Agenda packet, first session — Modesto City Council, March 8, 2022 (part 6 of 7)

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. #25..
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City Council, March 8, 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
COMMITTEE RECOMMENDATION:

This item was approved by the Finance Committee on February 14, 2022, which recommended it be forwarded to Council.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution 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 authorizing the City Manager or his designee, to execute the Agreement.

Approved by:

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

1. Resolution

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

3. Attachment A – Site Maps

4. Bid Submittal - Elite Maintenance & Tree Services

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

6. Financial Interest Disclosure

7. Cost Abstract
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03/08/2022/PRND/SMITH 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-

RESOLUTION 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 AUTHORIZING THE CITY MANAGER, OR

HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, discing and flail mowing services are needed on open fields to control the overgrowth of weeds and grasses; and
WHEREAS, 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; and
WHEREAS, 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; and
WHEREAS, 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; and
WHEREAS, the City Manager authorized the Purchasing Manager to issue a formal Request for Bids (RFB) for Discing and Flail Mowing services on June 11, 2021; and
WHEREAS, fifteen (15) vendors downloaded the RFB; and
WHEREAS, bids were formally due to the City Clerk’s office on July 20, 2021 and one bid was received; and
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03/08/2022/PRND/SMITH 2 2022-?
WHEREAS, staff evaluated the bid and determined that the original Scope of Services should be amended to make the specifications broader for a more competitive bidding process; and
WHEREAS, on November 2, 2021, by Reso. 2012-431, Council approved rejecting all bids received for RFB No. 2021-46 for Discing and Flail Mowing services and to issue the RFB at a later date; and
WHEREAS, on November 2, 2021, by Reso. 2021-432, Council approved the third amendment increasing 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, to allow time to re-issue RFB 2021-46; and
WHEREAS, the City Manager authorized the Purchasing Manager to re-issue a formal RFB for Discing and Flail Mowing Services on November 5, 2021; and WHEREAS, eighteen (18) vendors downloaded the RFB; and
WHEREAS, bids were formally due to the City Clerk’s office on December 21, 2021 and three bids were received; and
WHEREAS, staff evaluated the bids and cost abstract; and WHEREAS, staff recommends the award of bid to Elite Maintenance & Tree Services, Inc., Clovis, CA; and
WHEREAS, 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 formal bid procedures; an award of bid and agreement for Discing and Flail Mowing Services for Parks, Recreation & Neighborhoods department use to Elite #25..
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03/08/2022/PRND/SMITH 3 2022-?
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.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves 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.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Agreement in a form approved by the City Attorney. #25..
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03/08/2022/PRND/SMITH 4 2022-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 8th day of March, 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

DANA SANCHEZ, Interim City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ___________________________
JOSE M. SANCHEZ, City Attorney
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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 8th day of March, 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. #25..
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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 per year 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 #25..
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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 City Business/Delivery License No. __________ Expiration Date: ______________ Contractor License No. Expiration Date: ____________
DIR Registration No. ________________________ Expiration Date: ____________ #25..
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THE PAYMENT OF PREVAILING WAGES IS REQUIRED.

2. PREVAILING WAGES:

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

DIR Project ID# 406694.

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
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 #25..
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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:

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 #25..
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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.

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.

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 #25..
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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).

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 #25..
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CONTRACTOR must deliver certificates evidencing existence of the insurance to the City prior to the time contract is signed.

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.

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.

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 #25..
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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.

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.

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

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, 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 #25..
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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 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 #25..
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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;
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

11. TERMINATION OF SERVICES:
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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
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;
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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 #25..
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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 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:
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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 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.

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 #25..
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one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR
Derik Jakusz/General Manager
Elite Maintenance & Tree Service Inc.,
2972 Larkin Ave
Clovis, CA 93612
(559) 558-4705

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:

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.
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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.

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.

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
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CARPENTER ROAD (EAST) SITE
(Mow - 14.00 ac, Disc - 42.75 ac)
LEGEND
MOW
DISC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ATTACHMENT A
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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
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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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#25..
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#25..
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#25..
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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 #25..
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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.

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 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

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. #25..
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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. #25..
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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 #25..
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6 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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. 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

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. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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 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 $
#25..
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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):
#25..
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13 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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:
(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. #25..
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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:
#25..
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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

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. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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. #25..
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18 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-46RB

DISCING & FLAIL MOWING SERVICES

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. 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. #25..
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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. #25..
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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.

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.

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.
#25..
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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.

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.

1.2 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:

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 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 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.
#25..
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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:

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.

1.6 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.

1.7 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.

1.8 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 #25..
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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. #25..
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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.

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 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.

2.1.2 BID PRESENTATION:

Bid submittals should be presented in the order as listed in Section 2.1.2 Complete Bid Document. #25..
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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.

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 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.

2.4 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.

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.

2.6 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.
#25..
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27 2.7 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.

2.8 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.

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.

2.9 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:

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. #25..
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28 2.12 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.

2.13 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.

2.14 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.

2.15 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. #25..
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29 2.16 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.

2.17 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).

2.18 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:

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.

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 #25..
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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:

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.

2.22 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.

2.23 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.

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.

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.

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.
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32 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
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 #25..
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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 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 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 #25..
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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.

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]

2.25 SAMPLE AGREEMENT:

Please review the Sample Agreement. This Agreement may be modified and subject to change. #25..
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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; #25..
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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.

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.

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 #25..
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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:

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 #25..
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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:

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.

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, #25..
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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 #25..
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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.

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 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 #25..
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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:

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
#25..
- 1242 -
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 #25..
- 1243 -
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. #25..
- 1244 -
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
#25..
- 1245 -
#25..
- 1246 -
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
#25..
- 1247 -
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
#25..
- 1248 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
Date: February 16, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods Department 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: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department, [email protected], (209) 577-5347
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, and extending the term of the MOU from March 28, 2022 to March 28, 2027. (Fund Source: General Fund)
STRATEGIC PLAN ELEMENT:

This item is consistent with the following Strategic Plan Areas 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.

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.
#26..
- 1249 -
City Council, March 8, 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 ends

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.

COMMITTEE RECOMMENDATION:

This item was presented to the Safety and Communities Committee on February 14, 2022, which unanimously recommended it be forwarded to Council for consideration.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution 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 authorizing the City Manager, or his designee, to execute the MOU. #26..
- 1250 -
City Council, March 8, 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 ends

Approved by:

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

1. Resolution

2. First Amendment to MOU – LLNA and City

3. Memorandum of Understanding – LLNA and City
#26..
- 1251 -
03/08/2022/PRN/L.Smith 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-

RESOLUTION 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 AUTHORIZING

THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE MOU
WHEREAS, in 2016, the La Loma Neighborhood Association (LLNA), and the City of Modesto Parks and Recreation Department began discussing improvements on a parcel of City-owned land north of Encina Avenue between Conejo Avenue and Phoenix Avenue; and
WHEREAS, on March 28, 2017, by Reso. 2017-103, the City entered into a fiveyear Memorandum of Understanding (MOU) with the LLNA to install a Water Conservation / Native Plant Garden on Encina Avenue; and WHEREAS, the LLNA was responsible for design, construction, and maintenance of the garden; and
WHEREAS, the City was responsible for water service and minimal maintenance such as tree trimming, green waste and trash pickup; and WHEREAS, the MOU is in its final year and both parties intend to exercise the one five-year extension through March 28, 2027; and
WHEREAS, all obligations of the LLNA will remain the same; and WHEREAS, the City’s obligations will increase with the addition of assisting with garden maintenance, twice per year, using (2) maintenance staff for eight hours each; and
#26..
- 1252 -
03/08/2022/PRN/L.Smith 2 2022-?
WHEREAS, the current costs of City services for the Native Garden are approximately $4,100 annually and are budgeted within the General Fund and Water Fund; and
WHEREAS, the additional assistance with garden maintenance will be an additional $1,413 per year and will be budgeted within the General Fund.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the 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 and extending the term of the MOU from March 28, 2022 to March 28, 2027.and the terms and conditions contained therein.

BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the First Amendment to Memorandum of Understanding,in a form approved by the City Attorney.
#26..
- 1253 -
03/08/2022/PRN/L.Smith 3 2022-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 8th day of March, 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

DANA SANCHEZ, Interim City Clerk
APPROVED AS TO FORM:

BY: _______________________________
JOSE M. SANCHEZ, City Attorney
#26..
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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.
#26..
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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’.”
#26..
- 1256 -
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
#26..
- 1257 -

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:
1 #26..
- 1258 -
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.
2 #26..
- 1259 -
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 #26..
- 1260 -
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.
4 #26..
- 1261 -
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.
5 #26..
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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.

A-3
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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.

C-2
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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'.
0-1
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
Date: February 7, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Director of Public Works
SUBJECT: Reject Bids for Upgrade Traffic Signals 2017
CONTACT: Scott Collins, Acting Traffic Engineer, [email protected], 209-577-5431 DESCRIPTION:

Consider rejecting all bids for the Upgrade Traffic Signals 2017 Project and authorize staff to readvertise the project for bids at a future date. (Funding Source: Congestion Mitigation and Air Quality)
STRATEGIC PLAN ELEMENT:

This item is in conformance with City of Modesto Strategic Plan Area: Quality of Life Goals and Strategies: “engage partners across the community to ensure the safety, resilience, and attractiveness of Modesto”; Goal D: “provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability”.

BACKGROUND:

The Upgrade Traffic Signals 2017 project will remove all the existing traffic signal standards, conduit, wiring and traffic signals equipment at the intersections of Needham Avenue/11th Street, Paradise Road/H Street, and 1st Street/H Street. This project will also relocate the traffic signal cabinet to a more accessible area, upgrade the cabinet to current standards, install new conduit and signal interconnect cable, and upgrade pedestrian push buttons to be Americans with Disabilities Act (ADA) compliant. Additionally, this project will install Emergency Vehicle Pre-emption (EVP) and new video detection cameras at these intersections. This initiative also supports the future implementation of video detection cameras, signal performance software, adaptive software, and additional intelligent transportation system elements.

The City applied for a Congestion Mitigation and Air Quality (CMAQ) Grant for Upgrade Traffic Signals 2017 in May of 2014, and was granted approval to proceed with the project. In June of 2018, the City submitted the Request for Authorization (RFA) for Construction for Upgrade Traffic Signals 2017 project. On July 16, 2018, Caltrans signed the Authorization to Proceed (E76) for Construction authorizing use of the funds. #27..
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Council Meeting, March 8, 2022
Reject Bids for Upgrade Traffic Signals 2017 Project

Page 2 of 3 ends

DISCUSSION:

This Project was advertised for bids on December 6, 2021, having only a base bid with an engineer’s estimate of $702,896. Bids were publicly opened on January 11, 2022, pursuant to City Charter Section 1307, and seven bids were received.

The bids received were above the engineer’s estimate by approximately 55.6% due to inflation and current construction pricing. Additionally, staff was anticipating slightly higher bids as the project incorporated elements of our Traffic Signal System Master Plan. Staff has reached out to Stanislaus Council of Governments (StanCOG) and Caltrans for additional funding, but were declined.

For this reason, staff recommends rejecting all bids and re-advertising at a future date. This will allow staff to re-evaluate the construction costs and scope of work to identify any clarifications needed to the bid package and the necessary adjustments to the engineer’s estimate and project budget.

If approved, staff anticipates the re-advertisement of the project in June of 2022 with the expectation that the City will receive multiple competitive bids. Staff expects construction of this project to begin in Fall of 2022.

In accordance with Modesto Municipal Code Sec. 8-3.203, Formal Bid Procedures, the Council shall have the authority to accept or reject any or all bids. The rejection of all bids for the Upgrade Traffic Signals 2017 projects conforms to Modesto Municipal Code 8-3.203, subsection (e).

FISCAL IMPACT:

If Council approves rejecting all bids, the additional expenses to re-bid the project will be approximately $7,500.

Funding to re-bid the project is available in the current FY 2021-22 CIP budget in the existing CIP Account: 100968 – “Upgrade Traffic Signals 2017”.

COMMITTEE RECOMMENDATION:

This project was presented to the Economic Development Committee October 4, 2021 as a report on upcoming Capital Improvement construction projects and was recommended to forward to Council for future award of construction. As stated in that Committee report, as bids are received, staff will present projects directly to Council for award of construction CEQA/NEPA REQUIREMENTS:

The State has determined that this project has no significant impacts on the environment as defined by the National Environmental Policy Act (NEPA).

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution rejecting all bids for the Upgrade Traffic Signals 2017 Project and authorizing staff to re-advertise the project for bids at a future date.

Approved by:
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Council Meeting, March 8, 2022
Reject Bids for Upgrade Traffic Signals 2017 Project

Page 3 of 3 ends

Bill Sandhu, Director of Public Works
Joseph P. Lopez, City Manager
Attachments:

1. Resolution
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1 2022-

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-

RESOLUTION REJECTING ALL BIDS FOR THE UPGRADE TRAFFIC
SIGNALS 2017 PROJECT AND AUTHORIZING STAFF TO RE-ADVERTISE

THE PROJECT FOR BIDS AT A FUTURE DATE
WHEREAS, the Upgrade Traffic Signals 2017 Project will remove all the existing traffic signal standards, conduit, wiring and traffic signals equipment at the intersections of Needham Avenue/11th Street, Paradise Road/H Street, and 1st Street/H Street; and WHEREAS, this project will also relocate the traffic signal cabinet to a more accessible area, upgrade the cabinet to current standards, install new conduit and signal interconnect cable, and upgrade pedestrian push buttons to be Americans with Disabilities Act (ADA) compliant, and install Emergency Vehicle Pre-emption (EVP) and new video detection cameras at these intersections; and WHEREAS, on December 6, 2021 this project was advertised for bids having only a base bid; and
WHEREAS, the bids were publicly opened on January 11, 2022, pursuant to City Charter Section 1307, and seven bids were received; and WHEREAS, the lowest bid received was above the engineer’s estimate, by approximately 55.6 percent due to inflation and current construction pricing; and WHEREAS, staff was anticipating slightly higher bids as the project incorporated elements of our Traffic Signal System Master Plan; and
WHEREAS, Public Works Department staff determined that it would be in the best interest of the City to reject all bids and re-advertise the project at a later date, to allow staff to re-evaluate the construction costs and scope of work to identify any #27..
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2 2022-
clarifications to the bid package and the necessary adjustments to the engineer’s estimate and project budget.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby rejects all bids received for the Upgrade Traffic Signals 2017 Project.

BE IT FURTHER RESOLVED that staff is hereby authorized to re-advertise the project.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 8th day of March 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

DANA SANCHEZ, Interim City Clerk
(SEAL)
APPROVED AS TO FORM:

BY:

JOSE M. SANCHEZ, City Attorney
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
February 15, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: First Amendment to Agreement with West Yost Associates, Inc.

Design Services for Del Rio Replacement Well 271
CONTACT: Robert Davalos, Senior Civil Engineer, [email protected] 209-571-5869
DESCRIPTION:

Consider approving a first amendment to the agreement with West Yost Associates, Inc., Sacramento, CA, for Design Services for Del Rio Replacement Well 271, in the amount of $42,700 for the identified scope of services, for a revised total cost not to exceed $898,390. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

Existing Well 271 located in the Del Rio service area was originally acquired as part of the Del Este Water System purchased by the City in 1995. On September 14, 2010, by Resolution No. 2010-409, Well 271 was identified for replacement in the 2010 Water System Engineer’s Report to meet the needs of the existing Del Rio service area. The existing Well 271 site is not large enough to accommodate a replacement well, and no property adjacent to the well site is available. A portion of the parcel at the northwest corner of McHenry Avenue and Stewart Road has been identified as a proposed replacement well site.

This project will construct surface improvements, which will enable the newly installed Del Rio Production Well (Well 70) to increase service reliability of the City’s water system as described in the 2010 Water System Engineer’s Report.

The first phase of the project, which consisted of drilling the well, was awarded on April 10, 2018, and was completed on January 8, 2019. The final phase of the project for surface improvements will consist of a new well head, new pump & motor, a new pump building and #28..
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City Council, March 8, 2022
First Amendment to Agreement with West Yost Associates, Inc.

Design Services for Del Rio Replacement Well 271

Page 2 of 4 ends

walled building enclosure, all necessary electrical controls, a chlorine room and a standby emergency generator. Additionally, the project will install approximately 900 linear feet (LF) of 12” water pipe to the existing water system, 900 LF of 8” well flushing pipe and an air gap flushing structure.

In 2011, West Yost Associates, Inc. (West Yost), was selected in accordance with Administrative Directive 3.1 to provide hydrogeological, design and construction support for a test well on the propose replacement well site.

On January 5, 2012, by Resolution Nos. 2012-35 and 2012-36, Council approved plans and specifications prepared by West Yost for the Del Rio Replacement Test Well Project, approved an agreement with West Yost for construction oversight and analysis services, and awarded a contract with Dan’s Water Well & Pump Service, Inc. of Livermore, CA, to construct the test well.

On October 2, 2012, by Resolution No. 2012-402, Council accepted the work performed by Dan’s Water Well & Pump Service, Inc. for the Del Rio Replacement Test Well Project as complete.

On May 9, 2017, by Resolution No. 2017-187, Council approved an agreement with West Yost for the final design, bid period and well equipping support services for the Del Rio Replacement Well 271 Project.

Challenges with land acquisition and litigation have resulted in project delays. On September 5, 2017, Council certified the Final Environmental Impact Report (EIR) for the Del Rio Water System Improvements Project by Resolution No. 2017-347.

On January 16, 2018 by Resolution No. 2018-05, Council approved the sale and purchase of a

0.52 acre portion of land located at 7121 McHenry Avenue in the amount of $21,600 for the Del Rio Replacement Well 271 Project.

On March 14, 2018 by Resolution No. 2018-144, Council approved the plans and specifications for the Del Rio Replacement Well 271 project, accepted the bid and awarded a contract to NorCal Pump & Well Drilling, Inc., of Yuba City, CA, to construct the subsurface improvements of Well 271.

During the final design of Del Rio Replacement Well 271 staff was informed by the Department of Water Resources that well number 271 could not be re-used. New well numbers are required for replacement wells. Therefore, the project became Del Rio Well 70 (Replacing Well 271).

On August 13, 2019 by Resolution No. 2019-376, Council approved the plans and specifications for the Del Rio Well 70 (Replacing Well 271) Surface Improvements Project, accepted the bid and awarded a construction contract to Conco-West, Inc., of Manteca, CA, to construct the surface improvements of Well 70.

Construction activities began on September 26, 2019 when a notice to proceed was supplied to Conco-West.
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City Council, March 8, 2022
First Amendment to Agreement with West Yost Associates, Inc.

Design Services for Del Rio Replacement Well 271

Page 3 of 4 ends

DISCUSSION:

On May 19, 2021, through a water quality lab analysis report, the City of Modesto was informed the 1,2-Bibromo-3-chloropropane (DBCP) contaminant was present at levels exceeding the maximum contaminant level (MCL), per state regulation at Well 70. A secondary sample was taken on the same day and again on May 21, 2021 and it confirmed that DBCP was present at levels exceeding the MCL.

As a result, in order to utilize the well and to introduce water into the Del Rio Water System, a suitable treatment system must be designed and installed at the Well 70 Site.

West Yost, who is the Engineer-of-Record and provided the final design, bid period and well equipping support services for the Del Rio Well 70 (Replacing Well 271) Project will evaluate treatment alternatives to reduce levels of DBCP to meet the current MCL.

The following scope of services is intended to be the initial phase in the mitigation program of DBCP, and is intended to assist the City in evaluating potential mitigation options and to identify a preferred treatment alternative:

1. Treatment Alternatives Evaluation

2. Technical Memorandum

3. Project Management, Meetings and Workshops
West Yost has been an integral part in the development of the Del Rio Well 70 since 2015.

Their design & engineering services on other projects including North Tank 11 and the Tivoli Well have been satisfactory. Therefore, staff is recommending a first amendment to the agreement with West Yost in the amount of $42,700 to allow for their continued engineering services for the Del Rio Well 70 (Replacing Well 271) Surface Improvements Project.

In accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” this agreement for professional services is exempt from the bidding requirements of Modesto Municipal Code 8-3.203. However, as stated above, the consultants were selected through the review processes outlined in the City’s Administrative Directive 3.1.

Once a design alternative is selected it is anticipated that staff will return to Council to present a design agreement with West Yost for approval.

FISCAL IMPACT:

Funding for this project is currently budgeted in the following Capital Improvement Program account:
101078 – Del Rio Replacement Well

EXPENDITURES TO DATE
Engineering/Design/Administration
Consultant Design (West Yost) $546,341
City Staff (Engineering/Design/Administration Support)
Construction Administration
City Construction Forces
Construction (Conco-West, Inc.)
$112,955
$231,610
$12,566
$2,316,810
Contingency $127,977
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City Council, March 8, 2022
First Amendment to Agreement with West Yost Associates, Inc.

Design Services for Del Rio Replacement Well 271

Page 4 of 4 ends

TOTAL EXPENDITURES TO DATE: $3,348,259
**ANTICIPATED ENGINEERING SERVICES EXPENDITURES:

West Yost – Original Agreement $855,690
West Yost – First Amendment to Agreement $42,700
TOTAL $898,390
**Anticipated design and construction expenditures for the treatment portion of the Del Rio Well 70 (Replacing Well 271) Surface Improvements Project will be determined after the evaluation of the treatment alternatives study has been completed. Once the City identifies a preferred treatment alternative design and construction costs will be evaluated.

COMMITTEE RECOMMENDATION:

This project was presented to the Finance Committee on October 22, 2018, as part of a report on upcoming capital improvement construction projects where it was recommended that it be forwarded to Council for future award of construction.

CEQA/NEPA REQUIREMENTS:

On September 5, 2017, Council certified the Final EIR for the Del Rio Tank and Wells Project by Resolution No. 2017-347. The EIR identified significant and unavoidable environmental impacts of the project. Certification of the Final EIR required the adoption of a Statement of Overriding Considerations explaining the specific benefits of the proposed project that outweigh its significant and unavoidable impacts. Council determined that any remaining unmitigated environmental impacts attributable to the Del Rio Tank and Wells Project are outweighed by specific benefits outlined in the Final EIR.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a first amendment to the agreement with West Yost, Sacramento, CA, for Design Services for Del Rio Replacement Well 271, in the amount of $42,700, for the identified scope of services, for a revised total cost not to exceed $898,390, and authorizing the City Manager, or his designee, to execute the amendment.

Approved by:

William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. West Yost – Agreement

3. West Yost – First Amendment to Agreement
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX

RESOLUTION APPROVING A FIRST AMENDMENT TO THE AGREEMENT

WITH WEST YOST, SACRAMENTO, CA, FOR DESIGN SERVICES FOR DEL RIO REPLACEMENT WELL 271, IN THE AMOUNT OF $42,700, FOR THE

IDENTIFIED SCOPE OF SERVICES, FOR A REVISED TOTAL COST NOT TO EXCEED $898,390, AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO EXECUTE THE AMENDMENT
WHEREAS, existing Well 271 located in the Del Rio service area was originally acquired as part of the Del Este Water System purchased by the City in 1995, and WHEREAS, on September 14, 2010, by Resolution No. 2010-409, Well 271 was identified for replacement in the 2010 Water System Engineer’s Report to meet the needs of the existing Del Rio service area, and
WHEREAS, on May 9, 2017, by Resolution No. 2017-187, Council approved an agreement with West Yost for the final design, bid period and well equipping support services for the Del Rio Replacement Well 271 Project, and WHEREAS, during the final design of Del Rio Replacement Well 271 staff was informed by the Department of Water Resources that well number 271 could not be reused, therefore, the project became Del Rio Well 70 (Replacing Well 271), and WHEREAS, on May 19, 2021, through a water quality lab analysis report, the City was informed that the 1,2-Bibromo-3-chloropropane (DBCP) contaminant was present at levels exceeding the maximum contaminant level (MCL), per state regulation at Well 70, and
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WHEREAS, West Yost is the Engineer-of-Record for the Project and has been an integral part in the development of the Del Rio Well 70 since 2015, and WHEREAS, in order to utilize the well and to introduce additional groundwater into the Del Rio service area, a suitable treatment system must be designed and installed at the Well 70 Site, and
WHEREAS, a first amendment to the agreement is necessary to cover the additional cost for the expanded scope of work, City staff is recommending a first amendment to the agreement with West Yost in the amount of $42,700, to allow for the evaluation of potential mitigation options and to identity a preferred treatment alternative.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a first amendment to the current agreement with West Yost, of Sacramento, CA, for Design Services for the Del Rio Replacement Well 271 Project in an amount not to exceed $42,700, for a new total amount not to exceed $898,390.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the amendment, in a form approved by the City Attorney. #28..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 8th day of March 2022, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST: ______________________________
DANA SANCHEZ, Interim City
Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ______________________________
JOSE M. SANCHEZ, City Attorney
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-1-

FIRST AMENDMENT TO THE AGREEMENT FOR
DESIGN SERVICES FOR DEL RIO REPLACEMENT WELL 271
This First Amendment to Agreement for Consultant Services is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and WEST YOST ASSOCIATES, INC., a California corporation (“Consultant”), entered into by the parties on the 9th day of May, 2017, hereinafter referred to as “Original Agreement”.

This First Amendment to Agreement for Consultant Services is made with regard to the following recitals:

A. The Original Agreement between City and Consultant was approved via Council Resolution No. 2017-187.

B. Paragraph no. 9 “AMENDMENTS” of the Original Agreement acknowledges the parties understand it may become desirable or necessary for City or Consultant to modify the scope of services provided for under the Agreement and any such modification must be in writing signed by both parties.

C. Paragraph no. 3 “COMPENSATION” of the Original Agreement for Consultant Services specifies the sum of EIGHT HUNDRED EIGHTY-FIVE THOUSAND SIX HUNDRED NINETY AND 00/100 DOLLARS ($855,690) as the total compensation Consultant agrees to accept for performing all services and furnishing all staffing and materials for the project as well as performance by Consultant of all of its duties and obligations required in the Original Agreement.

D. On or about January 25, 2022 Consultant submitted to the City a budget augmentation for additional tasks requested by the City to be added to the Original Agreement for the completion of work related to the Del Rio Replacement Well 271 Project, attached hereto #28..
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as Exhibit “1” and incorporated herein by this reference. Exhibit “1” identifies additional tasks to be performed by Consultant as well as Consultant’s costs for each additional task.

E. The estimated additional tasks result in increased costs as follows:

Task 7. Treatment Alternatives Evaluation
$42,700
F. The aforementioned estimated additional tasks increase the amount of the Original Agreement by FORTY-TWO THOUSAND SEVEN HUNDRED AND 00/100 DOLLARS ($42,700). The amounts listed above are the estimated level of effort for each task.

In no case shall the total fee exceed the total contract amount under the Original Agreement and this First Amendment to Agreement without memorializing an additional written amendment to the original contract and must be signed by both parties.

G. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree that it is necessary to modify paragraph no. 1 entitled “SCOPE OF SERVICES” of the Original Agreement.

H. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree it is necessary to modify paragraph no. 3 entitled “COMPENSATION” of the Original Agreement.

I. The parties to the Original Agreement and to this First Amendment to Agreement further understand and agree the Original Agreement is modified solely by the modifications contained in this First Amendment to Agreement and in no other way whatsoever. #28..
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NOW, THEREFORE, in consideration of this First Amendment to Agreement, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Consultant Services and this First Amendment to Agreement, the parties agree as follows:

1. The parties agree that each of the recitals set out above is factually true and correct.

2. Paragraph no. 1 entitled “SCOPE OF SERVICES” of the Original Agreement shall be deleted and the parties agree to and hereby do substitute the following in its place:

SCOPE OF SERVICES.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the Original Agreement and referred to therein as Exhibit “A” or “Project”. In addition, Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the First Amendment to Agreement and referred to herein as Exhibit “1”. The Consultant shall perform the services as described in the aforementioned Exhibit “A” and Exhibit “1” in a manner compatible with the standards of its profession and shall produce a fully complete project as described in Exhibit “A” and Exhibit “1” acceptable to City.

3. Paragraph no. 3 entitled “COMPENSATION” of the Original Agreement between the parties shall be deleted and the parties agree to and hereby do substitute the following in its place:

COMPENSATION.
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Consultant agrees to perform the work on a time and materials basis not to exceed EIGHT HUNDRED NINETY-EIGHT
THOUSAND THREE HUNDRED NINETY AND 00/100 DOLLARS
($898,390) (maximum compensation) for performing all services and furnishing all staffing and materials called for in Exhibits “A” and “B” to the Original Agreement and in Exhibit “1” to this First Amendment to Agreement as well as for performance by Consultant of all duties and obligations under the Original Agreement and the First Amendment to Agreement.

The compensation shall be paid pursuant to and in the manner and at the time set forth below:

Professional services received by the City under the Original Agreement and this First Amendment to Agreement shall be paid for on a “time and materials” basis with a “not to exceed” amount, as called for in Exhibits “A” and “B” of the Original Agreement and Exhibit “1” of the First Amendment to Agreement. Consultant shall prepare and City agrees to pay Consultant on time and materials for monthly billings, which include detailed tasks, hours worked, and billable rates for work completed. The local agency shall reimburse the CONSULTANT for actual costs (additional reimbursable expenses including, labor costs, employee benefits, overhead, sub-consultant travel expenses and other direct costs) incurred by the CONSULTANT in performance of the work called for in Exhibits “A” and “B” of the Original Agreement and Exhibit “1” of this First Amendment to Agreement on the monthly billings, #28..
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which include detailed receipts for actual costs paid by CONSULTANT in the interest of the project.

4. Except as herein amended or modified, the provisions of the Original Agreement are expressly reaffirmed and remain in full force and effect to the extent they are not in conflict with this First Amendment.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Agreement for Consultant Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2022 - ________, adopted by the Council of the City of Modesto on the _________ day of _______________, 2022, and WEST YOST ASSOCIATES, INC. has caused this First Amendment to Agreement to be duly executed in duplicate. #28..
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8950 Cal Center Drive
Bldg. 1, Suite 363
Sacramento CA 95826
916.306.2250 phone
530.756.5991 fax
westyost.com
January 25, 2022 SENT VIA: EMAIL
Robert Davalos, PE
Senior Civil Engineer, Utilities Department
City of Modesto
1010 10th Street
Modesto, CA 95353
SUBJECT: Proposal for Engineering Services – Well 70 (Replacement Well 271) Treatment Alternatives Evaluation Amendment Request
Dear Robert:

West Yost is pleased to present this proposal to the City of Modesto (City) to evaluate treatment alternatives for the recently completed Well 70 (Replacement Well 271) in the City’s Del Rio Outlying Service Area. These services are in addition to the currently authorized scope and budget for Well 70 (Replacement Well 271). This letter presents the associated budget and schedule to amend the existing agreement and complete the additional requested services.

BACKGROUND AND PROJECT UNDERSTANDING
The City and West Yost have been actively engaged in the development of Well 70 since 2015. Design of below grade facilities commenced in 2016 and was completed in December 2018. Design of above grade facilities began concurrent with design of below grade facilities and was officially bid in early 2019. Conco West Inc. was selected as the City’s contractor for above grade equipping of Well 70 and is currently working on completing punch list items.

Water quality sampling of Well 70, since the beginning of the design of below grade facilities, indicated that the well could produce water quality that met all applicable primary and secondary drinking water standards (Title 22 standards). Upon completion of below grade facilities, both during and after constant rate pump testing of Well 70, water quality samples were collected on December 27 and 28, 2018 to confirm that the well met Title 22 standards, particularly for 1,2-Dibromo-3-chloropropane (DBCP).

Samples collected on both dates contained DBCP concentrations (0.098 and 0.11 micrograms per liter (µg/L), respectively) that were below the Maximum Contaminant Level (MCL) of 0.2 µg/L for DBCP.

However, recent sampling of Well 70 indicates that DBCP concentrations in Well 70 currently exceed the MCL for DBCP. Sampling was performed on April 21, 2021 and again on May 19, 2021 and found concentrations of 0.50 and 0.47 µg/L for DBCP, respectively. In response to this increase in DBCP concentrations in Well 70, the City requested that West Yost develop this letter proposal and associated Scope of Services to assess the City’s options to mitigate the increased concentrations of DBCP.

EXHIBIT 1
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Robert Davalos, PE
January 25, 2022

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This Scope of Services is intended to be the initial phase in the mitigation program and is intended to assist the City in evaluating potential mitigation options and identify a preferred treatment alternative. West Yost will submit a separate scope of services and amendment request to complete the design of the City’s preferred alternative.

SCOPE OF SERVICES
Our proposed scope of services consists of the following key tasks:
 Treatment Alternatives Evaluation
 Technical Memorandum
 Project Management, Meetings and Workshops
These tasks are discussed in more detail in the sections below. These tasks will be performed under a single new task (Task 7), amending our existing agreement.

Treatment Alternatives Evaluation
West Yost will identify and evaluate alternatives that are available to the City that address the elevated concentrations of DBCP. Table 1 below summarizes the four alternatives that have been identified.

Table 1. Summary of Treatment Alternatives
Alternative Alternative Description
On-Site Treatment
1 Treatment within the
Existing Walled Area
West Yost will evaluate placement of granular activated carbon (GAC) contactors within the existing walled area of the Well 70 site. West Yost will evaluate other provisions to make this area more functional, such as a new gate on the north wall, for increased access to the GAC vessels.
2 Treatment within an
expanded area to the
North
West Yost will evaluate expansion of the existing Well 70 site, immediately to the north. This option would require that all or portions of the north wall be demolished, and a concrete pad and expansion of the walled area to the north would be constructed to accommodate the GAC vessels.

Off-Site Treatment, at new Tank 14 and Well 68 Site
3 Pipeline west along
Stewart Road and
south along existing
railroad right-of-way
parallel to St. John
West Yost will evaluate treatment of water produced at Well 70 at the new Tank 14 site (which already has GAC contactors for DBCP). The capacity of the existing GAC contactors will be evaluated to determine if the existing GAC system can accommodate flow from both Well 68 and Well 70. Pumping capacity at the existing Tank 14 booster pump station will also be evaluated, as this booster pump station would need to have the capacity to treat water produced from Well 68 and Well 70. West Yost will also assess the constructability of a dedicated pipeline from the Well 70 site to the Tank 14 site along the described alignment. 4 Pipeline south along
McHenry Boulevard
and west along
Ladd Road
Under this alternative, the evaluation of the existing GAC contactors and Tank 14 booster pump station described in Alternative 3 still applies. This alternative evaluates the constructability of a dedicated pipeline from the Well 70 site to the Tank 14 site along the described alignment. The County is currently working on widening McHenry Boulevard, and the City has an opportunity to place a pipeline within McHenry as part of this project and thus could potentially realize cost savings (i.e., would not need to pay for pavement restoration).

EXHIBIT 1
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Robert Davalos, PE
January 25, 2022

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Each of the alternatives summarized in Table 1 will be evaluated to determine the following:
 Required project elements associated with each alternative,  Permitting, environmental or other implementation considerations associated with each alternative,
 Opinion of Probable Construction Cost (OPCC) for each alternative, and  Implications of each alternative as it relates to water system reliability or flexibility of operations.

OPCC estimates will be prepared as Class 4 estimates, in accordance with the Association for the Advancement of Cost Engineering (AACE). Class 4 estimates are generally prepared for the purposes of determining feasibility or concept screening. The level of project definition for Class 4 estimates is 1 and 15 percent and typical accuracy ranges for Class 4 estimates typically range from -15 percent to -30 percent on the low side to +20 percent to +50 percent on the high side. However, OPCC estimates will be used for comparative purposes only, to weight alternatives against each other. Subsequent phases of this project (not included under this scope) will require development of more detailed cost estimates.

In addition, a small contingency to evaluate a potential fifth alternative has been included in the fee for this task, if City engineering or operations staff identify a new alternative and/or propose additional refinements to any of the four alternatives identified in Table 1.

Each of the identified alternatives will be ranked based on ease of implementation, OPCC and implications related to water system reliability and flexibility in an effort to help the City make a decision on the preferred treatment alternative. Results from the evaluation will be documented and presented to the City.

Assumptions
 OPCC estimates are conceptual and will conform to Class 4 estimates as described by AACE.  Environmental impacts or necessary permits will be generally described in this task. Subsequent phases of the projects will include detailed efforts to support the City in identifying and preparing necessary environmental documentation or permit applications.  Cost estimating for this task includes some time for Finn Design Group to conceptually assess structural implications of removing a portion of the existing north wall.

Deliverables
 West Yost will present findings developed in this task in a TM and in a workshop with City staff.

Technical Memorandum
West Yost will prepare a draft technical memorandum (TM) to summarize the findings for the City’s review. Following receipt of a consolidated set of comments from City Staff, West Yost will prepare a final TM, incorporating City comments, to document findings and for City use.

Deliverables
 West Yost will prepare and provide a draft TM in PDF format for City review and comment.  West Yost will prepare and provide a final TM in PDF format.

EXHIBIT 1
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Robert Davalos, PE
January 25, 2022

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Project Management, Meetings and Workshops
West Yost will initiate the project with the City’s project manager and manage project activities for the duration of the project. Activities include West Yost internal project controls, monthly invoices, and management of project team and coordination with City staff. For budgeting purposes, four project status check-ins have been included.

In addition, the following meetings and workshops have been identified:
 Kickoff Meeting: In this meeting, key West Yost Staff will meet with the City team to review the overall project workplan, schedule, and will present a data request (if applicable) to identify data needed to proceed with project. At this meeting, West Yost will review the four identified alternatives with City staff to confirm that we should proceed with evaluation of each of the alternatives as described, or if they should be modified and/or if a fifth alternative should be considered.
 Workshop 1: In this meeting, West Yost will review results of the alternatives evaluation for the City to provide comments on the evaluation. Comments received at this meeting will be used to refine the analysis and to proceed with the development of the Draft TM.

The kickoff meeting and workshop are assumed to be in-person meetings, but accommodations to conduct these meeting virtually due to COVID-19 restrictions on gatherings can be made as necessary.

Assumptions
 The kickoff meeting and workshop are assumed to be in-person meetings.

Deliverables
 West Yost will prepare and provide a kickoff meeting agenda.  West Yost will review comments.

BUDGET
West Yost’s proposed level of effort and budget for each of the tasks described in the previous sections is shown in Table 2. West Yost will perform the additional Scope of Services described above on a time-andexpenses basis, at the billing rates set forth in West Yost’s attached 2022 Billing Rate Schedule (Attachment A), for a total not-to-exceed budget of $42,700. Any additional services not included in this Scope of Services will be performed only after receiving written authorization and a corresponding budget augmentation.

Table 2. Estimated Project Hours and Budget
Task
West Yost Level
of Effort, hours
West Yost
Budget, dollars
Subconsultant
(Finn), dollars
Estimated Total
Budget, dollars
Treatment Alternatives
Evaluation 70 19,800 3,850 23,650
Technical Memorandum 42 12,300 - 12,300
Project Management, Meetings
and Workshops 22 6,750 - 6,750
Total Project Hours and Budget 134 $38,850 $3,850 $42,700 EXHIBIT 1
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Robert Davalos, PE
January 25, 2022

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Table 3 below summarizes the net impact to the existing agreement. As shown, the additional services described in this proposal will be included as a new task, Task 7 Treatment Alternatives. These additional services and associated budget will result in an amended total budget of $898,390.

Table 3. Summary of Net Changes to Task Budgets
Task
Existing Authorized
Budget(a), dollars
Proposed Amendment
Budget, dollars
Amended Total Budget
by Task, dollars
Task 1. Design of Production Well 54,161.00 -- 54,161.00 Task 2. Construction Period
Services during Drilling of
Production Well
223,399.51 -- 223,399.51
Task 3. Design of Production Well
Above-Grade Facilities 339,439.49 -- 339,439.49
Task 4. Engineering Services during
Equipping of Production Well 170,990.00 -- 170,990.00
Task 5. Project Management and
Meetings 67,700.00 -- 67,700.00
Task 6. Additional Engineering
Support Services -- -- --
Task 7. Treatment Alternatives
Evaluation [NEW TASK] N/A 42,700.00 (refer to Table 2) 42,700.00 Total $855,690.00 $42,700.00 $898,390.00
(a) The existing authorized budget includes previously released additional services budget totaling $77,790.

SCHEDULE
Table 4 below illustrates the anticipated schedule for the above described services, upon formal noticeto-proceed and receipt of all required data.

Table 4. Proposed Schedule
Task
Weeks from Notice to Proceed
1 2 3 4 5 6 7 8 9 10
Treatment Alternatives Evaluation
Technical Memorandum
Draft TM
City Review Time
Final TM
Project Management, Meetings and Workshops
Project Status Check-ins
Kickoff Meeting
Workshop 1
EXHIBIT 1
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Robert Davalos, PE
January 25, 2022

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We appreciate the opportunity to continue to work collaboratively with the City of Modesto on this important project. Please don’t hesitate to contact me at 209-996-0756 or [email protected] or Elizabeth Drayer at 650-740-3762 or [email protected] should you have any questions or require additional information.

Sincerely,

WEST YOST
Roberto Vera, PE Elizabeth Drayer, PE
Project Manager/Senior Engineer Vice President and Principal-in-Charge RCE #83500 RCE #46872
cc: Edgar Vargas, PE, City of Modesto
Attachment A: West Yost 2022 Billing Rate Schedule
EXHIBIT 1
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West Yost 2022 Billing Rate Schedule
Attachment A
EXHIBIT 1
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(Effective January 1, 2022 through December 31, 2022)*

POSITIONS

ENGINEERING
Principal/Vice President $318
Engineer/Scientist/Geologist Manager I / II $301 / $315 Principal Engineer/Scientist/Geologist I / II $272 / $289 Senior Engineer/Scientist/Geologist I / II $244 / $256
Associate Engineer/Scientist/Geologist I / II $209 / $224 Engineer/Scientist/Geologist I / II $168 / $195
Engineering Aide $98
Field Monitoring Services $90
Administrative I / II / III / IV $86 / $109 / $130 / $144

ENGINEERING TECHNOLOGY
Engineering Tech Manager I / II $313 / $315
Principal Tech Specialist I / II $287 / $297
Senior Tech Specialist I / II $263 / $275
Senior GIS Analyst $238
GIS Analyst $225
Technical Specialist I / II / III / IV $168 / $191 / $215 / $240 Technical Analyst I / II $120 / $144
Technical Analyst Intern $97
Cross-Connection Control Specialist I / II / III / IV $125 / $136 / $152 / $170 CAD Manager $189
CAD Designer I / II $147 / $166

CONSTRUCTION MANAGEMENT
Senior Construction Manager $304
Construction Manager I / II / III / IV $185 / $199 / $211 / $267 Resident Inspector (Prevailing Wage Groups 4 / 3 / 2 / 1) $162 / $180 / $201 / $209 Apprentice Inspector $147
CM Administrative I / II $79 / $106
Field Services $209
2022 Billing Rate Schedule

LABOR CHARGES
(DOLLARS PER HOUR)
■ Hourly rates include Technology and Communication charges such as general and CAD computer, software, telephone, routine in-house copies/prints, postage, miscellaneous supplies, and other incidental project expenses. ■ Outside Services such as vendor reproductions, prints, shipping, and major West Yost reproduction efforts, as well as Engineering Supplies, etc. will be billed at actual cost plus 15%. ■ The Federal Mileage Rate will be used for mileage charges and will be based on the Federal Mileage Rate applicable to when the mileage costs were incurred. Travel other than mileage will be billed at cost. ■ Subconsultants will be billed at actual cost plus 10%. ■ Expert witness, research, technical review, analysis, preparation and meetings billed at 150% of standard hourly rates. Expert witness testimony and depositions billed at 200% of standard hourly rates. ■ A Finance Charge of 1.5% per month (an Annual Rate of 18%) on the unpaid balance will be added to invoice amounts if not paid within 45 days from the date of the invoice. * This schedule is updated annually
EXHIBIT 1

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(Effective January 1, 2022 through December 31, 2022)*
Equipment Charges

EQUIPMENT
2" Purge Pump & Control Box $270 / day
Aquacalc / Pygmy or AA Flow Meter $28 / day
Emergency SCADA System $35 / day
Gas Detector $80 / day
Generator $39 / day
Hydrant Pressure Gauge $10 / day
Hydrant Pressure Recorder, Impulse (Transient) $55 / day Hydrant Pressure Recorder, Standard $40 / day
Low Flow Pump Controller $75 / day
Powers Water Level Meter $32 / day
Precision Water Level Meter $19 / day
Stainless Steel Wire per foot $0 / day
Storage Tank $15 / day
Sump Pump $24 / day
Transducer Components (per installation) $23 / day
Trimble GPS – Geo 7x $220 / day
Tube Length Counter $22 / day
Turbidity Meter $22 / day
Vehicle $10 / day
Water Flow Probe Meter $20 / day
Water Quality Meter $27 / day
Water Quality Multimeter $185 / day
Well Sounder $30 / day

BILLING RATES
2022 Billing Rate Schedule
* This schedule is updated annually
EXHIBIT 1

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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 08, 2022
Date: February 10, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Cannery Segregation Bypass Pumps
CONTACT: Robert Englent, Wastewater Collection System Superintendent, [email protected], (209) 577-6222
DESCRIPTION:

Consider approving the award of bid and agreement with Western Oilfields Supply Company, dba Rain for Rent, Bakersfield, CA for the annual rental of three DV-400c pumps, and related equipment for a one-year agreement with four one-year extension options, for an estimated annual amount of $60,545, and a total amount not to exceed $334,5491 over five years. (Funding Source: Wastewater Fund)
STRATEGIC PLAN ELEMENT:

BACKGROUND:

In 2006, staff discovered erosion along the bank of the Tuolumne River which exposed and compromised portions of the City’s gravity trunk sewer. In September 2007, the City completed a repair of approximately 300 feet of the river bank.

In response to this event, the City coordinated with West Yost Associates, an engineering firm, to analyze existing and potential risks as well as develop solutions. In January 2012, West Yost Associates completed a draft of the Cannery Segregation Line (CSL) and River Trunk Diversion Plan (Plan). The Plan consists of several elements: 1) a risk assessment, which included a complete inspection of the CSL and a hydraulic analysis of CSL flows; 2) a temporary bypass pumping plan in the event of a CSL failure; and 3) preliminary design of permanent diversion structures.
1 Includes a 5% CPI increase for years two through five. #29..
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Council Meeting, March 8, 2022
Cannery Segregation Bypass Pumps

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In the event of a CSL failure, a Temporary Bypass Plan was developed to mitigate the resulting consequences of a service disruption to Industrial users. The Plan includes the implementation of three large pumps used in transporting flows through the bypass. However, the City does not own pumps capable of performing the bypass operation and current availability of the pumps is based on a first-come, first-served basis.

In addition, the CSL season occurs during the peak period for underground construction. This increases the risk of equipment availability, which could delay the installation of a bypass by several weeks. Not having this equipment on standby rental could potentially result in a sanitary sewer overflow from either the domestic or CSL sewer trunks. If that were to happen, the City would receive monetary penalties and civil liability enforcement actions from the State Water Resources Control Board.

On June 2, 2015, by Resolution No. 2015-180, Council approved the rental of bypass pumps from Rain for Rent in the amount of $100,000. These pumps have been rented yearly since 2015.

On June 8, 2021, by Resolution No. 2021-212, Council approved the award of bid for the standby rental and/or delivery of by-pass pumps DV-400C to Rain for Rent, Bakersfield, CA for an amount not to exceed $60,545.

DISCUSSION:

The City Manager authorized the Purchasing Manager to issue a formal Request for Bids (RFB) for the rental of Stand-By Pumps DV400C or Equivalent.

On October 26, 2021, the Purchasing Division issued RFB 2021-67, Stand-By Pumps DV400C or Equivalent, on Planet Bids via the City’s website under various commodity codes2 associated with rental of Stand-By Pumps DV400C or equivalent. Prospective bidders were notified online and via email of the bid opportunity. Twenty-six companies chose to download the RFB document.

On November 16, 2021, bids were formally opened by the City Clerk and broadcast via Microsoft Teams Livestream3. One company chose to respond, which was not a local vendor.

Based on providing the lowest responsive and responsible bid, City staff recommends the award of bid and agreement to Western Oilfields Supply Company dba Rain for Rent, Bakersfield, 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 be formally bid. An award of bid and agreement for the rental of three DV-400c pumps from Western Oilfields Supply Company, dba Rain for Rent, Bakersfield, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Western Oilfields Supply Company, dba Rain for Rent, was the lowest responsive and responsible bidder. 2 72000 – Pumping Equipment and Accessories, 72015 – Centrifugal Pumps, Portable, 72018 – Centrifugal Pumps, Stationary, 98100 – Rental or Lease of General Equipment (HVAC, Athletic, Fire and Police Protection, Etc.)
3 Staff implemented a virtual bid opening process in an effort to slow the spread of COVID-19. #29..
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Council Meeting, March 8, 2022
Cannery Segregation Bypass Pumps

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FISCAL IMPACT:

Expenditures over prior years for the rental of bypass pumps are shown below:

YEAR EXPENDED
FY2017-18 $54,226
FY2018-19 $70,307
FY2019-20 $68,204
FY2020-21 $64,107
FY2021-22 $60,545
TOTAL $317,389
Expenses are budgeted in the Sewer Fund Cannery Segregation Line Operating Budget, in account: 4210-44317-53100.

COMMITTEE RECOMMENDATION:

This item was considered by the Economic Development Committee on February 07, 2022 and was recommended to be forwarded to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the award of bid and agreement with Western Oilfields Supply Company, dba Rain for Rent, Bakersfield, CA for the annual rental of three DV-400c pumps, and related equipment for a one-year agreement with four one-year extension options, for an estimated annual amount of $60,545, and a total amount not to exceed $334,549 over five years, and authorizing the City Manager, or his designee, to execute the agreement.

Approved by:

William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Agreement

3. Exhibit B

4. Exhibit C

5. Exhibit D

6. Financial Interest Disclosure

7. Cost Abstract
#29..
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1 2022-

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX

RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT WITH

WESTERN OILFIELDS SUPPLY COMPANY, DBA RAIN FOR RENT,
BAKERSFIELD, CA FOR THE ANNUAL RENTAL OF THREE DV-400C

PUMPS, AND RELATED EQUIPMENT FOR A ONE-YEAR AGREEMENT

WITH FOUR ONE-YEAR EXTENSION OPTIONS, FOR AN ESTIMATED
ANNUAL AMOUNT OF $60,545, AND A TOTAL AMOUNT NOT TO EXCEED $334,549 OVER FIVE YEARS, AND AUTHORIZING THE CITY MANAGER,

OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, in 2006, staff discovered erosion along the bank of the Tuolumne River which exposed and compromised portions of the City’s gravity trunk sewer, and WHEREAS, in September 2007, the City completed a repair of approximately 300 feet of the river bank, and
WHEREAS, the City coordinated with West Yost Associates, an engineering firm, to analyze existing and potential risks as well as develop solutions, and WHEREAS, in January 2012, West Yost Associates completed a draft of the Cannery Segregation Line (CSL) and River Trunk Diversion Plan (Plan) which included a temporary bypass pumping plan in the event of a CSL failure, and WHEREAS, the Plan includes the implementation of three large pumps used in transporting flows through the bypass, and
WHEREAS, On June 2, 2015, by Resolution No. 2015-180, Council approved the rental of bypass pumps from Rain for Rent in the amount of $100,000, and WHEREAS, On June 8, 2021, by Resolution No. 2021-212, Council approved the award of bid for the standby rental and/or delivery of by-pass pumps DV-400C to Rain for Rent, Bakersfield, CA for an amount not to exceed $60,545, and #29..
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2 2022-
WHEREAS, on October 26, 2021, the Purchasing Division issued RFB 2021-67, Stand-By Pumps DV400C or Equivalent, on Planet Bids, and WHEREAS, on November 16, 2021, bids were formally opened by the City Clerk and broadcast via Microsoft Teams Livestream, and
WHEREAS, based on providing the lowest responsive and responsible bid, City staff recommends the award of bid and agreement to Western Oilfields Supply Company dba Rain for Rent, Bakersfield, CA, and
WHEREAS, the Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid. An award of bid and agreement for the rental of three DV-400c pumps from Western Oilfields Supply Company, dba Rain for Rent, Bakersfield, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Western Oilfields Supply Company, dba Rain for Rent, was the lowest responsive and responsible bidder.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the award of bid and agreement with Western Oilfields Supply Company, dba Rain for Rent, Bakersfield, CA for the annual rental of three DV-400c pumps, and related equipment for a one-year agreement with four one-year extension options, for an estimated annual amount of $60,545, and a total amount not to exceed $334,549 over five years.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the agreement in a form approved by the City Attorney. #29..
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3 2022-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 8th day of March 2022, by Councilmember?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

DANA SANCHEZ, Interim City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#29..
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1 ANNUAL AGREEMENT

RAIN FOR RENT
FOR STAND-BY PUMPS DV400C OR EQUIVALENT
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 Western Oilfields Supply Company dba Rain for Rent, 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 agreement for the rental and/or delivery of “Stand-By” Pumps DV400C or Equivalent to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible bid submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the rental and/or delivery of “Stand-By” Pumps DV400C or Equivalent as described in RFB 2021-67, attached hereto as Exhibit “C” and made a part hereof, and
WHEREAS, the CITY and CONTRACTOR shall enter into a rental agreement should the CITY need to mobilize and the terms and conditions shall be an integral part of this agreement, attached hereto as Exhibit “D” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK:
a. CONTRACTOR shall provide service for the “Stand-By” Pumps DV400C or Equivalent insofar as such scope of service is specified in RFB 2021-67, and in strict accordance with the conditions of the complete agreement.
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. #29..
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2 c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the agreement.
d. CONTRACTOR shall maintain a CITY business license for the duration of the agreement.
e. CONTRACTOR shall furnish the service defined for the following contracted rates, for an estimated annual amount of $60,545, and a total amount not to exceed $334,549 over five (5) years:

AGREEMENT PRICING

STANDBY-RATES

ITEM/DESCRIPTION UOM UNIT PRICE
18” DV400C PUMP OR EQUIVALENT (STANDBY)
(3)-PUMPS, FOR (3)-MONTHS 28 DAYS $6,125.00
DELIVERY FEE LOT $1,000.00

MOBILIZED-RATES

ITEM/DESCRIPTION UOM UNIT PRICE
18” DV400C PUMP OR EQUIVALENT (MOBILIZED) LOT $9,000.00 DELIVERY FEE LOT $90.00
PICKUP FEE LOT $90.00
ENVIRONMENTAL FEE LOT $270.00
STANDARD LABOR RATE HR $85.00
OVER TIME RATE HR $127.50
DOUBLE TIME RATE HR $170.00
PUMP SERVICE RATE (PER SERVICE HOURS) JOB $450.00

2. CITY CONTACT:

Department Contact: Robert Englent, (209) 577-6222
Purchasing Contact: Carol Wattle, Buyer (209) 577-5406
Changes of a contractual or business nature shall be affected only by written change to the agreement, issued by the City of Modesto, Purchasing Division.

VENDOR CONTACT:

Contractor Representative: Gunter Brisi, (209)466-5602 (O) or (209)639-2234 (M) Email: [email protected]

3. TERM OF AGREEMENT:

The term of the agreement shall be for a period of one (1) year, with four (4) one-year extension options, for a total of up to five (5) years.
#29..
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3 Year 1: March 2, 2022 through March 1, 2023
Year 2: March 2, 2023 through March 1, 2024
Year 3: March 2, 2024 through March 1, 2025
Year 4: March 2, 2025 through March 1, 2026
Year 5: March 2, 2026 through March 1, 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the agreement.

Price increases for subsequent agreement years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index for West Region (CPI-U) Table A all items index, not seasonally adjusted in any one agreement year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the agreement to be effective for the subsequent year.

4. STAND-BY REQUIREMENTS:
a) Stand-By pumps shall be held at a facility within 50 miles of the City of Modesto Sutter Wastewater plant at 1221 Sutter Ave, Modesto, CA 95351. b) Stand-By pumps shall be on standby from July to September. This is equal to three (3) twenty-eight (28) day billing cycles.
c) Stand-By pumps shall be serviced and/or started in regular intervals (i.e. weekly, biweekly, monthly, etc.) to ensure that pumps will be in good working order should mobilization be required.

5. DELIVERY LOCATION FOR MOBILIZATION:

Location: Wastewater Treatment
1221 Sutter Ave.

Modesto, CA 95351
Days of Week or
Delivery Hours: as specified by Division
All deliveries for mobilization shall be made within twenty-four (24) hours upon notice from CITY staff request. Each delivery shall be signed for by an approved onsite CITY staff, if delivered to a specific project site. Tags without proper CITY signatures will not be paid. If CITY forces are not present at the site when product is delivered, it will be the responsibility of the CONTRACTOR to contact the CITY within twenty-four (24) hours to verify delivery receiving written confirmation by CITY.

6. 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 #29..
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4 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 reduction in coverage in the policy, notices of same shall be given to the Risk Manager of CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a) General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 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 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. b) 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.
c) 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.

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 Management via PINS for approval and submit a certificate thereof as herein above 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. Failure of the 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 #29..
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5 named as an additional insured on all insurance polices required herein, except Workers ’ Compensation.

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 the CITY. The CONTRACTOR ’ S insurance policy(ices) 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 of the CITY.

7. PAYMENT:

CONTRACTOR shall invoice the CITY after each twenty-eight (28) day bill cycle. 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, subject to cash discounts allowed and stated in this bid document. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
[email protected]
At a minimum invoice shall state the following:
 Reference Annual Agreement #: 214336
 City department/division name and address
 Service hours worked day and week
 Unit price, extended price, sales tax and total
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6 8. INDEMNITY:

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 the 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 thirdparty 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.

9. 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 #29..
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7 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.

10. 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.

11. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced after the agreement administrator receives and has on file:

Proof of insurance (approved by Risk Management);
Executed Agreement and Exhibits.

12. 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
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 #29..
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8 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 day’s 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 sub-contractors 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 sub-contracts 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-contractor 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; #29..
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9 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 sub-contractor agreements or agreements 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. In the event that termination of #29..
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10 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.

13. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and shown upon the plans 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.

14. AGREEMENT DOCUMENTS:

The complete agreement 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- ________;
b) Bid Submittal;
c) RFB 2021-67;
d) Master Rental Agreement;
e) Insurance Certificates.

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.

15. NOTICES:

Any notice, payment or instrument required or permitted by this agreement 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:
#29..
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11 CONTRACTOR: Contracts Department
Western Oilfields Supply Company dba Rain for Rent
3404 State Road
Bakersfield, CA 93308
(661)-634-6808
[email protected]
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.

16. SIGNATOR (IES) FOR CONTRACTOR:

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

17. 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.

18. WAIVER:

19. HEADINGS NOT CONTROLLING:

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

20. MISCELLANEOUS:

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

21. ENTIRE AGREEMENT:

This agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this agreement which vary from CONTRACTOR’s bid are #29..
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12 controlling and are deemed accepted by CONTRACTOR 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.

22. 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 its City Manager and attested by its City Clerk under authority of Resolution No. 2022-_________, adopted by the Council of the City of Modesto on the ______-day of_____________, 2022 and Rain for Rent has caused this agreement to be duly executed.

#29..
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5101 Office Park Drive, Suite 100
Bakersfield, CA 93309
Pumps Tanks Pipe Filtration
rainforrent.com
Spillguards
800 742 7246 |
November 12, 2021
City of Modesto
Attn: Ms. Carol Wattle, Buyer
1010 10th Street, Suite 6600
Modesto, CA 95354
RE: City of Modesto Request for Bid and Specification No. 2021-67 “Stand-By” Pumps DV400C or Equivalent
Dear Ms. Wattle:

Thank you for providing Rain for Rent with the opportunity to submit the enclosed bid for for “Stand-By Pumps DV400C or Equivalent”, which may or may not include mobilization for the Utilities Department, Wastewater Division. Our submittal includes the following documents:
 Rain for Rent Submittal Cover Letter
 City of Modesto Submittal Package including:

Bid Acknowledgement, Pricing Schedule; Exceptions, Clarifications, Amendments Form, References, Financial Interest Disclosure Form; Request for Declaration of Local Business; Company History Statement; Addenda Acknowledgement; Pump Curve and Specifications, Rain for Rent Master Rental and Sales Agreement
 Copy of Rain for Rent Business License Certificate – City of Modesto  Copy of Rain for Rent W-9 Form
 Sample Copy of Rain for Rent Certificate of Liability Insurance Rain for Rent is a leading provider of temporary liquid handling solutions including pumps, tanks, filtration, and spill containment. Projects range from sewer bypasses to construction site dewatering, flood relief and industrial plant turnarounds.

The company is known for its systems engineering expertise and its ability to tackle complex job costs effectively, providing an exceptionally high value. Family owned and operated since 1934, Rain for Rent serves all 50 states and Canada from more than 60 locations.

Key “solution benefits” that Rain for Rent can provide to the City of Modesto include:
• Engineered Systems: Rain for Rent’s skilled sales representatives are backed by an in-house engineering team to design your system and ensure it works right the firsttime. • Installation and Service: Our operations team will safely install and service our equipment on your jobsite to make sure it works day and night.
• Safety: Rain for Rent’s vision is an environmentally safe and incident-free workplace commitment to safety that creates a safe work environment for our employees and customers. We use a “Core Four” approach that includes Training, Job Safety Analysis (JSA), Stop Work Authority (SWA) and the proper Personal Protective Equipment (PPE).

EXHIBIT B #29..
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8 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

QTY x UNIT PRICE = EXTENDED PRICE
**In case of discrepancy between a unit price and an extended price, the unit price will be presumed to be correct, subject, however, to correction to the same extent and in the same manner. **

STANDBY-RATES

ITEM/DESCRIPTION QTY UOM
UNIT
PRICE

EXTENDED
PRICE
18” DV400C PUMP OR EQUIVALENT (STANDBY)
(3)-PUMPS, FOR (3)-MONTHS 9 28 DAYS $ $
DELIVERY FEE 1 LOT $ $
PICKUP FEE 1 LOT $ $
ENVIRONMENTAL FEE 1 LOT $ $

MOBILIZED-RATES

ITEM/DESCRIPTION QTY UOM
UNIT
PRICE

EXTENDED
PRICE
18” DV400C PUMP OR EQUIVALENT (MOBILIZED)
(8) HOURS A DAY/ (7) DAYS A WEEK 3 LOT $ $
DELIVERY FEE 1 LOT $ $
PICKUP FEE 1 LOT $ $
ENVIRONMENTAL FEE 1 LOT $ $

ADDITIONAL CHARGES

ITEM/DESCRIPTION QTY UOM UNIT PRICE
STANDARD LABOR RATE 1 HR $
OVERTIME RATE 1 HR $
DOUBLE TIME RATE 1 HR $
PUMP SERVICE RATE (PER SERVICE HOURS) 1 JOB $
SERVICING OF PUMPS TO BE CONDUCTED EVERY (#) _________ HOURS SUBTOTAL $
TAX (7.875%) $
GRAND TOTAL $
SUBTOTAL $
TAX (7.875%) $
GRAND TOTAL $
6,125.00 55,125.00
1,000.00 1,000.00

0.00 0.00

0.00 0.00
56,125.00
4,419.84
60,544.84
9,000.00 27,000.00

90.00 90.00

90.00 90.00
270.00 270.00
27,450.00
2,140.43
29,590.43

85.00 127.50
170.00
450.00
400
#29..
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#29..
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10 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

EXCEPTIONS, CLARIFICATIONS, AMENDMENTS
Exceptions, Clarifications, Amendments
List requests for bid clarifications and exceptions below, if any, sign and submit with your bid response.

Item
No.

Reference To: Description
Page No. Paragraph No.

Company Name (Bidder):

Per Page 20 of RFB, Sample Rental Agreement, a sample copy of Rain for Rent Master Rental and Sales Agreement is included with submittal for the City of Modesto's review.

Western Oilfields Supply Company dba Rain for Rent
#29..
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REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT
11 REFERENCES
All Bidders must provide a list of five (5) current of former clients in the area provided below, identifying prior experience with the same type of products 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 shall be deemed unacceptable and declared 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: City of Modesto
Address: 1221 Sutter Avenue
City, State, Zip Code: Modesto, CA 95351
Contact Person: Robert Englent
Email Address: [email protected]
Telephone Number: 209-652-0326
Type of Business: Muncipality
Date of Service: 2021, 2020, 2018, 2017
Annual Contract Value $60,000.00
Company Name: Pescadero Reclamation District 2058
Address: 3650 West Canal
City, State, Zip Code: Tracy, CA 95376
Contact Person: Richard Pellegri
Email Address: [email protected]
Telephone Number: 209-482-2520
Type of Business: Municipality
Date of Service: 2021, 2020, 2019, 2018
Annual Contract Value $30,000.00
Company Name: Bay Cities Paving & Grading
Address: P.O. Box 6227
City, State, Zip Code Concord, CA 94524
Contact Person: Pablo Bernardo
Email Address: [email protected]
Telephone Number: 925-766-0836
Type of Business: Contractor
Date of Service: 2021
Annual Contract Value $120,000.00
#29..
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REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT
12 Company Name (Bidder): Western Oilfields Supply Company dba Rain for Rent

R EFERENCES-CONTINUED
Company Name: Turlock Irrigation District
Address: P.O. Box 949
City, State, Zip Code Turlock, CA 95381
Contact Person: Matthew Hazen
Email Address: [email protected]
Telephone Number: 209-883-8260
Type of Business: Muncipality
Date of Service: 2021, 2020
Annual Contract Value $50,000.00
Company Name: City of Stockton
Address: 425 North El Dorado Street
City, State, Zip Code Stockton, CA 95202
Contact Person: James Clark
Email Address: [email protected]
Telephone Number: 209-937-8763
Type of Business: Municipality
Date of Service: 2020
Annual Contract Value $44,000.00
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13 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

FINANCIAL INTEREST DISCLOSURE

FinDisclosure12-19
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15 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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

Signature / Print:

Western Oilfields Supply Company dba Rain for Rent
"N/A"
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16 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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:

N/A
N/A
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17 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

The company history statement shall be prepared on company letterhead. Bidder is required to provide with bid submittal.

See attached Company History Statement
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Pumps Tanks Pipe Filtration Spillguards
800 742 7246 | rainforrent.com
5101 Office Park Drive, Suite 100
Bakersfield, CA 93309

RAIN FOR RENT HISTORY STATEMENT
Our Heritage
Founded in 1934 by Charles Lake, Rain for Rent is a family-owned company that has transitioned from oilfield supplies to pioneering of the nation’s first irrigation equipment rentals to full service temporary liquid handling solutions. Still governed by the founding principles of hard work, honesty, integrity, commitment and good stewardship, the company is now in the capable hands of the third and fourth generations of the Lake family.

Products and Services
Our process begins with problem solving and ends after the effective deployment of manpower and equipment, including pumps, tanks, pipes, filtration and spill containment. Services range from emergency flood relief to construction site dewatering, sewer bypasses, industrial plant turnarounds and irrigation. #29..
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Pumps Tanks Pipe Filtration Spillguards
800 742 7246 | rainforrent.com
5101 Office Park Drive, Suite 100
Bakersfield, CA 93309
Rain for Rent Historical Timeline
1930s 1934: WOSCO founded to provide oilfield supplies including pipe, fittings, rags, nails, hatchets, used boilers and crown blocks. Began offering rentals of temporary water, gas and production pipelines and piston pumps for oilfield drilling operations. 1940s Steel replaced wood derricks and many oilfield supply products became obsolete. Sold and rented as pipe reclaimed boiler tubes from scrapped railroad steam engines. Manufactured and rented 8’- 9’-diameter tanks. In 1948, Rain for Rent® brand was launched as nation’s first irrigation equipment rental company. Manufactured 12”-48” steel pipe for water well contractors. 1950s Expanded into the sprinkler irrigation business. Foundry was built to manufacture aluminum couplers and fittings.
1960s New locations opened throughout California, Idaho and New Mexico. Acquired an aluminum pipe mill and began manufacturing mainline and gated pipe.
1970s Acquired West Side Pump. Opened the first Irrigation Store™ and added drip tape and micro sprinklers. Awarded our first international job in the Middle East. 1980s Acquired Crown American Irrigation, Water Flow Products and ASC Tubing. Formed Lake Leasing Company as an alternative to sales and rentals.
1990s Acquired Land Marine Tank Rental and Frac Tanks, Inc. Started nationwide expansion to progress our services to industrial markets. PowerPrime™ Pumps created to develop and build portable automatic priming pumps.
2000s Added specialty rental products including Spillguards, filtration and instrumentation. Acquired Hinson Pumps. FreezeSentry™ product line of blankets and glycol heaters launched. Developed the DV600 – the largest portable centrifugal pump available for rental. 2010s Provided pumping expertise to numerous flooding events, such as the Omaha Flood and Hurricanes Katrina, Sandy, Matthew, Harvey and Florence. Launched WORKSAFE® line of patented safety products. Created hydraulic projects smartphone apps for engineers and project managers to use in the field. Expanded locations into the UK and Europe, creating Rain for Rent International.

As a leading provider of temporary liquid handling, Rain for Rent “solution benefits” include:
 Safety: Rain for Rent’s vision is an environmentally safe and incident-free workplace. Our commitment to safety creates a safe work environment both for our employees and customers. Our safety record speaks for itself with an EMR of 0.99.
 Cost Savings: By relying on the Rain for Rent professionals to design and operate a system that works right the first time, you can focus on your core business. Our pumps are engineered to perform at the lowest cost per gallon pumped in the industry, putting dollars back in your pocket.  Engineered Systems: Rain for Rent’s skilled sales representatives are backed by an experienced team of engineers to design your system and ensure it works right the first time.  Installation and Service: Our operations team will safely install and service our equipment on your jobsite to make sure it works day and night.
 Availability and Quality: Rain for Rent has one of the largest rental fleet of pumps, pipe, tanks and filtration systems in the United States. Our products are the best in the industry because we know from experience what it takes to do a job well: quality design and manufacturing combined with intuitive features that make operation safer, easier and more efficient.
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18 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

ADDENDA ACKNOWLEDGEMENT
The bidder shall check the RFB listing on the City’s Planet Bid 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): Western Oilfields Supply Company dba Rain for Rent "N/A" as of November 12, 2021
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19 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

PUMP CURVE AND SPECIFICATIONS
Bidder is requested to provide pump curve and specifications with bid submittal.

See attached Cut Sheet with Pump Curve
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Sewage and Trash Pump
Overview:

Features:

Specs:

The 18” suction x 16” discharge self-priming centrifugal DV400c trash pump provides up to a maximum of 16,000
gallons per minute pumping and up to 200 feet of head. This pump is usually mounted on a skid and features the standard vacuum priming system which allows it to run continuously, unattended and even run dry.

DV400c
Accessories:
• Spillguard
• Suction and Discharge Hoses
• Fuel Nurse Tank
• VFD for electric driven models
Maximum Flow 16,000 GPM
Maximum Head 200 feet
Pump Size 18” x 16”
Maximum Solids Handling 4.5 inches
Dry weight 14,793 lbs.

Footprint: Trailer mounted model 192” x 96”
Fuel tank 100 gallon
Max Fuel Consumption* 23.4 GPH @ 1650 RPM
• Continuous self-priming
• Runs dry unattended
• 12 volt, electric start with auto-start capable control panel • 60 CFM vacuum pump priming system
• Cast iron wet end with open impellers
• Replaceable wear plates
• Pedestal Mounted
• Suction lift up to 28ft.
800-742-7246
rainforrent.com
PUMPS • TANKS • FILTRATION • PIPE • SPILLGUARDS
Rain for Rent is a registered trademark of Western Oilfields Supply Company. Features and specifications are subject to change without notice. *Actual values may vary depending on pump duty point.
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20 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

SAMPLE RENTAL AGREEMENT
Bidder is requested to submit a sample rental agreement for review with bid submittal.

See attached Rain for Rent Master Rental & Sales Agreement #29..
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RAIN FOR RENT

CREDIT APPLICATION

MASTER RENTAL & SALES AGREEMENT
Account No. _________________
APPLICANT: (IF INDIVIDUAL, LAST NAME, FIRST NAME, MIDDLE INITIAL) TELEPHONE:
.

CELL PHONE:

Name or Style Under Which You Do Business (DBA) FAX:

ADDRESS CITY STATE ZIP

BILLING ADDRESS (IF DIFFERENT) CITY STATE ZIP
Year Established: Federal Tax ID #: Contractor License # D & B Number: Web Address: E MAIL:

Primary SIC Code: TYPE OF BUSINESS: Number of Employees Annual Revenue: Stock Symbol if Publicly Traded:

INDIVIDUAL CORPORATION GENERAL PARTNERSHIP LIMITED PARTNERSHIP

JOINT VENTURE LIMITED LIABILITY PARTNERSHIP LIMITED LIABILITY COMPANY

NAME & ADDRESS OF PARENT CORPORATION
CORPORATE OFFICERS or PARTNERS (IF LIMITED PARTNERSHIP NAME OF GENERAL PARTNER) or MEMBERS or INDIVIDUALS ( LIST SPOUSE) NAME ADDRESS SOCIAL SECURITY OR TAX I. D. No.

1. 2.

3. CREDIT REFERENCES : (LARGEST SUPPLIERS OR VENDORS) ADDRESS PHONE # FAX #

1. 2.

3. FINANCIAL INFORMATION: NAME CITY STATE PHONE # FAX# ACCOUNT #

1. BANK:

LOAN OFFICER:

2. LENDING INSTITUTION:

LOAN OFFICER:

PURCHASE INFORMATION:

P.O.’S REQUIRED ESTIMATED ANNUAL PURCHASES: Have you ever filed for Bankruptcy? YES NO $ YES NO
SALES TAX INFORMATION: EXEMPT NON-EXEMPT RESALE CERTIFICATE/EXEMPTION #:

ADDITIONAL INFORMATION:

Customer’s Statement: Read this statement before you sign it.

All information I have given in this application is true and correct. I have read this document in its entirety both front and back and acknowledge that no verbal representations were made to induce the signing of this agreement. By signing below this Application For Credit, Master Rental and Sales AGREEMENT, I agree to comply with and be bound by all terms and conditions contained herein. I understand that you will confirm the information and retain the application whether or not my application is approved. You are also authorized to receive information about my credit. You can answer questions and requests from others for credit and experience information about me and the applicant on existing accounts with you. I authorize my bank and other lending institutions to release to WESTERN OILFIELDS SUPPLY COMPANY dba RAIN FOR RENT financial information to support my application. ___________________________________ _________________
Customer/Authorized Signature & Title Date
__________________________________ _________________
Customer/Authorized Signature & Title Date

1. The terms and conditions of the rental and sale of any equipment (“Equipment”) by Rain For Rent, Western Oilfields Supply Company, its subsidiaries and affiliates (collectively, “Rentor”) to the Applicant (“Rentee”) are stated in this Master Rental and Sales Agreement (“Agreement”), as supplemented by any Rentor invoice to Rentee (“Invoice”), any delivery documents, and any documents from Rentor regarding the use or handling of Equipment, or Rentor’s consent under § 3(a).

2. Rentee shall pay to Rentor within 30 days (“Due Date”) of the date of an Invoice all Equipment rental, sales and other charges (if any) stated therein (“Invoiced Charges”) and interest at the rate of 1.5% per month (or if less, the highest rate permitted under law) on payments not received by the Due Date. Payments will be credited first against accrued interest and then Invoiced Charges. Rentee agrees that all funds from anyone or received by Rentee to the extent those funds result from the labor, material or Equipment supplied by Rentor shall be held in trust for benefit of Rentor ("Trust Funds"). Rentee agrees it has no interest in Trust Funds Held by anyone and to promptly account for and pay to Rentor all Trust Funds.

3. (a) RENTEE SHALL NOT PERMIT THE PRESENCE OF ANY HAZARDOUS WASTE IN EQUIPMENT WITHOUT RENTOR’S PRIOR WRITTEN CONSENT. (b) RENTEE

SHALL NOT PERMIT ANY EQUIPMENT TO BE USED FOR THE STORAGE, SHIPMENT OR CARRIAGE OF ACUTE HAZARDOUS WASTE WITHOUT RENTOR'S PRIOR WRITTEN CONSENT. FURTHERMORE, UNDER NO CIRCUMSTANCES SHALL RENTEE PERMIT ANY EQUIPMENT TO BE USED FOR THE STORAGE, SHIPMENT OR CARRIAGE OF ULTRA HAZARDOUS WASTE. (c) RENTEE IS PROHIBITED FROM PLACING IN THE EQUIPMENT ANY MATERIAL THAT CAUSES OR IS SUSPECTED TO CAUSE CORROSION, INCLUDING, BUT NOT LIMITED TO, COPPER-BASED FUNGICIDE ,CHAMP FLOABLE, KOCIDE 101, KOCIDE 606, COPPER-COUNT-N, AND RIDOMIL-COPPER FUNGICIDE. (d) Rentee shall advise Rentor of the exact location and condition of the Equipment when requested by Rentor. Rentee agrees that Rentor may inspect any Equipment at any time and at any place where Equipment is located.

4. All Equipment will be delivered to Rentee at the location set forth in the relevant Delivery Document and Rentee's execution of a Delivery Document shall be conclusive evidence that the relevant Equipment has been delivered to Rentee. Rentee agrees that this Agreement shall govern all “delivery without signature” deliveries should Rentee fail or be unable to sign the Delivery Document. At the option and cost of Rentee, Rentor may (but shall not be obliged to) provide (a) delivery and return freight services and/or (b) installation services, any such services shall be carried out during the term of the rental, (c) Rentee acknowledges that Equipment may have contained hazardous materials and/or environmental contaminants (“Contaminants”). Rentee may, at its sole option and expense, test any Equipment prior to taking delivery of it from Rentor. If Contaminants are detected in any Equipment prior to Rentee taking delivery thereof, Rentee may terminate its rental of the Equipment. IF RENTEE ELECTS NOT TO (I) TERMINATE ITS RENTAL

OF THE EQUIPMENT OR (II) TEST THE EQUIPMENT, RENTEE SHALL THEREBY WAIVE ANY RIGHT TO OBJECT TO THE PRESENCE OF CONTAMINANTS IN ANY EQUIPMENT OR MAKE ANY CLAIM AGAINST RENTOR IN RESPECT THEREOF. #29..
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5. Rentee shall (a) use all Equipment only as permitted under this Agreement in a safe, careful and proper manner (“Permitted Uses”); and (b) at Rentee’s sole cost and expense, maintain all Equipment in good repair and working order (“Maintenance/Repair”), including but not limited to safety features, any meter that measures hours of Equipment use (“Equipment Use Meter”), and belts, and will replace lubricants, oil and filters at least every 250 hours. Rentee shall not allow any Equipment to come into contact with any substance(s) that may cause damage. Rentee shall not modify, or make any attachments to, any Equipment. Upon Rentee’s written request, Rentor may provide Maintenance/Repair of Equipment and add Rentor’s then current retail charges for such Maintenance/Repair to Rentee’s Invoice. Rentee shall be responsible for any damage, harm or liability to any Equipment, Rentor, Rentee or another, which is related to modification or removal of any Equipment safety feature (including, but not limited to, guards, shrouds, railings, oil pressure, water temperature, pump discharge components).

6. During any day an Equipment Use Meter is not operating, the Equipment rental charge shall be for 24 hours of use. The rental rate for pumps and equipment with hour meters are based on an 8 hour day or 48 hour running week. The rental rate will be multiplied by 1.5 for greater than 8 hours per day or 49-96 operating hours per week and multiplied by

2.0 for more than 16 hours per day or 96 operating hours per week. Rentee shall be responsible for environmental fees covering waste fluid, fuel, filter and other disposal costs and for any fuel, product, maintenance and service related sur-charges. The environmental fee is not a government mandated charge. Rentee is responsible to comply with Fugitive Dust Provisions of Air Quality Management Districts. All taxes, levies, fees or assessments against Rentee, Rentor or Equipment due to Rentee’s use of any Equipment, or Rentee’s payments to Rentor (except Rentor’s income tax liability as to such payments). At Rentor’s sole option, Rentee shall either pay such amounts directly or shall reimburse Rentor for such amounts.

7. Rentee shall be liable for all damage to, or loss of, any Equipment regardless of cause or insurance coverage (collectively, “Loss”) . Loss of any Equipment shall not relieve Rentee from its obligations under this Agreement. In the event of a Loss, Rentee shall promptly notify Rentor of the Loss (and in any event within 48 hours after Rentee’s knowledge of such Loss), and shall promptly pay to Rentor: (a) the fair market value of Equipment or the cost of repair, as determined by Rentor in its sole and arbitrary discretion, (b) all rental charges up to the date Rentee pays Rentor the full amount of repair or replacement, (per §7(a)), and (c) all other amounts owed under this Agreement. Rentee shall be responsible for proper disposal of Loss Equipment but may not dispose of any Equipment until Rentor has been notified in writing and Rentee has paid all amounts due in full.

8. Rentee shall carry at its own expense (a) Commercial General Liability insurance $1,000,000 combined single limit per occurrence, $2,000,000 aggregate and Business Automobile Liability insurance covering all owned, hired and non-owned vehicles in the amount of $1,000,000 combined single limit each occurrence for damage or loss or personal injury, death or property damage occurring upon premises occupied by Rentee, or in connection with services rendered by Rentee, or Rentee’s ownership, rental, subrental, maintenance or operation of any equipment or vehicle of any kind, (b) “all risk” property insurance covering the Equipment in an amount not less than full replacement value, and (c) sudden and accidental pollution coverage. All such insurance shall: (a) be in a form reasonably acceptable to Rentor; (b) name Rentor as an additional insured, loss payee, or both, as appropriate; (c) include a cross-liability clause; (d) provide a waiver of subrogation in favor of the Rentor; (e) be primary and without contribution from Rentor or its insurance carrier(s); and (f) require the insurance carrier to provide Rentor at least 30 days advance written notice of cancellation, expiration or material modification of such insurance. Should the Rentee’s business include interstate or intrastate transportation of hazardous cargoes as defined by the Motor Carrier Act of 1980 (as amended), Rentee shall provide evidence of compliance with the financial responsibility requirements of the Motor Carrier Act (Form MCS-90). If higher limits or other forms of insurance are required by the Rentor, Rentee will comply with such requirements. Rentee shall provide written evidence of the insurance required hereunder from time to time, as requested by Rentor.

9. Rentee shall keep all Equipment free of any mortgage, pledge, encumbrance, charge, security interest, lien, or other claim or encumbrance against, created or suffered by, Rentee. Rentee shall not assign this Agreement, and shall not subrent, sublease or otherwise permit any person (other than Rentor) to use or possess any Equipment.

10. Rentee shall return all Equipment (a) to location(s) specified by Rentor (and safely stack any irrigation pipe), (b) in the same condition as when it was delivered to Rentee, and in good and efficient operating condition excluding normal wear and tear (c) free from Rentee’s signs or markings, and (d) in clean condition, and free of measurable amounts of Contaminants. Rentor may have Equipment tested for Contaminants, and if the presence of Contaminants is confirmed, the cost of all testing and elimination of Contaminants from the Equipment shall be at Rentee’s expense. All filtration media including, without limitation, carbon, sand, cartridges, bags, coalescing packs are the property of the Rentee and must be removed from the rental Equipment prior to return.

11. ALL EQUIPMENT IS RENTED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY (a) THAT IT IS FIT FOR ANY PARTICULAR PURPOSE; (b) REGARDING CLAIMS OF PATENT OR COPYRIGHT INFRINGEMENT; (c) OF QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MECHANTABILITY,

PERFORMANCE, MATERIAL OR WORKMANSHIP, OR AGAINST HIDDEN OR LATENT DEFECTS AND ALL SUCH RISKS ARE TO BE BORNE BY RENTEE AT ITS SOLE

COST AND EXPENSE, AND RENTEE WAIVES ALL RIGHTS AND REMEDIES IT MAY HAVE UNDER THE UNIFORM COMMERCIAL CODE DEEMED APPLICABLE TO THIS AGREEMENT. RENTOR SHALL NOT BE RESPONSIBLE FOR DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, ARISING OUT OF RENTEE’S RENTAL OR USE OF THE EQUIPMENT.

12. Rentee shall hold harmless, indemnify and defend the Rentor Group from Losses arising from, in connection with or related to Claims. “Rentor Group” means Rentor, its successors, assigns, parents, subsidiaries and affiliates, and their respective shareholders, representatives, directors, officers, employees and agents. “Losses” means all losses, attorney’s fees and costs, other fees, costs, expenses, claims, liabilities, damages, penalties and fines. “Claims” means all lawsuits, judgments, administrative rulings or decisions, claims, arbitration awards, arising from, in connection with or related to (a) Rentee’s failure to comply with §5, (b) any Default (as defined in §13), (c) the use, possession, renting, leasing, subleasing, operation, transportation, maintenance, condition, repair, replacement, return and/or storage of any Equipment, (d) any pollution, contamination, environmental impairment and/or similar condition directly or indirectly caused by or resulting in whole or in part from Rentee’s use of any Equipment or (e) any environmental statutory or regulatory compliance requirements applicable to any equipment (or any use thereof) and required under any and all foreign or domestic federal, state or local laws, treaties, ordinances, regulations, codes, rules, orders, guidelines, policies or requirements of any governmental authorities which regulate or impose standards of liability or conduct concerning air, water, soils, wetlands and watercourses, solid waste, hazardous waste and/or materials, worker and community right-to-know, noise, resource protection, health protection and similar environmental, health, safety, and land use concerns as may now or at any time hereafter be in effect. This indemnification shall survive the termination of the Agreement.

13. Should the Rentee in any way fail to perform, observe or keep any provision of this Agreement (“Default”), Rentor may at its option do any one or more of the following:
(a) terminate this Agreement; (b) declare all amounts payable hereunder due and immediately payable and commence legal action therefor; (c) retake possession of the Equipment, holding the Rentee liable for all rental and other charges and for all costs and fees incurred in connection with the retaking of the Equipment; or (d) pursue any other remedies available by law. Default includes but is not limited to, filing under any bankruptcy, reorganization, receivership, insolvency, moratorium or other laws relating to the relief of debtors, readjustment of indebtedness, financial reorganization, arrangements with creditors, compositions or extensions of indebtedness; or insolvency of Rentee. The Rentee certifies by signing this Agreement they are financially solvent as of the date signed and that they will immediately notify Rentor of a material adverse change in their financial condition.

14. CRIMINAL WARNING: the use of false identification or information to obtain Equipment or failure to return the Equipment by the Due Date may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.

15. Notices shall be deemed given when sent by telecopy (with reasonable confirmation of receipt), or by reputable overnight delivery courier to Rentor or Rentee at its address stated on page 1 of this Agreement, or such other address from time to time designated in writing by the party to which notice is to be given.

16. (a) Absent a written mutual agreement to the contrary, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Each party to this Agreement shall share equally in the costs and fees arising out of the arbitration, including the arbitrator's fees and administrative fees. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. California law shall govern this Agreement notwithstanding any choice of law to the contrary. The Agreement shall be enforced as if any provision, which has been finally determined by a court of competent jurisdiction to be invalid under any applicable laws or regulations, was omitted. (b) Rentee shall execute and deliver such instruments and assurances as Rentor requests to confirm or perfect this Agreement or Rentor’s rights under this Agreement. Rentee shall provide information needed by Rentor to accurately prepare and file all tax returns and reports concerning the Equipment. (c) Any failure of Rentor to require strict performance by Rentee of any provision(s) of this Agreement shall not waive or diminish Rentor’s right thereafter to demand strict compliance therewith or with any other provision. Any waiver by Rentor of a default by Rentee shall not constitute a waiver of any other default by Rentee. (d) This Agreement (i) represents the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and (ii) the Agreement may be executed in any number of counterparts, which shall together constitute one contract. (e) No provision of this Agreement shall be waived, modified, altered, or amended, except in writing signed by the party to be charged. (f) Rentee shall have no right or option to buy any Equipment except as otherwise stated in an Invoice. Rentee shall acquire no ownership interest or equity in any Equipment due to payment of rent to Rentor. All Equipment shall remain personal property and shall not become a real property fixture. (g) A defaulting party shall pay all damages, costs and expenses including, without limitation, attorney and accounting fees, reasonably incurred by the other party by reason of such default, with or without litigation.

17. Additional Terms and Conditions for Sales: (a) Terms and Conditions. The above terms and conditions, as applicable, are hereby incorporated into any Sales transactions.

References to “Seller” will include “Rentor” and references to “Buyer” will include “Rentee”. (b) Delay. Seller shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond seller’s control, including without limitation, strikes, lockouts, fires, embargoes, war or other outbreak of hostilities, acts of God, inability to obtain shipping space, machinery breakdowns, delays of carriers or suppliers, and domestic or foreign or governmental acts or regulations. (c) Waiver. All claims shall be deemed waived unless made in writing, delivered to seller within 10 days after receipt of goods by buyer. (d) Inspection. Buyer shall afford seller prompt and reasonable opportunity to inspect goods as to which any claim is made as above stated. Seller reserves the right, in its sole discretion, to repair or replace any claimed defect in the goods. (e) Cancellation of Merchandise.

Cancellation of standard items may be honored only if the request is received prior to shipment. Custom made or special items may not be canceled unless cancellation precedes the in-process manufacture of the item. (f) Manufacturer Warranties. Buyer must comply with all original manufacturer’s terms and conditions for any warranty claims that may arise. Seller does not warranty the merchandise sold beyond the terms of such warranty offered by the manufacturer, if any. Neither Rain For Rent nor the manufacturer warranties the product if it has failed due to corrosion, misuse or damage; (2) it has been altered, repaired or modified in any way that would adversely affect its operation; or (3) it was installed or operated other than in accordance with manufacturer’s operating instructions.

18. In this Agreement, the following terms shall have the respective meanings given to them: (a) "Acute Hazardous Waste" means any and all Contaminants, hazardous waste, materials and substances (including, without limitation, polychlorinated biphenol contaminants (PCBs), pentachlorophenols and normally occurring radioactive materials (norm) but excluding Ultra Hazardous Waste; (b) "Ultra Hazardous Waste" means any (i) radioactive, corrosive, explosive or biological waste and materials (but excluding naturally occurring radioactive materials (norm)) and/or (ii) hazardous, toxic or dangerous waste, material or other substance, whether solid, liquid or gas, as defined in the Resource Conservation and Recovery Act of 1976 (as amended from time to time) and any successor legislation thereto or regulations promulgated pursuant thereto.

Initial here: ________________ Revision 02/01/2021
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Form W-9
(Rev. October 2018)
Department of the Treasury
Internal Revenue Service
Request for Taxpayer
Identification Number and Certification
a Go to www.irs.gov/FormW9 for instructions and the latest information.

Give Form to the
requester. Do not
send to the IRS.

Print or type.

See Specific Instructions on page 3.
1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes.

Individual/sole proprietor or
single-member LLC
C Corporation S Corporation Partnership Trust/estate
Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) a Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner.

Other (see instructions) a
4 Exemptions (codes apply only to
certain entities, not individuals; see
instructions on page 3):

Exempt payee code (if any)
Exemption from FATCA reporting
code (if any)
(Applies to accounts maintained outside the U.S.)
5 Address (number, street, and apt. or suite no.) See instructions. 6 City, state, and ZIP code
Requester’s name and address (optional)
7 List account number(s) here (optional)
Part I Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.

Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter.

Social security number
––
or
Employer identification number
–
Part II Certification
Under penalties of perjury, I certify that:

1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and

2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and

3. I am a U.S. citizen or other U.S. person (defined below); and

4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.

Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.

Sign
Here Signature of
U.S. person a Date a
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.

Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.

Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099-INT (interest earned or paid)
• Form 1099-DIV (dividends, including those from stocks or mutual funds)
• Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
• Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
• Form 1099-K (merchant card and third party network transactions) • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.

If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.

Cat. No. 10231X Form W-9 (Rev. 10-2018)
Western Oilfields Supply Company
Please see attached page 2
✔
5 3404 State Road
Bakersfield, CA 93308
95 1362750
Maston Cunningham, CFO
1/4/2021
Zoho Sign Document ID: NXZHSXR5BFURQH7VE4PVXBTI-SK_QL5GF80H8NM84Q8 #29..
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Modesto City CouncilMarch 8, 2022

Modesto City Council
March 8, 2022