedy, at Contractor’s expense. #2..
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21 b. The Contractor shall notify the City at least seven (7) calendar days in advance of any intended interruption of utility services due to the work. Times and dates for such interruptions shall be at the discretion of the Technical Liaison.
c. The City shall allow the Contractor to use water from City fire hydrants at no cost to the Contractor.

The Contractor will be responsible to supply its own hoses.

H. DAMAGE TO CONTRACTOR’S EQUIPMENT:

The Contractor shall be responsible for any and all damage done to their equipment.

1.1 LIABILITY INSURANCE:

The CONTRACTOR shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the Risk Manager. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of CITY by registered mail, return receipt requested, for all of the following stated insurance policies. (a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 aggregate for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent Contractors and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Waiver of Subrogation - Form required
(e) Additional Insured Status-endorsement – The City of Modesto its officers, officials, employees, agents and volunteers are to be covered as additional insureds.

Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, it agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
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22 The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.

The CONTRACTOR's insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

The successful bidder shall maintain proper insurance with the City for the duration of the contract.

1.2 CITY REPRESENTATIVE:

Work under any resulting contract shall be performed under the general technical guidance and direction of the City "City Representative". The City Representative is not authorized to commit the City to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

1.3 REQUIRED LICENSES:

The successful bidder shall maintain a City of Modesto business license for the duration of the contract.

1.4 CONTRACTOR’S RESPONSIBILITY FOR WORK:

Suspension of work for any cause whatsoever shall not relieve the Contractor of his/her responsibility for the work or parts and materials as specified on the work request.

The Contractor shall be responsible for and remedy all defects arising from faulty, improper or inferior workmanship, or parts and materials discovered in any part of the work, during one year after the completion and acceptance of the work.
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23 The Contractor shall be responsible for any damage his/her activities cause to adjacent public or private property. The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the project activities.

1.5 CHARACTER OF WORKERS:

1.6 LABOR FORCE AND SUPERVISION:

1.7 DELAY BY THE CITY:

1.8 ADDITIONAL AND EMERGENCY PROTECTION:

Whenever, in the opinion of the Technical Liaison, the Contractor has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the work site, the Technical Liaison may provide suitable protection with or without first notifying the Contractor. The cost and expense of such protection provided by the City shall be borne by the Contractor. The City shall deduct the cost of such protection from any monies due or to become due to the Contractor.

1.9 BARRICADES:

The Contractor shall provide and place barricades and/or safety ribbon as necessary to restrict access to the work areas. The Contractor shall be responsible for maintaining access control of the work areas from the time construction starts until the time the work site is returned to its pre-project condition, including paving and cleanup.

1.10 CLEANUP:

Prior to requesting a final inspection, the Contractor shall carefully clean up and remove all surplus materials and/or debris of any type resulting from the Contractor’s work from the work site, and shall dispose of all of the materials and debris in a proper manner. The work site shall be left clean and neat. All plant piping used to transport material from the work area shall be flushed at the completion of the work.

1.11 DISPOSAL OF MATERIALS:

The Contractor shall certify that any materials and debris removed from the site shall be disposed of in accordance with applicable Federal, State and Local laws, regulations or ordinances. If requested by the City, Contractor shall furnish proof of disposal.

1.12 TECHNICAL LIAISON:

Work under any resulting contract shall be performed under the general technical guidance and direction of the City of Modesto's "Technical Liaison". The Technical Liaison is not authorized to commit the City to changes #2..
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24 in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be affected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

1.13 PERSONAL AND PROPERTY RISK:

Persons inspecting the sites during the RFB process assume all risks of damage or loss to person and property and specifically release the City of Modesto from liability therefore. #2..
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25 GENERAL TERMS AND CONDITIONS

2.0 BID SUBMITTAL:

Bidders should submit two “inked” (preferably blue ink) signed original bid documents, plus two (2) copies of the signed original bid document and one (1) electronic copy submitted via USB. The original bid document shall be clearly marked. Photocopies do not constitute an original bid.

FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.

All costs associated with the preparation of this bid shall be borne by the bidder.

Please review the Sample Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes.

2.1 ACCEPTANCE/REJECTION OF IRREGULAR BIDS:

2.1.1 COMPLETE BID DOCUMENT:

The following forms constitute the makeup of a complete bid document:
• Bid Acknowledgement (Signature Form)
• Pricing Schedule (Signature Form)
• Exceptions, Clarifications, Amendments (if applicable) • References
• Financial Interest Disclosure (Signature Form)
• Support of Local Vendors (if applicable)
• Company History Statement
• Addenda Acknowledgement Page (if applicable)
Failure to furnish any of these documents may result in disqualification.

2.1.2 BID PRESENTATION:

Bid submittals should be presented in the order as listed in Section 2.1.2 Complete Bid Document. #2..
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26 2.2 COMPLIANCE:

Bidders are required to sign the “Pricing Schedule, Financial Interest Disclosure and Bid Acknowledgement Form” of this bid document, thereby acknowledging they are in full compliance with all requirements of Bid No. 2021-46RB, and any addendum to such bid. Failure to comply may result in disqualification.

All permits and licenses necessary for the prosecution of the scope of work shall be secured and paid for by the Contractor, except those secured by the City and so noted.

2.3 PRICING FORMAT:

All labor, equipment, fuel, licenses, permits and insurance necessary to perform the required services shall be included in bid pricing.

Unless otherwise stated, the bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.

2.4 PRICING SCHEDULE:

Bidders shall use the pricing schedule provided in this document to present bid pricing. No other form or format shall be accepted.

2.5 AWARD OF BID:

Award shall be based on providing the lowest responsive and responsible bid meeting the RFB specifications.

The City may elect to award by line item, by group, or by all items.

2.6 INSPECTION AND ACCEPTANCE:

Whenever the product or service provided by the supplier has been delivered to the Modesto, California, delivery point, the designated agent shall make the final inspection and acceptance.

If upon initial inspection the product or service is found to be defective in its construction or deficient in any of the requirements of this specification, the supplier shall remedy or remove said product in an acceptable manner at the supplier's expense. No compensation shall be allowed for such correction of product, labor, or transportation of product.
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27 2.7 SUPPORT OF LOCAL VENDORS:

2.8 TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options at the sole discretion of the City, for a total of five (5) years.

A. Pricing shall remain firm (other than fuel) for the first two (2) years of any contract, which may be awarded pursuant to this RFB.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

Web site : HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/,California data.

2.9 TERMINATION OF SERVICES:

The City reserves the right to discontinue services with the CONTRACTOR upon failure to meet contractual expectations and/or obligations, as recommended by the site supervisor or his/her agent. Cancellation of services shall be determined by the collaborative efforts of the Purchasing Manager, or designee, and using department after reviewing the incident(s) of failure to perform.

The City reserves the right to review the service CONTRACTOR’S performance at any time with or without the knowledge or consent of the CONTRACTOR.

The City may terminate the agreement at any time with or without cause.

2.10 QUANTITIES:

No minimum or maximum is guaranteed or implied.

2.11 FUNDING:

2.13 NON-DISCRIMINATION:

B. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.

C. Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract.

2.14 NON-DISCRIMINATION OF THE HANDICAPPED:

2.15 DRUG FREE WORKPLACE:

2.17 ASSIGNMENT OF RIGHTS:

2.18 CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve the bidder of his/her responsibility to furnish the required items and service meeting all specifications contained herein.

2.19 BIDDER/SELLER REPRESENTATION:

The bidder/seller represents that:

B. He/She has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work.

C. He/She will complete the work for the compensation stated above.

D. He/She assumes full and complete responsibility for all conditions relevant to the work and all risks in connection therewith.

E. In addition thereto, the bidder/seller represents that he/she is fully qualified to do the work in accordance with the terms of any Purchase Order or agreement issued within the time specified in it.

2.20 FAILURE TO PERFORM SATISFACTORY:

It is agreed and understood that if the CONTRACTOR fails to perform the work as specified herein, CITY's representative may (1) consent to accept such unsatisfactory service with an appropriate adjustment in contract #2..
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30 price, based on established cost factors, (2) have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or (3) recommend termination of contract between said CONTRACTOR and the City of Modesto. Those discrepancies and deficiencies in the work that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence. Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the work not corrected or completed.

2.21 CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

2.22 LABOR FORCE AND SUPERVISION:

2.23 PROTEST AND APPEAL PROCEDURES:

Procurements valued at $50,000 or less normally will not have an Announced Decision.

A. PROTEST PROCEDURES

1. Any interested party may lodge a written protest to an Announced Decision with the City of Modesto's Purchasing Manager no later than ten (10) days after the Announced Decision.

2. The protest shall be delivered or sent by registered mail and postmarked by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses.
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31 3. The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS) or in such other sum as the City may establish, made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.

All protests shall either be delivered to:

City Clerk’s Office
Attn: Purchasing Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Purchasing Manager
PO Box 642
Modesto CA 95353
B. PROTEST REVIEW (ANNOUNCED DECISION)

The scope of the appeal shall be limited by the issues raised in the initial protest to the Purchasing Manager. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written record of the protest review by the Purchasing Manager.

City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353

The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05.

All protests shall either be delivered to:

City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
C. PROTESTS OF PROCUREMENTS EXCEEDING $250,000.00
Interested parties protesting procurements exceeding $250,000.00 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager, a protestor may request that the protest be heard and decided at an administrative hearing.

A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS; Refer to Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14) payable to the City of Modesto, and shall be #2..
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33 received by the Purchasing Manager not later than fifteen (15) days after dispatch of the Purchasing Manager's decision. The request for hearing shall include the specific grounds of the appeal.

The decision of the hearing officer shall be deemed as the final decision of the City, and no other appeal to City Staff or body shall be permitted.

D. PROCUREMENTS OBTAINED WITH FEDERAL FUNDS

Appeals to the Federal Transit Administration (FTA) shall comply with FTA Circular 4220.1E and the amendments and supplements thereto. Additional information regarding protesting procurements obtained with Federal Funds can be found in the Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14.

2. The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing before Council on the procurement at hand. In such cases, no internal appeal is possible since staff may in no case reverse a City Council decision. In such an event, a disappointed transit bidder or a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the Federal Transit Administration.

2.24 PAYMENT:
• Electronic Payment Method:

The City of Modesto provides an Epay Program which involves payment of invoices by a secure Visa account number assigned to the supplier after award of bid or contract. Notification of payments and #2..
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34 required invoice information are issued to the supplier’s designed Accounts Receivable contact by email remittance advice at time of payment.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]

2.25 SAMPLE AGREEMENT:

Please review the Sample Agreement. This Agreement may be modified and subject to change. #2..
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35 SAMPLE AGREEMENT
This Agreement, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2022, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and ______________ hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2022-_______ authorizing the award of bid and contract for the furnishing of Discing & Flail Mowing Services ______________________ attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal to RFB 2021- 46RB for Discing & Flail Mowing Services that best meets CITY needs, and WHEREAS, the CONTRACTOR shall provide services to CITY as defined in the “Submittal”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of Discing & Flail Mowing Services, as described in RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish Discing & Flail Mowing Services, in strict accordance with the conditions of the complete Contract. b. CONTRACTOR shall do and perform the work in a professional and businesslike manner under the direction of and to the satisfaction of the CITY. c. CONTRACTOR shall perform its duties under this Agreement in accordance with the standard(s) of care prevailing in its industry.
d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the contract.
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36 e. CONTRACTOR shall maintain a CITY business license for the duration of the contract.
f. CONTRACTOR shall furnish the service defined for the following contracted rates, not to exceed $__________ annually:

PRICING SCHEDULE FOR MOWING SERVICES
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, Amendments page”.

Mowing Services (Monday – Friday from 7:00A.M.to 6:00P.M.

85.25 ac
$____________________/Svc
9 Dry Creek - Trees for Tots Site (2 of 4) $____________________/Svc 10 Dry Creek – Trees for Tots Site (3 of 4) $____________________/Svc 11 Dry Creek – Trees for Tots Site (4 of 4) $____________________/Svc 12 Frazine Road Site – Water Dept 12.25 ac $____________________/Svc 13 Gateway Park Site 50.5 ac $____________________/Svc
14 Hetch Hetchy Site (1 of 5) 3 ac $____________________/Svc 15 Hetch Hetchy Site (2 of 5) 7 ac $____________________/Svc 16 Hetch Hetchy Site (3 of 5) 3.5 ac $____________________/Svc 17 Hetch Hetchy Site (4 of 5) 7.5 ac $____________________/Svc 18 Hetch Hetchy Site (5 of 5) 6.25 ac $____________________/Svc 19 Legion Park Site 13 ac $____________________/Svc
20 Litt Road Site – Water Dept 19.5 ac $____________________/Svc 21 Mary Grogan Park Site 16 ac $____________________/Svc 22 Neece Drive Site 1 ac $____________________/Svc
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37 23 TRRP Bird Sanctuary Site 14 ac $____________________/Svc 24 TRRP Park Entrance Site 7 ac $____________________/Svc 25 TRRP Podesto Site 3 ac $____________________/Svc
26 TRRP Undeveloped Picnic Area Site 7 ac $____________________/Svc Totals for Sites 1-26 $____________________/Svc

PRICING SCHEDULE FOR DISCING SERVICES
All labor, equipment, tools, fuel and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, Amendments page”.

Discing Services (Monday – Friday from 7:00 A.M.to 6:00 P.M) SEE ATTACHMENT “A” FOR SITE MAPS
Site # Site Discing Cost (Per Service)
1 Carpenter Road (East) Site 47.75 ac $____________________/Svc 2 Claus Road Expressway Site (1 of 3) 5 ac $____________________/Svc 3 Claus Road Expressway Site (2 of 3)
3 11.5 ac $____________________/Svc
4 Claus Road Expressway Site (3 of 3) 6.5 ac $____________________/Svc 5 Garst Road Site 8.25 ac $____________________/Svc
6 Gomes Property Site 9 ac $____________________/Svc
7 John Street (Bellenita Park) Site 6.75 ac $____________________/Svc 8 Legion Park Site 16 ac $____________________/Svc
9 Neece Drive Site 10.5 ac $____________________/Svc
10 Robertson Road Site 27.75 ac $____________________/Svc 11 Sutton Park Site 26 ac $____________________/Svc
12 Transit (Amtrak) Site 1.6 ac $____________________/Svc 13 TRRP Undeveloped Picnic Area Site 6.5 ac $____________________/Svc Total for Sites 1 - 13 $____________________/Svc
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38 2. CITY CONTACT:

Kathy Crandall, Buyer Ph: (209) 577-5420
Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

3. TERM OF CONTRACT:

The term of the contract shall be for a period of two (2) years, with three (3) one-year extension options.

Year 1: May 1, 2022 through April 30, 2023
Year 2: May 1, 2023 through April 30, 2024
Year 3: May 1, 2024 through April 30, 2025
Year 4: May 1, 2025 through April 30, 2026
Year 5: May 1, 2026 through April 30, 2027
Price will remain firm for the first two (2) years of the contract. Price increases for subsequent contract years three (3) through five (5) shall not exceed the Consumer Price Index (CPI) in any one contract year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by CONTRACTOR in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the City.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration:

4. LIABILITY INSURANCE:

The CONTRACTOR shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the Risk Manager. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of CITY by registered mail, return receipt requested, for all of the following stated insurance policies. (a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 aggregate for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; #2..
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39 independent Contractors and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Waiver of Subrogation - Form required
(e) Additional Insured Status-endorsement – The City of Modesto its officers, officials, employees, agents and volunteers are to be covered as additional insureds.

For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

The successful bidder shall maintain proper insurance with the City for the duration of the contract.

5. PAYMENT:

CONTRACTOR shall invoice CITY on a monthly basis. All invoices shall be paid in full within thirty (30) days after completion and acceptance of the service by the City, and receipt of a properly #2..
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40 prepared invoice in duplicate, subject to cash discounts allowed and stated in this proposal document.

The City is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

At a minimum invoice shall state the following:
• Reference Annual Agreement #: _____________________
• City department/division name and address
• Billing period
• Unit price, extended price, sales tax and total

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

In the indemnity clause contained herein CONTRACTOR agrees to defend, indemnify and hold CITY harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third party #2..
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41 suits, arising out of or relating to the operation of CITY owned vehicles by CONTRACTOR’S employees is apportioned to CONTRACTOR in accordance with the provisions contained in Indemnity 6.

7. ARBITRATION:

Any dispute or claim arising or related to this Agreement, its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One Arbitrator shall be selected using AAA procedures. The Arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The Arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The Arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto, California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

8. GOVERNING LAW:

9. COMMENCEMENT AND COMPLETION OF THE WORK:
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42 The work contemplated herein shall be commenced as soon as possible after receipt of the Notice to Proceed for this contract. The Notice to Proceed shall not be issued until the contract administrator receives and has on file:

Proofs of insurance (approved by Risk Management);
Executed Agreement;
a. Resolution No. ____________ attached hereto as Exhibit “A” and made a part hereof; b. Bid Submittal, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof;

10. TERMINATION OF SERVICES:

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, #2..
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43 the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, sub-contractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subContractors, but in no event shall recovery by any CONTRACTOR or subContractor include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the Work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work; h. If City so requests, and at City's cost, CONTRACTOR shall provide sufficient oral or written status reports to make City reasonably aware of the status of CONTRACTOR’S work on the project.
i. The CONTRACTOR understands and agrees that City may, in City's sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR’S #2..
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44 services which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the CONTRACTOR to appeal the City Manager, or his/her designee’s, decision to the City Council. The CONTRACTOR shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

11. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and herein referred to, will comply with all federal, state, county #2..
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45 and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

12. CONTRACT DOCUMENTS:

The complete contract between the parties hereto consists of this agreement, and all exhibits, and the following documents which are incorporated herein by this reference:
a. Resolution No. ____________ attached hereto as Exhibit “A” and made a part hereof; b. Response to Request for Bid (RFB) and Specifications NO. 2021-46RB For Discing & Flail Mowing Services, attached hereto as Exhibit “B” and made a part hereof; c. RFB 2021-46RB, attached hereto as Exhibit “C” and made a part hereof; d. Proof of Insurance
e. Business License
f. Attachment “A” with Site Maps
These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division). All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

13. NOTICES:

CONTRACTOR _______________________
_______________________
_______________________
CITY: City of Modesto
Purchasing Division
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46 P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

14. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the contract and has/have full authority to execute this contract.

15. ASSIGNMENT:

Neither this agreement nor any portion thereof shall be subcontracted or assigned without the written consent of the CITY in each and every instance.

16. WAIVER.

17. HEADINGS NOT CONTROLLING.

Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement

18. MISCELLANEOUS:

Time is of the essence in every provision of this contract.

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Consultant and City.

Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No #2..
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47 future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

20. PARTIAL INVALIDITY.

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by City Manager and attested by its City Clerk under authority of Resolution No. _________, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2021 and _____________________has caused this Agreement to be duly executed. #2..
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48 CITY OF MODESTO, CONSULTANT
A municipal corporation
By:__________________________ By:_________________________________ JOSEPH P. LOPEZ (Signature)
CITY Manager
By:_________________________________
(Name & Title)
ATTEST: Date:_______________________________
By:______________________ By:_________________________________ DANA SANCHEZ (Signature)
Interim City Clerk
_________________________________
(SEAL) (Name & Title)
Date:_______________________________
APPROVED AS TO FORM:

By:_________________________________
JOSE M. SANCHEZ
City Attorney
By:_____________________________
CHRISTINA D. ALGER
Director of Human Resources (Risk)
Signature Requirements
Corporation:

1.Signature of two (2) officers
or

2.Signature of one (1) officer plus the
corporate seal.

Partnership: Signature of one partner
Sole Proprietorship: Signature of proprietor
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MOWING - (SITES 1-26)
NO. Location mowing
1 blue gum ave site 1.45 ac
2 carpenter road (east) site 14 ac
3 carpenter road (west) site 29.75 ac
4 claratina avenue site (1 of
2)

4.2 ac
5 claratina avenue site (2 of
2)

4.2 6 crater avenue (west) site 1 ac
7 dry creek - mclure site 11Ac
8 dry creek - trees for tots
site (1 of 4)
9 dry creek - trees for tots
(2 of 4)
10 dry creek - trees for tots
site (3 of 4)
11 dry creek - trees for tots
site (4 of 4)
12 frazine road site - water
dept

12.25 ac
13 gateway park site 50.5 ac
14 hetch hetchy site (1 of 5) 3 ac
15 hetch hetchy site (2 of 5) 7 ac
16 hetch hetchy site (3 of 5) 3.5 ac
17 hetch hetchy site (4 of 5) 7.5 ac
18 hetch hetchy site (5 of 5) 6.25 ac
19 legion park site 13 ac
20 litt road site - water dept 19.5 ac
21 mary grogan park site 16 ac
22 neece drive site 1 ac
23 trrp bird sanctuary site 14 ac
24 trrp park entrance site 7 ac
25 trrp podesto site 3 ac
26 trrp undeveloped picnic
area site
7 ac
TOTAL for sites 1-26
$700.00
$32,135
$300.00 $750.00 $600.00
$4,250.00 $4,262.50
$1,400.00 $3,500.00 $2,800.00
$700.00 $1,750.00 $1,400.00
$1,600.00 $3,000.00 $3,200.00
$100.00 $850.00 $200.00
$1,300.00 $2,600.00 $2,600.00
$1,950.00 $3,100.00 $3,900.00
$750.00
$2,200.00 $2,450.00
$1,500.00 $1,500.00
$625.00 $1,250.00 $1,250.00
$700.00 $1,400.00 $1,400.00
$350.00 $700.00 $700.00

85.25 ac
$100.00 $1,200.00 $200.00
$1,100.00 $2,000.00 $2,200.00
$2,131.25 $4,250.00 $4,262.50
$2,131.25 $4,250.00 $4,262.50
$2,131.25 $4,250.00 $4,262.50
$2,131.25
$1,400.00
$66,130 $64,268
$1,750.00
$2,975.00
$420.00
$420.00
$1,100.00 $290.00
$2,800.00 $2,800.00
$5,300.00 $5,950.00
$840.00 $840.00
$840.00 $840.00
$5,050.00 $10,100.00 $10,100.00
$300.00 $600.00 $600.00
$1,225.00
cost (per service) cost (per service) cost (per service) $145.00
$1,400.00

COST ABSTRACT
RFB 2021-46RB for discing & flail Mowing Services
Elite Maint & Tree Svc Jet Ag, Inc Truland
clovis, ca Modesto, CA Oakdale, ca
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RANKING 1 3 2
DISCING SVC'S (SITES 1-13)
NO. location mowing
1 Carpenter Road (East) Site 47.75 ac
2 claus road expressway
site (1 of 3)
5 ac
3 claus road expressway
site (2 of 3)

11.5 ac
4 claus road expressway
site (3 of 3)

6.5 ac
5 garst road site 8.25 ac
6 gomes property site 9 ac
7 john stsreet (bellenita
park) site

6.75 ac
8 legion park site 16 ac
9 neece drive site 10.5 ac
10 robertson road site 27.75 ac
11 sutton park site 26 ac
12 transit (amtrak) site 1.6 ac
13 trrp undeveloped picnic
area site

6.5 ac
RANKING 1 2 3
TOTAL for sites 1-13 $18,310.00 $25,000.00 $41,197.50
$160.00 $590.00 $360.00
$650.00 $1,000.00 $1,462.50
$675.00 $1,100.00 $1,518.75
$1,600.00 $3,200.00 $3,600.00
$1,050.00 $1,850.00 $2,362.50
$2,775.00 $4,000.00 $6,243.75
$2,600.00 $4,000.00 $5,850.00
$825.00 $1,280.00 $1,856.25
$900.00 $1,300.00 $2,025.00
$1,150.00 $1,840.00 $2,587.50
$650.00 $1,040.00 $1,462.50
$4,775.00 $3,000.00 $10,743.75
$500.00 $800.00 $1,125.00
Elite Maint & Tree Svc Jet Ag, Inc Truland
cost (per service) cost (per service) cost (per service)

COST ABSTRACT
RFB 2021-46RB for discing & flail Mowing Services
clovis, ca Modesto, CA Oakdale, ca
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

February 14, 2022
Date: January 26, 2022
TO: Safety & Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
FROM: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods SUBJECT: First Amendment to the Memorandum of Understanding between the La Loma Neighborhood Association and the City of Modesto for the Native Plant Garden on Encina Avenue
CONTACT: Kelly Gallagher, Park Operations Manager, [email protected], 209- 342-2270
DESCRIPTION:

Consider approving the First Amendment to the Memorandum of Understanding (MOU) between the La Loma Neighborhood Association and the City of Modesto for the Native Plant Garden on Encina Avenue, extending the term of the MOU from March 28, 2022 to March 28, 2027, and forwarding to Council for approval. (Funding Source: General Fund and Water Fund) STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto 2020-2025 Strategic Plan Area of Focus: Quality of Life and Governance and Service Delivery.

BACKGROUND:

In June 2016, staff met with the La Loma Neighborhood Association (LLNA) to discuss improvements on a City-owned parcel north of Encina Avenue between Conejo Avenue and Phoenix Avenue. The LLNA developed a plan to install a Water Conservation / Native Plant Garden in this area.

Beginning October 13, 2016, the LLNA hosted several public meetings to discuss the project with residents in the area. As a result, the LLNA made adjustments to include the community’s input into the final design before presenting it to the City.

On March 7, 2017, the City entered into a five-year Memorandum of Understanding (MOU) with the LLNA to install a native plant garden on Encina Avenue. The garden would consist of native plants to the area and be designed to conserve water.
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Safety & Communities Committee, February 14, 2022
First Amendment to the Memorandum of Understanding between the La Loma Neighborhood Association and the City of Modesto for the Native Plant Garden on Encina Avenue Page 2 of 3 Per the MOU, the LLNA was responsible for design, construction, and ongoing maintenance of the garden. The City was responsible for water service and minimal maintenance such as tree trimming, green waste and trash pickup.

DISCUSSION:

The MOU is now in its final year. Due to the ongoing success of the garden, the City and LLNA desire to exercise the one (1) five-year extension through 2027. In this extension, all obligations remain the same for LLNA to continue to maintain the garden as outlined in the original MOU.

The City’s obligations will mostly remain the same with one additional task: the City will assist in maintenance of the garden twice per year using two (2) Maintenance staff for eight (8) hours each.

The City’s fiscal impact will increase by $1,413 to cover the in-kind staff support and will be funded by the Park Operations operating budget. Under the amended MOU, the City will fund the following:
 Garden Maintenance: bi-annual Garden maintenance using two Maintenance staff at eight hours each and fully funded by the Park Operations budget  Water service: water service for one 2-inch (2”) meter  Tree Trimming: service as needed and fully funded by the Forestry Division operating budget
 Green Waste and Trash pickup: service as needed and fully funded by the Park Operations budget
 Grant Applications: staff time spent on applying to appropriate grants as available and as time permits
FISCAL IMPACT:

The current costs of the City’s Services are outlined below:
 Water Service: The cost of water service for the past 12 months is $3,096 (or approximately $258 per month) and is funded by the Water Fund - Water Operations division.
 Tree Trimming: There has not yet been any tree trimming service, because Forestry is on an eleven-year pruning cycle. Should there be any emergency work needed, all staff time will be absorbed by the Forestry division.
 Green Waste and Trash pickup: The cost of Green Waste and Trash pickup is estimated at approximately $1,000 and is funded in the General Fund - Park Operations division.  Grant Applications: There are currently no grant applications process for the Garden. As such, there are no costs being incurred. However, should an application be submitted, all staff time for that project will be absorbed in the Parks Planning division.

An increase of $1,413 to Park Operations’ costs associated with this MOU is the only increase in cost to the City.

Approved by:

Laurie A. Smith, Director of Parks, Recreation &
Neighborhoods
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Safety & Communities Committee, February 14, 2022
First Amendment to the Memorandum of Understanding between the La Loma Neighborhood Association and the City of Modesto for the Native Plant Garden on Encina Avenue Page 3 of 3 _________________________________________
Joseph P. Lopez, City Manager
Attachments:

1. First Amendment to MOU – LLNA and City

2. Memorandum of Understanding – LLNA and City
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1 FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING BETWEEN CITY

OF MODESTO AND

LA LOMA NEIGHBORHOOD ASSOCIATION
FOR THE LEASE OF LAND BETWEEN N. CONEJO AVENUE AND PHOENIX AVENUE (APN #116-006-042 AND APN # 034-022-069)
THIS FIRST AMENDMENT (this “FIRST AMENDMENT”) amending that certain Memorandum of Understanding (“MOU”) dated March 28, 2017, by and between the City of Modesto (the “CITY”), a California charter and La Loma Neighborhood Association (“Association”), a member of Modesto Neighborhoods, Inc., a California 501(c)(3) nonprofit organization (as amended, the “MOU”) is entered into this ______ day of ___________, 2022, by and between the CITY and the Association. The CITY and the Association are collectively referred to herein as the “Parties.” RECITALS:

WHEREAS, the CITY and the Association entered into the MOU for the lease of a parcel in the City located north of Encina Avenue between the streets of N. Conejo Avenue and Phoenix Avenue (APN # 116-006-042 and APN # 034-022-069), Modesto, California (“Property”); and
WHEREAS, Section II. B. of the MOU states that at the sole discretion of the City, the Term of the lease may be extended for an additional five (5) years beyond the initial five (5) year term of the lease; and
WHEREAS, the CITY desires to exercise its option to extend the term of the lease by an additional five (5) year term; and
WHEREAS, the Parties agree that increased maintenance provided by the CITY would be beneficial to the operation of the garden located on the Property; and WHEREAS, the Parties wish to amend Exhibit D to this MOU to reflect the mutual desire for increased staffing and maintenance provided to the Property by the CITY.

NOW, THEREFORE, in consideration of their mutual promises and the terms, conditions, and covenants hereinafter specified, the Parties desire to amend the Agreement as follows:

AGREEMENT
Section 1. The recitals above are true and correct and herein incorporated by reference.
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2 Section 2. Section II. B. of this MOU entitled “Terms of Lease” is hereby amended as follows (strikethrough is delete, italics is addition):
“The CITY maintains ownership of the Property and agrees to lease the land to the ASSOCIATION at no cost for the purpose of developing the Garden for a period of five (5) years, with the option to extend the lease for an additional period of five (5) years, at the City’s sole discretion beginning March 28, 2017, and terminating March 28, 2027.”
Section 3. Exhibit D to this MOU is hereby amended as follows (strikethrough is delete, italics is addition):
“ENCINA AVENUE WATER CONSERVATION / NATIVE PLANT GARDEN

CITY MAINTENANCE RESPONSIBILITY

1. City of Modesto Responsibility:
a. General Maintenance: City of Modesto shall provide regular maintenance of the existing asphalt pathway through the area. Twice a year, City will also provide two Maintenance Workers at eight (8) hours each for regular maintenance of the Garden.
b. Water Service: City of Modesto will provide and maintain a suitable water service supply (supplied from existing City water sources) and point of connection (POC) for the irrigation system. The City of Modesto Water Division has also agreed to cover the cost of water for the term of this agreement.
c. Tree Trimming: City of Modesto, Urban Forestry Division will provide tree trimming services during its regularly scheduled service cycles (this includes trees planted on the project site and the existing oak trees on the western portion of the project). Additional tree trimming service needs will be considered upon request by the La Loma Neighborhood Association and with the approval of the City of Modesto, Urban Forestry Division Manager.
d. Green Waste: City of Modesto will provide opportunity for green waste disposal per the published City of Modesto Yard Trimming Collection & Street Sweeping Monthly Schedule
e. Trash Pickup: City of Modesto will collect the trash that is deposited in the two standard trash receptacles provided by the City. Trash will be collected at a regular schedule. The schedule shall be at least once a month or as determined by the City of Modesto Parks Operations Manager.
f. All maintenance not outlined in this Exhibit will be the responsibility of the Association. The Association maintenance shall include, but not be limited to, responsibilities outlined in Exhibit ‘C’.”
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3 Section 4. Except as modified and amended by this First Amendment to the MOU, all other provisions of the MOU remain unchanged and in full force and effect.

SIGNATURES ON FOLLOWING PAGE
5049255.3
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MEMORANDUM OF UNDERSTANDING
THIS Agreement, made and entered into on March 28, 2017, effective as of the last signature herein, in the City of Modesto, State of California, ("Effective Date") by and between the CI1Y OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as the "CI1Y," and the L'l Loma Neighborhood Association, a member of Modesto Neighborhoods, Inc., a California 501(c)(3) nonprofit organization, hereinafter referred to as "ASSOCIATION". The City and Association shall be collectively referred to as the "parties." I. Recitals
This Memorandum of Understanding is made with regard to the following Recitals:

WHEREAS, the CI1Y owns and maintains a parcel in the CITY located north of Encina Avenue between the streets of N. Conejo Avenue and Phoenix Avenue (APN #116-006-042 and 034-022-069)Modcsto California ("Property"); and
WHEREAS, the ASSOCIATION desires to enhance this property with the installation of a Water Conservation/ Native Plant Garden ("Garden'') as more accurately described in Exhibit A attached hereto and hereinafter incorporated by reference; and WHEREAS, the CITY has made a strategic commitment to develop and maintain a vibrant infrastructure and sustainable environment; and
WHEREAS, the CITY and the ASSOCIATION wish to affirm and formalize the understanding between the parties related to the ASSOCIATION's use of the Property north of Encina Avenue; and
WHEREAS, with the understanding that ASSOCI.A TION docs not have insurance and it is not feasible for ASSOCIATION to obtain insurance coverage for this Project, the CI1Y agrees to take its normal liability as it relates to the use of the constructed project by the public. This liability shall be limited during the construction and maintenance operations of the Project as outlined in this MOU.

WHEREAS, this MOU has no effect on the use of the adjacent land along Encina Avenue (APN# 116-006-043) by the ASSOCIATION, shall they choose to include said parcel as part of the Garden. ASSOCIATION has full responsibility to obtain permission to use said land for a portion of the Garden.

WHEREAS, the parties intend this MOU to be binding and enforceable in a court of law.

II. Terms
NOW THEREFORE, in consideration of this Memorandum of Understanding, and the mutual promises, covenants and stipulations hereinafter contained, the parties agree as follows:
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A. Recitals.

The parties agree that the aforementioned recitals are true and correct and are incorporated into the terms of this Memorandum of Understanding.

B. Terms of Lease.

The CITY maintains ownership of the Property and agrees to lease the land to the ASSOCIATION at no cost for the purpose of developing the Garden for a period of five (5) years, with the option to extend the lease for an additional period of five (5) years, at the City's sole discretion.

C. Use of Property.

1. Prior to installation of the Garden the ASSOCIATION shall secure the services of a design professional to prepare any construction documents. AU documents and specifications prepared by the design professional must meet the minimum standards as set forth by the Parks Planning & Development Division of the Parks, Recreation & Neighborhoods Department of the City of Modesto attached hereto and hereinafter incorporated by reference as Exhibit B.

2. The ASSOCIATION agrees that any and all structures built on the Property shall require a building pcnnit to be pulled and building inspection conducted by the CITY. The ASSOCIATION also agrees that no structures are being considered under this MOU.

3. The ASSOCIATION shall cause to be installed an educational Water Conservation / Native Plant Garden, as described in Exhibit A, on the Property at its own expense.

4. The ASSOCIATION agrees to conduct any maintenance of the Garden, which includes but is not limited to those items outlined in Exhibit C, which is attached hereto and hereinafter incorporated by reference. The ASSOCIATION shall conduct said maintenance at its own expense.

5. The CITY will provide minimal maintenance through its Park Operations Division of the Public Works Department, which includes only those items listed in Exhibit D, which is attached hereto and hereinafter incorporated by reference.

6. The CITY agrees to provide a 1" water service, 1" water meter and necessary water at no cost to the ASSOCIATION for the term of this agreement.

7. Both parties agree that the hours of use (operation) of the Garden shall be from dusk to dawn on any day of the year and no organized activity shall occur outside of these set hours of operation.
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D. Termination of Lease and Use.

Should the ASSOC IA TI ON fail to maintain the Garden at minimum standards they will be issued a "notice of non-compliance" with this Agreement. The ASSOCIATION will have 30 days from the receipt of the notice to provide an updated maintenance plan to the Parks, Recreation & Neighborhoods Department and to resume regular maintenance. If the ASSOCIATION does not comply with the notice, the CITY shall have the right to immediately terminate this Agreement and to remove all improvements to the Property returning the Property to its original state.

The CITY or the ASSOCIATION shall be able to terminate this Agreement, for any reason, upon ninety (90) days written notice to the other party. If the agreement is terminated by either party the CITY shall have the right to remove all improvements to the Property returning the Property to its original state.

E. Insurance.

ASSOCIATION shall ensure that any and all design professionals, contractors or organizations working on the Project performing construction or maintenance, provide at their own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to City as may be required by the City Manager of City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of City by registered mail, return receipt requested. for all of the following stated insurance policies.

1. 2.

3. 4.

General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and $1,000,000 for property damage or $1,000,000 combined single limit. 1bis insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad fonn contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and $100,000 for property damage or $1,000,000 combined single limit. 1bis insurance shall cover any automobile for bodily injury and property damage.

Workers Compensation in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.

The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work perfonned on the Project. The insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limit'ltions to coverage provided to additional insured; and, shall be placed with insurer(s) ,vith acceptable Best's rating of A:VII or with approval of the Risk 3 #3..
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Manager. Certificates must be delivered evidencing existence of the insurance listed above to the CITY prior to the time the contract is signed.

5. Contractors or Organizations shall provide CITY with separate endorsements evidencing proof of the CilY's additional insured status as to both the general liability and automobile liability insurance policies. In addition, Contractors or Organizations shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to CITY. ASSOCIATION shall promptly ensure contractors or organizations obtain a new policy, submit the same to Risk Manager of CITY for approval and submit a certificate thereof as herein above provided. Upon failure of ASSOCIATION to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended or terminated. Failure of ASSOCIATION to ensure contractors and organizations obtain and/or maintain any required insurance shall not relieve ASSOCIATION from any liability under this Agreement.

F. Volunteer Waivers.

The ASSOCIATION agrees to ensure tl1at all volunteers performing design, construction or maintenance on the Project sign a waiver of liability as required by the CITY. This waiver will be provided to the CITY shortly after the execution of the waiver and will limit the liability for the CI1Y in respect to the construction and maintenance of the project.

G. Compliance With Laws.

The ASSOCIATION and its agents shall not do or suffer to be done on or about the Property anything that would or does violate or conflict with any applicable law, ordinance, rule or regulation which is now in force or effect or which may hereafter be enacted or adopted by federal, state, county or municipal authority.

H. Partnership Disclaimer.

It is mutually understood and agreed that nothing in this agreement is intended or shall be construed as in any way creating or establishing the relationship of co-partners between the parties hereto, or as constituting the ASSOCIATION as agents or representatives of CITY for any purpose or in any manner whatsoever.
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I. Entire Agreement.

This Memorandum of Understanding contains the sole and only agreement of the parties. Any prior agreements, promises, negotiations or representations not expressly set forth in this Memorandum of Understanding are of no force or effect.

J. Notices.

All notices pursuant to this Memorandum of Understanding shall be in writing and served on the other party (a) by personal delivery, or (b) by certified mail, return receipt requested, to the respective addresses set forth below:

CITY: Department Head
Parks, Recreation & Neighborhoods
1010 Tenth Street, Suite 4400
Modesto, CA. 95353
ASSOCIATION: La Loma Neighborhood Association
1112 Highland Drive
Modesto, CA. 95354
K. Amendments.

This Memorandum of Understanding, including any exhibits hereto, shall not be amended, except in writing and signed by the parties. Any amendment or addendum to this Memorandum of Understanding shall expressly refer to this agreement.

L. No Limitation on Property Rights.

Nothing contained herein shall limit or restrict the CITY'S ownership of the Property and the ASSOCIATION may continue use of the Property until such time as the CITY with notice to the ASSOCIATION per Section 11-D of this MOU, disposes of the Property, such time as the CITY desires to use the Property for another purpose, or this Agreement is terminated. The parties agree that this Memorandum of Understanding does not vest any property rights with the ASSOCIATION.

M. Governing Law.

This Agreement shall be governed according to the laws of the State of California and venue shall be proper in Stanislaus County Superior Court.
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2017• 103 , adopted by the Council of the City of Modesto on the 28th day of March, 2017, and La Loma Neighborhood Association has caused this agreement to be duly executed in duplicate as of the Effective Date

CITY OF MODESTO
a municipal corporation
LA LOI'vIA NEIGHBORHOOD

ASSOCIATION
a California nonprofit organization
- . .

By:

City Manager aaD.....-e __ b..,,.,..ra""'h"'s""'t_e_i n~b_e_r_g_, -P-re-s-id-ent ATTEST:

APPROVED AS TO FORivI:

APPROVED AS TO RISK
MANAGEMENT FORM:

By::~"£.f:2::t.~~~~l:7--....!:G':::.j...!L'/f __ _
Beverly Jensen, Risk l'v
2767372.1
6 (Seal)
• Co,poratio111 - J{~Jli//111'1! of ,u,,, (2) ojfi,m rrq11irrd or om (1} ef/i,rr p/111 ro,poral, sr,1/
Pt,rtmrship • l{~/111/11,r of II p,1rt1ur f'l!fJ11irrd
Sole Proprietorship - sig11at11re of proprietor
required
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EXHIBIT 'A'

ENCINA AVENUE WATER CONSERVATION/ NATIVE PLANT GARDEN

PROJECT DESCRIPTION

1. Project Design:
a. Association shall provide a landscape design for the garden to the Parks Planning and Development Division for review and approval. The design shall include, but not be limited to, the following:
i. Grading plan
ii. Decomposed granite trail layout and details
iii. Other site development layout and details
iv. Planting plan and details
v. Irrigation plan and details
vi. Water use calculations
b. Design shall meet the minimum standards as set forth by the Parks Planning and Development Division.

2. Project Scope of Work:
a. Site Preparation:
i. Weeding: City shall spray weed killer once prior to the installation of the Garden.
ii. Tractor & Ground Work: Association to clear the site of existing unwanted vegetation and ground debris prior to beginning of project installation.
iii. Grading: Association agrees to grade the site to ensure that no irrigation or rain water leaves the site. In addition, swales may be constructed per City of Modesto requirements if desired. The trail shall be constructed in such a way that standing water does not collect on the trail surface or its edging.
iv. Irrigation & Line Trenching: Association to complete all trenching necessary for installation of an automatic irrigation system as deemed necessary by the City of Modesto. City shall provide water service for the project and Association shall be responsible for any electrical service required for the project. The Association shall also remove the water connection to the adjacent homeowner to the vegetable garden located on the project site and connect the vegetable garden to the new water service and automatic irrigation system installed.
v. Irrigation System: Irrigation system to be installed by Association per City of Modesto, Landscape Design Standards and
Specifications and the State of California Water Efficient Landscape Ordinance
vi. Oak Tree Trimming: City agrees to trim the oak trees at the west side of the project prior to the start of construction to ensure access for construction equipment.

A-1
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b. Site Construction: All site construction, unless otherwise indicated, will be paid for by the Association.
i. Plant Materials:

1. The garden may include areas that could include a
rock/succulent area, a wildflower meadow, all-star perennial area, grass swirls, groundcover patch, bird habitat and pollinator habitat.

2. City agrees to plant trees on the project site as part of its contribution to the project.

3. Association agrees not to plant landscape materials that have been determined poisonous to humans or household
pets nor plant materials listed as "invasive" or "potentially invasive" species.

4. All planting areas shall have 3" of mulch material installed.

5. Association agrees to select plant materials listed as low water use plants per the State of California WUCOLS IV; (Costello, LR. and K.S. Jones. 2014. WUCOLS IV: Water
Use Classification of Landscape Species. California Center for Urban Horticulture, University of California, Davis), 41 h
Edition. Consideration for all plant materials shall comply with project intent to install:
a. A water conservation demonstration garden and shall
take into consideration appropriate growth habits,
product availability to citizens, native locality and
water use needs.
b. Landscape plant materials that require regular
shearing to maintain shape and form are to be heavily
discouraged and/or prohibited.
c. Landscape plant materials shall be minimum 50%
California native plants suitable to the microclimate
conditions of the project site.
d. Landscape plant materials that provide for a variety of landscape appeal, year round and seasonal interest.
ii. Landscape Site Elements May Include:

1. Plant Identification Tags: Ground Level Postings and/or Informational Flyers shall be allowed as approved by the City of Modesto, Park, Recreation and Neighborhoods
Department.

2. Signage: Up to two signs may be constructed identifying project site by a name agreed upon by both parites. All signage shall meet City of Modesto Landscape Design
Standards and Specifications.

3. Pathways: All new pathways to be constructed of a minimum of 4" of decomposed granite fines and installed with edging per the City of Modesto, Landscape Design Standards and Specifications.

A-2
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4. Sponsor Signage: Sponsor signage shall be allowed as approved by the City of Modesto, Parks, Recreation and
Neighborhoods Department.

5. Bulletin Board: Postings shall be reviewed and approved by the Parks, Recreation and Neighborhoods Department prior to posting on the informational board.

6. Existing Wood Posts: Association shall be permitted to remove the existing wood posts at the Vegetable Garden.

7. Existing Bollards: City will maintain existing bollards at the existing Asphalt Trail and agrees to replace at least one bollard with a removable type bollard to allow limited access to the project site via the Asphalt Trail.

8. Vegetable Garden: Association agrees to be responsible for the existing vegetable garden which is incorporated as part of this agreement scope.

9. Trash Receptacles: City to provide two standard trash receptacles for liter refuse.

3. Potential Garden Partners: Any and all garden partners shall be required to provide liability waivers for any volunteers or certificate of insurance that meets the requirements outlined in the MOU.
a. Modesto Junior College
b. Modesto Native Plant Society
c. Modesto Garden Club
d. La Loma Junior High School
e. Orchard Supply Hardware

4. Potential Funding Sources:
a. Grants: City agrees to apply for appropriate grants as time permits to assist Association in its endeavor. There is no guarantee that City will have time to apply for grants or that City will be successful in obtaining grant funding.
b. Donations: Donations shall be the main source of funding for the project. c. Community Resource: Community resources whether it be donations of services or materials by contractors or volunteer work efforts are anticipated to be used heavily on this project by the Association to accomplish its goals.

5. Project WorkersNolunteers:
2767373.1
a. Signed Waivers: All project volunteers for site preparation, site construction or site maintenance shall sign and provide to City of Modesto, Parks, Recreation and Neighborhoods Department a waiver of liability. b. Insurance Requirements: All organized groups, contractors, businesses, etc, shall provide the City with Certificate of General Liability Insurance, Automobile Insurance and Workers Compensation as outlined in the MOU.

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EXHIBIT 'B'

ENCINA AVENUE WATER CONSERVATION/ NATIVE PLANT GARDEN,

MINIMUM DEVELOPMENT STANDARDS

1. Minimum Development Standards: All project development must meet the City of Modesto, Standard Specifications, the State Model Water Efficient Landscape Ordinance and any requirements set forth by the Parks Planning and Development Division during plan review or construction.

B-1
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EXHIBIT 'C'

ENCINA AVENUE WATER CONSERVATION/ NATIVE PLANT GARDEN

LA LOMA NEIGHBORHOOD ASSOCIATION MAINTENANCE RESPONSIBILITY

1. Encina Avenue Water Conservation/ Native Plant Garden Community Project Association Responsibility:
a. General Maintenance: Landscape garden including the vegetable garden area shall be maintained and repaired per the City of Modesto Landscape Design Standards and Specifications; including but not limited to the guidelines below.
b. Green Waste Management:
i. Bulk Curbside: Bulk curbside green waste collection shall be coordinated with the City of Modesto Yard Trimming Collection & Street Sweeping Monthly Schedule; and shall comply with published waste collection guidelines.
ii. Regular Trash Pickup: Association shall ensure trash is deposited into the two trash receptacles located on the project site. c. Decomposed Granite Trail:
i. Weed Removal: The Decomposed Granite Trail shall be kept clear of weeds, invasive plant materials, unintended organic growth or litter at all times.
ii. Weed Abatement: Abatement may be addressed via use of consumer retail over the counter spray weed killers and/or preemergent products. Use of commercial grade products is prohibited. Follow all manufactures specification pre, during and post any application periods.
iii. Trail Maintenance: The trail surface shall be maintained at all times with a safe, smooth and flat surface devoid of any holes, sunken areas or unsafe conditions. Additional decomposed granite shall be added as necessary.
iv. Trail Edge: The trail edge treatment shall be maintained in a safe condition at all times and the edge of the trail shall not have a drop off of more than 1" at any time during the term of this agreement. d. Bulletin Board and Signage:
i. General Maintenance: The Bulletin Board and other signage (including, but not limited to, donor signage and plant identification tags) shall be maintained at all times to be in good condition. Sign shall not be decaying and shall be readable at the distance it was intended to be read from.
e. Chemical Spray Treatment(s}: During all applicable periods, when chemical sprays including but not limited to application of over the counter weed and pest abatement product, ground control or otherwise are in use at the garden there shall be a clearly posted "Warning" sign at all prominent patron entry locations identifying what product is in use and the duration of which any hazard is/will be present.

C-1
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f. Landscape Plant Material Maintenance:
i. Weed Removal: The landscape garden area shall be kept clear of weeds, invasive plant materials, unintended organic growth or litter at all times.
ii. Weed Abatement: Abatement may be addressed via use of consumer retail over the counter spray weed killers and/or preemergent products. Use of commercial grade products is prohibited. Follow all manufactures specification pre, during and post any application periods.
iii. Insect Abatement: Abatement may be addressed via use of consumer retail over the counter spray insect killers, prevention products. Use of commercial grade products is prohibited. Follow all manufactures specification pre, during and post any application periods.
iv. On-Site Composting: On site composting shall be allowed in a designed composting area as approved by the City of Modesto. v. Replacement of Dead or Dying Plant Materials: Landscape plant materials shall be kept in strong healthy condition. Plants materials that are dead or dying shall be replaced with new or alternate variety that complements the design intent/design. In the event plants are removed and not replaced. Void space shall be covered and maintained with groundcover mulch.
vi. Groundcover Mulch: All landscape planted areas shall be maintained with minimum 3" thick wood mulch per City of Modesto Landscape Standard Details and Specifications.
vii. Garbage and Waste Refuse: The landscape garden area shall be kept clear and clean of trash refuse and waste debris.
g. Irrigation Maintenance:
i. Irrigation Over Watering:

1. At no time shall irrigation water be permitted to run out of planter areas, into streets or onto sidewalks.

2. All landscape watering and irrigation use shall comply with City of Modesto published Water Conservation Program.
ii. Irrigation System:

1. The irrigation system shall be maintained at all times in a fully operational condition and any damage to the irrigation system for any reason at all shall be repaired within one week of identification of need.

2. Irrigation shall be programed to run automatically with a weather adjusting controller.
iii. Irrigation Watering Days:

1. All landscape watering and irrigation use shall comply with City of Modesto published Watering Schedule.

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EXHIBIT 'D'

ENCINA AVENUE WATER CONSERVATION/ NATIVE PLANT GARDEN

CITY MAINTENANCE RESPONSIBILITY

1. City of Modesto Responsibility:
a. General Maintenance: City of Modesto shall provide regular maintenance of the existing asphalt pathway through the area.
b. Water Service: City of Modesto will provide and maintain a suitable water service supply (supplied from existing City water sources) and point of connection (POC) for the irrigation system. The City of Modesto Water Division has also agreed to cover the cost of water for the term of this agreement.
c. Tree Trimming: City of Modesto, Urban Forestry Division will provide tree trimming services during its regularly scheduled service cycles (this includes trees planted on the project site and the existing oak trees on the western portion of the project). Additional tree trimming service needs will be considered upon request by the La Loma Neighborhood Association and with the approval of the City of Modesto, Urban Forestry Division Manager.
d. Green Waste: City of Modesto will provide opportunity for green waste disposal per the published City of Modesto Yard Trimming Collection & Street Sweeping Monthly Schedule
e. Trash Pickup: City of Modesto will collect the trash that is deposited in the two standard trash receptacles provided by the City. Trash will be collected at a regular schedule. The schedule shall be at least once a month or as determined by the City of Modesto Parks Operations Manager.
f. All maintenance not outlined in this Exhibit will be the responsibility of the Association. The Association maintenance shall include, but not be limited to, responsibilities outlined in Exhibit 'C'.
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Safety and Communities CommitteeFebruary 14, 2022

Safety and Communities Committee
February 14, 2022