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

WESTERN OILFIELDS SUPPLY COMPANY

LIST OF DBA/TRADEMARKS
FEDERAL IDENTIFICATION NUMBER 95-1362750
WESTERN OILFIELDS SUPPLY COMPANY – A DELAWARE CORPORATION Western Oilfields Supply Company
dba Rain for Rent
dba Lake Company
dba Lake Leasing Company
dba West Side Pump
dba Lake International
dba Power Prime Pumps
dba WOSCO Leasing
dba Frac Tanks Inc.
dba Spur Leasing
dba Hinson Pump Rental, Inc.

Zoho Sign Document ID: NXZHSXR5BFURQH7VE4PVXBTI-SK_QL5GF80H8NM84Q8 #29..
- 1373 -

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:

PRODUCER
(A/C, No, Ext): PHONE

INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.

OTHER:
(Per accident)
(Ea accident)
$
$
N / A

SUBR WVDADDL
INSD

THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS

CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED

ANY AUTO

AUTOMOBILE LIABILITY

Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
9/24/2021
McGriff Insurance Services
1500 Riverfront Drive
Little Rock, AR 72202 501-661-4881
John Pierron
Rhonda Allen
[email protected]
Western Oilfields Supply Co.

DBA Rain for Rent
3404 State Road
Bakersfield CA 93308
64116297
Sample Certificate of Insurance
A EG7172346 10/1/2021 10/1/2022 1,000,000
500,000
25,000
1,000,000
Contractual Liability
2,000,000
2,000,000
B CA7568925 (AOS) 10/1/2021 10/1/2022 1,000,000
B CA7568927 (MA) 10/1/2021 10/1/2022
C WC016393381 (AOS) 10/1/2021 10/1/2022
B XWC1647297 (CA) 10/1/2021 10/1/2022 1,000,000 C N WC016393382 - NY 10/1/2021 10/1/2022 1,000,000
1,000,000
AIG Specialty Insurance Company 26883
National Union Fire Ins Co Pittsburgh PA 19445
AIU Insurance Company 19399
64116297 | RAINF-1 | 21/22 AllStates (Master) | Shelia Still | 9/24/2021 11:43:42 AM (CDT) | Page 1 of 1 This certificate cancels and supersedes ALL previously issued certificates. #29..
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1 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. 2021-67
FOR
“STAND-BY” PUMPS DV400C OR EQUIVALENT
BID OPENING: NOVEMBER 16, 2021 at 11:00 A.M.

CITY OF MODESTO CONTACT: Carol Wattle, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5406
EXHIBIT C #29..
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2 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO 2021-67

TABLE OF CONTENTS
Page
. Notice to Bidders ................................................................................................................ 3 . City Contacts ...................................................................................................................... 4 . Calendar of Events.............................................................................................................. 4 . Offer and Acceptance ......................................................................................................... 4 . Covid-19 Response ............................................................................................................. 5 . Submittal Checklist............................................................................................................. 6

REQUIRED DOCUMENTS
. Bid Acknowledgement (Signature Form) ........................................................................ 7 . Pricing Schedule (Signature Form) ............................................................................... 8-9 . Exceptions, Clarifications, Amendments (if applicable) ................................................. 10 . References.................................................................................................................... 11-12 . Financial Interest Disclosure Form (Signature Form) .............................................. 13-15 . Support of Local Vendors (if applicable) ......................................................................... 16 . Company History Statement ............................................................................................ 17 . Addenda Acknowledgement Page (if applicable) .......................................................... 18 . Pump Curve and Specifications …....................................................................................19 . Sample Rental Agreement …....…....................................................................................20

TECHNICAL SPECIFICATIONS AND REQUIREMENTS
. Scope of Work .................................................................................................................. 21 . Specification Requirements .............................................................................................. 21 . Delivery ........................................................................................................................... 22

GENERAL TERMS AND CONDITIONS
. Bid Submittal .................................................................................................................... 24 . Acceptance/Rejection of Irregular Bids ........................................................................... 24 . Complete Bid Document .................................................................................................. 24 . Compliance / Non-Compliance ........................................................................................ 25 . Pricing Format .................................................................................................................. 25 . Pricing Schedule ............................................................................................................... 25 . Award of Bid .................................................................................................................... 25 . Term of Agreement .......................................................................................................... 26 . Termination of Services ................................................................................................... 26 . Quantities .......................................................................................................................... 26 . Funding ............................................................................................................................. 26 . Other Government Agencies ............................................................................................ 26 . Protest and Appeal Procedures ....................................................................................27-30 . Payment ............................................................................................................................ 31 . Sample Annual Purchase Agreement ......................................................................... .32-36 . Sample Agreement (for Mobilization) ....................................................................... .37-48 #29..
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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 “Stand-By” Pumps DV400C or Equivalent for the Utilities Department, Wastewater Division.

All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto. Bidders are highly recommended to download all documents 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 Tuesday, November 16, 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 both the bid envelope and courier envelope, the bidder shall indicate the following:

NAME AND ADDRESS OF BIDDER
SPECIFICATION NUMBER 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT
BID OPENING DATE: NOVEMBER 16, 2021 AT 11:00 A.M.

MAIL TO: CITY CLERK 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. #29..
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4 CITY CONTACTS
All questions regarding these specifications, terms, and conditions shall be submitted in writing to Carol Wattle, Buyer, via email at: [email protected].

All contacts 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 October 26, 2021
Written Questions Due November 2, 2021
Addendum Issued (if required) November 9, 2021(approximate date) Response Due PRIOR 11:00 A.M. on Tuesday, November 16, 2021 Bid Award Date Approximately February, 2022
It is the responsibility of each bidder to be familiar with all of the specifications, terms and conditions and the site condition (if applicable). The bidder agrees and acknowledges all RFB specifications, terms, and conditions and indicates the ability to perform by submission of a bid. By the submission of a bid, the bidder certifies that if awarded an agreement 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 the City agreement 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 agreements 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. #29..
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5 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT
COVID-19 RESPONSE
The City of Modesto is doing our part to slow the spread of COVID-19. The City of Modesto will be broadcasting bid openings electronically via Microsoft Teams at 11:00 a.m. PT on Tuesday, November 16, 2021. The City Clerk Record of Bid document will be available on Planet Bids by the end of day, Tuesday, November 16, 2021. The public bid opening for RFB 2021-67, “Stand-By” Pumps DV400C or Equivalent will be available using the URL link, video system or via phone provided below. By submitting your bid for the above-stated RFB you acknowledge, understand, and agree to this modified bid opening procedure.

URL - https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2/0?context=%7 b%22Tid%22%3a%22125ccacf-fc61-463c-9976-189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997- 4dd7-8984-12cd4deaa705%22%7d
Click here to join the meeting
+1 469-998-7409 United States, Dallas
Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact Carol Wattle, by email at [email protected] or telephone at (209)577-5406.
#29..
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6 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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.

COMPLETE BID Page No.
. Bid Acknowledgement (Signature Form) ........................................................................ 7 . Pricing Schedule (Signature Form) ............................................................................... 8-9 . Exceptions, Clarifications, Amendments (if applicable) ................................................. 10 . References.................................................................................................................... 11-12 . Financial Interest Disclosure Form (Signature Form) .............................................. 13-15 . Support of Local Vendors (if applicable) ......................................................................... 16 . Company History Statement ........................................................................................... 17 . Addenda Acknowledgement Page (if applicable) ........................................................... 18 . Pump Curve and Specifications ....................................................................................... 19 . Sample Rental Agreement ….…....................................................................................... 20

#29..
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7 REQUEST FOR BID AND SPECIFICATIONS NO. 2021-67
BY-PASS PUMPS DV400C

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 agreement without further action by either party. The agreement 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 agreement 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 agreement 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 agreement.

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 tender’s 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 documents 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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8 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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, Amendments” section on page 10.

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

PRICING SCHEDULE
City Business/Delivery License No. __________ Expiration Date: __________ 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 1.5 for further details) Stated pricing is net to the City, exclusive of Federal Excise tax, California State, Local, Sales and Use tax.

Stated pricing is subject to ______ percent (______ %) cash discount if invoice is paid within ______ days after receipt of order.

Does bidder accept the City’s Epay Payment Program? Please check one: Yes ____ No ____ Information regarding the program is provided in Section 2.19 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:
#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):
#29..
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11 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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:

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

REFERENCES-CONTINUED
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):
#29..
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13 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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

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, on page 15.

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.

The applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.

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

COMPANY NAME: ____________________________________________________

__________________________________
APPLICANT’S NAME (SIGNATURE):

__________________________________
APPLICANT’S NAME/TITLE (PRINT):
__________________________________
DATE: ____________________________
Applicable Names: (if any, use page 15)
(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. #29..
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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:

Signature / Print:
#29..
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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

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 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

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 products requested herein.

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

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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):
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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. #29..
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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. #29..
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21 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.1 SCOPE OF WORK:

The Utilities Department, Wastewater Division is requesting bids for “Stand-By Pumps DV400C or Equivalent, which may or may not include mobilization. Pumps are to be held on “stand by” within 50 miles of the Sutter Wastewater plant 1221 Sutter Ave, Modesto, CA 95351 until mobilization is requested, and used as emergency assets in the event of a failure to existing system during cannery season July to September.

1.2 TECHNICAL SPECIFICATIONS:

Bidder shall provide pricing for rental pumps and supporting labor that meet the requirements listed below.

1. Pumps shall be DV400C or an equivalent
a. Non-Electric, Diesel only
b. Bidders will supply Diesel Fuel for pump maintenance while on standby c. City will supply the Diesel Fuel, if pumps are deployed

2. Rental pumps shall meet or exceed the following specifications:
a. Discharge Flange 16”
b. Fuel Capacity of 100 gal, minimum
i. Diesel
c. Impeller Diameter of 22”
d. Capable of pumping a minimum of 8,333 gpm with a total dynamic head of 45’ e. Be self-priming
f. Pass 4.5” solids
g. 28’ suction lift
h. Able to run dry

3. Pumps are to be held at a facility within 50 miles of the City of Modesto Sutter Wastewater plant at 1221 Sutter Ave, Modesto, CA 95351.

4. Bidders shall be responsible for providing all of the necessary equipment to deliver including off loading and servicing the pumps.

5. Bidders shall have the standby pumps available immediately upon notice, working with City Staff to deliver the pumps on site within 24hrs.

6. The pumps shall be on standby from July to September. This is equal to three (3) twenty-eight (28) day billing cycles.

7. Equipment Operators are to be made available if required by the City.

8. Standby pumps shall be serviced and/or started in regular intervals (i.e. Weekly, bi-weekly, monthly, etc.) to ensure that pumps will be in good working order should mobilization be required. #29..
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22 1.3 DELIVERY:

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).

1.4 CONTRACTUAL CHANGES:

Changes of a contractual or business nature shall be affected only by written change to the agreement by the City of Modesto, Purchasing Division.

1.5 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.

1.6 INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY 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 and $2,000,000 aggregate. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations.

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 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 Management via PINS 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, its agents, officers, officials, employees, and #29..
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23 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, officials, 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 agreement.

1.7 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 site on the request of the City Representative or Purchasing Manager, and such person shall not again work on any City site.

1.8 DELAYS 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. #29..
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24 REQUEST FOR BID AND SPECIFICATIONS NO 2021-67
“STAND-BY” PUMPS DV400C OR EQUIVALENT

GENERAL TERMS AND CONDITIONS

2.1 BID SUBMITTAL:

Bidders should submit two (2) “inked” (preferably blue ink) signed original bid document, 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 (1) “INKED” SIGNED ORIGINAL BID DOCUMENTS MAY RESULT IN DISQUALIFICATION.

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

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

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

Please review the Sample Annual Purchase Agreement and 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.

2.1.1 ACCEPTANCE/REJECTION OF IRREGULAR BIDS:

An agreement 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.

2.1.2 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)
 Pump Curve and Specifications
 Sample Rental Agreement
Failure to furnish any of these forms may result in disqualification.

2.1.3 BID PRESENTATION:

Bid submittals shall be presented in the order as listed in Section 2.1.2 Complete Bid Document. #29..
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25 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. 2021-67 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 NON-COMPLIANCE:

If you cannot comply with a specification requirement, note on the Exception, Clarifications, and Amendments page of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the bidder is not in compliance with the specification, the bid may be rejected.

2.4 PRICING FORMAT:

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

2.5 PRICING SCHEDULE:

Bidders shall use the pricing schedule provided in this document to present bid pricing. No other form or format shall be accepted. 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” section on page 10.

2.6 AWARD OF BID:

Award shall be based on providing the lowest responsive and responsible bid for the standby rates provided on the pricing schedule.

Agreements may be awarded to more than one company in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. The secondary contractor could be utilized if the primary contractor is unable to perform the service, or if the primary contractor is unable to complete the specific job within the time frame required by the City, and finally, if the primary contractor is unable to maintain acceptable quality standards required by the City.

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

2.7 INSPECTION AND ACCEPTANCE:

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

If upon initial inspection the product or service is found to be defective in its construction or deficient in any of the requirements of this specification, the supplier shall remedy or remove said product in an acceptable manner at the supplier's expense. No compensation shall be allowed for such correction of product, labor, or transportation of product.
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26 2.8 SUPPORT OF LOCAL VENDORS:

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

2.9 TERM OF 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.

2.10 TERMINATION OF SERVICES:

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

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

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

2.11 QUANTITIES:

No minimum or maximum is guaranteed or implied.

2.12 FUNDING:

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

2.13 OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

2.14 NON-DISCRIMINATION:

A. During the performance of this agreement, 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 #29..
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27 Administrative Code are incorporated into this agreement 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 agreement.

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

2.15 NON-DISCRIMINATION OF THE HANDICAPPED:

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

2.16 DRUG FREE WORKPLACE:

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

2.17 INDEMNITY:

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

2.18 PROTEST AND APPEAL PROCEDURES:

Potential offerors, bidders, contractors, and subcontractors wishing to protest or appeal 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.

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28 "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.

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 #29..
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29 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.

All protest appeals shall either be delivered to:

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

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

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

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

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

All protests shall either be delivered to:

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

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

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

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

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

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

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

D. PROCUREMENTS OBTAINED WITH FEDERAL FUNDS

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

2. The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing before Council on the procurement at hand. In such cases, no internal appeal is possible since staff may in no case reverse a City Council decision. In such an event, a disappointed transit bidder or an agreement involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the Federal Transit Administration. #29..
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31 2.19 PAYMENT:
 Paper Payment Method:

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

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

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

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

2.20 SAMPLE ANNUAL PURCHASE AGREEMENT:

Please review the Sample Annual Purchase Agreement for the award of bid for “Stand-By” Pumps DV400C or Equivalent. Please also review the Sample Agreement should mobilization be required. The agreement(s) may be modified and subject to change.
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32 CITY OF MODESTO

PURCHASING DIVISION
1010 TENTH ST., SUITE 5300
MODESTO, CA 95354
TEL: (209) 577-5405 FAX: (209) 544-8821
SAMPLE ANNUAL PURCHASE AGREEMENT NO. XXXXXX
VENDOR:

VENDOR NAME

STREET ADDRESS

CITY, STATE ZIP
SHIP TO:

CITYWIDE DIVISIONS TO BE

DETERMINED AT TIME OF ORDER
MODESTO, CA 95354
INVOICE TO:

CITY OF MODESTO

ACCOUNTS PAYABLE
P.O. BOX 642
MODESTO, CA 95353
ANNUAL AGREEMENT FOR “STAND-BY” PUMPS DV400C OR EQUIVALENT FOR THE UTILITIES DVISION WASTEWATER DEPARTMENT.

THE TERMS AND CONDITIONS OF RFB 2021-67 ARE AN INTEGRAL PART OF THIS AGREEMENT. PER COUNCIL RESOLUTION 2021-____________

1. TERM OF THE AGREEMENT: THE TERM OF THE AGREEMENT SHALL BE FOR A PERIOD OF ONE (1) YEAR WITH FOUR (4) ONE-YEAR EXTENSION OPTIONS AT THE SOLE DISCRETION OF CITY, FOR A TOTAL OF UP TO FIVE (5) YEARS.

YEAR ONE: MONTH DATE, YEAR THROUGH MONTH DATE, YEAR
YEAR TWO: MONTH DATE, YEAR THROUGH MONTH DATE, YEAR
YEAR THREE:

YEAR FOUR:

YEAR FIVE:

MONTH DATE, YEAR THROUGH MONTH DATE, YEAR

2. PRICING SHALL REMAIN FIRM FOR THE FIRST YEAR (1) YEAR OF THE AGREEMENT.

PRICE INCREASES SHALL NOT EXCEED THE CONSUMER PRICE INDEX (CPI) FOR WEST URBAN AREA IN

ANY ONE CONTRACT YEAR, UNLESS ACCEPTABLE SUPPORTING DOCUMENTATION IS PROVIDED TO SUBSTANTIATE INCREASE BY MANUFACTURE AND APPROVED BY THE PURCHASING DEPARTMENT.

REQUESTS 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.

REFER TO ATTACHMENT “A” FOR CONTRACTUAL PRICING

3. USAGE: NO MINIMUM OR MAXIMUM QUANTITIES ARE GUARANTEED OR IMPLIED.

#29..
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33 4. PAYMENT: 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 THE BID DOCUMENT.

5. INVOICING: INVOICE SHALL REFERENCE AGREEMENT NO. XXXXXX. THE INVOICE SHALL INCLUDE THE FIRST AND LAST NAME OF THE PERSON REQUESTING THE SERVICE. ALL INVOICES SHALL BE EMAILED DIRECTLY TO ACCOUNTS PAYABLE AT [email protected].

6. CONTRACTUAL CHANGES: CHANGES OF A CONTRACTUAL OR BUSINESS NATURE SHALL BE EFFECTED

ONLY BY WRITTEN CHANGE TO THIS AGREEMENT THROUGH THE CITY OF MODESTO, PURCHASING DIVISION.

PURCHASING CONTACT: CAROL WATTLE, BUYER (209) 577-5406

7. TERMINATION OF SERVICES: THE CITY RESERVES THE RIGHT TO DISCONTINUE SERVICES WITH THE

PROVIDER UPON FAILURE TO MEET CONTRACTUAL EXPECTATIONS AND/OR OBLIGATIONS, AS RECOMMENDED BY THE SITE SUPERVISOR OR HIS/HER AGENT.

CANCELLATION OF SERVICES SHALL BE DETERMINED BY THE COLLABORATIVE EFFORTS OF THE

PURCHASING MANAGER, OR DESIGNEE, AND USING DEPARTMENT AFTER REVIEWING THE INCIDENT(S) OF FAILURE TO PERFORM.

8. INSPECTION: ALL MATERIALS AND WORKMANSHIP ARE SUBJECT TO INSPECTION AND TEST BY THE CITY

FOR COMPLIANCE WITH SPECIFICATIONS AS INCLUDED HEREIN, WITHIN A REASONABLE TIME AFTER DELIVERY. IN THE EVENT ARTICLES OR SERVICES ARE DEFECTIVE OR NOT IN CONFORMITY WITH THIS ORDER, THE CITY SHALL HAVE THE RIGHTS TO EITHER REJECT THE ITEMS OR REQUIRE CORRECTION.

DEFECTIVE ARTICLES OR SERVICES SHALL BE REMOVED FROM CITY PREMISES AND/OR CORRECTED BY AND AT THE EXPENSE OF THE VENDOR. FAILURE TO INSPECT AND ACCEPT OR REJECT SHALL NOT RELIEVE THE VENDOR FROM RESPONSIBILITY FOR COMPLIANCE WITH SPECIFICATIONS. FINAL

ACCEPTANCE SHALL BE CONCLUSIVE EXCEPT AS REGARDS TO LATENT DEFECTS, FRAUD, OR SUCH GROSS MISTAKES AS AMOUNT TO FRAUD.

9. RESPONSIBILITY: UNLESS OTHERWISE SPECIFIED, THE VENDOR SHALL BE RESPONSIBLE FOR ALL ITEMS

COVERED BY THIS PURCHASING AGREEMENT UNTIL DELIVERED AT THE DESIGNATED DELIVERY POINT

AND THE VENDOR SHALL BEAR ALL RISKS AS TO ITEMS REJECTED OR REQUIRING CORRECTION AFTER NOTICE OF SUCH REJECTION OR CORRECTION IS GIVEN.

10. CHANGES: THIS PURCHASING AGREEMENT MAY AT ANY TIME, BY WRITTEN ORDER, BE CHANGED IN

REGARD TO THE MATERIALS OR SERVICE TO BE FURNISHED, QUANTITIES ORDERED, UNIT PRICE,

DISCOUNT, DELIVERY POINT OR ARRANGEMENTS, TERMS OR ANY OTHER MATTERS AFFECTING A VALID ORDER. IN THE EVENT SUCH CHANGE CAUSES AN INCREASE OR DECREASE IN THE COST OF

PERFORMANCE HEREUNDER, AN EQUITABLE ADJUSTMENT WILL BE MADE FOR THE COST THEREOF, SUBJECT TO THE APPROVAL OF THE PURCHASING MANAGER, AND WRITTEN NOTICE GIVEN THEREFORE.

11. WARRANTY: NOTWITHSTANDING ANY OTHER PROVISIONS OF THE ORDER, VENDOR WARRANTS THAT

THE MATERIALS, SUPPLIES OR OTHER SERVICES FURNISHED SHALL BE OF THE MOST SUITABLE GRADE AND EXACTLY AS SPECIFIED IN THIS ORDER. SUCH WARRANTY SHALL INCLUDE THE FOLLOWING:

PERFORMANCE, WORKMANSHIP, LABOR, MATERIALS, SELLER’S DESIGN OR ENGINEERING CONTRIBUTIONS. IF A DEFECT IS DISCOVERED IN ANY ITEM OF MATERIALS, SUPPLIES OR SERVICES

COVERED IN THIS AGREEMENT, VENDOR SHALL CORRECT AT ITS EXPENSE, INCLUDING

TRANSPORTATION/FREIGHT, SUCH DEFECTS AS ARE REPORTED WITHIN ONE YEAR OF FINAL ACCEPTANCE. UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD ALL SUCH LIABILITY SHALL

TERMINATE EXCEPT FOR FRAUD OR SUCH GROSS MISTAKES AS AMOUNT TO FRAUD, LATENT DEFECTS OR SPECIFIC FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER.

12. EXEMPTIONS: THE CITY IS EXEMPT FROM PAYMENT OF FEDERAL EXCISE TAX. ALL INVOICES SHALL BE EXCLUSIVE OF SUCH EXCISE TAX. IF PURCHASE IS NOT SUBJECT TO SALES TAX, THE STATEMENT FOR RESALE WILL APPEAR IN THE BODY OF THE PURCHASING AGREEMENT. #29..
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34 13. INFRINGEMENT: VENDOR AGREES TO PROTECT, INDEMNIFY AND SAVE HARMLESS THE CITY AS BUYER,

ITS AGENTS, OFFICERS, EMPLOYEES, AND VOLUNTEERS FROM ANY CLAIM, LOSS OR DAMAGE FROM

INFRINGEMENT OF TRADEMARKS, PATENTS, COPYRIGHTS AND UNFAIR COMPETITION ACTION WITH RESPECT TO THIS AGREEMENT.

14. INDEMNITY: THE VENDOR 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 VENDOR, OR ITS AGENTS,

OFFICERS, EMPLOYEES, OR VOLUNTEERS RELATING TO OR DURING THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. VENDOR’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 VENDOR TO PROCURE AND MAINTAIN A POLICY OF INSURANCE. IN THE INDEMNITY CLAUSE

CONTAINED HEREIN VENDOR 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 VENDOR’S EMPLOYEES IS APPORTIONED TO VENDOR IN ACCORDANCE WITH THE PROVISIONS CONTAINED IN INDEMNITY.

15. GOVERNING LAW: THIS PURCHASING 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.

16. LIABILITY: THE CITY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE THAT MAY ACCRUE BY REASON OF THE DEATH OR INJURY OF THE PERSON OF THE VENDOR’S OFFICERS, AGENTS, EMPLOYEES, INVITEES,

OR LICENSEES, OR BE SET UP AT ANY TIME BECAUSE OF PERSONAL INJURY OR DAMAGE TO PROPERTY

SUSTAINED BY ANY OTHER PERSON OR PERSONS, WHICH MAY HAVE BEEN CAUSED OR CONTRIBUTED

TO, APPROXIMATELY OR REMOTELY, BY REASON OF OR IN THE COURSE OF PERFORMANCE OF THE PURCHASING AGREEMENT. THE VENDOR SHALL ASSUME FULL RESPONSIBILITY FOR THE DEFENSE OF

ANY CLAIMS ARISING UNDER THE PURCHASING AGREEMENT AND THE VENDOR SHALL SAVE, KEEP,

AND BEAR HARMLESS THE CITY, ALL OFFICERS AND EMPLOYEES THEREOF, FROM ALL DAMAGES,

COSTS, OR EXPENSES BECAUSE OF PERSONAL INJURY OR PROPERTY DAMAGE BASED ON THE PERFORMANCE OF THIS PURCHASING AGREEMENT OR ASSERTED AGAINST IT.

17. DISPUTES: ALL DISPUTES CONCERNING QUESTIONS OF FACT WHICH MAY ARISE UNDER THIS

PURCHASING AGREEMENT, AND NOT DISPOSED OF BY MUTUAL CONSENT SHALL BE DECIDED BY THE PURCHASING MANAGER.

18. OFFER AND ACCEPTANCE: VENDOR REPRESENTS ITS ACCEPTANCE TO PROVIDE PRODUCTS AND/OR SERVICES AS FOLLOWS: CITY’S OFFER TO PURCHASE PRODUCTS AND/OR SERVICES IS EXPRESSLY CONDITIONED UPON VENDOR’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH IN CITY’S PURCHASING AGREEMENT DOCUMENTS, SPECIFICATIONS, SUPPORTING DATA, AND THESE ARTICLES.

VENDOR AGREES THAT VENDOR’S ORDER ACKNOWLEDGMENT TERMS AND CONDITIONS RECEIVED PRIOR TO, DURING, OR AFTER ORDER PLACEMENT BY CITY ARE HEREBY REJECTED. CITY PURCHASING AGREEMENTS SIGNED BY THE CITY’S PURCHASING MANAGER OR HIS/HER DESIGNATED AGENT AND ISSUED TO VENDOR CONSTITUTE WRITTEN NOTIFICATION TO VENDOR OF CITY’S REJECTION OF ANY AND ALL VENDOR ORDER ACKNOWLEDGMENTS, COUNTER OFFERS AND CHANGES TO THE CITY’S TERMS AND CONDITIONS.

19. ASSIGNMENT: NEITHER THIS PURCHASING AGREEMENT NOR ANY PORTION THEREOF SHALL BE

SUBCONTRACTED OR ASSIGNED WITHOUT THE WRITTEN CONSENT OF THE CITY IN EACH AND EVERY INSTANCE.
#29..
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35 20. MISCELLANEOUS: TIME IS OF THE ESSENCE IN EACH AND EVERY PROVISION OF THIS PURCHASING AGREEMENT.

BY: __________________________________ BY: ________________________________________ VENDOR – NAME/TITLE -DATE CITY OF MODESTO - PURCHASING DIVISIONDATE #29..
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36 ATTACHMENT A
ANNUAL PURCHASE AGREEMENT NO. XXXXXX
“STAND-BY” PUMPS DV400C OR EQUIVALENT
CONTRACTUAL PRICING – EFFECTIVE MONTH DAY YEAR

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 $ $
ENVIRONMENTAL FEE 1 LOT $ $

PRICING IS NET TO THE CITY, EXCLUSIVE OF FEDERAL EXCISE TAX, CALIFORNIA STATE, LOCAL, SALES AND USE TAX.

CITY OF MODESTO SALES TAX RATE 7.875%
PAYMENT TERMS: NET 30
VENDOR CONTACT: NAME
PHONE #
EMAIL:
#29..
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37 SAMPLE AGREEMENT
This agreement, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2021, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and CONTRACTOR, hereinafter called CONTRACTOR, W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2021- __________ 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
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK:
a. CONTRACTOR shall deliver “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. 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, not to exceed $XX, XXX annually:
#29..
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38 AGREEMENT PRICING

DESCRIPTION UNIT PRICE
18” DV400C PUMP OR EQUIVALENT (MOBILIZED) $
DELIVERY FEE $
PICKUP FEE $
ENVIRONMENTAL FEE $
STANDARD LABOR RATE $
OVER TIME RATE $
DOUBLE TIME RATE $
PUMP SERVICE RATE (PER SERVICE HOURS) $

2. CITY CONTACT:

Purchasing Contact: Carol Wattle, Buyer (209) 577-5406
Department Contact: Robert Englent, (209) 577-6222
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.

3. TERM OF AGREEMENT:

The term of the agreement shall be for a period of one (1) year.

Year 1: xxxx, 2021 through xxxx, 2022
Pricing will remain firm for the entire length of the agreement.

4. DELIVERY:

Location: Wastewater Treatment
1221 Sutter Ave.

Modesto, CA 95351
Days of Week or
Delivery Hours: as specified by Division
All deliveries 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. #29..
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39 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) General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and $2,000,000 aggregate. 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. 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 #29..
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40 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.

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.

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.

6. 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 #: _____________________
 City department/division name and address
 Service hours worked day and week
 Unit price, extended price, sales tax and total
#29..
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41 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 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.

8. 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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42 remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

9. GOVERNING LAW:

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

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

11. 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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43 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 Subcontractors except as necessary to complete any portion of the work that is not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such sub-contractors, but in no event shall recovery by any CONTRACTOR or sub-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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44 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..
- 1418 -
45 this agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

12. COMPLIANCE WITH ALL LAWS:

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

13. 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. _____________;
b. Bid Submittal;
c. RFB 2021-67;
d. 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.

14. 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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46 CONTRACTOR: Contact Name (or designee)
Company Name
Company Address
City, State, zip
Company Phone #
Contact email
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) those he/she/they is/are legally competent to execute the agreement and has/have full authority to execute this agreement.

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.

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 agreement.

20. 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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47 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.

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.

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. 2021-_________, adopted by the Council of the City of Modesto on the _____________-day of_____________________, 2021 and _____________________has caused this agreement to be duly executed. #29..
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48 CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: ___________________________ By: _________________________________ JOSEPH P. LOPEZ, City Manager (Signature)

By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________ By: _________________________________ DANA SANCHEZ, Interim City Clerk (Signature)

By: ________________________________
(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
#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.

EXHIBIT D #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”), except to the extent the Loss is caused by the negligence or willful misconduct of the Rentor. 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 reasonable 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 byRentor. The Rentee may also satisfy the requirements of this section through the maintenance of equivalent self-insurance.

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, EXCEPT FOR ACTUAL DAMAGES TO THE EXTENT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF RENTOR

12. Rentee shall hold harmless, indemnify and defend the Rentor Group from Losses arising from, in connection with or related to Claims, except to the extent the Losses arise from the negligence of willful misconduct of Rentor Group. “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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#29..
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ITEM/DESCRIPTION QTY

UNIT OF
ISSUE

STANDBY-RATES UNIT PRICE EXTENDED PRICE
18" DV400C PUMP OR EQUIVALENT (STANDBY) (3)-PUMPS, FOR (3)- MONTHS 9 28 DAYS $6,125.00 $55,125.00
DELIVERY FEE 1 LOT $1,000.00 $1,000.00
PICKUP FEE 1 LOT $0.00 $0.00
ENVIRONMENTAL FEE 1 LOT $0.00 $0.00
$56,125.00
$4,419.84
$60,544.84

ITEM/DESCRIPTION QTY

UNIT OF
ISSUE

MOBILIZED-RATES UNIT PRICE EXTENDED PRICE
18" DV400C PUMP OR EQUIVALENT (MOBILIZED) (8) HOUR A DAY/ (7) DAYS A WEEK 3 LOT $9,000.00 $27,000.00
DELIVERY FEE 1 LOT $90.00 $90.00
PICKUP FEE 1 LOT $90.00 $90.00
ENVIRONMENTAL FEE 1 LOT $270.00 $270.00
$27,450.00
$2,161.69
$29,611.69

ADDITIONAL CHARGES QTY

UNIT OF
ISSUE
STANDARD LABOR RATES 1 HR $85.00
OVERTIME RATE 1 HR $127.50
DOUBLE TIME RATE 1 HR $170.00
PUMP SERVICE RATE (PER SERVICE HOURS) 1 JOB $450.00
Low Bidder - Rain for Rent @ $60,544.84
SERVICING OF PUMPS TO BE CONDUCTED EVERY (#) 400 HOURS
**For costing purposes only

UNIT PRICE
Bakersfield, CA
Rain for Rent

CITY OF MODESTO
PO BOX 642 MODESTO, CA 95353
RFB NO. 2021-67 STAND-BY PUMPS DV400C OR EQUIVALENT

SUBTOTAL
TAX (7.875%)

GRAND TOTAL

SUBTOTAL
TAX (7.875%)

GRAND TOTAL
11/16/2021
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
Date: February 11, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jaylen French, Director of Community and Economic Development SUBJECT: Capital Facilities Fees Exemption 112 James Street (Stanislaus Equity Partners Community Development Corporation)
CONTACT: Jessica Hill, Community Development Manager
[email protected], 209-577-5321
DESCRIPTION:

Hearing to consider approving a Capital Facilities Fees Exemption Agreement, in the amount of $55,809.60, with Stanislaus Equity Partners Community Development Corporation for a seven (7) unit project located at 112 James Street. (Funding Source: Capital Facilities Fees Fund) STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto’s 2020-2025 Strategic Plan Goal C: Develop Homelessness and Housing Plan.

BACKGROUND:

In 1987, the City of Modesto established a Capital Facilities Fees (CFF) Program to mitigate the impacts of new development as outlined in §6600 of the California Government Code. The CFF Policies and Procedures states with respect to Very Low and Low Income Housing exemptions, the total number of housing exemptions granted are not to exceed two percent (2%) of the cumulative total CFF program housing units. However, it is acknowledged that during recessions and other times of low production of market-rate housing, the cumulative, exempt units may exceed two percent (2%) of the total units built.

Of the 15,423 residential building permits issues since 1989 (baseline year), 763 of these permits were granted CFF exemptions. While the CFF Policies and Procedures states that this number shall not exceed two percent, it does allow for this number to exceed this cap during the recession and other times of low production of market rate housing.

DISCUSSION:

On January 13, 2022, the City of Modesto Citizens’ Housing & Community Development Committee (CH&CDC) approved submittal of the Homekey 2.0 Project Application for 112 James Street.
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City Council, March 8, 2022
Capital Facilities Fees Exemption 112 James Street (Stanislaus Equity Partners CDC)

Page 2 of 3 ends

The mission of HomeKey 2.0 is to prevent homelessness by rapidly re-housing individuals through the provision of coordinated, compassionate, and high-quality services. During the 2021 strategic planning process conducted by the Stanislaus Community System of Care (CSOC), the number one goal identified was to “Increase the availability of permanent housing for people experiencing homelessness.” On January 26, 2022, Stanislaus Equity Partners Community Development Corporation (STEP CDC), submitted a CFF Exemption Application for its project located at 112 James Street, Modesto (Project). The Project will provide seven affordable units for Behavioral Health & Recovery Services (BHRS) clients who are at risk or experiencing homelessness. The property consists of seven units, including one one-bedroom, four twobedroom and two three-bedroom. They are requesting an exemption for all seven units.

Staff has reviewed and established that the CFF Exemption Application complies with the City’s CFF Policies and Procedures (Resolution 2020-407) to foster the development of residential units affordable to Very Low-Income households, as well as certain qualifying residential units affordable to Low Income households. The CFF impact fee is $55,809.60 for the project.

This action also supports the City of Modesto Housing Element (2015-2023), Policy 5.2:
continue to provide financial incentives such as fee deferrals and exemptions for developments meeting the affordable and special housing needs of the community.

This item was publicly noticed as a Public Hearing in the Modesto Bee on February 21, 2022.

FISCAL IMPACT:

Approving the CFF Exemption will result in an exemption of $55,809.60 in Capital Facilities Fees.

COMMITTEE RECOMMENDATION:

This item was presented to the Citizen’s Housing & Community Development Committee on February 10, 2022 and was forwarded to the City Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendation:

Resolution approving a Capital Facilities Fees Exemption Agreement, in the amount of $55,809.60, with Stanislaus Equity Partners CDC for the 7-unit project located at 112 James Street, and authorizing the City Manager, or his designee, to execute the agreement.

Approved by:

Jaylen French,
Director of Community and Economic Development
Joseph P. Lopez, City Manager
Attachments:
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City Council, March 8, 2022
Capital Facilities Fees Exemption 112 James Street (Stanislaus Equity Partners CDC)

Page 3 of 3 ends

1. Resolution

2. CFF Exemption Agreement
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03/08/2022/JHill 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-

RESOLUTION APPROVING A CAPITAL FACILITIES FEES EXEMPTION AGREEMENT, IN THE AMOUNT OF $55,809.60, WITH STANISLAUS EQUITY PARTNERS CDC FOR THE SEVEN UNIT PROJECT LOCATED AT 112

JAMES STREET, AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, in 1987, the City of Modesto established a Capital Facilities Fees (CFF) Program to mitigate the impacts of new development as outlined in §6600 of the California Government Code, and
WHEREAS, the current CFF Policies and Procedures state, with respect to very low- and low-income housing exemptions, the total number of housing exemptions granted are not to exceed two percent (2%) of the cumulative total CFF program housing units, and
WHEREAS, the CFF Policies and Procedures also allows for exemptions to foster the development of residential units affordable to very low-income households, as well as certain qualifying residential units affordable to low-income households, and WHEREAS, since the inception of the CFF Program, a total of 15,423 residential building permits have been issued of which 763 were granted CFF exemptions, and WHEREAS, when the CFF Program was established, it was assumed the total number of residential units programmed to be constructed at build-out would be 129,163, and
WHEREAS, when considering the total number of units to be constructed at build-out, only 0.59% of the programmed units have received exemptions, and #30..
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03/08/2022/JHill 2 2022-?
WHEREAS, on January 27, 2022, Stanislaus Equity Partners CDC submitted a CFF Exemption Application for its project located at 112 James Street in Modesto, and WHEREAS, staff reviewed Stanislaus Equity Partners CDC’s CFF Exemption Application and found it complies with the CFF Policies & Procedures as all seven units will be affordable to very low-income households, and
WHEREAS, the project will provide seven affordable multi-family units (one one-bedroom, four two-bedroom and two three-bedroom) for persons who are homeless or at risk of homelessness, and
WHEREAS, this exemption request was presented to the Citizens’ Housing & Community Development Committee on February 10, 2022 and was unanimously approved, and
WHEREAS, this item was publicly noticed as a Public Hearing in the Modesto Bee on February 21, 2022.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the CFF Exemption Agreement between the City of Modesto and Stanislaus Equity Partners CDC for the exemption of $55,809.60 in Capital Facilities Fees for the project located at 112 James Street, Modesto.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Capital Facilities Fees (CFF) Agreement, in a form approved by the City attorney.

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 #30..
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03/08/2022/JHill 3 2022-?
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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112 James Street CFF Exemption Agreement
-1-
Recording Requested by:

City of Modesto
Return to:

P.O. Box 642
Modesto, CA 95353

CAPITAL FACILITIES FEES EXEMPTION AGREEMENT
This Capital Facilities Fees Exemption Agreement (Agreement), is made and entered into in the City of Modesto, County of Stanislaus, State of California, effective this day of , 2022 (Effective Date), by and between the City of Modesto, a municipal corporation of the State of California (City) and Stanislaus Equity Partners CDC, a non-profit organization (Owner).

RECITALS
WHEREAS, Owner owns certain real property located within City, commonly known as 112 James Street, Modesto, CA 95354, Modesto, California, and more particularly described in Exhibit A, attached hereto (Property); and
WHEREAS, Owner intends to provide seven affordable residential units for Behavioral Health & Recovery Services (BHRS) clients who are at risk or experiencing homelessness (Project); and WHEREAS, the Project will be affordable residential units that must be maintained as affordable to low-income and very low-income households for a period of 10 years; and WHEREAS, on January 27, 2022, Stanislaus Equity Partners CDC submitted a CFF Exemption Application for its Project; and
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112 James Street CFF Exemption Agreement
-2-
acknowledged, City and Owner hereby agree as follows:
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises set forth of the programmed units have received exemptions.

WHEREAS, when considering the total number of units to be constructed at build-out, only 0.59% residential units programmed to be constructed at build-out would be 129,163; and WHEREAS, when the CFF Program was established, it was assumed the total number of have been issued of which 763 were granted CFF exemptions; and WHEREAS, since the inception of the CFF Program, a total of 15,423 residential building permits (50%) or less of the Area Median Income; and
submit an application and request CFF be waived on new affordable units for households earning fifty WHEREAS, the CFF Policies and Procedures also allow a Stanislaus Equity Partners CDC to not to exceed two percent (2%) of the cumulative total CFF program housing units; and low-income and very low-income housing exemptions, the total number of housing exemptions granted are WHEREAS, the current CFF Policies and Procedures (Resolution 2020-407) state, with respect to the time of issuance of the building permit for the Project; and NINE DOLLARS AND SIXTY CENTS ($55,809.60), which would be otherwise be due and payable at project from present payment of CFF in the amount of FIFTY-FIVE THOUSAND, EIGHT HUNDRED WHEREAS, in consideration of Owner’s commitment, City and Owner desire to exempt the and very low-income households; and
found it complies with the CFF Policies & Procedures as all seven units will be affordable to low-income WHEREAS, staff reviewed Stanislaus Equity Partners CDC’s CFF Exemption Application and #30..
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1. EXEMPTION FROM CFF

1.1 The CFF applicable to the Project, at the current CFF rate, is FIFTY-FIVE THOUSAND, EIGHT HUNDRED NINE DOLLARS AND SIXTY CENTS ($55,809.60),

1.2 Prior to, and as a condition of, issuance of a building permit for the Project, Owner shall execute and deliver to City the following documents:
a. A Promissory Note in favor of City, as holder, to provide for payment of the greater of (i) the principal amount of FIFTY-FIVE THOUSAND, EIGHT HUNDRED NINE DOLLARS AND SIXTY CENTS ($55,809.60) (Principal), plus all accrued interest due thereon as provided in Paragraph 1.3 below, or (ii) CFF at the rate in effect on the date of termination or default under this Agreement (collectively CFF Obligation), together with all other sums then due under this Agreement.

The Promissory Note shall be in the form attached hereto as Exhibit B and incorporated herein by this reference (the Note).
b. A notarized Deed of Trust on the Property securing the amount of the Note, in the form of Exhibit C attached hereto and incorporated herein by this reference (Deed of Trust).

1.3 The Principal shall bear interest from the date a Final Certificate of Occupancy is first issued for the Project until the obligations of this Agreement are satisfied in full or extinguished in accordance with the terms of this Agreement, at the rate of EIGHTEEN PERCENT (18%) per annum, compounded annually.

1.4 In the event Owner abides by and fulfills all of its covenants as expressed in this Agreement, the Project’s CFF Obligation including all accrued interest, shall be fully waived exactly ten (10) years from the date of issuance of the Final Certificate of Occupancy for the Project. At that time, this entire Agreement shall become null and void and all obligations between the parties expressed in it shall be extinguished.
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2. EXEMPTION CONDITIONS

2.1 City agrees to conditionally exempt Owner from payment of all CFF for the Project which would otherwise be due and payable to City at the time a building permit is issued for the Project subject to the following conditions:
a. For ten (10) consecutive years immediately following the issuance of a Final Certificate of Occupancy for the Project (Period of Affordability), Owner shall continuously reserve the seven Units within the Project for rental to low-income and very low-income persons who are at risk or experiencing homelessness (Tenant or Tenants), at rental rates solely affordable to such Tenants, based on single or double-occupancy of the Units. For purposes of this Agreement, low-income and very-low income persons are defined as persons earning fifty (50%) percent or less of the Area Median Income as determined from time to time by the HUD.
b. Owner agrees that it shall not displace or evict any Tenant in lawful possession of any Unit within the Project except as provided by the terms of any rental or other agreement entitling such Tenant to possession.
c. Owner shall complete construction of the Project by March of 2022. Construction of the Project shall be considered complete on the date Owner obtains a Final Certificate of Occupancy for the Project.
d. Each Unit shall be subject to the following Affordable Housing Covenant: Each Unit must be occupied by no more than two persons who are at risk or experiencing homelessness and are eligible as low or very-low income persons. Each such Unit must meet the rental requirements set forth in subsections i-vi herein in order to qualify as an affordable housing Unit. Owner shall continuously comply with this Affordable Housing Covenant for the complete Period of Affordability. #30..
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i. Rent Limitation. HUD provides the following maximum rent limits for low and very-low income persons. Each Unit must be occupied by no more than two Tenants and meet one of the following rent requirements:
(1) The rent does not exceed thirty percent (30%) of the annual income of a person whose income equals fifty percent (50%) of the median income for individuals in the area, as determined by HUD. HUD provides the rent limits, which include average occupancy per unit and adjusted income assumptions. However, if the rent determined under this subparagraph 2.1.d.i(1) is higher than the applicable rent under subparagraph 2.1.d.i(2), below, then the maximum rent for Rooms shall be calculated under subparagraph 2.1.d.i(2).
(2) The rent does not exceed thirty percent (30%) of the person’s adjusted income. If the Room receives Federal or State project-based rental subsidy and very-low income person pays a contribution toward rent of not more than thirty percent (30%) of the person’s adjusted income, then the maximum rent (i.e., Tenant contribution plus project-based rental subsidy) is the rent allowable under the Federal or State project-based rental subsidy program. ii. Initial Rents. Before renting any Unit in the Project, Owner shall submit the proposed initial rents to City for its review and approval. The initial rents shall be subject to the maximum rent limitations specified in this section and shall not exceed the maximum rent minus a monthly allowance for utilities.
iii. Subsequent Rents. Maximum rents for Units shall be calculated on a periodic basis subject to HUD determination of revised fair market rents and median incomes. Owner agrees to annually provide City with information on rents and occupancy of the Units to demonstrate compliance with this section. Owner agrees that any rent increases for the Units shall be subject to the provisions of any outstanding rental agreements, and Owner must provide Tenants of those Units not less than thirty (30) days prior written notice, before implementing any increase in rents. #30..
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iv. Nondiscrimination Against Rental Assistance Subsidy Holders. Owner cannot refuse to rent Rooms to a certificate or voucher holder under 24 CFR Part 982 B Section 8 Tenant Based Assistance: Unified Rule for Tenant-Based Assistance under the Section 8 Rental Certificate Program and the Section 8 Rental Voucher Program or to the holder of a comparable document evidencing participation in a Tenant-based rental assistance program because of the status of the prospective Tenant as a holder of such certificate, voucher, or comparable Tenant-based assistance document. v. Occupant Income. The income of each Tenant in a Unit must be determined initially in accordance with 24 CFR Section 92.203. In addition, each year during the Period of Affordability, Owner must re-examine each Tenant's annual income in accordance with one of the options in 24 CFR Section 92.203 as selected by the Owner. vi. Over-Income Tenants.
(1) Rooms continue to qualify as affordable housing Rooms despite temporary noncompliance caused by increases in the income of existing Tenants if actions satisfactory to the City are being taken to ensure that all vacancies are filled in accordance with this Paragraph 2.1 until the noncompliance is corrected.
(2) Tenants of Units who no longer qualify as low income persons must pay as rent the lesser of the amount payable by the Tenant under State or local law or thirty percent (30%) of the person's adjusted income until the earlier of (i) expiration of the existing rental agreement (exclusive of any extensions thereto) or (ii) voluntary vacation of the Unit by said Tenant. e. Operation of Units as Affordable Rental Housing.
i. Promptly after completion of the Project, Owner shall operate the Units as affordable residential housing consistent with the affordability provisions and requirements set forth in this Agreement.
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ii. Before renting any Unit in the Project, Owner shall submit its proposed form of rental agreement for City's review and approval. The term of the form of rental agreement shall not contain any provision which is prohibited by 24 CFR 92.253(b) and any modifications thereto. Any Owner termination of a rental agreement or refusal to renew must be in conformance with 24 CFR

92.253(c) and this Agreement, and must be preceded by written notice to the Tenant by Owner specifying the grounds for the action in accordance with the terms of the rental agreement. iii. Before renting any Unit in the Property, Owner must provide City, for its review and approval, with Owner’s written Tenant selection plan. Owner’s Tenant selection plan must, at a minimum, meet the requirements for Tenant selection set out in 24 CFR 92.253(e) and any modifications thereto.
iv. Before renting any Unit in the Project, Owner must provide City, for City's review and approval, Owner's affirmative marketing plan to affirmatively market the Units as provided for in 24 CFR 92.351.
v. Before renting any Unit in the Project, Owner must complete the requirements of the City of Modesto Crime Free Multi-Housing Program. vi. For each Unit in the Project, Owner shall certify each Tenant’s income on an annual basis.
f. Monitoring.
i. Owner shall maintain complete, accurate, and current records pertaining to the Units, including rental agreements, regarding the occupancy and rent levels for the Project, for a period of five (5) years after the creation of such records, and shall permit any duly-authorized representative of City to inspect and copy records, including records pertaining to income of all Tenants.

Such records shall include records regarding the occupancy and rental rates of the Units. Records must be kept accurate and current.
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ii. City shall notify Owner of any records City deems insufficient. Owner shall have thirty (30) calendar days after the receipt of such a notice to correct any deficiency in the records specified by City in such notice, or if a period longer than thirty (30) days is reasonably necessary to correct a deficiency, then Owner shall begin to correct the deficiency within thirty (30) days and correct the deficiency as soon as reasonably possible.
iii. Owner shall promptly comply with all requirements or conditions relating to notices, extensions, and other events required to be reported or requested. iv. Owner agrees that not less than annually, City shall have the right to review all records to ensure compliance with this Agreement. v. Owner agrees that not less than annually, City shall have access to the Project to inspect any and all of the Project Units to ensure compliance with the purpose and terms of this Agreement.
g. Restrictions on Transfer.
i. For purposes of this Agreement, "Transfer" shall mean any conveyance, sale, assignment, or transfer, whether voluntary or involuntary, of (i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Property or the Project, including without limitation, a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains title. The term "Transfer" shall exclude the rental of any Unit in accordance with the terms of this Agreement.
ii. Upon any Transfer, including by gift, devise, descent, foreclosure, assignment, deed in lieu of foreclosure, condemnation, and voluntary or involuntary bankruptcy, of the Property or Project without the prior written approval of the City, the CFF Obligation for the Project will be immediately due and payable to the City, in addition to all other sums then payable under this Agreement.
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h. Nondiscrimination.

Owner shall not discriminate against any Tenant or prospective Tenant on the basis of race, religion, sex, age, disability, marital status, nor any other arbitrary factor in violation of any state, federal or local law governing discrimination in rental housing. i. Obligation to Refrain From Discrimination.

Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or the Project, or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons on account of race, color, creed, religion, sex, age, marital status, ancestry, national origin, physical handicap or other arbitrary factor in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Project, or any part thereof, nor shall Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of Tenants, lessees, subtenants, sublessees or vendees of the Property or the Project, or any part thereof. The foregoing covenants shall run with the land and shall remain in effect in perpetuity. j. Maintenance and Management.
(a) Owner is specifically responsible for all maintenance, repair, and management functions for the Units, including without limitation, selection of Tenants, re-certification of Tenant income, evictions, collection of rent, routine and extraordinary repairs and replacement of capital items. Owner shall maintain the Units and common areas of the Property in a safe and sanitary manner in accordance with local health, building, and housing codes, for the full Period of Affordability. (b) Owner agrees to maintain the improvements and landscaping on the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials for the Period of Affordability. Nothing herein shall prohibit Owner from enforcing the terms of any rental agreement against a Tenant on the Property to ensure compliance with this subparagraph 2.1.j.
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k. Hazardous Materials.
i. Owner shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and groundwater conditions. Owner shall not use, generate, manufacture, store or dispose of, on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", or "toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily kept and used in and about multi-family residential property. ii. Owner shall immediately advise City in writing if at any time it receives written notice of:
(1) Any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Owner or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law");
(2) All claims made or threatened by any third party against Owner or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (1) and (2) above are hereinafter referred to as "Hazardous Materials Claims"); and
(3) Owners discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" under the provision of California Health and Safety Code, Sections 25220 et seq. or any regulation adopted #30..
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in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law.

3. ANTI-SPECULATION REQUIREMENTS

3.1 Owner covenants and agrees, for itself and its successors, assigns and transferees that the Property and the Project will be used exclusively as affordable units for clients who are at risk or experiencing homelessness and not for any form of speculation or landholding. Owner further recognizes the importance to the general welfare of City of providing an affordable units for clients who are at risk or experiencing homelessness.

4. ACCELERATION OF OBLIGATION TO PAY CFF OBLIGATION

4.1 The CFF Obligation shall become due and immediately payable upon the occurrence of any of the following events during the Period of Affordability:
a. Except as otherwise provided herein, Owner’s sale or transfer, including without limitation the lease, gift, exchange or other disposition of the Property or Project, or any interest therein, whether voluntary or involuntary;
b. The filing for bankruptcy or dissolution of Owner.
c. The violation of this Agreement, failure by Owner to maintain the Units as affordable rental housing for the Period of Affordability, or any event of default as defined in Paragraph 9 below shall constitute a default under this Agreement. In the event that such default shall occur, City shall notify Owner that a default exists, the nature of the default, and that Owner must cure the specified default within thirty (30) days of the Notice of Default, or if a period longer than thirty (30) days is reasonably necessary to correct a default, then Owner shall begin to correct the default within thirty (30) days and cure the default as soon as reasonably possible thereafter. If Owner fails or delays in commencing to cure, correct or remedy the default with reasonable diligence following Notice of Default, then City may terminate this Agreement, in its sole discretion, and the CFF Obligation, shall become due and immediately payable by Owner to City, in addition to all other sums then payable under this Agreement. #30..
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5. DEFAULT OF AFFORDABILITY PROVISIONS

5.1 If as a result of any negligent act or omission of Owner, its agents, officers or employees, the Owner does not continuously hold out any Unit for rent only to low or very-low-income Tenants as required herein, Owner shall immediately pay to City or to City’s designee interest on the Principal for the period of time the Unit is not in compliance with the affordability provisions as set forth in Paragraph 2.1, in addition to all other sums then payable under this Agreement.

5.2 If as a result of any intentional or willful act or omission of Owner, its agents, officers or employees, Owner does not continuously hold out any Unit for rent only to low or very-low-income Tenants as provided herein, Owner shall immediately pay to City or to City’s designee one-half (1/2) of the Principal plus all accrued interest, in addition to all other sums then payable under this Agreement.

5.3 Notwithstanding Sections 5.1 and 5.2, above, if for six (6) months or longer, ten percent (10%) or more of the Unit are not in compliance with the affordability provisions as required herein, then City may terminate this Agreement and the CFF Obligation, shall become due and immediately payable by Owner to City, in addition to all other sums then payable under this Agreement.

6. MONITORING PROVISIONS

6.1 City may contract with the Stanislaus County Housing Authority to monitor compliance with the above default conditions at Owner’s sole cost and expense.

6.2 Owner will be required during the Period of Affordability to submit annual reports of tenancy in a manner satisfactory to City or, if contracted, the Stanislaus County Housing Authority.

6.3 If the Stanislaus County Housing Authority is contracted by City for its monitoring service, the fee for such services will be payable by Owner within thirty (30) days after City or the Stanislaus County Housing Authority gives Owner notice of any charges for such service. #30..
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7. INSPECTIONS. NO DUTY TO INSPECT
City shall not have any affirmative duty to make any inspection, to make any investigation, or to supervise or inform Owner or any third party as to any aspect of the construction or operation of the Project and shall not incur any liability for failing to do so. Any inspection, investigation, or review undertaken by City shall be solely to determine whether Owner is properly discharging its obligations to City and may not be relied upon by Owner or any third party. Once having undertaken any such inspection, investigation or review, City shall not incur any liability for failing to do so properly or for failing to complete the same. City owes no duty of care to Owner or any third party to protect against, or to inform Owner or any third party of any negligent, faulty, inadequate or defective design, construction or operation of the Project.

8. INSURANCE

8.1 Owner shall maintain, during the Period of Affordability, an all-risk property insurance policy insuring the Property in an amount equal to the full replacement value of all structures, including but not limited to all Units, on the Property. The policy shall name City as loss payee and shall contain a statement of obligation on behalf of the carrier to notify City of any material change, cancellation or termination at least thirty (30) days in advance of the effective date of such material change, cancellation or termination.

8.2 Owner shall transmit a copy of the certificate of insurance and loss payee endorsement to City within thirty (30) days of the effective date of this Agreement, and Owner shall annually transmit to City a copy of the certificate of insurance and a loss payee endorsement, signed by an authorized agent of the insurance carrier setting forth the general provisions of coverage. #30..
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A copy of the certificate of insurance
and loss payee endorsement shall be transmitted to City as follows:

Community and Economic Development
City of Modesto
P.O. Box 642
Modesto, California 95353
Attn: CFF Administrator
Any certificate of insurance must be in a form, content, and with companies approved by City.

9. EVENT OF DEFAULT
The occurrence of any of the following events shall constitute an event of default hereunder following notice to Owner by City, specifying (1) the applicable event, (2) the action required to cure the default and (3) a date, which shall be not fewer than thirty (30) days after the date the notice is mailed to Owner, by which such action must be taken by Owner to cure the default, or if a period longer than thirty (30) days is reasonably necessary to cure the default, then Owner shall begin to cure the default within thirty (30) days and correct and complete curing the default as soon as reasonably possible thereafter. a. Performance of Obligations. Owner’s default under any of the Loan Documents, or Owner’s failure to perform its obligations under this Agreement and, in each case, the expiration of any time provided for the remedy of such failure.
b. Representations and Warranties.
(I) Any of Owner’s representations or warranties in any of the Loan Documents or any statements, certificates or schedules furnished by Owner to City, shall prove to have been untrue in any material respect when made or Owner shall have intentionally concealed any material fact from City and City’s security is materially and adversely affected, (ii) Any of Owner’s representations or warranties in any of the Loan Documents or any statements, certificates or schedules furnished by Owner to City, other than representations, warranties, statements and certificates as to the financial condition of Owner or any other #30..
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person, shall cease to be true and shall remain untrue for thirty (30) days after notice of such change to Owner by City.
c. Voluntary Bankruptcy; Insolvency; Dissolution. Owner’s (i) filing of a petition for relief under any state or federal law regarding bankruptcy, reorganization or other relief to debtors; (ii) filing any pleading in any involuntary proceeding under any state or federal law regarding bankruptcy, reorganization or other relief to debtors which admits the jurisdiction of the court or the petition’s material allegations regarding Owner’s insolvency; (iii) making a general assignment for the benefit of creditors; (iv) applying for, or the appointment of, a receiver, trustee, custodian or liquidator of Owner, or any of its properties; (v) inability or admission in writing of its inability to pay its debts as they are due; or (vi) death, if an individual; or the filing by Owner of a petition seeking the liquidation or dissolution of Owner or the commencement of any other procedure to liquidate or dissolve Owner. d. Involuntary Bankruptcy. Owner’s failure to effect a full dismissal of any involuntary (i) petition under any state or federal law regarding bankruptcy, reorganization or other relief to debtor; (ii) proceeding for the appointment of a receiver, trustee or liquidator for Owner or all or a material part of the assets of Owner; or (iii) petition or proceeding under other state or federal law regarding bankruptcy, reorganization or other relief to debtors that is filed against Owner or in any way restrains or limits Owner or City regarding the Property, in any event prior to the earlier of the entry of an order granting relief sought in the involuntary petition or proceeding, or sixty (60) days after the date of filing of the petition or beginning of the proceeding.
e. Transfer. Any transfer, assignment or other conveyance of the Property, Project or any portion thereof without the prior written consent of City, which consent shall not be unreasonably withheld, and full compliance with the provisions of this Agreement. f. General. Owner’s breach of any condition, covenant, warranty, promise or representation contained in this Agreement not otherwise resulting in an event of default hereunder and the continuance of such breach for a period of thirty (30) days after written notice thereof to Owner, unless such breach #30..
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cannot reasonably be cured within thirty (30) days after written notice thereof to Owner in which case Owner shall begin to cure the breach within thirty (30) days and complete the cure of the breach as soon as reasonably possible thereafter.
g. Affordable Residential Units. Owner’s failure to maintain the Project as an affordable residential care facility for the developmentally disabled, affordable to low and very-low income persons as specified in Paragraph 2 of this Agreement for the Period of the Affordable Housing Covenant.

10. DEFAULT REMEDIES

10.1 On the happening of an event of default, and the expiration of the applicable cure period, City may, in addition to other rights and remedies permitted by the Agreement or applicable law, proceed with any or all of the following remedies in any order or combination City may choose in its sole discretion:
a. Terminate this Agreement in which event the CFF Obligation, in addition to all other sums then payable under this Agreement, shall immediately become due and payable at the option of City.
b. Bring an action in equitable relief (i) seeking specific performance by Owner or its assignee of the terms and conditions of this Agreement, and/or (ii) enjoining, abating or preventing any violation of said terms and conditions of this Agreement or (iii) seeking declaratory relief. c. Institute legal action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy consistent with the purpose of this Agreement. d. Initiate and pursue any private and/or judicial foreclosure action allowed under applicable law and the owner of sale provision in the Deed of Trust. e. Pursue any other remedy allowed at law or equity.

10.2 Nothing in this section is intended or shall be construed as precluding City from proceeding with a non-judicial foreclosure under the power of sale contained in the Deed of Trust in the event of default by Owner or its assignee.
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11. LEGAL ACTIONS

11.1 In the event any party to this Agreement institutes a lawsuit or other action to enforce or interpret any part of the Agreement or for any breach of such documents, the prevailing party may recover, in addition to any other remedies, all costs of suit, including reasonable attorneys’ fees, including without limitation all costs of in-house attorneys, and costs.

12. INDEMNIFICATION

12.1 Owner shall indemnify and hold City and its officers, agents, officials, and employees free and harmless against any losses, damages, liability, claims, demands, judgments, actions, court costs, and legal or other expenses, including without limitation all attorneys’ fees and costs, which arise out of or in connection with this Agreement or the construction or operation of the Project. This indemnity obligation shall not extend to any claim arising from the willful misconduct of City, its officers, agents, officials and employees. The provisions of this Paragraph 12 shall survive the expiration of the term of this Agreement.

13. REPRESENTATIONS, WARRANTIES AND CERTIFICATIONS

13.1 Owner represents, warrants, and certifies to City as follows:
a. Organization. Owner is duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to own the Property and construct, operate and maintain the Project.
b. Authority of Owner. Owner has full power and authority to execute and deliver this Agreement, the Note, the Deed of Trust, and all other Loan Documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
c. Authority of Persons Executing Documents. The Loan Documents and all documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Owner. All actions required under Owner’s organizational documents and #30..
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applicable governing law for the authorization, execution, delivery and performance of this Agreement, the other Loan Documents and all documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. d. Valid Binding Agreements. The Loan Documents and all documents or instruments executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered, constitute legal, valid and binding obligations of Owner, enforceable against Owner in accordance with their respective terms. e. No Breach of Law or Agreement. None of the execution or delivery of the Loan Documents or of any document or instrument executed and delivered, or to be executed or delivered, pursuant to this Agreement, or the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission, or agency whatsoever binding on Owner or any provision of the organizational documents of Owner, will conflict with or constitute a breach of or a default under any agreement to which Owner is a party, or will result in the creation of imposition of any lien upon any assets or property of Owner, other than liens approved by City. f. Compliance with Laws: Consents and Approvals. Owner will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies having jurisdiction over Owner, the Project or the Property and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
g. Permits. All permits, consents, permissions and licenses required by any federal, state or local government or agency to which Owner or the Property is subject, which may be necessary in relation to this Agreement or the development, construction, operation or ownership of the Property, at, prior, or subsequent to the commencement of construction, have been, or will be, obtained. #30..
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h. Pending Proceedings. Owner is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Owner, threatened against or affecting Owner or the Property, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Owner, materially affect Owner’s ability to rehabilitate or operate the Property or pay the CFF Obligation should a default occur under this Agreement.

14. MISCELLANEOUS PROVISIONS

14.1. Owner shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any rights herein, nor make any total or partial sale, transfer, gift, conveyance, assignment, or lease of the whole or any part of the Property or the improvements thereon, without the prior written approval of City (which approval shall not be unreasonably withheld). The provisions of this subparagraph 14.2.a. shall not apply to the individual rental of any of the Units in the Project. a. Any such proposed buyer, transferee, conveyee, assignee or lessee, by instrument in writing satisfactory to City and in form recordable among the land records, for itself and its successors, heirs, and assigns, and for the benefit of City, shall expressly assume all of the obligations of Owner under this Agreement and agree to be subject to all conditions and restrictions to which Owner is subject. There shall be submitted to City for review all instruments and other legal documents proposed to affect any such sale, transfer, conveyance, assignment or lease, and, if approved by City, such approval shall be indicated to Owner in writing.
b. In the absence of specific written agreement by City, no such sale, transfer, gift, conveyance, assignment, or lease, or the approval thereof by City, shall be deemed to relieve Owner or any other party from any obligations under this Agreement.

14.2 All notices permitted or required to be given under this Agreement shall be in writing and shall be deemed duly given and effective (a) upon actual delivery if delivery is by personal delivery or (b) #30..
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five (5) days after delivery into the United States mail if delivery is by postage prepaid, registered or certified mail, return receipt requested, to the respective addresses as set forth below or to any other address as the respective parties may designate from time to time.

For Owner: Stanislaus Equity Partners CDC
820 H Street
Modesto, CA 95354
Attention: Joe Duran
For City: City of Modesto
Community and Economic Development Department
P.O. Box 642
Modesto, CA 95353
Attention: CFF Administrator

14.3 Nothing contained in this Agreement shall be interpreted or understood by any of the parties, or by any third person, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between City and Owner or its agents, employees or contractors. Except as City may specify in writing, Owner shall have no authority to act as an agent of City or to bind City to any obligation.

14.4 This Agreement, including any exhibits hereto, shall not be amended except in writing, signed by both parties. Any amendment or addendum to this Agreement shall expressly refer to this Agreement.

14.5 No member, official, employee or agent of City shall be personally liable to Owner in the event of any default or breach by City.

14.6 This Agreement shall be interpreted under and be governed by the laws of the State of California.

14.7 Should either party institute suit or arbitration for enforcement or interpretation of any provision contained herein, the venue of such action shall be in Stanislaus County, California. #30..
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112 James Street CFF Exemption Agreement
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14.8 Every provision of this Agreement is intended to be severable. If any provision of this Agreement shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.

14.9 Any waiver by City of any obligation or condition in this Agreement must be in writing.

No waiver will be implied from any delay or failure by City to take action on any breach or default of Owner or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Owner to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by City to any act or omission by Owner shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for City's written consent to future waivers.

14.10 Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only, and shall be disregarded in interpreting any part of the Agreement's provisions.

14.11 The language of each and all paragraphs, terms and/or provisions of this Agreement, shall, in all cases and for any and all purposes, and in any way and all circumstances whatsoever, be construed as a whole, according to its fair meaning, and not for or against any party hereto and with no regard whatsoever to the identity or status of any person or persons who drafted all or any portion of this Agreement.

14.12 City's execution of this Agreement in no way limits the discretion of City in the permit and approval process in connection with the construction of the Project or development of the Property or any improvements on the Property or in the issuance of any inspections, licenses or permits.

14.13 This Agreement and any exhibits attached hereto constitute the sole and entire Agreement of the parties hereto with respect to the matters herein and correctly sets forth the rights, duties, and obligations of each to the other as of the date first written above. There are no other agreements or understandings, written or oral, between the parties regarding this Agreement other than those set forth herein.
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112 James Street CFF Exemption Agreement
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15. PARTIES BOUND; COVENANTS RUNNING WITH THE LAND; EFFECT AND DURATION OF COVENANTS.

15.1 Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, legal representatives, successors, transferees, and all assigns. This Agreement shall be recorded in the Office of the Recorder of Stanislaus County, California, at the expense of Owner, and shall constitute notice to all successors, heirs and assigns of title to the Property or Project. All rights and obligations set forth herein shall run with the land, shall constitute a lien against title and shall bind Owner and its successors and assigns in the Property or the Project for the entire term regardless of any assignment, payment, prepayment, expiration, extinguishment of any loan or note, any reconveyance of deed of trust, or any conveyance or transfer of the Property or the Project, and the benefit hereof shall inure to the benefit of City and its successors and assigns.

15.2 The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the part of the Owner and any successors and assigns to the Property or the Project or any part thereof, and the Tenants, lessees, sublessees and occupants of the Property or the Project, for the benefit of and in favor of the City, and any successor in interest thereto.

15.3. Owner covenants that Owner has not, and shall not, enter into or execute any other agreement with provisions contrary to the provisions of this Agreement, or contrary to the intent of maintaining the affordability of the Units for the full Period of Affordability described in subparagraph

2.1.a., above.
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112 James Street CFF Exemption Agreement
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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 Interim City Clerk by Resolution No. ___________ adopted by the Council of the City of Modesto on the ___ day of _________, 2022, and Owner has caused this Agreement to be duly executed.

CITY OF MODESTO
A municipal corporation
By
JOSEPH P. LOPEZ,
City Manager

ATTEST:

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

JOSE M. SANCHEZ, City Attorney
By
APPROVED AS TO RISK MANAGEMENT:

By: ______________________________
CHRISTINA ALGER, Director of Human Resources (Risk)
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112 James Street CFF Exemption Agreement
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STANISLAUS EQUITY PARTNERS CDC
A non-profit organization
By: ___________________________________
Name: _________________________________
Title: __________________________________
By: ____________________________________
Name: __________________________________
Title: ___________________________________
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EXHIBIT A

LEGAL DESCRIPTION
Order No.: 922830
Escrow No.: 922830
The land referred to herein is situated in the State of California, County of Stanislaus, City of Modesto and described as follows:

The North 98 feet of the South 140 feet of Lot 8, in Block 213 of the City of Modesto, County of Stanislaus, State of California, as per Map recorded December 21, 1942, in Book 15, Of Maps, Stanislaus County Records.

APN: 107-008-015
(End of Legal Description)
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1 (Form Promissory Note – 112 James St.)

EXHIBIT B

FORM PROMISSORY NOTE

NOT FOR EXECUTION
$55,809.60 ___________ ___, 2022
Modesto, California
FOR VALUE RECEIVED, the undersigned, Stanislaus Equity Partners CDC (“Applicant”), hereby promises to pay to the City of Modesto, a Municipal Corporation of the State of California (“City”) the principal sum of FIFTY-FIVE THOUSAND, EIGHT HUNDRED NINE DOLLARS and SIXTY CENTS ($55,809.60) pursuant to the terms of this Promissory Note (“Note”), and the Capital Facilities Fees Exemption Agreement.

This Note evidences the obligation of Borrower to City for the repayment of the exempt City’s Capital Facilities Fees (“CFF”) as more fully described in the Capital Facilities Fees Exemption Agreement (“Agreement”) between City and Borrower of even date herewith, the terms of which are incorporated fully herein.

The Note evidences the obligation of the Borrower to the City for the repayment of conditionally exempt capital facilities fees (“CFF”) by the City for the benefit of Borrower for the purpose of seven affordable units for Behavioral Health & Recovery Services (BHRS) clients who are at risk or experiencing homelessness (project), at 112 James Street, Modesto, California 95354, more particularly described in Exhibit A hereto and incorporated herein by this reference (“Property”).

1. Terms of Payment.
a. Payments of principal and interest shall be deferred for a ten (10) year period beginning May 1, 2022 which is the date a Final Certificate of Occupancy was first issued for the seven units (“Exemption Units”) as set forth in the Agreement.

If the Agreement is terminated by the City for any default as provided in the Agreement, Borrower shall immediately pay to City or City’s designee the principal sum of FIFTY-FIVE THOUSAND, EIGHT HUNDRED NINE DOLLARS and SIXTY CENTS ($55,809.60) plus all accrued interest due thereon. If City declares any default pursuant to paragraph 5.1 of the Agreement, Borrower shall immediately pay to City or City’s designee any and all interest due for the period of said default. If City declares any default pursuant to paragraph

5.2 of the Agreement, Borrower shall immediately pay to City or City’s designee one half of the outstanding principal plus all accrued interest. b. Interest will accrue on the unpaid principal at the rate of eighteen percent (18%) per annum from the date a certificate of occupancy is issued for the project of the #30..
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2 (Form Promissory Note – 112 James St.)

Exempt Units until the full amount of the loan has been paid. All payments due hereunder shall become due immediately upon the occurrence of any of the events set forth in Section 4 of this Note.
c. The Borrower shall have the right to prepay at any time all of any part of the outstanding balance without and pre-payment penalty.
d. The payments due under this Note shall be paid in currency of the United States of America, which at the time of payments is lawful for the payment of public and private debts.
e. The payments on this Note shall be made to the City of Modesto, Community and Economic Department, 1010 Tenth Street, Suite 3300, Modesto, California 95354 or to such other place as the City may designate in writing.

2. Acceleration.

The whole of the Note and the other payments due hereunder shall become due and be immediately payable to City by Borrower upon occurrence of any one of the following events:
a. If Borrower sells or transfers any or all of its interest in the Property, including, without limitation, lease, exchange or other disposition of the Property or any interest therein, whether voluntary or involuntary. This clause shall not apply to lease of any individual unit on the property.
b. The City terminates the Agreement for Borrower’s default under the Agreement. c. The filing for bankruptcy or dissolution of Borrower, or either one of them individually.
d. Failure to make any payment due hereunder in the full amount due or within the time allowed.

3. Security.

This Note shall be secured by a Deed of Trust (“Deed of Trust”) on Borrower’s interest in the property.

4. Default.
a. Any failure to pay in full any payment required under this Note or the Agreement shall constitute a default under this Note.
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3 (Form Promissory Note – 112 James St.)

b. Any event of default under the Agreement, Deed of Trust or this Note shall constitute a default under this Note.
c. Insolvency, general assignment for the benefit of creditors, filing of any petition of bankruptcy or for the relief under the provisions of the National Bankruptcy Act or any other law or laws for the relief of or relating to debts, or, by or against Borrower.
d. Appointment of a receiver or trustee to take possession of the Property. e. Attachment of an involuntary lien or liens, of any kind or character, to the Property.
f. Upon the occurrence of an event of default, City shall provide to Borrower written notice of said occurrence, consistent with Section 5 of this Note, and Borrower shall have thirty (30) days to cure the default, plus such additional time as City determines, in its sole discretion, is necessary to cure a nonmonetary default provided that within thirty (30) days Borrower has commenced and is diligently pursuing the cure. If, after the time provided in this subparagraph (f), Borrower has not cured the default, and City has not waived its rights under the Note, the entire unpaid principal balance, together with all other sums then payable under this Note, or all interest due if the default is pursuant to Paragraph 5.1 of the Agreement, or one half of the principal plus all accrued interest if the default is pursuant to Paragraph 5.2 of the Agreement, shall, at the option of the City, become immediately due and payable upon written notice by City to Borrower without further demand.
g. If an event of default shall occur and be continuing, City may pursue all rights and remedies available under this Note or as may otherwise be available to City.

5. Notices.

All notices permitted or required to be given under this Agreement shall be in writing and shall be deemed duly given and effective (1) upon actual delivery if delivery is by personal delivery or (2) five (5) days after delivery into the United States mail if delivery is by postage prepaid, registered or certified mail, return receipt requested, to the respective addresses as set forth below or to any other address as the respective parties may designate from time to time.
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4 (Form Promissory Note – 112 James St.)

For Borrower: Stanislaus Equity Partners CDC
Attn: Joe Duran
820 H Street
Modesto, California 95354
For Personal Delivery:

For City: City of Modesto
Community & Economic Development
Attn: Community Development Manager
1010 Tenth Street, Suite 3300
Modesto, California 95354
By Mail:

City of Modesto
Community & Economic Development
Attn: Community Development Manager
P.O. Box 642
Modesto, California 95353

6. No Offset.

Borrower hereby waives any rights of offset it now has or may hereafter have against City, its successors, and assigns, and agrees to make the payments called for herein accordance with the terms of this Note, the Deed of Trust and the Agreement.

7. Transfer.

This Note is not transferrable by Borrower. City, at its option, may negotiate transfer of assumption of this Note without necessity of obtaining Borrower’s consent.

8. Incorporation of Agreements.

This Note is subject to, and Borrower agrees to comply with, the terms and conditions of the Capital Facilities Fees Exemption Agreement between City and Borrower, and the Deed of Trust dated of even date herewith, and said Agreement and Deed of Trust are incorporated herein by this reference.
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5 (Form Promissory Note – 112 James St.)

9. No Waiver.

Any waiver by City of any obligation or condition in this Note must be in writing. No waiver will be implied from any delay or failure by City to take action on any breach or default of Borrower or to pursue any remedy allowed under this Note or applicable by law. Any extension of time granted to Borrower to perform any obligation under this Note shall not operate as a waiver or release from any of its obligations under this Note.

Consent by City to any act or omission by Borrower shall not be construed to be consent to any other or subsequent act or omission or to waive the requirement for City’s written consent to future waivers.

10. Amendment.

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

11. Applicable Law.

This Note shall be interpreted under and be governed by the laws of the State of California.

12. Venue.

Should either party institute suit or arbitration for enforcement or interpretation of any provision contained herein, the venue of such action shall be in Stanislaus County, California.

13. Legal Actions.

In addition to any other rights or remedies, City may institute legal action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy consistent with the purpose of this Note or the Agreement. City may also, at its option, cure the breach and file a legal action to collect the reasonable costs incurred by virtue of curing or correcting Borrower’s breach. Further, City may file legal action to require Borrower to specifically perform the terms and conditions of this Agreement. In the event that either part institutes a lawsuit or arbitration to enforce any part of this Agreement, or for any breach of this Agreement, the prevailing party may recover, in addition to any other remedies, all costs of suit, including reasonable attorneys’ fees. #30..
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6 (Form Promissory Note – 112 James St.)

14. Severability.

Every provision of this Note is intended to be severable. If any provision of this Note shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.

15. Title of Parts and Sections.

Any titles of these section or subsections of this Note are inserted for convenience or reference only and shall be disregarded in interpreting any part of the Note’s provisions.

16. Language Construction.

The language of each and all paragraphs, terms and/or provisions of this Note, shall, in all cases and for any and all purposes, and in any way and all circumstances whatsoever, be construed as a whole, according to their meaning, and any for or against either party and with no regard whatsoever to the identity of status of any person or persons who drafted all or any portion of this Note.

Stanislaus Equity Partners CDC
A non-profit organization
By:

Title: ___________________________________
By:

Title: ___________________________________
*Corporations: signature of two (2) officers required OR one (1) officer plus corporate seal
*Partnership: signature of a partner required
*Sole Proprietorship: signature of proprietor required
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
Date: March 2, 2022
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
SUBJECT: Adoption of Final Council District Map Recommended by the Citizens’ Districting Commission
CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:

Public Hearing to adopt the Final Council District Map Recommended by the Citizens’ Districting Commission. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:

This item is related to the 2020-2025 Strategic Plan goal of promoting trust and engagement.

BACKGROUND:

Like many cities throughout California, Modesto utilizes a district-based system of electing Council Members. After each decennial U.S. census, cities with district-based systems must “redistrict” to adjust the boundaries of the council members’ districts using the new census data.

What this means is that every ten years, Council Member Districts must be examined and potentially redrawn so that each district is substantially equal in population. Redistricting determines which neighborhoods and communities are grouped together into a district for purposes of electing a Council Member. As required by law, the Council Member Districts must be “substantially equal in population” based upon the results of the 2020 Census. The Council Member Districts are also required to comply with all applicable laws including the United States Constitution, the California Constitution, the FAIR MAPS Act, and the federal Voting Rights Act of 1965.

Under Section 501(b)(2) of the City Charter (“Charter”), the City Council was required to appoint a Citizens’ Districting Commission (“Commission”) tasked with the function of recommending to the Council the districts from which Council Members shall be elected. Charter Section 501(b)(3) required the City Council to appoint a Commission consisting of nine qualified electors residing within the City, reflecting the demographic and geographic diversity of the City. On September 28, 2021, by Resolution No. 2021-389 the Council appointed the following nine members to the Commission:
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1) Maria Basulto District 1
2) Emmanuel Becerra District 2
3) Aaron Anguiano District 3
4) Seth Simas District 3
5) Maria DeAnda District 4
6) Diane Kroeze District 4
7) Marsha Waggoner District 5
8) Marshall Riddle District 5
9) Nancy Hinton District 6
The Charter also required that “one or more, as necessary, independent consultants experienced and competent in the skills necessary for the districting work shall be utilized to assist the Commission in developing any of the Districting Plans.” On September 7, 2021, by Resolution No. 2021-336, Council approved a professional services agreement with Redistricting Partners for Demographic and Census Mapping Consultant services for the City’s Redistricting process, for an agreement total not to exceed $80,000. A First Amendment to this agreement was approved on December 14, 2021, by Resolution No. 2021- 490 to increase the not to exceed amount to $113,000. Redistricting Partners provided training, community engagement support, translation services, DistrictR drawing tool, and assistance in creation of draft boundary maps for Council consideration, while ensuring compliance with all applicable laws.

Pursuant to Charter Section 501(b)(5), the Commission was required to abide by the following procedures:
- “the Commission shall hold at least one (1) public hearing prior to adopting its Draft Districting Plan;”
- “the Draft Districting Plan shall be made available for at least seven (7) days prior to the commencement of public hearings to take public testimony and comment on the Draft Districting Plan;”
- “the Commission shall hold at least one (1) public hearing between the release of its Draft Districting Plan and the adoption of a Recommended Districting Plan by the Commission;”
- “[t]he Commission shall adopt a Recommended Districting Plan and submit it to the Council.”
Pursuant to Charter Section 501(6)(a), after the submission of the Recommended Redistricting Plan:
- “[t]he Council shall hold at least one (1) public hearing on the Recommended Districting Plan of the Commission before any adoption of a Final Districting Plan.” “[t]he Recommended Districting Plan approved by the Commission shall be available to the public for at least twenty (20) days prior to any vote by the Council to approve or disapprove the Plan.”
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Under the Charter, the Council may not alter the Recommended Council District Map but may only approve or disapprove the recommended Council District Map in its entirety. If the Council approves the Recommended Council District Map, it will become final. If the Council disapproves it, the reasons shall be set forth in writing and presented to the Commission for consideration.

DISCUSSION:

The Commission complied with the Charter, the FAIR MAPS Act and all legal requirements for public hearings and community outreach, including taking the steps necessary to encourage residents, including those in underrepresented communities and non-English speaking communities, to participate in the redistricting public review process.

The Commission held three Community Outreach Workshops, one Pre-Draft Map Public Hearing and four Draft Map Public Hearings during the timeframe of December 2, 2021, through February 3, 2022. The Commission offered live Spanish translation services at all public hearings and workshops. The City’s Citizens’ Districting Commission webpage explained, in both English and Spanish, the redistricting process including how to testify during a public hearing or to submit written testimony. All Commission meetings, hearings and workshops were published and advertised on the City’s Citizens’ Districting Commission webpage, shared on the City’s social media pages and with stakeholder organizations in the community. Public Hearing Notices were appropriately published in the Modesto Bee. As part of our community outreach, staff and consultant created the City’s DistrictR page and a Community of Interest Survey and community feedback was presented at meetings.

On January 8, 2022, the Commission authorized the release of three Draft Maps for community review and input. These maps were prepared by the demographer consultant taking into consideration population and census data, and the input received through the public hearing process. Each draft map has an overview, data table, individual district pages and a URL link.

The data used for redistricting included the official data from the decennial census (P.L. 94-171 redistricting data) and the American Community Survey (ACS) data (a sample survey by the Census Bureau). The decennial census data was used as the official population counts for purposes of drawing districts that are substantially equal population. Since ACS is a survey, it cannot be used for population counts. However, ACS data was used in the redistricting process by providing more detailed demographic information about Modesto’s residents and communities of interest. ACS data was also used to make sure the districts comply with the Voting Rights Act, specifically through its special tabulation on citizen voting-age population (“CVAP”). CVAP acts as the “eligible voter” population measure when determining Voting Rights Act compliance.

On January 19, 22, and 26, 2022, the Commission discussed Draft Maps, including an additional citizen drawn map. After consideration of the Draft Maps, the Commission provided direction to staff making changes to “Draft Map B”; those changes would be reflected in a new Draft Map that would be referred to as “Draft Map B2.” On January 22, 2022, the Commission discussed Draft Maps, including Draft Map B2 and provided staff with additional changes. The changes would be reflected in the new “Draft Map B3.”
On January 26, 2022, the Commission discussed Draft Maps and decided to only move forward #31..
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with Draft Map B3 to the next meeting. On February 2, 2022, the Commission held a Public Hearing to adopt a Recommended Council District Map and voted unanimously to recommend Draft Map B3 to Council as the Recommended Council District Map.

The Commission reviewed and provided feedback and direction on the Draft Maps consistent with all applicable redistricting law and criteria, including the Charter’s criteria for districting.

Charter Section 501(b)(4) states as follows:
“(4) Criteria for Districting. To ensure fair and effective representation for all citizens of the City, the Commission, in recommending a districting or redistricting plan, and the Council, in approving or rejecting a districting or redistricting plan, shall consider the following criteria for the districts to the extent practicable:
(A) district boundaries should be geographically compact and contiguous;
(B) district boundaries should follow visible natural and man-made features;
(C) district boundaries should respect communities of interest. A community of interest is defined as a geographic area comprised of residents who share similar interests including, but not limited to, social, cultural, ethic, geographic or economic interests, or formal government or quasi-governmental relationships, but not including relationships with political parties, incumbents, or candidates;
(D) district boundaries should be drawn without regard for advantage or disadvantage to incumbents or challengers;
(E) district boundaries should be drawn without regard for advantage or disadvantage to any political party.”
In the creation of Draft Map B3, the Commission focused on using major streets and neighborhoods to divide district boundaries. Changes to the current district boundaries include Rose Avenue as the major border running north-south through the eastside of town and becomes the border between Districts 3, 4, 5, and 6, creating a four corners alignment. La Loma Avenue and Scenic Drive are used for the borders between Districts 2, 3, and 4, which keeps the La Loma neighborhood together, and the neighborhoods north of Scenic Drive unified.

Briggsmore Avenue extends from Lakewood Avenue to Claus Road, creating a border between Districts 4 and 6. Lastly, the Airport Neighborhood in District 4 will move to District 2 and is connected by a small portion of Yosemite Avenue, Empire Avenue and Tenaya Drive. The Commission recommended that the Airport Neighborhood be included in District 2 because they believed that the communities of interest were more closely aligned with those of District 2. With the inclusion of the Airport Neighborhood in Draft Map B3, District 2’s Hispanic CVAP increases from 56.4% to 58.2%.”
On March 1, 2022, Council held a public hearing that complied with Charter Section 501(b)(6)(a), which requires the Council to hold at least one (1) public hearing on the “Recommended Districting Plan of the Commission” before any adoption of a “Final Districting Plan.” The Council received a report and presentation from staff and the City’s demographer #31..
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consultant on the redistricting process and had the opportunity to provide comments regarding the Recommended Council District Map adjusting district boundaries.

Pursuant to Charter Section 501(b)(6)(C), “[t]he Council may not alter the Recommended Districting Plan submitted to it by the Commission. Rather, the Council shall either approve or disapprove such a Recommended Districting Plan in its entirety. If the Council approves the Recommended Districting Plan, it shall become the Final Districting Plan and shall be implemented. If the Council disapproves the Recommended Districting Plan, the Council shall submit in writing to the Commission the reasons for such disapproval, including any deviation by the Commission from the criteria for districting detailed in this Section. The Commission shall consider any reasons for such disapproval submitted to it by the Council and may consider alterations to the Recommended Districting Plan in response to such reasons. After such consideration, the Commission shall submit its Final Districting Plan to the Council for implementation.”
At this March 8, 2022, public hearing Council will consider approving the Final Council District Map recommended by the Citizens’ Districting Commission.

FISCAL IMPACT:

There is no fiscal impact for tonight’s action, however overall costs associated with the redistricting process include consultant and administrative costs. Consultant costs for Redistricting Partners currently total $81,018.93, with work in progress to be billed at the conclusion of the process. Administrative costs total $3,853.64 and include costs for legal Public Hearing Notices, interpreter services and Commission recruitment advertisements. Costs are absorbed within the City Attorney’s operating budget in the General Fund. A budget adjustment or a request for additional funding is not needed as there are sufficient funds in the current Fiscal Year 2021-22 adopted budget.

COMMITTEE RECOMMENDATION:

This item was not presented to a Council Committee, however, Citizens’ Districting Commission reviewed and approved to forward Map B3 to the City Council on February 2, 2022.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Final Council District Map recommended by the Citizens’ Districting Commission.

Approved by:

Jose M. Sanchez, City Attorney
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Exhibit A-Final Council District Map

3. Map B3 Current Lines showing changes
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX

RESOLUTION APPROVING THE FINAL COUNCIL DISTRICT MAP AS
RECOMMENDED BY THE CITIZENS’ DISTRICTING COMMISSION
WHEREAS, like many cities throughout California, Modesto utilizes a districtbased system of electing Council Members; and WHEREAS, after each decennial U.S. census, cities with district-based systems must “redistrict” to adjust the boundaries of the Council Members’ Districts using the new census data; and
WHEREAS, redistricting determines which neighborhoods and communities are grouped together into a district for purposes of electing a Council Member; and WHEREAS, as part of the redistricting process the City is required to form a Citizens’ Districting Commission (“Commission”) whose function shall be to recommend to the Council the districts from which Council Members shall be elected; and
WHEREAS, on September 28, 2021, by Resolution No. 2021-389 the Council appointed nine members to the Commission; and
WHEREAS, the Charter also required that “one or more, as necessary, independent consultants experienced and competent in the skills necessary for the districting work shall be utilized to assist the Commission in developing any of the Districting Plans;” and
WHEREAS, on September 7, 2021, by Resolution No. 2021-336, Council approved a professional services agreement with Redistricting Partners for Demographic and Census Mapping Consultant services for the City’s Redistricting process; and #31..
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WHEREAS, the Commission complied with the Charter, the FAIR MAPS Act and all legal requirements for public hearings and community outreach, including taking the steps necessary to encourage residents, including those in underrepresented communities and non-English speaking communities, to participate in the redistricting public review process; and
WHEREAS, the Commission held three Community Outreach Workshops, one Pre-Draft Map Public Hearing and four Draft Map Public Hearings during the timeframe of December 2, 2021, through February 3, 2022; and
WHEREAS, on January 8, 2022, the Commission authorized the release of three Draft Maps for community review and input, these maps were prepared by the demographer consultant taking into consideration population and census data, and the input received through the public hearing process; and
WHEREAS, on January 19, 22, and 26, 2022, the Commission discussed Draft Maps, including an additional citizen drawn map; and
WHEREAS, on February 2, 2022, the Commission held a Public Hearing to adopt a Recommended Council District Map and voted unanimously to recommend Draft Map B3 to Council as the Recommended Council District Map; and WHEREAS, in the creation of Draft Map B3, the Commission focused on using major streets and neighborhoods to divide district boundaries; and WHEREAS, changes to the current district boundaries include Rose Avenue as the major border running north-south through the eastside of town and becomes the border between Districts 3, 4, 5, and 6, creating a four corners alignment. La Loma Avenue and Scenic Drive are used for the borders between Districts 2, 3, and 4, which #31..
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keeps the La Loma neighborhood together, and the neighborhoods north of Scenic Drive unified. Briggsmore Avenue extends from Lakewood Avenue to Claus Road, creating a border between Districts 4 and 6. Lastly, the Airport Neighborhood in District 4 will move to District 2 and is connected by a small portion of Yosemite Avenue, Empire Avenue and Tenaya Drive. The Commission recommended that the Airport Neighborhood be included in District 2 because they believed that the communities of interest were more closely aligned with those of District 2. With the inclusion of the Airport Neighborhood in Draft Map B3, District 2’s Hispanic CVAP increases from

56.4% to 58.2%; and
WHEREAS, on March 1, 2022, Council held a public hearing that complied with Charter Section 501(b)(6)(a), which requires the Council to hold at least one (1) public hearing on the “Recommended Districting Plan of the Commission” before any adoption of a “Final Districting Plan;” and
WHEREAS, the Council received a report and presentation from staff and the City’s demographer consultant on the redistricting process and had the opportunity to provide comments regarding the Recommended Council District Map adjusting district boundaries.

NOW, THEREFORE, BE IT RESOLVED, that the Council of the City of Modesto hereby approves the Final Council District Map, attached hereto as Exhibit A, as recommended by the Citizens’ Districting Commission.

BE IT FURTHER RESOLVED, that the City Clerk, or her designee is hereby directed to provide a certified copy of this Resolution to the Stanislaus County Register of Voters.
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The foregoing Resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 8th day of March 2022, by Council Member ________, who moved its adoption, which motion being duly seconded by Council Member ______, was upon roll call carried and the resolution adopted by the following vote:

AYES: Council Members:

NOES: Council Members:

ABSENT: Council Members:

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

BY: _________________________________
JOSE M. SANCHEZ, City Attorney
5072721.1
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Woodland Ave
S Emerald Ave
S Washington St
Tenaya Dr
Veneman Ave
Chicago Ave
Coldwell Ave
Kiernan Ave
Sierra Dr
N Conejo Ave
Caswell Ave
Maze
Blv
Broadway Ave
N Riverside Dr
Snyder Ave
Grecian Ave
Eastridge Dr
B
eyer P
ark
Dr
Hillglen Ave
C
al re
m
o
nt A
ve
Wylie Dr
Daly Ave
Keller St
Dallas St
Merle Ave
Central Ave
Houser Ln
S Riverside Dr
Millbrook Ave
Laramie Dr
Bridgewood Wy
13th St
E Orangeburg Ave
Dragoo Park Dr
Beverly Dr
Temescal Dr
Panama Dr
Norwegian Ave
Mechalys Wy N Mc Clure Rd
Poust Rd
Esta Ave
El Pasado Dr
Orchard Park
Wy
C olonial Dr
Manor Oak Dr
Faith Home Rd
Palmwood Dr
Cheyenne Wy
E Morris Ave
Litt Rd
Belharbour Dr
Sylvan Meadows Dr
Sonoma Ave
6th
St
Moffett Rd
4th
St
Veneman Ave N
2nd
St
Rose Ave
Nightingale Dr
Tioga Dr
Empire Ave
California Ave
Clevenger Dr
Edgebrook Dr
Terminal A
ve
Cre
e
k
wood
Dr
Boothe Rd
Mars
ala
Wy
W Morris Ave
E Rumble Rd
Lillian Dr
Hashem Dr
Celeste Dr
W Union Ave
Claus Rd
Lincoln Oak Dr
Surrey Ave
S
h
e
wr o
o
d
A
ve
Wood Sorrel Dr
Colum
b
ni e
Dr
Carver Rd
Mount Vernon Dr
E Union Ave
Rouse Ave
Aria Wy
Toomes Rd
Dry Creek Dr
Peppermint Dr
Poppypatch Dr
Mc
Reynolds
A
ve
7th St
Encina Ave
Oaklawn Dr
Rosemore Ave
Middleboro Pl
Mable Ave
Nadine Ave
Vintage Dr
Ha
h
n
Dr
Fine Ave
Montana Dr
Fowler Rd
Beckwith Rd
Tucson Ave
B ue l Bird Dr
Virginia Ave
Edward Ave
Penny Ln
E Fairmont Ave
Miller Ave
Sunrise Ave
Bodem St
Richland Ave
W Roseburg Ave E Roseburg Ave Neece Dr
La Force Dr
Evans Rd
Kodiak Dr
Conant Ave
Woodrow
Ave
Glenn Ave
S Madison St
Robertson Rd
Finney Rd
Bacon Rd
Wade
Ave
Sharon Ave
Carver Rd
Church St
10th St
11th St
12th St
S Santa Cruz Ave
Herndon Rd
17th St
Murphy Rd
Sisk Rd
Napier Dr
Bowen Ave
Lifescapes
Dr
Maid Mariane Ln
Roselle Ave
H
eld
Dr
Coffee Rd
Bangs Ave
Roselawn Ave
Claribel Rd
El Roya
A
ve
Nathan Ave
S Santa Fe Ave
River Rd
Dale Rd
Brighton Ave
BuenaVista
E Hatch Rd
Tully Rd
Norseman Dr
N Emerald Ave
Hoover Ave
Claratina Ave
S C o
n
ejo
A
ve
Oakdale Rd
Chapman Rd
Milnes Rd
Wieland Ave
Dakota Ave
E Whitmore Ave Codoni Ave
Salida Blv
S Mc Clure Rd
Spenker Ave
E Glenn Ave
Plaza Parkway
Doherty Ave
Kiernan Ct
Woodland Ave
Paradise Rd
Garner Rd
Leckron Rd
E Whitmore Ave
Hillglen
Ave
Sutter Ave
Pelandale Ave
Dale Rd
Standiford Ave
Ric
h
al n
d
A
ve
Prescott Rd
Finch Rd
Lakewood Ave
La Loma Ave
Tuolumne Blv
E Hatch Rd
S 7th St
Tully Rd
Floyd Ave
Scenic Dr
5th St
W Rumble Rd
Kansas Ave
E Orangeburg Ave
Cro
ws
L
a
n
d
ni g
R
d
S Martin Luther King Dr
College Ave
Coffee Rd Morgan Rd
E Rumble Rd
W Whitmore Ave
W Orangeburg Ave
19th St
Yosemite Blv
Broadway Ave
Paradise Rd
I St
1st St
J St
Lincoln Ave
Blue Gum Ave
Kiernan Ave
G St
N 9th St
B St
9th St
6th St
14th St
E Briggsmore Ave
Roselle Ave
Sylvan Ave
Central Ave
Herndon
A
ve
Sisk Rd
Herndon Rd
Mc Henry
Ave
Beck with Rd
S
Santa
Fe
A
ve
Morse Rd
Mariposa Rd
Garner Rd
Needham Opas

MC HENRY AVE

PARADISE AVE

NEEDHAMST

OAKDALE RD
H ST
G ST

EL VISTA AVE

E WHITMORE AVE

MITCHELL RD

YOSEMITE BLV
N
CA
RPE
N
TE
R
RD
S 9TH ST

PARADISE RD
L ST

MAZE BLV

E BRIGGSMORE AVE

E HATCH RD
S
CA
RPE
N
TE
R
R
D
D ST

W HATCH RD
K ST

W BRIGGSMORE AVE
1ST ST
9TH ST

PELANDALE AVE

CLAUS RD

SCENIC DR
1 2
3 4
5 6
City of Modesto

0 0.5 1 2
Miles
Date: 3/4/2022
2 Jennings Rd
West Main St
E Las Palmas Ave
Sycamore Ave

Legend
Council District - Population
1 - 36,216
2 - 37,472
3 - 35,853
4 - 37,182
5 - 37,025
6 - 35,503
K:\Working\Districting\Redistricting2022.mxd Council District Map Exhibit A
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 8, 2022
Date: January 26, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: California Water and Wastewater Arrearage Payment Program CONTACT: Jennifer Martin, Revenue Collection and Compliance Manager, [email protected], (209) 571-5892
DESCRIPTION:

Consider approving accepting funds from the California Water and Wastewater Arrearage Payment Program (CWWAPP) for drinking water arrearage in an amount not to exceed $2,716,416 and authorizing the submission of an application to the CWWAPP for the wastewater arrearage amount estimated at $4,215,784. (Funding Source: Water and Sewer Funds) STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City’s Strategic Plan Initiatives, Goal D:

Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

On March 4, 2020, Governor Newsom proclaimed a state of emergency due to the COVID-19 pandemic, issued Executive Order N-33-20 to require individuals to stay at home except as needed to maintain continuity of critical operations, issued Executive Order N-42-20 prohibiting discontinuation of water service indefinitely, and issued Executive Order N-60-20 that created a risk-based approach to reopening the economy.

The stay-at-home order and risk-based reopening framework were rescinded on June 11, 2021, by Executive Order N-07-21 and many provisions of other Executive Orders were phased out by Executive Order N-08-21 including establishing an end date for the shutoff moratorium on September 30, 2021.

There have been economic impacts as a result of the COVID-19 pandemic and associated public health measures, including leaving many Californians unable to pay their water and wastewater bills due to lack of reliable and consistent employment. The impact of customers’ inability to pay #32..
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City Council, March 8, 2022
California Water and Wastewater Arrearage Payment Program

Page 2 of 3 ends

for these utilities continue to negatively affect City revenues, and various executive orders and/or legislation prohibited service terminations.

In response to the economic conditions caused by the COVID-19 pandemic the State established Assembly Bill No. 128 and amended by Senate Bill No. 129, which provides nearly $1 billion to the State Water Resources Control Board to administer the CWWAPP to reduce delinquent water and wastewater balances for customers experiencing financial hardships related to the economic impacts of the COVID-19 pandemic. Funding for CWWAPP is generated from the State’s share of the federal Coronavirus Fiscal Recovery Funds.

DISCUSSION:

Implementing Assembly Bill No. 128 and amended by Senate Bill No. 129, the State Water Resources Control Board (SWRCB) conducted a state-wide survey of water systems to determine the total amount of drinking water debt accumulated in the state between March 4, 2020, and June 15, 2021. The Finance Department, Utilities Department and Budget Division complied the required data to submit for Modesto on September 10, 2021. Once the total amount of drinking water debt was submitted to the state, the SWRCB began distributing funds to address drinking water arrearages as early as December.

The funding allows Water utilities to expend up to three percent (3%), or up to $1 million, whichever is less, for administrative costs the system incurs in applying for assistance or complying with Program requirements. For Modesto, this amount equals $79,119. Remaining funds of the $2,716,416 received by the City must be applied as bill credits to customers within 60 days of receiving funds. The City received the water arrearage funding on January 28, 2022 and the Utility Billing team is working diligently to post these credits no later than March 28, 2022.

Additional support for utility bill customers was provided in Assembly Bill 148, which created customer protections that require a community water system to offer a payment plan to affected customers and refrain from discontinuing service until (1) September 30, 2021, or (2) for a customer that has been offered an opportunity to participate in a payment plan, the date the customer misses the enrollment deadline for, or defaults on, the payment plan, whichever is later.

The City had implemented a payment plan prior to COVID-19, and this referenced legislation and continues to communicate with delinquent customers to inform them about the City’s payment plan structure.

As part of receiving this funding, the City must comply with the program requirements defined below which include:
1) Waiving customer late fees for any arrearage accrued during the COVID-19 pandemic bill relief period;
2) Notifying customers of the amount credited to their account; 3) Offering to enroll customers with remaining debt into a payment plan; and 4) Allowing customers 30 days to enroll in the payment plan The program requirements allowed for the City to apply for funding for delinquent balances incurred during the established COVID relief period of March 4, 2020 to June 15, 2021. The City has not moved forward with any water shutoffs at this time. The City’s priority is to apply the credits received from this funding and actively communicate with the customers about establishing a payment plan for the remaining delinquent balance due to the City. In addition, the #32..
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City Council, March 8, 2022
California Water and Wastewater Arrearage Payment Program

Page 3 of 3 ends

City will provide communication at least 30 days in advance to advise on the timeframe of when shutoffs will be reinforced due to no payment being applied against their account.

Part of the communication to be shared with the utility customers include other federal and state programs being offered for utility bill relief and other low-income assistance programs being offered in addition to the City of Modesto’s Utility Billing Assistance Program that a $35/month discount for qualifying customers currently enrolled in another eligible assistance program.

The CWWAPP is only addressing drinking water arrearages as part of this initial funding. The SWRCB is conducting another survey to determine state-wide wastewater debt and make remaining program funds available to Community utilities carrying wastewater debt. The California Wastewater Arrearage Payment Program (Program) survey application opened on February 1, 2022 and the application deadline is April 1, 2022. The funding is available for debt accrued from March 4, 2020, through June 15, 2021 similar to the water arrearage program. The wastewater arrearage amount for the City is estimated at $4,215,784.

FISCAL IMPACT:

The federal funding relief received for the drinking water debt in the amount of $2,716,416 will be receipted in the Water Fund and help address the account delinquencies over 60 days past due which amounts to $3,118,158 as of December 31, 2021. This relief will cover the unpaid bills during this relief period for 7,195 residential and 226 commercial customers.

The federal funding relief the City has applied for associated with the wastewater debt is estimated to be $4,215,784 which will address the outstanding delinquency for the Wastewater Fund. The wastewater account delinquency over 60 days past due amounts to $5,902,098 as of December 31, 2021. Based on the requirements of the program, the City was able to apply for delinquency over 60 days during the COVID relief time period of March 4, 2020 to June 15, 2021.

COMMITTEE RECOMMENDATION:

This item was not reviewed at the Committee level and was approved by City Manager to go straight to Council.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution accepting the funds from the California Water and Wastewater Arrearage Payment Program (CWWAPP) for drinking water arrearage in an amount not to exceed $2,716,416; and authorizing the submission of an application to the CWWAPP for the wastewater arrearage amount estimated at $4,215,784.

Approved by:

DeAnna Christensen, Director of Finance
Joseph P. Lopez, City Manager
Attachments:

1. Resolution
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX

RESOLUTION ACCEPTING THE FUNDS FROM THE CALIFORNIA WATER

AND WASTEWATER ARREARAGE PAYMENT PROGRAM (CWWAPP) FOR

DRINKING WATER ARREARGE IN THE AMOUNT NOT TO EXCEED
$2,716,416; AND AUTHORIZING THE SUBMISSION OF AN APPLICATION TO

THE CWWAPP FOR THE WASTEWATER ARREARAGE AMOUNT
ESTIMATED AT $4,215,784
WHEREAS, on March 4, 2020, Governor Newsom proclaimed a state of emergency due to the COVID-19 pandemic, issued Executive Order N-33-20 to require individuals to stay at home except as needed to maintain continuity of critical operations, issued Executive Order N-42-20 prohibiting discontinuation of water service indefinitely, and issued Executive Order N-60-20 that created a risk-based approach to reopening the economy; and
WHEREAS, the stay-at-home order and risk-based reopening framework were rescinded on June 11, 2021, by Executive Order N-07-21 and many provisions of other Executive Orders were phased out by Executive Order N-08-21 including establishing an end date for the shutoff moratorium on September 30, 2021; and WHEREAS, there have been economic impacts as a result of the COVID-19 pandemic and associated public health measures, including leaving many Californians unable to pay their water and wastewater bills due to lack of reliable and consistent employment. Community utility system continue to be negatively affected by the impacts and requirements of the Executive Orders making assistance critically important; and WHEREAS, the State Water Resources Control Board (SWRCB) conducted a state-wide survey of water systems to determine the total amount of drinking water debt accumulated in the state between March 4, 2020, and June 15, 2021; and #32..
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2 WHEREAS, the Finance Department, Utilities Department and Budget Division complied the required data to submit this survey for Modesto on September, 10, 2021; and WHEREAS, the City received the water arrearage funding in the amount of $2,716,416 on January 28, 2022 and the Utility Billing team is working diligently to post these credits no later than March 28, 2022; and
WHEREAS, as part of receiving this funding, the City must comply with the program requirements defined below which include:
1) Waive customer late fees for any arrearage accrued during the COVID-19 pandemic bill relief period
2) Notify customers of the amount credited to their account 3) Offer to enroll customers with remaining debt into a payment plan 4) Allow customers 30 days to enroll in the payment plan; and WHEREAS, the City’s priority is to apply the credit received from this funding and actively communicate with the customers about establishing a payment plan for the remaining delinquent balance due to the City; and
WHEREAS, SWRCB is conducting another survey to determine state-wide wastewater debt and make remaining program funds available to Community utilities carrying wastewater debt; and
WHERAS, the funding is available for debt accrued from March 4, 2020, through June 15, 2021 similar to the water arrearage program and the wastewater arrearage amount for the City is estimated at $4,215,784.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby accept the funds from the California Water and Wastewater Arrearage #32..
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3 Payment Program (CWWAPP) for drinking water arrearage in an amount not to exceed $2,716,416.

BE IT FURTHER RESOLVED by the Council of the City of Modesto that it hereby authorize the submission of an application to the CWWAPP for the wastewater arrearage amount estimated at $4,215,784.

The foregoing resolution was introduced in 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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OFFICE OF THE CITY CLERK

NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, MARCH 8, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

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

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION

PUBLIC EMPLOYEE APPOINTMENT
(Pursuant to Section 54957 Government Code)
Title: City Clerk
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Agency Negotiators: Christina Alger, Director of Human Resources Jose M. Sanchez, City Attorney
Employee: City Clerk
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Stephanie Lopez v. City of Modesto, et al.

Superior Court of California, County of Stanislaus
Stanislaus County Case No.: CV-21-00925

CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Andre VanRyn v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ10990424
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCEA Negotiator: Christina Alger
Employee Organization: Modesto City Employees Association #33..
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CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCMA Negotiator: Christina Alger
Employee Organization: Modesto Confidential & Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPOA Negotiator: Christina Alger
Employee Organization: Modesto Police Officers’ Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPNSA Negotiator: Christina Alger
Employee Organization: Modesto Police Non-Sworn Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) –MPMA Negotiator: Christina Alger
Employee Organization: Modesto Police Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCFFA Negotiator: Christina Alger
Employee Organization: Modesto City Firefighters Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Negotiator: Christina Alger
Employee Organization: Unrepresented Management and Confidential Employees March 4, 2022 BY ORDER OF THE CHAIR
/S
Dana Sanchez, Interim City Clerk
Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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TO: THE CLERK OF THE CITY OF MODESTO
RE: CLOSED SESSION
Pursuant to Section 2-1.02 of the Modesto Municipal Code, you are hereby authorized and empowered to call a special Closed Session meeting of the Council of the City of Modesto to be convened on
TUESDAY, MARCH 8, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

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

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION

Superior Court of California, County of Stanislaus
Stanislaus County Case No.: CV-21-00925

CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Andre VanRyn v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ10990424
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCEA #33..
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Negotiator: Christina Alger
Employee Organization: Modesto City Employees Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCMA Negotiator: Christina Alger
Employee Organization: Modesto Confidential & Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPOA Negotiator: Christina Alger
Employee Organization: Modesto Police Officers’ Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPNSA Negotiator: Christina Alger
Employee Organization: Modesto Police Non-Sworn Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) –MPMA Negotiator: Christina Alger
Employee Organization: Modesto Police Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCFFA Negotiator: Christina Alger
Employee Organization: Modesto City Firefighters Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Negotiator: Christina Alger
Employee Organization: Unrepresented Management and Confidential Employees March 4, 2022 BY ORDER OF THE CHAIR
/S
__________________________
SUE ZWAHLEN, Mayor
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Modesto City CouncilMarch 8, 2022

Modesto City Council
March 8, 2022