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MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, September 27, 2022 at 5:30 PM
*Roll Call - Councilmembers Escutia-Braaton, Kenoyer, Madrigal, Ricci, Wright, Mayor Zwahlen
* Some Councilmembers may be participating in the meeting remotely via teleconferencing or other electronic means consistent with the AB 361.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.
THIS MEETING WILL BE PHYSICALLY OPEN TO THE PUBLIC AND BY ZOOM
VIDEO CONFERENCING AND TELEPHONE
In order to minimize the spread of the COVID-19 virus, this meeting will be conducted pursuant to AB 361, which amended the Brown Act’s teleconferencing provisions.
You may observe a livestream of the meeting at http://media.modestogov.com. You may also participate in the meeting as indicated below.
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PARTICIPATING IN CITY COUNCIL MEETINGS IN CONFORMANCE WITH AB 361
The City of Modesto is providing alternatives to view Council meetings and provide public comments. If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:
SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Councilmembers and placed in the record but will not be read aloud during the meeting. Written comments must be received by 3:00 p.m. on the day of the meeting.
VIRTUAL PARTICIPATION BY ZOOM VIDEO
CONFERENCING AND TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view and participate in Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.
Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can participate by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326
Providing Public Comment on Zoom and by Telephone
The Mayor will request public comment during the Public Comment periods on the meeting agendas and during each Public Hearing and Regular Calendar Item on the Council Agenda.
Once the Mayor has announced the public comment period, please do one of the following.
USING A COMPUTER OR SMART PHONE APP:
Click on the “Raise Hand” feature in the webinar controls. This will notify City staff that you have raised your hand.
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City staff will unmute your microphone when it is your turn to provide public comment.
A prompt will appear to confirm you would like to be unmuted and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again.
USING A REGULAR PHONE (not using a computer or smart phone APP):
Dial *9 (star 9), this will notify City staff that you have “raised your hand” for public comment.
City staff will unmute your microphone when it is your turn to provide public comment.
You will hear “you are unmuted” and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again. If your phone is unmuted, and you are unable to be heard, the host may ask that you Dial *6 to toggle mute on/off in Zoom.
Additional Zoom resources/support
Please visit Zoom’s website support page on helpful tips to prepare for the meeting:
https://support.zoom.us/hc/en-us/categories/201146643
Pledge of Allegiance to the Flag
Invocation: Cindy Marks, Pray Modesto
City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session
ACKNOWLEDGEMENTS AND PRESENTATIONS
1. Presentention of Certificates of Recognition honoring the heroism of Daniel Cabral, Gil Espinoza, Jesus Garcia, and Shannon Wiggins. (Funding Source: Not Applicable) CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected]
2. Presentation of Proclamation to Phillips Lighting recognizing their 75th anniversary. (Funding Source: Not Applicable)
CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected]
3. 2022 Achievement of Excellence in Procurement Award by National Procurement Institute. (Funding Source: Not Applicable)
FINANCE; DeAnna Christensen, 209-577-5387, [email protected] - 3 -
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MISCELLANEOUS
Appointments
4. Consider reappointing Craig Lewis to the Stanislaus Council of Governments (StanCOG) Measure L Citizens Oversight Committee. (Funding Source: Not Applicable)
Staff Recommendation:
Resolution reappointing Craig Lewis to the StanCOG Measure L Citizens Oversight Committee, with a term expiration of September 30, 2025.
CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected]
PUBLIC COMMENT PERIOD
Please refer to special public comment instructions above.
Three-minute time limit per speaker
Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.
Any and all of the following agenda items are subject to action by the Modesto City Council.
This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.
In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA - 4 -
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In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
CONSENT ITEMS
An item may be removed from consent and discussed at the request of an audience member or Councilmember.
Consent
5. Consider approving the minutes from the September 13, 2022 Council Meeting. (Funding Source: Not Applicable)
Staff Recommendation:
Motion approving the minutes from the September 13, 2022 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent
6. Consider approving final adoption of Ordinance 3749-C.S. amending section 12-
4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code relating to use of Park and Recreation areas and facilities to authorize the Director of Parks, Recreation and Neighborhoods to set hours of operations for all parks, trails, green space, and recreation facilities. (Funding Source: Not Applicable) Staff Recommendation:
Motion approving final adoption of Ordinance 3749-C.S. amending section 12-
4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code relating to use of Park and Recreation areas and facilities to authorize the Director of Parks, Recreation and Neighborhoods to set hours of operations for all parks, trails, green space, and recreation facilities.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent
7. Consider an Operating Agreement, in coordination with Stanislaus County, for a Digital Freeway Billboard at 1027 Emerald Avenue, in County jurisdiction. (Funding Source: Application Fee)
Staff Recommendation:
Resolution approving an Operating Agreement with Outfront Media LLC, for the installation of a Digital Freeway Billboard on property located at 1027 Emerald Avenue; and authorizing the City Manager, or his designee, to execute the Agreement.
CED; Paul Liu, 209-577-5282, Paul Liu
Consent
8. Consider authorizing submittal of Highway Safety Improvement Program Grant applications. (Funding Source: California Department of Transportation Grant Funds) - 5 -
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Staff Recommendation:
Resolution authorizing submittal of grant applications to seek grant funding for Highway Safety Improvement Program (HSIP) funds.
CED; Phillip Soares, 209-577-5258, [email protected] Consent
9. Consider approving an On-Call Rental Services Agreement with N & S Tractor, Turlock, California, for one-year with a one-year extension option, for an annual estimated amount of $75,000 and a total amount not to exceed $150,000 over two years. (Funding Source: Various Funds)
Staff Recommendation:
Resolution approving an On-Call Rental Services Agreement with N & S Tractor, Turlock, California, for one-year with a one-year extension option, for an annual estimated amount of $75,000 and a total amount not to exceed $150,000 over two years; and authorizing the City Manager or his designee to execute the Agreement.
FINANCE DEPARTMENT; Cynthia Kline, 209-577-5412, [email protected] Consent
10. Consider approving an Agreement with O’Dell Engineering Inc. to prepare the Tuolumne River Regional Park (TRRP) Master Plan Update for an amount of $268,641, plus $32,237 for additional services, if needed, for an Agreement total not to exceed $300,878. (Funding Source: American Rescue Plan Act (ARPA) / TRRP - Special Revenue Fund and JPA-TRRP Special Revenue Fund-CIP) Staff Recommendation:
Resolution approving an Agreement with O’Dell Engineering Inc. to prepare the Tuolumne River Regional Park (TRRP) Master Plan Update for an amount of $268,641, plus $32,237 for additional services, if needed, for an agreement total not to exceed $300,878 and authorizing the City Manager, or his designee to execute the Agreement.
PRN; Nathan Houx, 209-571-5526, [email protected]
Consent
11. Consider approving the competitive bidding process from National Purchasing Partners (NPPGov), League of Oregon Cities, with Park Associates, Inc. DBA Park Planet for the Purchase and Delivery of a Sensory Wall for The Awesome Spot Playground at Beyer Community Park, for a cost not to exceed $172,400. (Funding Source: American Rescue Plan Act Funding)
Staff Recommendation:
Resolution approving the competitive bidding process from National Purchasing Partners (NPPGov), League of Oregon Cities, with Park Associates, Inc. DBA Park Planet for the Purchase and Delivery of a Sensory Wall for The Awesome Spot Playground at Beyer Community Park, for a cost not to exceed $172,400; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
PRN; Nathan Houx, 209-571-5526, [email protected]
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Consent
12. Consider authorizing payments not to exceed $160,000 to Belfor Property Restoration, Modesto, CA and other vendors for emergency work related to the American Legion Hall fire remediation. (Funding Source: JPA TRRP Special Revenue Fund – CIP and Future Insurance Proceeds)
Staff Recommendation:
Resolution authorizing payments not to exceed $160,000 to Belfor Property Restoration, Modesto, CA and other vendors for emergency work related to the American Legion Hall fire remediation; and authorizing the Purchasing Manager, or her designee, to issue the payments.
PRN; Nathan Houx, 209-571-5526, [email protected]
Consent
13. Consider approving a Third Amendment to the Agreement with Willdan, Inc., for Traffic Engineering Services increasing the amount by $15,000 from $255,000 to a new total amount of $270,000. (Funding Source: Various Funds) Staff Recommendation:
Resolution approving a Third Amendment to the Agreement with Willdan, Inc., for Traffic Engineering Services increasing the amount by $15,000 from $255,000 to a new total amount of $270,000, and authorizing the City Manager, or his designee, to execute the amendment.
PUBLIC WORKS; Scott Collins, 209-577-5431, [email protected] Consent
14. Consider approving the plans and specifications for the Retroreflective Backplates and Striping Project, accepting the bid, and awarding a contract to Tennyson Electric, Inc. of Livermore, CA, in the amount of $566,317, and amending the Fiscal Year 2022-23 Capital Improvement Program budget in the amount of $305,000. (Funding Source:
Highway Safety Improvement Program, Surface Transportation Block Grant, and Surface Transportation Fund)
Staff Recommendation:
Resolution approving the plans and specifications for the Retroreflective Backplates and Striping Project, accepting the bid, and awarding a contract to Tennyson Electric, Inc. of Livermore, CA, in the amount of $566,317, and authorizing the City Manager, or his designee, to execute the Agreement. Resolution amending the Fiscal Year 2022-23 Capital Improvement Program (CIP) Budget, Project #101188 in the amount of $305,000, to fund the Retroreflective Backplates and Striping Project and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of this Resolution.
PUBLIC WORKS; Scott Collins, 209-577-5431, [email protected] Consent
15. Consider accepting the 2018-2019 Sewer Replacement project at Covena Avenue and Sutter Avenue & Nian Way Intersection as complete, authorizing all necessary steps to - 7 -
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file with the County Recorder, releasing securities, and releasing payments totaling $370,189 to Rolfe Construction Company Inc, of Atwater, CA. (Funding Source:
Wastewater Fund)
Staff Recommendation:
Resolution accepting the 2018-2019 Sewer Replacement Project Covena Avenue and Sutter Avenue & Nian Way Intersection as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $370,189 to Rolfe Construction, Atwater, CA.
UTILITIES; Pete Kambel, 209-577-5444, [email protected] Consent
16. Consider approving a Wastewater Rate Adjustment for the dumping of septage waste. (Funding Source: Wastewater Fund)
Staff Recommendation:
Resolution approving a Wastewater Rate Adjustment for Septage Waste Disposal from the current rate of $69.35 per 1,000 gallons of waste to $74.52 beginning in Fiscal Year 2022-23 and subsequently increasing 3.5% each year through Fiscal Year 2026-27 in accordance with Proposition 218.
UTILITIES; William Wong, 209-571-5801, [email protected]
COUNCIL COMMENTS & REPORTS
CITY MANAGER COMMENTS & REPORTS
HEARINGS
Published in the Modesto Bee on August 22, 2022
17. Hearing to consider approving the City of Modesto’s Consolidated Annual Performance Evaluation Report for Program Year 2021-2022. (Funding Source:
Community Development Block Grant, Emergency Solutions Grant, Community Development Block Grant - CV, Emergency Solutions Grant - CV and HOME Investment Partnerships funds)
Staff Recommendation:
Resolution approving the City of Modesto’s Consolidated Annual Performance Evaluation Report for Program Year 2021-2022 and authorizing the City Manager, or his designee, to sign the required documents for submittal to the U.S. Department of Housing and Urban Development.
CED; Jessica Hill, 209-577-5321, [email protected]
Published in the Modesto Bee on September 16, 2022.
18. Hearing to consider adopting an Ordinance repealing and replacing Section 10-3.505 of Article 3 of Title 10 of the City of Modesto Municipal Code and amending the Title of Section 10-3.506 of Article 3 of Title 10 related to termination of non-conforming uses. (Funding Source: General Fund)
Staff Recommendation:
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Motion introducing and waiving the first reading of an Ordinance repealing and replacing Section 10-3.505 of Article 3 of Title 10 of the City of Modesto Municipal Code and amending the Title of Section 10-3.506 of Article 3 of Title 10 of the Modesto Municipal Code.
CED; Paul Liu, 209-577-5267, [email protected]
MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.
ADJOURNMENT
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CLOSED SESSION
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, September 27, 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
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Mike Hoesch v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ11304476, ADJ93185879, ADJ8580687
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Brittoni Estrella, et al. v. City of Modesto et al.
United States Eastern District
Case No.: 1:22-cv-00921
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
TO: Mayor and City Council Date: September 20, 2022
THROUGH: Joseph P. Lopez, City Manager
FROM: Mayor Sue Zwahlen
SUBJECT: StanCOG Measure L Citizens Oversight Committee Appointment CONTACT: Mayor Sue Zwahlen, [email protected]; 209-571-5597 DESCRIPTION:
Consider reappointing Craig Lewis to the Stanislaus Council of Governments (StanCOG) Measure L Citizens Oversight Committee. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:
This action supports the City’s Strategic Commitment to provide effective, responsive and transparent government.
BACKGROUND:
In November of 2016, Stanislaus County voters approved a county-wide, 25-year, halfcent sales tax increase known as Measure L. The tax increase went into effect on April 1, 2017 and the City begin receiving quarterly payments in July, 2017.
Measure L calls for an independent Citizens Oversight Committee to oversee compliance with the Ordinance as specified in the Transportation Ordinance and Plan.
The Measure L Citizens Oversight Committee candidates are chosen by the City Council or Board of Supervisors they represent.
The purpose of the StanCOG Oversight Committee will be to:
Ensure all transportation revenue collected from Measure L is spent in accordance with the Measure L Ordinance and Expenditure Plan; Hold public meetings as necessary regarding the expenditure and status of funds generated by Measure L;
Review independent audits of the expenditure of tax funds and implementation of the programs and projects in the Expenditure Plan; and
Issue an annual report on its findings regarding compliance with the requirements of the Expenditure Plan and the Ordinance to the StanCOG Board. #4..
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City Council, September 27, 2022
StanCOG Measure L Citizens Oversight Committee Appointment
On August 2, 2017, by Resolution No. 2017-292, Council appointed Craig Lewis, to the StanCOG Measure L Citizens Oversight Committee for a five-year term. Due to the upcoming expiration of the term for Craig Lewis this vacancy needs to be filled before the next Commission meeting.
DISCUSSION:
Mr. Lewis is eligible to be reappointed for a three-year term and has expressed interest in continuing in this role. If reappointed, Craig Lewis will represent the City of Modesto in the StanCOG Measure L Citizens Oversight Committee. The term of the committee member will begin October 1, 2022 for a three-year term. This is a volunteer position.
FISCAL IMPACT:
There is no fiscal impact related to this reappointment.
COMMITTEE RECOMMENDATION:
Due to timing, this item did not go before the Appointments Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution reappointing Craig Lewis to the StanCOG Measure L Citizens Oversight Committee, with a term expiration of September 30, 2025.
Approved by:
Sue Zwahlen, Mayor
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Letter from StanCOG
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION REAPPOINTING CRAIG LEWIS TO THE STANCOG
MEASURE L CITIZENS OVERSIGHT COMMITTEE
WHEREAS, in November of 2016, Stanislaus County voters approved a countywide, 25-year, half-cent sales tax increase known as Measure L which went into effect on April 1, 2017, and
WHEREAS, the Stanislaus Council of Governments (StanCOG) has created a Measure L Citizens Oversight Committee, and
WHEREAS, the Measure L Citizens Oversight Committee candidates are to be chosen by the City Council or Board of Supervisors they represent, and WHEREAS, the Measure L Citizens Oversight Committee member approved by Council will represent the Modesto citizens, and
WHEREAS, on August 2, 2017, by Resolution No. 2017-292, Council appointed Craig Lewis, to the StanCOG Measure L Citizens Oversight Committee for a five-year term.
WHEREAS, Mr. Lewis is eligible to be reappointed for a three-year term and has expressed interest in continuing in this role.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Council of the City of Modesto as follows:
1. Craig Lewis is hereby appointed to the StanCOG Measure L Citizens Oversight Committee effective October 1, 2022 for a three-year term, expiring on September 30, 2025, and
2. The City Clerk is hereby directed to transmit a copy of this resolution to the Secretary of the Committee thereof.
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 27th day of September, 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: _____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: __________________________________
JOSE M. SANCHEZ, City Attorney
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1111 I Street, Ste 308
Modesto, CA 95354
209.525.4600 Main
209.558.7833 Fax
www.stancog.org
Member Agencies
City of Ceres
City of Hughson
City of Modesto
City of Newman
City of Oakdale
City of Patterson
City of Riverbank
City of Turlock
City of Waterford
Stanislaus County
Policy Board Chair
Terrance P. Withrow
Policy Board Vice-Chair
Richard D. O’Brien
Executive Director
Rosa De León Park
September 16, 2022
Mr. Joe Lopez, City Manager
City of Modesto
Via email [email protected]
Dear Mr. Lopez:
The Measure L Ordinance, passed by Stanislaus County voters in November 2016, established the Measure L Oversight Committee (MLOC) to provide citizen oversight of the use of Measure L half-cent transportation sales tax revenues in the Stanislaus region.
The MLOC is a standing committee of the Stanislaus Council of Governments (StanCOG) acting as the Stanislaus County Transportation Authority. Each city in Stanislaus County and the County appoints a member resident from its jurisdiction to serve on the MLOC.
Responsibilities of committee members include attending quarterly meetings, reviewing compliance reports and annual audits for the region, and issuing an annual report to the StanCOG Policy Board.
Currently, Mr. Craig Lewis is serving as the representative for the City of Modesto.
During his initial appointment, which was for a five-year term, Mr. Lewis has provided valuable input during meetings, served as the MLOC Chairperson, and presented the annual report to the Policy Board. His first term is concluding at the end of September 2022. He is eligible to be reappointed for a three-year term by the Modesto City Council and has expressed interest in continuing in this role.
Please let me know if the City of Modesto will be reappointing Mr. Lewis to the MLOC.
If he is reappointed, the StanCOG Policy Board would then take action to accept the reappointment.
Should you have any questions or need additional information, please call me at (209) 525-4634 or email at [email protected].
Sincerely,
Cindy Malekos
Director of Administrative Services
cc: Ms. Diane Nayares-Perez, City Clerk
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MODESTO CITY COUNCIL
www.modestogov.com
MINUTES
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, September 13, 2022 at 5:30 PM
Roll Call – Present: Councilmembers Escutia-Braaton, Kenoyer, Madrigal, Ricci, Wright, Mayor Zwahlen
Absent: None
Pledge of Allegiance to the Flag
Invocation: Wade Patton, City Ministry Network
City Clerk’s Announcements: Public Comment was received for Item 19 and forwarded to the Council.
Declaration of Conflicts of Interest: None
Reports from Closed Session: City Attorney Sanchez reported that the Council unanimously voted to authorize the City Manager or his designee to negotiate and execute a lease and related documents with Tesla. The lease will be for use of approximately 500 parking stalls located at the airport. The base rent will be $80 per parking stall per month and the term of the lease will be for 24 months. Thereafter, it will turn into a month to month lease.
ACKNOWLEDGEMENTS AND PRESENTATIONS
1. Stanislaus County Update (Funding Source: Not Applicable) CITY MANAGER; Joseph Lopez, 209-577-5223, [email protected] #5..
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ACTION: Mani Grewal, Stanislaus County Board of Supervisor provided a County update.
2. Presentation of Proclamation recognizing National Hispanic Heritage Month (Funding Source: Not Applicable)
CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected] ACTION: Mayor Zwahlen read proclamation recognizing National Hispanic Heritage Month.
3. Presentation of Proclamation declaring September 20, 2022 as National Voter Registration Day. (Funding Source: Not Applicable)
CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected] ACTION: Mayor Zwahlen read proclamation declaring September 20, 2022 as National Voter Registration Day.
4. Proclamation declaring September as National Senior Center Month. (Funding Source:
Not Applicable)
CITY COUNCIL; Kathy Espinoza, 209-571-5597, [email protected] ACTION: Mayor Zwahlen read proclamation declaring September as National Senior Center Month.
5. Presentation to Modesto Junior College of the Morris Portrait in honor of MJC’s 100th anniversary. (Funding Source: Not Applicable)
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: The City Council presented Morris Portrait to MJC in honor of their 100th anniversary.
PUBLIC COMMENT PERIOD
Nasson Sanchez spoke in support of repealing the ban on cruising, and commented on the cruise held last week in Modesto.
Jerry Thompson spoke in support of lifting the ban on cruising. He commented on cruising in Modesto during the years of 1979-1993. He asked the City to mend the decisions that happened in the past. There were no issues when he cruised on other months outside of June.
Tina Tateo member of Modesto Cruisers Council, spoke in support of lifting the ban on cruising. The first cruise allowed by the City last Friday went very well. #5..
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Patrick Worley commented on the shooting of Paul Chavez and Officer Sam Muncy. He further commented on de-escalation and urged the Council to listen to the words of the people commenting.
Betty Santos member of the Modesto Cruisers Council shared some history of streets in California that are amongst the most cruised strips in California and McHenry is one of them. She spoke in support of lifting the ban on cruising. Ramon Rodriguez spoke in support of lifting the ban on cruising. Modesto is the hometown of George Lucas and should be the capital of cruising. He also commented about the shooting of Paul Chavez and de-escalation. He further commented on the straight pride event and stated that the community members need to feel safe. Charmaine Breedlove spoke in support of cruising in Modesto. It's a win-win for Modesto and the businesses downtown. They want to prove they can do this safely with no problems and put Modesto back on the map as the home of graffiti. Steve spoke about Officer Sam Muncy and the death of Paul Chavez. He further commented on Forward Together. He also spoke about the Modesto police officers that were at the scene of the incident.
Richard Anderson asked if the Council could invite East Side Mosquito District to a City Council meeting to talk about their mosquito control program. He further commented on an incident that occurred to him and his wife when the East Side Mosquito District treated his neighborhood for mosquitos.
Ana spoke regarding the death of Paul Chavez, Jr. She spoke about the Modesto Police Department Policy Manual - in particular the Use of Force Policy, Alternative Tactics, De-escalation and Deadly Force Applications.
David Froba, Workforce Housing Coalition spoke about manufactured homes and the housing plan. He asked Council to consider manufactured homes at the municipal golf course.
Sharon Froba, NAACP Housing Chair spoke about the 15,485 households that need more affordable housing. She spoke in support of using the City's formal municipal golf course site for housing.
Alissia Hager spoke about advocacy and response. She further commented on the shooting of Paul Chavez, Jr., and asked when is the Council going to take action. Brittoni Estrella Chavez, commented on the death of her husband Paul Davis Chavez, Jr.
She spoke about recently moving to Modesto in April before the incident occurred. She further commented on Officers Muncy and Valencia, and asked for Council action and that the District Attorney pick up the case.
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Brandon Saker commented on the death of Paul Chavez, Jr. He asked the Council to put themselves in the position of the Chavez family. He stated that the Modesto Police Department needs to be held accountable, investigate and act swiftly. He asked Council to help get this case picked up by the District Attorney. Johnathan Williams mentioned the names of Paul Chavez’s three sons, Paul III, Abraham and Josiah and stated that they will never see their dad again. He commented on the shooting of Paul Chavez and Officer Muncy. He stated that the District Attorney needs to pick up the case.
Bianca Lopez spoke in support of cruising, and the requests for an update on using the municipal golf course for housing. She stated that she is also here to support the family of Paul Chavez and justice. She spoke about the agenda and what it says about responding to questions. She asked what has been done about Officer Muncy and stated that Council should represent the people.
Teresa Clutter spoke about the shooting of her son-in-law, Paul Chavez. She commented on evaluations and what protocol is taken during an officer involved shooting. She further commented on Officer Muncy returning to work. She asked that the Council please have the District Attorney pick up the case.
Darlene Ruiz, Trevor Seever’s mother stated she stands in solidarity with the family of Paul Chavez. She asked, when will the community stand together and do something.
There needs to be accountability and de-escalation practices are needed. When are they going to realize what's happening in the community?
Sebastian, commented on the increase of people experiencing mental health problems.
He also spoke about the shooting of Paul Chavez, and Officer Muncy being back on the job.
Howard Carmen spoke about issues he recently encountered while riding the Stanislaus Regional Transit to UCSF.
Recessed: 7:27 pm
Reconvened: 7:33 pm
Derek Castle spoke in support of Consent Item 19.
Brad Craw spoke in support of Consent Item 19.
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 6-27: (Kenoyer/Ricci; 6/0)
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CONSENT ITEMS
Consent
6. Consider approving the minutes from the August 23, 2022 Council Meeting. (Funding Source: Not Applicable)
Motion approving the minutes from the August 23, 2022 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Motion approving the minutes from the August 23, 2022 Council Meeting.
Consent
7. Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-363 continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
Consent
8. Consider approving the responses to the Findings and Recommendations of the 2021- 2022 Stanislaus County Civil Grand Jury Report- Case #22-05GJ and Case # 22-07GJ (Funding Source: Not Applicable)
Resolution approving responses to the Findings and Recommendations of the 2021-2022 Stanislaus County Civil Grand Jury Reports- Case #22-05GJ and Case# 22-07GJ.
CITY MANAGER; Joseph Lopez, 209-577-5223, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-364 approving responses to the Findings and Recommendations of the 2021-2022 Stanislaus County Civil Grand Jury Reports- Case #22-05GJ and Case# 22-07GJ.
Consent
9. Consider approving the recommended budget adjustments to Fiscal Year 2021-22 and Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets; Amending the position allocation for Fiscal Year 2022-23 as adopted in the operating budget. (Funding Source: Various Funds)
Resolution amending Fiscal Year 2021-22 and Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to take the necessary steps to implement the provisions of this Resolution.
Resolution amending the position allocation for Fiscal Year 2022-23 as adopted in the operating budget.
BUDGET; Steve Christensen, 209-577-5390, [email protected] #5..
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ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-365 amending Fiscal Year 2021-22 and Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to take the necessary steps to implement the provisions of this Resolution.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-366 amending the position allocation for Fiscal Year 2022-23 as adopted in the operating budget.
Consent
10. Consider accepting the Fiscal Year 2021-22 Write-off and Adjustments reports through fiscal year-end June 30, 2022 in the total amount of $1,465,305. (Funding Source:
Abatement and Public Nuisance Fund, Airport Operating Fund, Compost Fund, Fleet Management Fund, General Fund, Green Waste Fund, Solid Waste Fund, Surface Transportation Fund, Water Fund)
Resolution approving the 2021-2022 Write-Off and Adjustments reports through Fiscal Year end June 30, 2022 in the total amount of $1,465,305 and directing a report of disposition to be filed with the City Clerk.
FINANCE DEPARTMENT; DeAnna Christensen, 209-577-5387,
[email protected]
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-367 approving the 2021-2022 Write-Off and Adjustments reports through Fiscal Year end June 30, 2022 in the total amount of $1,465,305 and directing a report of disposition to be filed with the City Clerk.
Consent
11. Consider approving a report detailing City personal property sold, donated, or disposed of during Fiscal Year 2021-22. (Funding Source: Fleet Management, General, Green Waste, Sewer Operations, Storm Drain, Surface Transportation, Water) Motion approving a report detailing all personal property sold, donated, or disposed of during FY 2021-22.
FINANCE DEPARTMENT; DeAnna Christensen, 209-577-5387,
[email protected]
ACTION: (Kenoyer/Ricci; 6/0) Motion approving a report detailing all personal property sold, donated, or disposed of during FY 2021-22.
Consent
12. Consider claiming Fiscal Year 2021-2022 unclaimed funds of $18,813 held in the City’s trust for more than three years and authorizing the transfer to the General Fund. (Funding Source: General Fund)
Resolution claiming Fiscal Year 2021-2022 unclaimed funds of $18,813 held in the City’s Trust Fund for more than three years and authorizing the transfer to the General Fund.
FINANCE DEPARTMENT; DeAnna Christensen, 209-577-5387,
[email protected]
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ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-368 claiming Fiscal Year 2021- 2022 unclaimed funds of $18,813 held in the City’s Trust Fund for more than three years and authorizing the transfer to the General Fund.
Consent
13. Consider accepting an informational report for the July 2022 Accounts Payable Payment Register and Void report. (Funding Source: Not Applicable) Motion accepting an informational report for the July 2022 Accounts Payable Payment Register and Void Report.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
ACTION: (Kenoyer/Ricci; 6/0) Motion accepting an informational report for the July 2022 Accounts Payable Payment Register and Void Report.
Consent
14. Consider approving an Agreement with Salida Fire Protection District for the allocation of District Revenue resulting from the annexation of property(ies) within the Woodglen residential neighborhood and future annexations to the City of Modesto. (Funding Source: General Fund)
Resolution approving an Agreement between the City of Modesto and the Salida Fire Protection District for the allocation of District Revenue resulting from the annexation of property(ies) within the Woodglen residential neighborhood and future annexations to the City, and authorizing the City Manager, or his designee, to execute the Agreement.
FIRE ; Alan Ernst, 209-572-9590, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-369 approving an Agreement between the City of Modesto and the Salida Fire Protection District for the allocation of District Revenue resulting from the annexation of property(ies) within the Woodglen residential neighborhood and future annexations to the City, and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
15. Consider approving an Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District for a five-year term, with a two-year extension option; approving the side letter to the Modesto City Fire Fighters Association Memorandum of Understanding as it relates to the Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District; amending the Position Allocation for Fiscal Year 2022-23 as adopted in the operating budget; approving an application to the Stanislaus Local Agency Formation Commission to confirm the City of Modesto’s fire services contract with the Salida Fire Protection District; and amending the Fiscal Year 2022-23 Operating Budget by $1,727,016 in revenues and $1,677,016 in expenses. (Funding Source: General Fund) #5..
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Resolution approving an Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District for a fiveyear term, with a two-year extension option and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution approving the side letter to the Modesto City Fire Fighters Association Memorandum of Understanding as it relates to the Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution amending the Position Allocation for Fiscal Year 2022-23 as adopted in the operating budget.
Resolution approving an application to the Stanislaus Local Agency Formation Commission to confirm the City of Modesto’s Fire Services Contract with the Salida Fire Protection District and authorizing the City Manager, or his designee, to execute the application.
Resolution amending the Fiscal Year 2022-23 Annual Operating Budget to increase the revenue budget by $1,727,016 and expense budget by $1,677,016 in the new General Fund cost center 18217 (MFD – Fire Services for Salida), and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.
FIRE DEPARTMENT; Alan Ernst, 209-572-9590, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-370 approving an Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District for a five-year term, with a two-year extension option and authorizing the City Manager, or his designee, to execute the Agreement.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-371 approving the side letter to the Modesto City Fire Fighters Association Memorandum of Understanding as it relates to the Agreement to provide Fire Protection Services between the City of Modesto and the Salida Fire Protection District and authorizing the City Manager, or his designee, to execute the Agreement.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-372 amending the Position Allocation for Fiscal Year 2022-23 as adopted in the operating budget.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-373 approving an application to the Stanislaus Local Agency Formation Commission to confirm the City of Modesto’s Fire Services Contract with the Salida Fire Protection District and authorizing the City Manager, or his designee, to execute the application.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-374 amending the Fiscal Year 2022-23 Annual Operating Budget to increase the revenue budget by $1,727,016 and expense budget by $1,677,016 in the new General Fund cost center 18217 (MFD – Fire Services for Salida), and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.
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Consent
16. Consider approving an Agreement with CSG Consultants, Inc. for Fire Prevention Plan Check Services, for a two-year Agreement, with three one-year extension options, for an annual estimated amount of $75,000 and total amount not to exceed $375,000. (Funding Source: General Fund)
Resolution approving an Agreement with CSG Consultants, Inc. for Fire Prevention Plan Check Services, for a two-year Agreement, with three one-year extension options, for an annual estimated amount of $75,000 and total amount not to exceed $375,000, and authorizing the City Manager, or his designee to execute the Agreement.
FIRE DEPARTMENT; Alan Ernst, 209-572-9590, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-375 approving an Agreement with CSG Consultants, Inc. for Fire Prevention Plan Check Services, for a two-year Agreement, with three one-year extension options, for an annual estimated amount of $75,000 and total amount not to exceed $375,000, and authorizing the City Manager, or his designee to execute the Agreement.
Consent
17. Consider approving Agreements with Kramer Workplace Investigations, Danville, CA; Ellis Investigations Law Corporation, Sacramento, CA, Oppenheimer Investigations Group LLP, Berkeley, CA, Armistead Research and Investigations, Orangevale, CA; and Municipal Resource Group, LLC, Wilton, CA to conduct citywide Administrative Investigations on an as needed basis, in an amount not to exceed $100,000 each for two years and authorizing the City Manager, or his designee to execute the Agreements. (Funding Source: Various depending on subject of the investigation) Resolution approving Agreements with Kramer Workplace Investigations, Danville, CA; Ellis Investigations Law Corporation, Sacramento, CA, Oppenheimer Investigations Group LLP, Berkeley, CA, Armistead Research and Investigations, Orangevale, CA; and Municipal Resource Group, LLC, Wilton, CA to conduct citywide Administrative Investigations on an as needed basis, in an amount not to exceed $100,000 each for two years and authorizing the City Manager, or his designee to execute the Agreements.
HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-376 approving Agreements with Kramer Workplace Investigations, Danville, CA; Ellis Investigations Law Corporation, Sacramento, CA, Oppenheimer Investigations Group LLP, Berkeley, CA, Armistead Research and Investigations, Orangevale, CA; and Municipal Resource Group, LLC, Wilton, CA to conduct citywide Administrative Investigations on an as needed basis, in an amount not to exceed $100,000 each for two years and authorizing the City Manager, or his designee to execute the Agreements.
Consent
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18. Consider approving an Amendment to the Purchase Agreement with Mansfield, Lierly & Associates, Citrus Heights, CA, for additional Polygraph Examinations, by $26,800 annually for a revised estimated annual amount of $72,025 and a revised total amount not to exceed $189,275. (Funding Source: General Fund)
Resolution approving an Amendment to the Purchase Agreement with Mansfield, Lierly & Associates, Citrus Heights, CA, for additional Polygraph Examinations, by $26,800 annually for a revised estimated annual amount of $72,025 and a revised total amount not to exceed $189,275.
POLICE DEPARTMENT; Chris Adams, 209-572-9500, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-377 approving an Amendment to the Purchase Agreement with Mansfield, Lierly & Associates, Citrus Heights, CA, for additional Polygraph Examinations, by $26,800 annually for a revised estimated annual amount of $72,025 and a revised total amount not to exceed $189,275.
Consent
19. Consider an Ordinance amending section 12-4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code relating to the use of parks and recreation areas and facilities to authorize the Director of Parks, Recreation and Neighborhoods to set hours of operations for all parks, trails, green space, and recreation facilities. (Funding Source: General Fund)
Motion introducing and waiving the first reading of an Ordinance amending section 12-4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code relating to the use of parks and recreation areas and facilities to authorize the Director of Parks, Recreation and Neighborhoods to set hours of operations for all parks, trails, green space, and recreation facilities.
PRN; Laurie Smith, 209-577-5428, [email protected]
ACTION: (Kenoyer/Ricci; 6/0) Motion introducing and waiving the first reading of Ordinance 3749-C.S. amending section 12-4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code relating to the use of parks and recreation areas and facilities to authorize the Director of Parks, Recreation and Neighborhoods to set hours of operations for all parks, trails, green space, and recreation facilities.
Consent
20. Consider approving a 10-year Lease Agreement with Commemorative Air Force, for Hangar 1S at the Modesto City–County Airport. (Funding Source: Airport Operating Fund)
Resolution approving a ten-year lease with Commemorative Air Force (CAF) as a non-profit service provider at the Modesto City-County Airport (MOD), and authorizing the City Manager, or his designee, to execute the Lease Agreement.
PUBLIC WORKS; Gabe da Silva, 209-577-5319, [email protected] ACTION: (Kenoyer/Wright; 6/0) Resolution 2022-378 approving a ten-year lease with Commemorative Air Force (CAF) as a non-profit service provider at the Modesto #5..
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City-County Airport (MOD), and authorizing the City Manager, or his designee, to execute the Lease Agreement.
Consent
21. Consider approving the Consultant Agreement to Davey Resource Group for CALFIRE Urban and Community Forestry California Climate Investments, “City of Modesto Urban Forest Services (21-UF-MGMT-004)” for an amount not to exceed $604,585. (Funding Source: California Department of Forestry and Fire Protection Grant and 25% matching funds from FY 21/22 Green Waste Fund) Resolution approving the Consultant Agreement to Davey Resource Group for CALFIRE Urban and Community Forestry California Climate Investments, “City of Modesto Urban Forest Services (21-UF-MGMT-004)” for an amount not to exceed $604,585, and authorizing the City Manager, or his designee, to execute the Agreement.
PUBLIC WORKS; Michael Hoesch, 209-342-4566, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-379 approving the Consultant Agreement to Davey Resource Group for CALFIRE Urban and Community Forestry California Climate Investments, “City of Modesto Urban Forest Services (21-UFMGMT-004)” for an amount not to exceed $604,585, and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
22. Consider authorizing staff to apply for the California Strategic Growth Council’s Regional Climate Collaboratives Program Grant. (Funding Source: Not Applicable) Resolution authorizing staff to apply for the California Strategic Growth Council’s Regional Climate Collaboratives Program Grant.
PUBLIC WORKS; Myriah Hill, 209-577-5458, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-380 authorizing staff to apply for the California Strategic Growth Council’s Regional Climate Collaboratives Program Grant.
Consent
23. Consider authorizing staff to apply for the Safe Streets and Roads for All Grant, Strengthening Mobility and Revolutionizing Transportation Grant; and authorizing staff to apply for any future related Grants (Funding Source: SS4A and SMART Grants)
Resolution authorizing staff to apply for the Safe Streets and Roads for All Grant, Strengthening Mobility and Revolutionizing Transportation Grant, and apply for any future related grants.
PUBLIC WORKS; Scott Collins, 209-577-5431, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-381 authorizing staff to apply for the Safe Streets and Roads for All Grant, Strengthening Mobility and Revolutionizing Transportation Grant, and apply for any future related grants. #5..
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Consent
24. Consider accepting the plans and specifications for the Sonoma Trunk Extension, Lift Station and Sylvan Water Main Upgrade Project and awarding a construction contract with Mozingo Construction Inc, of Oakdale, CA, in the amount of $7,981,830 plus $957,821 for contingency (if needed), for a total amount not to exceed $8,939,651; authorizing an increase in the Director’s Authority from 8% to 12% to issue Change Orders; and amending the Fiscal Year 2022-2023 Capital Improvement Project Program Budget. (Funding Source: Wastewater and Water Fund) Resolution approving plans and specifications for the Sonoma Trunk Extension, Lift Station and Sylvan Water Main Upgrade Project, accepting the bid, and approving a construction contract with Mozingo Construction Inc, of Oakdale, CA, in the amount of $7,981,830 plus $957,821 for contingency (if needed) for a total amount not to exceed $8,939,651 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution authorizing an increase in the Director’s authority to issue Change Orders for the Sonoma Trunk Extension, Lift Station and Sylvan Water Main Upgrade Project from 8% ($638,547) to 12% ($957,821) of the construction contract price of $7,981,830 with Mozingo Construction Inc, of Oakdale, CA. Resolution amending the Fiscal Year 2022-2023 Capital Improvement Program Budget in the amount of $5,526,488 to be transferred into the project from Wastewater Reserves to fully fund the construction, contingency, construction administration and design support during construction for the Sonoma Trunk Extension and Lift station Project and authorizing the City Manager, or his designee, to implement the provisions of this resolution. Resolution amending the Fiscal Year 2022-2023 Capital Improvement Program Budget in the amount of $828,472 to be transferred into the project (101367) from Water Reserves to fully fund the construction, contingency, construction administration and design support during construction for the Sylvan Water Main Upgrades Project and authorizing the City Manager, or his designee, to implement the provisions of this resolution.
UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-382 approving plans and specifications for the Sonoma Trunk Extension, Lift Station and Sylvan Water Main Upgrade Project, accepting the bid, and approving a construction contract with Mozingo Construction Inc, of Oakdale, CA, in the amount of $7,981,830 plus $957,821 for contingency (if needed) for a total amount not to exceed $8,939,651 and authorizing the City Manager, or his designee, to execute the Agreement.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-383 authorizing an increase in the Director’s authority to issue Change Orders for the Sonoma Trunk Extension, Lift Station and Sylvan Water Main Upgrade Project from 8% ($638,547) to 12% ($957,821) of the construction contract price of $7,981,830 with Mozingo Construction Inc, of Oakdale, CA.
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ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-384 amending the Fiscal Year 2022-2023 Capital Improvement Program Budget in the amount of $5,526,488 to be transferred into the project from Wastewater Reserves to fully fund the construction, contingency, construction administration and design support during construction for the Sonoma Trunk Extension and Lift station Project and authorizing the City Manager, or his designee, to implement the provisions of this resolution.
ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-385 amending the Fiscal Year 2022-2023 Capital Improvement Program Budget in the amount of $828,472 to be transferred into the project (101367) from Water Reserves to fully fund the construction, contingency, construction administration and design support during construction for the Sylvan Water Main Upgrades Project and authorizing the City Manager, or his designee, to implement the provisions of this resolution.
Consent
25. Consider approving an Agreement with Carollo Engineers, Inc., Walnut Creek, CA, for Engineering Services for the West Trunk Rehabilitation Project in the amount of $984,404 for the identified scope of services, plus $98,440 in additional services, if needed, for a total amount not to exceed $1,082,844. (Funding Source: Wastewater Fund)
Resolution approving an Agreement with Carollo Engineers, Inc., Walnut Creek, CA, for Engineering Services for the West Trunk Rehabilitation Project in the amount of $984,404 for the identified scope of services, plus $98,440 in additional services, if needed, for a total amount not to exceed $1,082,844 and authorizing the City Manager, or his designee, to execute the Agreement.
UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-386 approving an Agreement with Carollo Engineers, Inc., Walnut Creek, CA, for Engineering Services for the West Trunk Rehabilitation Project in the amount of $984,404 for the identified scope of services, plus $98,440 in additional services, if needed, for a total amount not to exceed $1,082,844 and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
26. Consider approving an Agreement with Provost & Pritchard Consulting Group, Modesto, CA, for Engineering Services for the Empire Well 312 Treatment System Project in the amount of $147,000 for the identified scope of services, plus $14,700 in additional services, if needed for a total amount not to exceed $161,700. (Funding Source: Water Fund)
Resolution approving an Agreement with Provost & Pritchard Consulting Group, Modesto, CA, for Engineering Services for the Empire Well 312 Treatment System Project in the amount of $147,000 for the identified scope of services, plus $14,700 in additional services, if needed, for a total amount not to exceed $161,700 and authorizing the City Manager, or his designee, to execute the Agreement.
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UTILITIES; Edgar Vargas, 209-577-5424, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-387 approving an Agreement with Provost & Pritchard Consulting Group, Modesto, CA, for Engineering Services for the Empire Well 312 Treatment System Project in the amount of $147,000 for the identified scope of services, plus $14,700 in additional services, if needed, for a total amount not to exceed $161,700 and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
27. Consider approving the Award of Bid for Pump Station Rejuvenation Services to Don Pedro Pump, Hughson, CA, for a two-year Agreement with three one-year extension options, for an estimated annual amount of $350,000, and $1,974,350 over five years. (Funding Source: Water Fund, Wastewater Fund, Storm Drain Fund) Resolution approving the Award of Bid for Pump Station Rejuvenation Services to Don Pedro Pump, Hughson, CA, for a two-year Agreement with three one-year extension options, for an estimated annual amount of $350,000, and $1,974,350 over five years and authorizing the City Manager, or his designee, to execute the Agreement.
UTILITIES; Jeff Daniels, 209-342-4585, [email protected] ACTION: (Kenoyer/Ricci; 6/0) Resolution 2022-388 approving the Award of Bid for Pump Station Rejuvenation Services to Don Pedro Pump, Hughson, CA, for a two-year Agreement with three one-year extension options, for an estimated annual amount of $350,000, and $1,974,350 over five years and authorizing the City Manager, or his designee, to execute the Agreement.
COUNCIL COMMENTS & REPORTS
Vice Mayor Wright commented on the cruise held this past Friday and he heard it was a nice and peaceful event. He encouraged those cruisers to continue to work with the Chief of Police on other events coming up. He thanked the cruisers for being here tonight.
Council Member Ricci thanked all the folks that came out tonight and the dozens of people that live around Graceada and Enslen Park that emailed the Council to ask for change in the parks.
He referenced some issues occurring in parks and encouraged people’s voices to inspire government to provide the safe spaces where people can go and start the healing process to rejoin society. Modesto is doing a lot to help people suffering from drug addiction, mental health and homelessness and some programs are even winning awards. He can’t argue with what they are seeing in the streets, but they have to do more.
Council Member Escutia-Braaton reported that she, along with Supervisor Mani Grewal, and the Superintendent of Public Instruction spoke to a large group of high school seniors and juniors at the Stanislaus County Office of Education Leadership Academy. She further reported that she regrets that due to being out of State attending to a family loss, she was not able to participate in the September 11th memorial service conducted by the City of Modesto. She expressed her #5..
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gratitude to everyone that came out and spoke today. There was approximately two hours of public comment and she wants everyone to know that the comments were heard and listened to.
They factor in the information shared with them and it’s factored into their thoughts and decision making. It’s not in vain that the public takes the time away from their families and personal time to come and express their opinion to the Council. She is grateful that they do that.
Council Member Madrigal reported that as the voting delegate for the City of Modesto, he attended the League of California Cities Annual Conference and Annual Business meeting. This is his last time serving on the Board of the League of Cities. He shared some of the various tasks, programs and advocacy that the League supports and has implemented. He also reported on attending the First Annual Modesto Bacon Festival held this past Saturday. This is something that he had been talking with the event coordinator to bring to Modesto. In addition, he attended the September 11th ceremony at the Modesto Fire Station. He also invited the public to attend the Mexican Independence Day event this Thursday at 5 pm at El Rematito. The dignitaries portion of the event will begin at 7:45 pm. The event is sponsored by the South Modesto Business United, a non-profit group and the event is free to the community.
Mayor Zwahlen stated that public comment is the citizens time and the time for the Council to listen. She appreciates every person who took the time to be here and appreciates hearing from the community. She further commented that she was born in the Graceada neighborhood and still lives there and has for the past 68 years. In addition, she attended the cruising event on Friday and drove around downtown that night. Mayor Zwahlen also reported on attending a Taiwanese food demonstration and, an Indian Onam celebration at Enochs High School. The Mayor was invited to give well wishes to Christine Yarbrough who turned 100. The Mayor further reported she, along with Council Member Madrigal, attended the League of California Cities Annual Conference. At the conference, she was honored to receive the 2022 Helen Putnam Award for Excellence in Internal Administration for the implementation of a data collection tool that helps inform the city’s efforts to support unhoused residents. The Mayor also attended the American Legion Boy's and Girl's State Dinner, and attended the September 11th flag raising at the Modesto Fire Station. She invited the public to attend the Mayor’s meeting in the park this Thursday, at 6 pm in Enslen Park.
CITY MANAGER COMMENTS & REPORTS
City Manager Lopez reported that the next public municipal golf course meeting will be held October 19th and it will be held virtually and invited the public to attend.
City Manager Lopez recognized Steve Mitchell, Planning Manager who is retiring after 43 years of service. City Manager Lopez acknowledged Steve’s many accomplishments, and thanked him for his many years of service. The Mayor and Council presented a plaque to Steve Mitchell.
UNFINISHED BUSINESS
28. Consider approving Water Conservation Rebate Program Modifications for Fiscal Year (FY) 22/23 to increase the funds budgeted for rebates by $285,000 from $430,000 to #5..
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9/13/2022 5:30:00 PM
$715,000 and consider amending the Fiscal Year 22/23 operating budget in the amount of $285,000 to be transferred from Water reserves. (Funding Source: Water Fund) Resolution approving Water Conservation Rebate Program Modifications for Fiscal Year 22/23 to increase the funds budgeted for rebates by $285,000 from $430,000 to $715,000.
Resolution amending the Fiscal Year 22/23 Water Operating Budget in the amount of $285,000 to be transferred from Water reserves and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.
UTILITIES; Jeff Daniels, 209-342-4585, [email protected] ACTION: (Wright/Madrigal; 6/0) Resolution 2022-389 approving Water Conservation Rebate Program Modifications for Fiscal Year 22/23 to increase the funds budgeted for rebates by $285,000 from $430,000 to $715,000.
ACTION: (Wright/Madrigal; 6/0) Resolution 2022-390 amending the Fiscal Year 22/23 Water Operating Budget in the amount of $285,000 to be transferred from Water reserves and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.
HEARINGS
Published in the Modesto Bee on August 24, 2022.
29. Hearing to consider a proposed amendment to the land use diagram of the Kiernan Business Park Specific Plan to amend 12.8 acres from Business Park to Mixed Uses (MU), property located at 2731 and 2931 Bangs Avenue, east of Dale Road. (Funding Source: Developer Funded)
Resolution approving Specific Plan Amendment No. 13 to the Kiernan Business Park Specific Plan to change the land use designation of 12.8 acres from Business Park (BP) to Mixed Uses (MU), property located at 2731 and 2931 Bangs Avenue.
CED; Katharine Martin, 209-577-5267, [email protected] ACTION: (Wright/Escutia-Braaton; 6/0) Resolution 2022-391 approving Specific Plan Amendment No. 13 to the Kiernan Business Park Specific Plan to change the land use designation of 12.8 acres from Business Park (BP) to Mixed Uses (MU), property located at 2731 and 2931 Bangs Avenue.
MATTERS TOO LATE FOR THE AGENDA
None.
ADJOURNMENT
This meeting adjourned at 8:16 pm
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9/13/2022 5:30:00 PM
Closed Session matters heard before the meeting.
CLOSED SESSION
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property: 617 Airport Way, Modesto, CA 95354, APN: 036-023-002 Property Owners: City of Modesto
Negotiating Parties:
For City: Bill Sandhu, Public Works Director
Jose M. Sanchez, City Attorney
For Leasee: Alex Somerville, Senior Vice President
Under Negotiation: Price and Terms of a Site Lease Option Agreement Attest:____________________________
Diane Nayares-Perez, City Clerk
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- 1 - ORDINANCE NO. 3749-C.S.
EFFECTIVE DATE: October 27, 2022
ORDINANCE NO. 3749-C.S.
AN ORDINANCE AMENDING SECTION 12-4.202(b)(2) OF ARTICLE 2 TO CHAPTER 4 OF TITLE 12 OF THE MODESTO MUNICIPAL CODE RELATING TO USE OF
PARK AND RECREATION AREAS AND FACILITIES TO AUTHORIZE THE
DIRECTOR OF PARKS, RECREATION AND NEIGHBORHOODS TO SET HOURS
OF OPERATIONS FOR ALL PARKS, TRAILS, GREEN SPACE, AND RECREATION
FACILITIES
The Council of the City of Modesto does ordain as follows:
SECTION 1. AMENDMENT OF CODE. Section 12-4.202(b)(2) of Article 2 to Chapter 4 of Title 12 of the Modesto Municipal Code is hereby amended to read as follows:
12-4.202. GENERAL REGULATIONS GOVERNING USE OF PARKS.
(b) Except as otherwise authorized by law, it shall be unlawful and a misdemeanor for any person, firm or corporation to do or cause or permit to be done any of the acts hereinafter specified within any park owned or operated by the City of Modesto.
(1) It shall be unlawful for any person to consume alcoholic beverages without a permit in any City-owned or operated park which has been conspicuously posted with signs alerting the public to this prohibition.
(2) The Director is authorized to set hours of operation for all parks, trails, green spaces, and recreation facilities. No person shall remain in any park, trail, green space, or recreational facility outside the posted hours of operation.
(3) The prohibitions contained in subsection (b)(2) of this section will not apply to:
(i) Special use facilities, as may be posted by the
Department extending use hours;
(ii) Any person attending a meeting, entertainment
event, recreation activity, dance or similar activity
in such park, provided such activity is sponsored or
co-sponsored by the Department or permit therefor,
has been issued by the Department;
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- 2 - ORDINANCE NO. 3749-C.S.
EFFECTIVE DATE: October 27, 2022
(iii) Any person exiting such park immediately after the conclusion of any activity set forth in subsection
(b)(3)(ii) of this section;
(iv) Any peace officer or employee of the City while
engaged in the performance of his/her duties
SECTION 2. SEVERABILITY. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of Modesto hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 3. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 4. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
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- 3 - ORDINANCE NO. 3749-C.S.
EFFECTIVE DATE: October 27, 2022
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 13th day of September, 2022, by Councilmember X, who moved its introduction and passage to print, which motion being duly seconded by Councilmember X, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers: Escutia-Braaton, Kenoyer, Madrigal, Ricci, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ______________________
SUE ZWAHLEN, Mayor
ATTEST:
BY: ______________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ______________________________________
JOSE M. SANCHEZ, City Attorney
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- 4 - ORDINANCE NO. 3749-C.S.
EFFECTIVE DATE: October 27, 2022
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 27th day of September, 2022, Councilmember X, moved its final adoption, which motion being duly seconded by Councilmember X, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers: Escutia-Braaton, Kenoyer, Madrigal, Ricci, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ________________________
SUE ZWAHLEN, MAYOR
ATTEST: ___________________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: October 27, 2022
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CITY OF MODESTO
ORDINANCE NO. 3749-C.S.
The following Ordinance was introduced by the City Council of the City of Modesto at the meeting of September 13, 2022:
ORDINANCE NO. 3749-C.S. AN ORDINANCE AMENDING SECTION 12-4.202(b)(2) OF ARTICLE 2 TO CHAPTER 4 OF TITLE 12 OF THE MODESTO MUNICIPAL
CODE RELATING TO USE OF PARK AND RECREATION AREAS AND FACILITIES
TO AUTHORIZE THE DIRECTOR OF PARKS, RECREATION AND
NEIGHBORHOODS TO SET HOURS OF OPERATIONS FOR ALL PARKS, TRAILS,
GREEN SPACE, AND RECREATION FACILITIES
Copies of the above-mentioned ordinance are posted at the following locations:
Tenth Street Place, 1010 10th Street
Maddux Youth Center, 615 Sierra Drive
Senior Citizen Center, 211 Bodem Street
Diane Nayares-Perez
City Clerk
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: August 23, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jaylen French, Director of Community and Economic Development SUBJECT: Operating Agreement for a Digital Freeway Billboard with Outfront Media CONTACT: Paul Liu, Principal Planner, [email protected], 209.577.5282 DESCRIPTION:
Consider an Operating Agreement, in coordination with Stanislaus County, for a Digital Freeway Billboard at 1027 Emerald Avenue, in County jurisdiction. (Funding: Application Fee) STRATEGIC PLAN ELEMENT:
This item is consistent with the City Council’s 2020-2025 Strategic Plan Goal E Drive Economic Vitality, by allowing increased signage opportunities for local businesses, while providing opportunities for community messaging.
BACKGROUND:
In 2017, the City amended the zoning code to allow digital freeway billboards along State Route 99 (SR 99). In 2018, the first digital freeway billboard was approved at 4000 Salida Boulevard.
The proposed operating agreement between the City and Outfront Media LLC. (Outfront) pertains to the proposed installation of a new digital freeway billboard at 1027 Emerald Avenue.
The project site is located within Stanislaus County (County) jurisdiction and within the City’s Sphere of Influence (SOI). Currently, County policy does not permit digital freeway billboards.
However, in accordance with County’s General Plan policies, City of Modesto standards are applied if the site is in the City of Modesto SOI.
the City of Modesto’s standards allow digital freeway billboards subject to a conditional use permit and operating agreement. Because the project site is within the County jurisdiction, the County is responsible for processing the conditional use permit. On August 18, 2022, the County Planning Commission approved the conditional use permit.
DISCUSSION:
The primary purpose of the operating agreement between the City and Outfront is to confirm the removal of at least four legally existing static billboards within the City of Modesto SOI in exchange for the new digital billboard and to specify the terms for community messaging. Within #7..
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City Council, September 27, 2022
Operating Agreement for a Digital Freeway Billboard with Outfront Media
the proposed agreement, Outfront agrees to remove six (6) existing billboards, three (3) of which would be removed as part of the new Seventh Street bridge project and one (1) is located at the new proposed freeway digital billboard location.
Additionally, Outfront agrees to dedicate one of every eight (8) billboard slides to community messaging within the corresponding jurisdiction. Because the digital billboard will be located within County jurisdiction and the City of Modesto SOI, the messaging will be shared equally between the City and County.
Existing Billboards to be Removed
Address APN Size No. of Sides Jurisdiction For 7th Str Bridge 1027 Emerald Ave 029-012-073 300 sf Double County No
Tuolumne Blvd and 7th Str 102-016-001 300 sf Double City Yes Tuolumne Blvd and 7th Str 102-016-001 300 sf Double City Yes 513 Crows Landing Rd 038-003-005 300 sf Single County Yes 501 7th Str 103-011-003 300 sf Single City No
909 10th Str 105-041-019 300 sf Single City No
FISCAL IMPACT:
There is no direct fiscal impact to the City General Fund as a result of the proposed digital freeway billboard. The application fee for this project is paid by the project applicant.
COMMITTEE RECOMMENDATION:
This item was presented to the Economic Development Committee on September 14, 2022.and was recommended to forward to Council for approval.
CEQA/NEPA REQUIREMENTS:
This agreement is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3)1 because the proposed activity is covered by CEQA’s commonsense exemption that applies to projects, which have the potential for causing a significant effect on the environment.
RECOMMENDED COUNCIL ACTION:
Resolution approving an Operating Agreement with Outfront Media LLC, for the installation of a Digital Freeway Billboard on property located at 1027 Emerald Avenue; 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:
1. Resolution
2. Operating Agreement
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September 27, 2022/C&EDD/Paul Liu 1 2022-
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION APPROVING AN OPERATING AGREEMENT, WITH
OUTFRONT MEDIA LLC, FOR THE INSTALLATION OF A DIGITAL
FREEWAY BILLBOARD ON THE PROPERTY LOCATED AT 1027 EMERALD
AVENUE, AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE
TO EXCUTE THE AGREEMENT
WHEREAS, Modesto Municipal Code Section 10-6.108 (f) (3) allows digital freeway billboards along State Route 99; and
WHEREAS, Modesto Municipal Code Section 10-6.108 (f) (3) (iii) (c) allows for the applicant and the City of Modesto (City) to enter into an operating agreement in conjunction with a conditional use permit for a digital freeway billboard; and WHEREAS, Outfront Media LLC (Outfront) applied for conditional use permit and operating agreement through Stanislaus County to install one digital freeway billboard on property located at 1027 Emerald Avenue; and WHEREAS, the project site is in Stanislaus County (County) jurisdiction and the County’s standards do not permit digital freeway billboards; and WHEREAS, in accordance with County’s General Plan policies, City of Modesto standards are applied if the site is in the City of Modesto sphere of influence; and WHEREAS, the project site is in the City of Modesto sphere of influence; and WHEREAS, the County is responsible for processing the conditional use permit since the project site is in the County’s jurisdiction; and WHEREAS, the County Planning Commission approved the conditional use permit on August 18, 2022; and
WHEREAS, the operating agreement with Outfront is being processed by the City pursuant to Modesto Municipal Code Section 10-6.108 (f) (3) (iii) (c); and #7..
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September 27, 2022/C&EDD/Paul Liu 2 2022-
WHEREAS, Outfront Media submitted an operating agreement to address the removal of at least four existing billboards and provisions regarding community messaging.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that the operating agreement, in coordination with Stanislaus County, for a digital freeway billboard at 1027 Emerald Avenue, in County jurisdiction is hereby approved as shown on Exhibit "A" attached hereto and incorporated herein by reference.
BE IT FURTHER RESOLVED that the City Manager or designee is hereby authorized to execute the operating 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 27th day of September 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:
By:
DIANE NAYARES PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY:
JOSE M. SANCHEZ, City Attorney
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Agreement for Digital Freeway Sign: Page 1 of 18
DIGITAL FREEWAY SIGN OPERATING AGREEMENT BY AND BETWEEN
CITY OF MODESTO AND OUTFRONT MEDIA LLC
This Operating Agreement for a Digital Freeway Billboard (hereinafter “Agreement”), dated October xx, 2022 by and between the City of Modesto (the “City”), a California municipal corporation and Outfront Media LLC (“Outfront Media”), a Delaware corporation.
RECITALS
1. Background. Modesto Municipal Code section 10-6.108, after all required notices and public hearing, allows for the City to enter into an Operating Agreement to allow for a Digital Freeway Billboard under certain circumstances; including the permanent removal of preexisting billboards from within the City. Outfront Media has applied for approval to install one (1) monopole Digital Freeway Billboard with two 14’ x 48’ digital sign faces on the real property leased by Outfront Media from Crown View Corporation, Forrest Aarvig - and located at 1027 Emerald Ave, Modesto CA 95351, (the “Property”). This property is located in Stanislaus County (the “County”) jurisdiction but within the City Sphere of Influence. Stanislaus County is relying on City standards for signs on properities in County jurisdiction but located within the City Sphere of Influence.
2. Applicant. Outfront Media is an outdoor-advertising company that has extensive experience in successfully installing, operating, and maintaining traditional and digital billboards throughout the United States. Outfront Media has contracted with the owners of the Property for the purpose of installing, operating, and maintaining Outfront Media’s Digital Freeway Billboard, and it has the requisite resources and expertise to do so successfully.
3. Legal Framework. For the reasons recited herein, the City has determined that the construction and operation of Outfront Media’s proposed outdoor advertising display on the Property is a development for which this Agreement is appropriate and is not prohibited by §§ 5412 and 5443.5 of the California Outdoor Advertising Act (Bus. and Prof. Code § 5200 et seq. and Modesto Municipal Code section 10-6.108).
4. Public Benefit. City finds that a substantial public benefit will accrue to City by reason of Outfront Media’s outdoor advertising display, which will add value to the community by enabling City and County to market City and County projects, programs and other City and County activities for the benefit of the City and County and its businesses and residents. In addition the City finds that an additional substantial public benefit will accrue to the City and County by reason of Outfront Media removing presently existing billboards as a material condition of this Agreement for a Digital Freeway Billboard. In exchange for providing these public benefits, Outfront Media receives assurance that it may proceed with the construction and operation of Outfront Media’s outdoor advertising display and the project in accordance with ordinances, resolutions and regulations existing as of the date of this Agreement, subject only to the terms and conditions contained herein and contained in any permits issued pursuant to this project.
NOW, THEREFORE, in consideration of mutual promises, conditions, and covenants hereinafter set forth, the Parties agree as follows:
AGREEMENT
1. Incorporation of Recitals. The Preamble, the Recitals, and all defined terms set forth in both, are hereby incorporated into this Agreement as if set forth herein in full.
2. Definitions. This section defines the terms: “Agreement Year,” “Business Day,” “Caltrans,” “Caltrans Permits,” “City and County Permits,” “Commencement Date,” “Digital Freeway Billboard,” “Digital Display Area,” “Effective Date,” “Include,” “Operational,” “Obstruction,” “Site,” “Sign Structure,” and “Term.” Other terms are defined elsewhere in this Agreement. #7..
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Agreement for Digital Freeway Sign: Page 2 of 18
(a) “Agreement Year” means one of the consecutive 12-month periods during the Term. The first Agreement Year begins on the Effective Date. (b) “Business Day” means any day the City’s main offices located at 1010 10th Street, Modesto, CA 95354 are open to the public.
(c) “Caltrans” means the California Department of Transportation. (d) “Caltrans Permits” means all permits and approvals that Outfront Media must obtain from Caltrans to install, operate, and maintain the Digital Freeway Billboard in accordance with this Agreement.
(e) “City and County Permits” means all building permits, conditional use permits, zoning amendments, operating agreements, and other permits, entitlements, and agreements that the City and County, acting in its governmental capacity, must issue or approve for Outfront Media to install, operate, and maintain the Digital Freeway Billboard in accordance with this Agreement.
(f) “Commencement Date” means the date as of which both of the following have occurred: (1) the City and County has finally approved the Plans (defined in Section 6(a)); and, (2) Outfront Media has received all necessary governmental permits and approvals for the Digital Freeway Billboard, including the Caltrans Permits and the City and County Permits.
(g) “Digital Freeway Billboard” means an off-site outdoor advertising sign, including all above-ground supporting structures, with one or more digital display areas. A Digital Freeway Billboard may be internally or externally illuminated. Digital Freeway Billboards are always considered off-site signs and are regulated as such. Outfront Media will install and operate the Digital Freeway Billboard on the Site in accordance with the criteria set forth in Schedule 1, Exhibit A to this Agreement.
(h) “Digital Display Area” means the portion of the Digital Freeway Billboard that consists of the digital display areas used for general commercial advertising. The Digital Display Area is more particularly described in Schedule 1, Exhibit B-2. (i) “Effective Date” means the date as of which both the City and Outfront Media have signed this Agreement, as indicated by the dates in the signature blocks below. (j) “Include” and its variants are not restrictive. For example, “includes” means “includes but not limited to,” and “including” means “including but not limited to.” (k) “Operational” means the Digital Freeway Billboard is capable, legally and functionally, of displaying digital advertising on the Digital Display Area. (l) “Obstruction” means any structure, sound wall, communications antennae, tree, or vegetation on City owned or controlled property within 1,000 feet of the Digital Freeway Billboard and obstructs the view of the Digital Display Areas from the viewing public on Highway 99.
(m) “Site” means the portion of the Property located in the County upon which the Digital Freeway Billboard is installed. The Site is more particularly described in Schedule 1, Exhibit B-1.
(n) “Sign Structure” means the portion of the Digital Freeway Billboard other than the Digital Display Area, including but not limited to supporting pole(s), display frame and all ancillary equipment and utilities installed on the sign Site. The Sign Structure as improved with Digital Display Area is more particularly described in Schedule 1, Exhibit B-2. If the site currently does not have a Sign Structure, the term “Sign Structure” shall mean all #7..
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Agreement for Digital Freeway Sign: Page 3 of 18
supporting pole(s), display frame and ancillary equipment and above-ground utilities installed on the Site.
(o) “Term” means the entire time this Agreement is in effect, as specified in Section 3.
3. Term of Agreement.
(a) Term. The “Term” of this Agreement consists of two phases:
(1) The “Development Phase,” which begins on the Effective Date and ends when the Digital Freeway Billboard becomes Operational.
(2) The “Operations Phase,” with regard to the Digital Freeway Billboard begins at the end of the Development Phase and ends when such Digital Freeway Billboard is removed or after a twenty five (25) year period following the conclusion of the Development Phase, whichever occurs first. The Agreement is automatically renewed for an additional 25 year Term unless written notice is given by either party to the other party 60 days prior to expiration of the initial Term expressing the party’s intent to terminate this Agreement.
4. Consideration. As consideration for the rights and benefits it enjoys under this Agreement, including the contemplated use during the Term, Outfront Media shall do all of the following:
(a) Removal of Existing Outfront Media Signs. At no cost to the City and County, Outfront Media shall remove the “Existing Signs” identified in Schedule 1, attached to this Agreement and incorporated by reference herein according to the schedule set forth in Schedule 1, subject to the following:
(1) Outfront Media hereby waives any rights it may have to compensation for the Existing Signs under federal, state, or local law, including the Highway Beautification Act of 1965 (23 United States Code section 131) and the Outdoor Advertising Act (California Business and Professions Code section 5200 and following) for removal of the Existing Signs in accordance with this Agreement. (2) Outfront Media’s commitment to remove the Existing Signs according to the schedule set forth in Schedule 1 is a material provision of this Agreement. Outfront Media is not entitled to replace the Existing Signs once they are removed. (b) Dedicated “Click”. During the Term of this Agreement, to the extent permissible under applicable laws, rules and regulations, Outfront Media shall display advertisements promoting City and County -sponsored events and activities that meet the following criteria: (1) the event or activity must be held on City or County property; (2), the City or County must participate in an official capacity in the planning, preparation or promotion of the event or activity; and (3) the City or County must be an official sponsor (the “City Copy” or “County Copy”) on one 8-second digital display spot on the Digital Freeway Billboard after each 8-spot digital loop (the “Display Time”) provided that: (i) all proposed City or County Copy is submitted to Outfront Media not less than five (5) business days prior to the date on which the City or County Copy is proposed to be displayed on the Digital Freeway Billboard (the “Copy Submission Deadline”); (ii) all digital artwork is consistent with the quality of material to be posted on the Digital Freeway Billboard; and (iii) City or County, respectively, pays for all digital production costs associated with the City or County Copy. In no event shall City or County be permitted to give, sell, trade, barter or exchange the Display Time to any third party. Such act shall be deemed a material breach of this Agreement and City or County shall automatically forfeit its right to any further Display Time on the Digital Freeway Billboard. City or County, respectively, represents and warrants that all copy, content and materials supplied by City or County to Outfront Media for display under this Agreement (i) are owned or duly licensed, respectively, by City or County and do not infringe or misappropriate the rights of any #7..
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Agreement for Digital Freeway Sign: Page 4 of 18
other person or entity, (ii) comply with all applicable federal, state, and local laws, rules and regulations and any industry codes or rules by which City or County and/or Outfront Media may be bound and do not contain any obscene, libelous, slanderous or otherwise defamatory materials or refer in an offensive manner to the gender, race or ethnicity of any individual or group; (iii) are accurate and that all claims contained therein have been substantiated; and (iv) do not infringe upon any copyright, trademark or other intellectual property or privacy right of any third party. The advertisement to be shown during this “click” is separate from the amber alert and emergency public service notifications required by 6(i) of this agreement.
The City of Modesto agree to share 50% of the public sponsored events and activities advertisments with Stanislaus County. The sharing of the public advertisement shall be coordinated and agreed by both agencies. With regard to the foregoing sentence, the County is hereby made a third party beneficiary to this agreement.
5. Use of Site.
(a) Exclusive Uses. Except as otherwise provided in Section 6(i), Outfront Media has the exclusive right to display outdoor advertising on the Site, in digital formats. In addition, the City shall not authorize any off-site outdoor advertising on any City-owned or Citycontrolled property if the outdoor advertising would be within 1,000 feet of the Digital Freeway Billboard. Outfront Media’s exclusive right to conduct outdoor advertising on the Site includes the following:
(1) Installing, erecting, maintaining, operating, improving, supplementing, posting, painting, illuminating, repairing, repositioning, adding, changing and maintaining equipment required to maintain communications with the Digital Freeway Billboard repositioning (with the City’s consent) during the term of this Agreement. (2) Removing the Digital Display Area and all associated equipment on or from the site when this Agreement terminates, as provided in Section 6(m). (3) Licensing the use of the Digital Freeway Billboard, or any portion of it, for any lawful purpose related to outdoor advertising.
(4) All rights to operate the sign faces as Digital Display Areas. (b) Unobstructed Use.
(1) The City shall not allow the following (an “Obstruction”):
(A) On any City-owned or City-controlled real property within 1,000 feet of the Digital Freeway Billboard any structure, sound wall, communications antennae, tree, or vegetation that obstructs the view of the Digital Display Areas from the viewing public on Highway 99.
(2) If Outfront Media notifies the City in writing that an Obstruction exists, and if the City authorized or actively caused the Obstruction, then the City shall remove or remedy the Obstruction at its own cost within 30 days after receiving the notice. If the City fails to remove the Obstruction within 30 days after receiving the notice, then Outfront Media may remove the Obstruction at the City’s expense after coordinating with the City’s Public Works Department, which coordination shall include, at a minimum, review and approval of Outfront Media’s plans to remove the Obstruction prior to Outfront Media commencing work. (3) If Outfront Media notifies the City in writing that an Obstruction exists, and if the City did not authorize or actively cause the Obstruction, then the City may remove or remedy the Obstruction at its own cost within 30 days after receiving the notice. #7..
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Agreement for Digital Freeway Sign: Page 5 of 18
If the City does not remove or remedy the Obstruction within the 30 days, then, at no cost to the City, and after coordinating with the City’s Public Works Department, which coordination shall include, at a minimum, review and approval of Outfront Media’s plans to remove the Obstruction prior to Outfront Media commencing work.
(4) The City is not obligated to remove or seek removal of visual obstructions on private property. Furthermore, this Agreement does not, and cannot authorize Outfront Media to remove visual obstructions from private property. (5) Outfront Media’s exercise of its rights under this Section 5(b) are in addition to any other remedies it may have under this Agreement.
6. Installation and Operation of a Digital Freeway Billboard.
Outfront Media shall install and operate the Digital Display Area on the Sign Structure in accordance with this Section 6 and consistent with Section 5, all at no cost to the City and County.
(a) Plans and Specifications. At no cost to the City and County, Outfront Media shall prepare complete plans and specifications for the Digital Freeway Billboard, working closely with the City and County to develop plans and specifications that are mutually acceptable (the “Plans”). Outfront Media shall submit the Plans to the City and County for final approval, which the City and County shall not unreasonably withhold. (b) Caltrans Permits. As soon as practicable after the Effective Date, Outfront Media shall apply to Caltrans for all Caltrans Permits, and the City and County shall cooperate with Outfront Media in that effort, including the completion of any Caltrans forms. All Caltrans Permits are to be obtained and secured for Outfront Media’s sole benefit and are to be issued in Outfront Media’s name. Outfront Media shall perform all obligations under the Caltrans Permits at no cost to the City and County.
(c) City and County Permits. The City and County shall diligently process Outfront Media’s applications for all City and County Permits. This Agreement does not commit the City and County in advance to approve the City and County Permits; and this Agreement does not constrain the City’s and County’s discretion, acting as a government, with respect to the City and County Permits specifically or to the Digital Freeway Billboard generally.
(d) Installation. Outfront Media shall begin installing the Digital Display Area as soon as practicable after the Commencement Date and shall diligently pursue installation to completion without unnecessary interruption. Outfront Media will be excused, however, for any delays in beginning or completing installation that are caused by a Force Majeure Event, as defined in Section 9(d)(1). Outfront Media shall use reasonable diligence to avoid such delays and to resume work as promptly as possible after such a delay. (e) Ownership. Outfront Media will be and shall remain the owner of the Digital Freeway Billboard and all permits and authorizations that relate to it, including but not limited to the City and County Permits and the Caltrans Permits.
(f) Maintenance. At no cost to the City and County, Outfront Media shall maintain the Sign Structure and shall maintain and repair the Digital Freeway Billboard in accordance with the standards of the outdoor-advertising industry. Outfront Media’s maintenance obligation under this Section 6(f) includes the obligation to remove any graffiti from the Sign Structure and the Digital Freeway Billboard within three (3) business days of being notified of the graffiti by the City and/or County. The City and County are not obligated to maintain the Sign Structure or to maintain or repair the Digital Freeway Billboard. #7..
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Agreement for Digital Freeway Sign: Page 6 of 18
(g) Damage or Destruction. This Agreement will continue in full effect if any of the Digital Freeway Billboard is damaged and such damage amounts to less than material damage, as defined in Section 6(h) below. Outfront Media shall promptly repair the Digital Freeway Billboard, and Outfront Media shall promptly apply for, and diligently pursue the issuance of, any permits or approvals it needs to repair or replace the Digital Freeway Billboard. Within 30 days after obtaining the City and/or County Permits, all other necessary permits and approvals, and all parts and components, Outfront Media shall begin work to repair or replace the Digital Freeway Billboard. Outfront Media shall complete the work within 180 days after the work begins. If Outfront Media elects, under this Section 6(g), not to repair or replace the Digital Freeway Billboard then Outfront Media shall notify the City and County in writing of its election and shall remove the Digital Freeway Billboard and restore the Site in accordance with Section 6(m). (h) Utilities. At no cost to the City and County, Outfront Media shall provide and pay for all utility connections, utility equipment, and utility service required to install, operate, maintain, repair, improve, or reposition the Digital Freeway Billboard. In the event electrical power becomes unavailable, for whatever reason, Outfront Media may remove the Digital Display Area and operate its Sign Structure with traditional faces. (i) Amber Alerts and Public-Service Messages. During all periods when Digital Display Areas are Operational on the Digital Freeway Billboard, Outfront Media shall make the Digital Display Area available to the appropriate governmental agencies for the purpose of displaying “Amber Alert” messages in accordance with the Amber Alert Guidelines set forth in Schedule 1, Exhibit C to this Agreement. In addition, Outfront Media shall allow the Digital Display Area to be available to the City and County, and to other government agencies without cost, on a space-available basis determined by Outfront Media, for the purpose of displaying emergency-disaster communications. The City’s and County’s messages must meet Outfront Media’s graphics-arts standards so that the messages are “camera ready,” at no cost to Outfront Media. All copy will be subject to Outfront Media’s standard advertising copy rejection and removal policies which allow Outfront Media the right in Outfront Media’s sole discretion to approve or disapprove a copy and remove a copy once posted or displayed.
(j) Future technologies. The technology currently being deployed for the Digital Freeway Billboard is LED (light emitting diode), but there may be alternate, preferred or superior technology available in the future. Outfront Media is authorized to change the Digital Freeway Billboard to any other technology that operates under the maximum brightness standards set forth in Section 6(k) of this Agreement. The City and County shall expedite any required approvals for technology that is superior in energy efficiency over previous generations or types.
(k) Illumination Standards. Digital Freeway Billboard illumination is expressly permitted when in compliance with all applicable rules and regulations (see Section 6(n) below) and when operated within these standards, Digital Freeway Billboards:
(1) shall not operate at brightness levels of more than 0.3 foot candles above ambient light, as measured using a foot candle meter at a pre-set distance. (2) Distance to measure the foot candles impact shall be measured from a distance of 250 ft. for a sign with a nominal face size of 14’ x 48’. (3) Each Digital Display Area must have a light sensing device that will adjust the brightness as ambient light conditions change.
(l) Removal of Digital Freeway Sign. When the Term ends, whether it expires as scheduled or is terminated early, Outfront Media shall promptly apply for, and diligently pursue the issuance of, at no cost to the City and County, any permits or approvals it needs to remove the Digital Freeway Billboard, including the Digital Display Area and all above- #7..
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Agreement for Digital Freeway Sign: Page 7 of 18
ground sign structures and supports. Within 120 days after obtaining the necessary permits and approvals, Outfront Media shall remove the Digital Freeway Billboard and all above-ground sign structures and supports and restore the site to the pre-Agreement condition, all at no cost to the City and County. Outfront Media shall not be required to remove the below-grade portions of the Sign Structure. Following termination of this Agreement but prior to removal of the Digital Freeway Billboard, Outfront Media shall not display digital advertising on the Digital Display Area. (n) Compliance with Laws; Waiver of Compensation. During the Term and while removing the Digital Freeway Billboard after the Term in accordance with Section 6(m), Outfront Media shall do the following at no cost to the City and County: comply with all valid and applicable statutes, ordinances, regulations, rules, and orders that concern the Digital Freeway Billboard and are enacted or issued by any federal, state, or local governmental entity with jurisdiction over the Digital Freeway Billboard (including the City and County) whether enacted or issued before, on, or after the Effective Date including but not limited to sections 5403, 5402, 5405, 5408 and 5408.1 of the California Outdoor Advertising Act.
Notwithstanding the foregoing, nothing herein shall be deemed to negate, void, or diminish (i) any claim Outfront Media may have for just compensation as a result of any governmental action that results in the taking of its property or (ii) the right of Outfront Media to avail itself of all remedies available to Outfront Media under state or federal law to maintain its Digital Freeway Billboard.
7. Early Termination.
(a) City’s Termination Rights. Without prejudice to its other remedies at law or in equity, the City may terminate this Agreement, at any time and in its sole discretion, effective 30 days after the City gives Outfront Media written notice of termination, if any of the following circumstances occurs:
(1) Outfront Media breaches its obligation to perform in accordance with any material provision of this Agreement and: (A) does not cure the breach within 30 days after the City serves it with a written notice of breach or, if the breach cannot reasonably be cured within 30 days; (B), does not begin work on a cure within 30 days after the City serves it with a written notice of breach and diligently pursue the cure to completion within ninety (90) days after work begins. The parties can agree to extend the time period to cure the breach by mutual written agreement. The express designation in this Agreement of a provision as “material” does not imply that other provisions are not material.
(2) Outfront Media initiates legal challenge to the validity of this Agreement or its authorizing ordinance provided that this subsection shall not prevent Outfront Media from enforcing this Agreement and the parties’ obligations hereunder. (b) Outfront Media’s Termination Rights. Without prejudice to its other remedies at law or in equity, including the right to seek just compensation under the laws of eminent domain as described in Section 9, Outfront Media may terminate this Agreement, at any time and in its sole discretion, effective 30 days after Outfront Media gives the City written notice of termination, if any of the following circumstances occurs:
(1) The view of the Digital Display Area from the adjacent portion of Highway 99 is obstructed by an Obstruction on City-owned or City-controlled real property, and Outfront Media did not cause the Obstruction and the City has failed to adhere to its obligations under Section 5(b) following proper notice by Outfront Media. Materially obstructed shall mean at least one-half of the displayed area is obstructed. (2) Outfront Media cannot safely use the Site to install, operate, maintain, repair, or improve the Digital Freeway Billboard because of a non-remediable or costly condition, and Outfront Media did not cause the condition. #7..
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Agreement for Digital Freeway Sign: Page 8 of 18
(3) There is a material diversion of traffic from, or a material reduction or change in the directional flow of traffic on, the portion of Highway 99 adjacent to the Site, and the diversion or disruption continues uninterrupted for at least 30 consecutive days (4) Outfront Media cannot obtain or maintain any governmental permits, licenses or approvals required to install, operate, maintain, repair, or improve the Digital Freeway Billboard, including but not limited to the Caltrans Permits and/or the City and County Permits.
(5) Use of the Digital Freeway Billboard for its intended purpose is prevented or limited by law, or Outfront Media is required by any court or other governmental entity, for reasons other than eminent domain, to remove the Digital Freeway Billboard from the Site.
(6) The Digital Freeway Billboard is materially damaged or destroyed and Outfront Media elects not to repair or replace the Digital Display Area. Materially damaged or destroyed shall mean at least one-half of the Digital Display Area is damaged or destroyed such that at least one-half of it is fully inoperable. (c) City’s and Outfront Media’s Additional Termination Rights. Without prejudice to their other remedies at law or in equity, either party may terminate this Agreement if the other party (and/or, for Outfront Media, its parent company). (1) Has an order for relief entered with respect to it, commences a voluntary case, or has an involuntary case filed against it under any applicable bankruptcy, insolvency, or other similar law then in effect, and the order or case is not stayed, withdrawn, or settled within 60 days after it is entered, commenced, or filed (11 U.S.C. § 365(e)(2)(A), as amended, or any successor statute); or (2) Files for reorganization, becomes insolvent, or has a receiver or other officer with similar powers appointed for its affairs in any court with jurisdiction, whether or not with its consent (unless dismissed, bonded, or discharged within 60 days after appointment).
8. Indemnification.
(a) Definitions. The following definitions apply to this Section 8:
(1) “Person” is to be interpreted broadly. It includes not just third persons but also Outfront Media and Outfront Media’s directors, officers, employees, contractors, and agents; and the City and County and the City’s and County’s elected officials, officers, employees, contractors, and agents.
(2) “Liabilities” means all liabilities, claims, demands, damages, and costs (including reasonable attorneys’ fees and litigation costs through final resolution on appeal) that arise directly or indirectly from Outfront Media’s possession or use of the Site. (3) “Occurrence” means: (A) the death of, or injury to, any Person; and (B) damage to, or destruction of, any real property, personal property. (b) General Indemnity. Outfront Media shall indemnify, defend (with attorneys reasonably acceptable to the City and County), protect, and hold the City and County harmless from and against all Liabilities that arise directly or indirectly from Outfront Media’s possession or use of the Site. Outfront Media is obligated under this Section 8(b) even if the City and County or the City’s and County’s elected officials, officers, employees, contractors, or agents reviewed, accepted, or approved the work, materials, or activities from which the Liabilities arise. But Outfront Media is not obligated under this Section 8(b) to the extent the Liabilities are caused by the active negligence or willful misconduct of the City and #7..
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Agreement for Digital Freeway Sign: Page 9 of 18
County or the City’s and County’s elected officials, officers, employees, contractors, or agents. Outfront Media’s obligation under this Section 8 (b) includes Liabilities arising from any of the following:
(1) Any Occurrence on the Site, but only to the extent caused by Outfront Media’s acts or omissions.
(2) Any Occurrence that is in any way connected with any of Outfront Media’s personal property on the Site.
(3) Any Occurrence caused or allegedly caused by (A) any condition of the Site created by Outfront Media or by any Person on the Site with Outfront Media’s permission; or (B) some act or omission on the Site by Outfront Media or by any Person on the Site with Outfront Media’s permission.
(4) Any Occurrence caused by, or related in any way to, work or activities performed on the Site or materials furnished to the Site at the request of Outfront Media or any Person or entity acting for Outfront Media or with Outfront Media’s permission. (5) Any Occurrence that is caused by, or related in any way to the content displayed on the Digital Display Area.
(6) Outfront Media’s failure to perform any material provision of this Agreement, to comply with any requirement of law applicable to Outfront Media in connection with the Digital Freeway Billboard, or to fulfill any requirement imposed by any governmental entity (including the City and County when acting as a government) on Outfront Media in connection with the Digital Freeway Billboard or Outfront Media’s use of the Site.
(c) Legal Challenges. Outfront Media shall indemnify, defend with attorneys selected by the City and County, protect, and hold harmless the City and County and the City’s and County’s elected officials, officers, and employees (“Agents”) in any litigation to attack, set aside, void or annul an approval by the City and County or its Agents concerning the Digital Freeway Billboard (collectively, a “Claim”” including litigation based on the California Environmental Quality Act) brought to challenge the validity of this Agreement, the validity of the City and County Permits or the Caltrans Permits, or the validity of the City and County ordinances that authorize the installation and Operation of the Digital Freeway Billboard on the site. Outfront Media’s obligation to indemnify under this Section 7(c) includes liability for attorneys’ fees awarded to a party who successfully challenges the validity of this Agreement, of the City and County Permits, or the Caltrans Permits, or of any authorizing ordinance. If such a Claim is brought, the parties shall promptly notify the other party of such Claim and each party shall cooperate with the efforts of the Outfront Media to defend such Claim. Unless required by law, the City and County will not voluntarily assist the opposing party in any such Claim or take any position adverse to Outfront Media in connection with such Claim. Nothing in this paragraph shall obligate the City or County to defend any Claim and the City and County shall not be required to pay or perform any settlement arising from any such Claim, unless the settlement is approved in writing by the City and County. (d) Survival. Outfront Media’s obligations under this Section 8 will survive this Agreement.
9. Miscellaneous.
(a) Assignments and SubAgreements. A party may not assign or otherwise transfer this Agreement or any interest in it, and this Agreement is not assignable by operation of law, without the other party’s prior written consent, which the other party shall not withhold, delay, or condition unreasonably. This Agreement remains in effect, and an assignment or transfer of this Agreement does not occur, for purposes of this Section 9(a), if Outfront #7..
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Agreement for Digital Freeway Sign: Page 10 of 18
Media merges with another company, reorganizes its stock, or undergoes a similar corporate restructuring, or if Outfront Media sells any of its assets or stock. An assignment or transfer made contrary to this Section 9(a) is void. (b) Successors and Assigns. This Agreement binds and inures to the benefit of the successors and permitted assigns of the parties. This Section 9(b) does not constitute the City’s consent to any assignment of this Agreement or any interest in the Agreement. (c) Notices. Any notice or other communication under this Agreement must be in writing and will be considered properly given and effective only when mailed or delivered in the manner provided by this Section 9(c) to the persons identified below. A mailed notice or other communication will be effective or will be considered to have been given on the third day after it is deposited in the United States Mail (certified mail and return receipt requested), addressed as set forth below, with postage prepaid. A notice or other communication sent in any other manner will be effective or will be considered properly given when actually delivered. A party may change its address for these purposes by giving written notice of the change to the other party in the manner provided in this Section 9(c).
If to the City:
City of Modesto
Community and Economic Development
Department/Planning Division
1010 10th Street, Suite 3300
Modesto, CA 95354
Attention: ____________________
If to Outfront Media:
Outfront Media LLC
1731 Workman St. S,
Los Angeles, CA 90031
Attention: VP Real Estate
With a copy to:
Outfront Media LLC
405 Lexington Avenue
New York, NY 10174
Attn: General Counsel
(d) Force Majeure.
(1) “Force Majeure Event” means a cause of delay that is not the fault of the party who is required to perform under this Agreement and is beyond that party’s reasonable control, including the elements (such as floods, earthquakes, windstorms, and unusually severe weather), fire, energy shortages or rationing, riots, acts of terrorism, war or war-defense conditions, acts of any public enemy, epidemics, the actions or inactions of any governmental entity (excluding the City) or that entity’s agents, litigation, labor shortages (including shortages caused by strikes or walkouts), and materials shortages.
(2) Except as otherwise expressly provided in this Agreement, if the performance of any act required by this Agreement to be performed by the City or Outfront Media is prevented or delayed because of a Force Majeure Event, then the time for performance will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused. (e) Waiver of Breach. A party’s failure to insist on strict performance of this Agreement or to exercise any right or remedy upon the other party’s breach of this Agreement will not constitute a waiver of the performance, right, or remedy. A party’s waiver of the other party’s breach of any provision in this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provision. A waiver is binding only if set forth in writing and signed by the waiving party. #7..
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Agreement for Digital Freeway Sign: Page 11 of 18
(f) Relationship of the Parties. This Agreement does not create any relationship or association between the City and Outfront Media. For example, and without limiting the previous sentence, this Agreement does not create between the City and Outfront Media the relationship of principal and agent, nor does it create a partnership or joint venture. (g) Attorneys’ Fees. The party prevailing in any litigation concerning this Agreement, the Site, or any improvements to the Site (including the Digital Freeway Billboard) will be entitled to an award by the court of reasonable attorneys’ fees and litigation costs through final resolution on appeal in addition to any other relief that may be granted in the litigation. If the City is the prevailing party, then this Section 9(g) will apply whether the City is represented in the litigation by the Office of the City Attorney or by outside counsel.
(h) Severability. If a court with jurisdiction holds any nonmaterial provision of this Agreement to be invalid, void, or unenforceable, then the remaining provisions will remain in full force.
(i) Counterparts. The parties may execute this Agreement in counterparts, each of which will be considered an original, but all of which will constitute the same Agreement. (j) Further Assurances. Each party shall execute all additional documents or instruments and take all necessary action that either party reasonably considers necessary to carry out the proper purposes of this Agreement.
(k) Time of Essence. Time is of the essence of this Agreement. (l) Interpretation. This Agreement is to be interpreted and applied in accordance with California law without regard to conflict-of-laws principles, except that the rule of interpretation in California Civil Code section 1654 will not apply. Schedule 1 and all Exhibits thereto are part of this Agreement.
(m) Integration and Modification. This Agreement sets forth the parties’ entire understanding regarding the matters addressed. It supersedes all prior or contemporaneous agreements, representations, and negotiations (written, oral, express, or implied) and may be modified only by another written agreement signed by both parties. (Signature Page Follows)
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Agreement for Digital Freeway Sign: Page 12 of 18
City of Modesto
By: _________________________
Joe Lopez
City Manager
Dated: ____________, 2022
Approved as to Form
Modesto City Attorney
By: ____________________________
Jose Sanchez
City Attorney
Outfront Media LLC
By: ____________________________
Collin Smith
Regional Vice President, Real Estate
Dated: ____________, 2022
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Agreement for Digital Freeway Sign
City of Modesto and Outfront Media
Agreement for Digital Freeway Sign: Schedule 1
Schedule 1
Existing Signs to be Removed
New Digital Freeway Billboard Existing Billboards
Property:
Address: 1027 Emerald Ave, Modesto CA 95351
APN: 029-012-073
Site: the 20’ x 50’ area on the Property as more
particularly described on Exhibit B-1 attached
hereto and incorporated herein.
Outfront Media shall obtain the necessary
permits to remove these Existing Signs before the
Commencement Date for the new Digital
Freeway Billboard and will actually complete
removal of the Existing Signs before commencing
operation of the new Digital Freeway Billboard.
The Existing Signs will be removed to two feet
below grade.
Locations:
APN: 029-012-073 in the (sphere of influence) City
of Modesto, County of Stanislaus, State of
California (Double Freeway Bulletin)
APN: 102-016-001 in the City of Modesto, County
of Stanislaus, State of California (Double Poster).
APN: 102-016-001 in the City of Modesto, County
of Stanislaus, State of California (2nd unit Double
Poster).
APN: 038-003-005 in the (sphere of influence) City
of Modesto, County of Stanislaus, State of
California (Single Poster).
APN: 103-011-003 In the City of Modesto, County
of Stanislaus, State of California (Single Poster)
APN: 105-041-019 in the City of Modesto, Sounty
of Stanislaus, State of California (Single Poster)
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Agreement for Digital Freeway Billboard
City of Modesto and Outfront Media
Agreement for Digital Freeway Billboard: Exhibit A
Schedule 1 - Exhibit A
Digital Freeway Billboard Operational Requirements
a. Operational Limitations. Digital Freeway Billboard shall display static messages only, and shall not have animation, movement, or the appearance or optical illusion of movement in or on any part of the Sign Structure, design, or pictorial segment of the sign.
Each static message shall not include flashing, scintillating lighting or varying light intensity. b. Minimum display time. Each message on the sign must be displayed for a minimum of eight (8) seconds.
c. Each display must have a light sensing device that will adjust the brightness as ambient light conditions change.
d. The Digital Freeway Billboard shall be operated with systems and monitoring in place to either turn the display off or show a “full black” image on the display in the event of a malfunction that affects at least fifty percent of the display area. e. The Digital Freeway Billboard shall not be deemed prohibited under any Sections of the Municipal Code of the City of Modesto
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Agreement for Digital Freeway Billboard
City of Modesto and Outfront Media
Agreement for Digital Freeway Billboard: Exhibit BSchedule 1 - Exhibit B-1 Site Description
Schedule 1 - Exhibit B-1
Site Description
Continued Below
PROPERTY
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Agreement for Digital Freeway Billboard
City of Modesto and Outfront Media
Agreement for Digital Freeway Billboard: Exhibit BProperty Sign
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Agreement for Digital Freeway Billboard
City of Modesto and Outfront Media
Agreement for Digital Freeway Billboard: Exhibit BSchedule 1 - Exhibit B-2 Description of Digital Display Area
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Agreement for Digital Freeway Sign
City of Modesto and Outfront Media
Exhibit C
Amber Alert Guidelines
AMBER alerts are issued by the National Center for Missing and Exploited Children in Washington, DC. For those alerts, Outfront Media and the outdoor advertising industry adhere to these guidelines:
Digital Freeway Billboard advertising will be completely interrupted upon receipt of an AMBER Alert within the affected geographical boundary.
The appropriate AMBER Alert will run uninterrupted for a minimum of one hour preempting all other advertising.
Thereafter, during the two hours immediately following the aforementioned one-hour display of the AMBER Alert, the same alert will be displayed in rotation along with other paid advertisers unless cancelled earlier. After the initial 3 hour display period, any additional posting of the alert shall be based on the situation and availability. #7..
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1https://dot.ca.gov/programs/safety-programs/hsip
2https://www.fhwa.dot.gov/fastact/
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: August 23, 2022
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jaylen French, Director of Community and Economic Development SUBJECT: Highway Safety Improvement Program (HSIP) Grant Application Requests CONTACT: Phillip Soares, Senior Civil Engineer, [email protected], 209-577-5258 DESCRIPTION:
Consider authorizing submittal of Highway Safety Improvement Program Grant applications. (Funding Source: California Department of Transportation Grant Funds) STRATEGIC PLAN ELEMENT:
The item is consistent with the City of Modesto 2020-2025 Strategic Goal D, Ensure Safe, Efficient, and Reliable Infrastructure.
BACKGROUND:
The Highway Safety Improvement Program (HSIP) 1 is a core federal-aid program in the new federal surface transportation act, Fixing America’s Surface Transportation Act (FAST) 2, which was signed into law on December 4, 2015. The purpose of the HSIP program is to reduce traffic fatalities and serious injuries on all public roads, including non-State-owned public roads.
Caltrans Division of Local Assistance typically announces a call for HSIP project applications biennially. The total available funds vary with each funding cycle but have been in the $200 million range in recent cycles.
Recently, the grant was divided into two funding categories: Benefit Cost Ratio (BCR) and Funding Set-Asides (SA). There are four set-aside categories: Guard Rail Upgrades, Pedestrian Crossing Enhancements, Installing Edgelines, and Set-aside for projects on tribal lands. The grant guidelines allow no more than one application and funding request for each set-aside category for an amount between $250,000 and $1 million per local agency. There is no maximum for the number of applications that can be submitted per agency for the BCR category however, there is a maximum award amount of $10 million per agency.
Typically, the maximum federal reimbursement ratio for an HSIP grant is 90% with a local match of 10%. A project may be eligible for 100% HSIP reimbursement if all components of the project #8..
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City Council, September 23, 2022
Highway Safety Improvement Program (HSIP) Grant Application Requests
are eligible for 100% reimbursement per Section 4.2 of the Local Roadway Safety Manual (LRSM).
DISCUSSION:
Typically, an HSIP call for projects is made annually or biennially. The timing and size of the call is determined by the program apportionments, HSIP Federal Transportation Improvement Program (FTIP) capacity and the delivery of the existing HSIP applications.
The intent of the HSIP program is to expend funds on safety projects that can be designed and constructed expeditiously, meaning projects should not require significant amounts of right of way acquisition, nor should they require extensive environmental review and mitigation. For a project to be eligible for HSIP funding, a specific safety problem must be identified, and the proposed countermeasure(s) must substantially address the condition.
Staff continually evaluates potential projects based on collision history along specific corridors and locations throughout the City as part of the Systemic Safety Analysis Report (SSAR) project.
FISCAL IMPACT:
The Divisions that typically apply for HSIP funds are Transportation Engineering and Design and Traffic Engineering. The cost to prepare HSIP grant applications will come from the operating budget of the division that prepares the application.
If a local match is required for any of the HSIP applications received, it will come from the appropriate transportation fund and therefore there is no direct impact to the General Fund. The local match funding source will be dependent on the project, but historically the match has come from Surface Transportation Fund which includes Gas Tax fund and the Measure L Local Control funds which include categories for Local Streets & Roads, Traffic Management and Bike & Pedestrian.
COMMITTEE RECOMMENDATION:
This project was presented to the Economic Development Committee on September 14, 2022 and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendation:
Resolution authorizing submittal of grant applications to seek grant funding for Highway Safety Improvement Program (HSIP) funds.
Approved by:
Jaylen French, Director of CEDD
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
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09/23/22/CED/City Council 1 2022-
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION AUTHORIZING SUBMITTAL OF GRANT APPLICATIONS TO
SEEK GRANT FUNDING FOR HIGHWAY SAFETY IMPROVEMENT
PROGRAM (HSIP) FUNDS
WHEREAS, the Highway Safety Improvement Program (HSIP) is one of the core federal-aid programs in the new federal surface transportation act, Fixing America’s Surface Transportation Act (FAST), which was signed into law on December 4, 2015; and
WHEREAS, the purpose of the HSIP program is to achieve a significant reduction in traffic fatalities and serious injuries on all public roads, including non-Stateowned public roads and roads on tribal land; and WHEREAS, Caltrans Division of Local Assistance typically announces a call for HSIP project applications in the Spring every one to two years; and WHEREAS, the total available funds vary with each funding cycle; and WHEREAS, applications are typically due in September of each year that the call for applications is made; and
WHEREAS, for the last few cycles, there have been two funding categories for HSIP: Benefit Cost Ratio (BCR) and Funding Set-Asides (SA); and WHEREAS, there are four set-aside categories: Guard Rail Upgrades, Pedestrian Crossing Enhancements, Installing Edgelines, and Set-aside for Tribes; and WHEREAS, there is a maximum of one application and funding request for each set-aside category of between $250,0000 and $1 million per local agency; and #8..
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09/23/22/CED/City Council 2 2022-
WHEREAS, there is no maximum for the number of applications that can be submitted per agency for the BCR category however, there is a maximum award amount of $10 million per agency; and
WHEREAS, typically the maximum federal reimbursement ratio for an HSIP grant is 90%; and
WHEREAS, a project may be eligible for 100% HSIP reimbursement if all components of the project are eligible for 100% reimbursement per Section 4.2 of the Local Roadway Safety Manual (LRSM).
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby authorizes submittal of grant applications to seek grant funding for Highway Safety Improvement Program (HSIP) funds.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of September, 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: ___________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: September 15, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
DeAnna Christensen, Director of Finance
SUBJECT: On-Call Rental Services Agreement - N & S Tractor CONTACT: David Barr, Fleet Manager, [email protected], (209) 342-2214 Cynthia Kline, Purchasing Manager, [email protected], (209) 577-5412 DESCRIPTION:
Consider approving an On-Call Rental Services Agreement with N & S Tractor, Turlock, California, for one-year with a one-year extension option, for an annual estimated amount of $75,000 and a total amount not to exceed $150,000 over two years. (Funding Source: Various Funds)
STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto 2020-2025 Strategic Plan focus of Governance and Service Delivery under Goal H: Achieve Financial Sustainability.
BACKGROUND:
The City of Modesto Compost Facility’s operation is permitted by three regulatory agencies1.
The specific need to replace and retire the existing equipment is to maintain permit compliance with the regulatory agencies. A critical equipment to maintain this permit compliance is the use of a windrow turner2 unit to ensure an efficient composting process. The current windrow turner unit has been out of service due to the age of the equipment and rental of this equipment was required to comply with the permit requirements.
On November 2, 2021, under Resolution 2021-430, Council approved the purchase of a John Deere Tractor with Deere & Company, Cary, NC, by utilizing the competitive bidding process from Sourcewell (formerly National Joint Powers Alliance) for a total amount not to exceed $271,425 and a sole source purchase with Evergreen Irrigation Inc., Stayton, OR, for a Windrow 1 CalRecycle, Central Valley Regional Water Quality Control Board and San Joaquin Valley Air Pollution Control District 2 Compost Windrow Turners – “Compost windrow turners were developed … for large scale production of compost. They are a conventionally big machine that straddles windrow. Steel drum with paddles quickly turns and [oxygen] is introduced within compost by means of drum/paddle assembly, and waste gases formed through microbial decomposition are vented. The [oxygen] feeds the aerobic bacteria and hence speed up the composting mechanism.”, - Composting for Sustainable Agriculture by Dinesh K.
Maheshwari, 2014, (P. 222)
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City Council, September 27, 2022
On-Call Rental Services Agreement - N & S Tractor
Turner for Public Works Department for a total amount not to exceed $374,651. This purchase would eliminate the need to continue the rental of this equipment.
DISCUSSION:
The temporary rental cost for a windrow turner was estimated at approximately $10,000 per month. The City took possession of the windrow turner and tractor rental in April 2022, however, there was an unexpected delay with placing the new City-owned equipment in service largely due to the calibration of these two pieces of equipment. As a result, the utilization of this rental equipment has generated pending rental costs in the amount of $64,198.
The windrow turner and tractor are very specialized equipment which is only available for rental at agricultural equipment rental companies such as N&S Tractor. City staff recommends entering into an on-call service agreement to ensure equipment availability due to the need to satisfy the regulatory requirements and to avoid a lapse in service.
Modesto Municipal Code Section 8-3.204 generally requires all purchases, in excess of fifty thousand dollars ($50,000) to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process.
Additionally, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality. Here, N & S Tractor should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b), since they were the sole vendor who had this specialized equipment available. The Public Works Fleet Division reached out to our rental service agreement vendors for this type of equipment, Herc Rentals, Modesto, CA, and United Rentals, Modesto, CA, and this equipment was not available in their rental fleet inventory. Additionally, Fleet Divisions solicited quotes on this type of rental equipment to six different vendors and N & S Tractor was the only vendor who responded that had this equipment available.
FISCAL IMPACT:
The on-call rental service agreement with N & S Tractor would be funded based on the City department assigned to the specialized equipment. For the current rental services due in the amount of $64,198, this amount will be funded through the FY 21-22 Operating budget from the Compost Fund.
COMMITTEE RECOMMENDATION:
This item was presented at the September 14, 2022 Economic Development Committee and approved to move forward to Council.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an On-Call Rental Services Agreement with N & S Tractor, Turlock, California, for one-year with a one-year extension option, for an annual estimated amount of $75,000 and a total amount not to exceed $150,000 over two years; and authorizing the City Manager or his designee to execute the Agreement.
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City Council, September 27, 2022
On-Call Rental Services Agreement - N & S Tractor
Approved by:
DeAnna Christensen, Director of Finance
Bill Sandhu, Public Works Director
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit
4. Financial Interest Disclosure
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION APPROVING AN ON-CALL RENTAL SERVICES
AGREMEENT WITH N & S TRACTOR, TURLOCK, CALIFORNIA, FOR ONEYEAR WITH A ONE-YEAR EXTENSION OPTION, FOR AN ANNUAL ESTIMATED AMOUNT OF $75,000 AND A TOTAL AMOUNT NOT TO
EXCEED $150,000 OVER TWO YEARS; AND AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, the City of Modesto Compost Facility’s operation is permitted by three regulatory agencies1; and
WHEREAS, the current windrow turner unit has been out of service due to the age of the equipment and rental of this equipment was required to comply with the permit requirements; and
WHEREAS, on November 2, 2021, under Resolution 2021-430, Council approved the purchase of a John Deere Tractor with Deere & Company, Cary, NC, by utilizing the competitive bidding process from Sourcewell (formerly National Joint Powers Alliance) for a total amount not to exceed $271,425 and a sole source purchase with Evergreen Irrigation Inc., Stayton, OR, for a Windrow Turner for Public Works Department for a total amount not to exceed $374,651; and WHEREAS, the temporary rental cost for a windrow turner was estimated at approximately $10,000 per month; and
WHEREAS, the City took possession of the windrow turner and tractor rental in April 2022, however, there was an unexpected delay with placing the new City-owned equipment in service largely due to the calibration of these two pieces of equipment; and 1 CalRecycle, Central Valley Regional Water Quality Control Board and San Joaquin Valley Air Pollution Control District #9..
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2 WHEREAS, the windrow turner and tractor are very specialized equipment which is only available for rental at agricultural equipment rental companies such as N&S Tractor; and
WHEREAS, City staff recommends entering into an on-call service agreement to ensure equipment availability due to the need to satisfy the regulatory requirements and to avoid a lapse in service; and
WHEREAS, proposals were based on an evaluation criterion on technical proposal, mandatory elements, expertise and experience, audit approach, and cost; and WHEREAS, Modesto Municipal Code (MMC) Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow the formal bid procedures, however; MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process; and WHEREAS, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality; and WHEREAS, N & S Tractor should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b), since they were the sole vendor who had this specialized equipment available; and
WHEREAS, the Public Works Fleet Division reached out to our rental service agreement vendors for this type of equipment, Herc Rentals, Modesto, CA, and United Rentals, Modesto, CA, and this equipment was not available in their rental fleet #9..
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3 inventory. Additionally, Fleet Divisions solicited quotes on this type of rental equipment to six different vendors and N & S Tractor was the only vendor who responded that had this equipment available.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an On-Call Rental Services Agreement with N & S Tractor, Turlock, California, for one-year with a one-year extension option, for an annual estimated amount of $75,000 and a total amount not to exceed $150,000 over two years.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 27th day of September 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: _____________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________
JOSE M. SANCHEZ, City Attorney
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1 ANNUAL AGREEMENT #230823
ON-CALL RENTAL SERVICES
N&S TRACTOR
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2022, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and N&S Tractor, a corporation of the State of California, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2022- authorizing the Award and agreement for providing on-call rental equipment on an “As Needed” basis for various divisions throught the City CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for providing on-call rental equipment on an “As Needed” basis for various divisions throught the City as described in, attached hereto as Exhibit “B” and made part hereof.
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and #9..
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2 insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. 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 said services at the following AGREEMENT rates for an estimated annual amount $75,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $150,000.
2. CITY REPRESENTATIVE:
CITY Representative is:
David Barr, Fleet Manager -Phone (209) 342-2214 email: [email protected]
3. PURCHASING Representative is:
Kim Presson, Buyer - Phone (209) 577-5375 email [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of one year, with one-year extension option at the sole discretion of CITY, for a total of up to two years.
Year 1: August 30, 2022 through August 29, 2023
Year 2: August 30, 2023 through August 29, 2024
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3 Pricing as set forth in Section 1.e. above shall remain firm for the first one year of the AGREEMENT.
Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the percentage change in the Consumer Price Index (CPI-U) for the West Region Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
5. LIABILITY INSURANCE:
The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by via Pins Advantage, for all of the following stated insurance policies. a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 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; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. 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 per accident for bodily injury or disease. #9..
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4 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 the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.
The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work 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 CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and #9..
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5 receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. 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 to: [email protected]
At a minimum, invoices shall state the following:
This AGREEMENT number 230823
CITY department/division name and address
Billing period
Service hours worked day and week
Unit price, extended price, sales tax and total
7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, 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, officials, 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, officials, 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. #9..
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6 8. VENUE & GOVERNING LAW:
Venue for 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 in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
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, without giving effect to its conflicts of laws provisions or principles.
9. ATTORNEYS’ FEES:
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2022-_______;
b. CONTRACTOR’S City of Modesto business license
11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in #9..
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7 the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The CITY may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are 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, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES 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 SERVICES 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 SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY #9..
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8 for the protection and preservation of the SERVICES and/or property related to the SERVICES;
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 SERVICES.
i. 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 CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise 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 SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES 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 for such SERVICES.
12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, #9..
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9 rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK: It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
15. CITY PROCESS/PROCEDURE APPROVALS: CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
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10 16. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES: If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
17. 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:
CONTRACTOR: Clark Bird, CFO
N& S Tractor
600 S. State Highway 59
Merced, CA 95341-6928
Phone: (209)383-5888
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.
18. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
19. QUANTITIES: No minimum or maximum is guaranteed or implied. #9..
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11 20. 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.
21. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
22. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed 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), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.
The CONTRACTOR and any allowed 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, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
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12 c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The 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 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 AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be 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.
23. CONTRACTOR LICENSES & PERMITS:
CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
24. RECORDS:
All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
25. FACILITIES AND EQUIPMENT:
Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and #9..
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13 equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and only under the terms and conditions set forth herein.
26. INDEPENDENT CONTRACTOR NOT AGENT:
At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent CONTRACTOR and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind CITY to any obligation whatsoever.
27. DRUG FREE WORKPLACE:
CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter
5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
28. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
29. 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.
30. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
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14 31. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
32. 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 controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. All previous bids, 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 or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
33. PARTIAL INVALIDITY:
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2022-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2022 and N&S Tractor has caused this AGREEMENT to be duly executed. #9..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: August 30, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Tuolumne River Regional Park Master Plan Update Award CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider approving an Agreement with O’Dell Engineering Inc. to prepare the Tuolumne River Regional Park (TRRP) Master Plan Update for an amount of $268,641, plus $32,237 for additional services, if needed, for an Agreement total not to exceed $300,878. (Funding Source:
American Rescue Plan Act (ARPA) / TRRP - Special Revenue Fund and JPA-TRRP Special Revenue Fund-CIP)
STRATEGIC PLAN ELEMENT:
This item is consistent with the following 2020-2025 Strategic Plan Areas of Focus: Quality of Life and Governance and Service Delivery.
BACKGROUND:
The Tuolumne River Regional Park consists of 500-acres of riparian land within the City of Modesto and Stanislaus County. The park runs approximately 7-miles along the river’s edge stretching from the Mitchell Road bridge on the eastern boundary to just west of the Carpenter Road bridge on the western boundary.
In the early 1960’s, the community determined the Tuolumne River waterway within Modesto should be restored, preserved, and enhanced as an open space river corridor to provide Stanislaus County residents with conservation and recreation benefits and contribute to the economics of the region. This effort resulted in the development of a land use plan and refined Master Plan(s) for specific sections of the river corridor. These preliminary efforts were the basis for the 1972 formation of the Tuolumne River Regional Park (TRRP) Joint Powers Authority (JPA), consisting of the City of Ceres, City of Modesto and County of Stanislaus. The City of Modesto is responsible for the management of the Tuolumne River Regional Park, with funds contributed by each of the three agencies.
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City Council, September 27, 2022
Tuolumne River Regional Park Master Plan Update Award
In 1999, the Tuolumne River Regional Park Commission updated the original land use plan, which included preparation of a TRRP Master Plan and Master Environmental Impact Report.
The Master Plan and Master Environmental Impact Report (MEIR) were developed over a twoyear period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001.
In the subsequent years, 2002-2022, various sections of the TRRP were planned and developed into riparian conservation and recreation areas. To date, the majority of this work has been focused within the Gateway Area. There are currently seven (7) projects in the planning stage that will be constructed beginning in spring 2023 and continuing through 2025.
DISCUSSION:
Since adoption of the 2001 TRRP Master Plan, economic, operational and site conditions, have once again changed. To meet the needs of the public demand and pursue a more sustainable operating structure for TRRP, the TRRP Commission recognizes the need for a Master Plan Update. A few of the areas of the TRRP Master Plan will have minimal updates based on the work completed to date and/or future planned work. There are four areas of the Master Plan Update which are anticipated to be the focus of the intensive design changes during this update:
Legion Park Area, northern half of the Gateway Parcel Area, Golf Course Area and Carpenter Road Area.
The Master Plan Update process shall include community and stakeholder outreach, concept plan preparation, opportunities and constraints analysis including program development, preliminary and final master plans, environmental documentation, economic development strategy, and multi-agency government approvals. Additionally, the Master Plan Update will be more refined for the four-(4) focus areas noted above and provide concept design details similar to the 2005 Gateway Parcel Precise Plan layout.
In accordance with Administrative Directive 3.1, “Selection Procedures for Professional Consultants Who Provide Architectural & Engineering for Capital Projects,” staff initiated a Request for Qualifications and Proposals (RFQ/P) to perform Professional Design Consulting Services.
On September 15, 2021, the City’s Parks Planning and Development Division issued a Request for Proposals (RFP) # PPD-21-02 for professional design consulting services for the TRRP Master Plan Update. On October 19, 2021, staff received one (1) consultant proposal. A consultant selection committee was formed and met to review the proposal received. The committee determined that the prospective professional design consultant, O’Dell Engineering, Inc., is well qualified to complete the project. Additionally, since only one proposal was received a formal interview of the prospective consultant was not necessary.
Based on the results of the RFP, staff recommends the Council approve an agreement with O’Dell Engineering of Modesto, Ca in the amount of $268,641 to complete the TRRP Master Plan Update.
In addition, staff recommends Council approve a 12% additional services budget in the amount of $32,237 to allow for additional services that may be required due to unforeseen conditions, delays or expenses for an agreement total not to exceed $300,878. This additional services budget does not commit the city to spend the additional funding, but allows the Department #10..
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Tuolumne River Regional Park Master Plan Update Award
Director to approve change orders up to the additional services limit, without further council action.
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the agreement is for professional services and, therefore, exempt from the bidding requirement. The approval of the agreement for services for the TRRP Master Plan to O’Dell Engineering, Inc. of Modesto, CA conforms to Modesto Municipal Code 8-3.204, subsection (a).
FISCAL IMPACT:
On July 12, 2022, per Council Resolution 2022-307, City Council approved the revised spending plan for the American Rescue Plan Act (ARPA) which included $175,000 designated to the TRRP Master Plan update. These funds were placed in the TRRP Special Revenue Fund (6720) to allocate to project 101429 – TRRP Master Plan Update, which will be one of two funding sources for this project. The remaining amount, up to $125,878, will be funded by Project 101230 -TRRP Master Plan Update 2020 located in the JPA-TRRP Special Revenue Fund-CIP (6710). Staff and other incidental costs to complete the TRRP Master Plan Update will be funded by the remaining funding in Project 101230.
Revenue:
Project 101429 $175,000
Project 101230 $175,359
Total Revenue $350,359
Anticipated Expenses:
O’Dell Engineering Agreement (Not to Exceed) $300,878
Current staff costs $ 7,332
Additional staff and other incidental costs (Estimated) $ 42,149 Total Anticipated Expenses $350,359
CEQA/NEPA REQUIREMENTS:
No environmental review is needed for this action as it is an administrative action.
Environmental review of the project will be completed as a part of the design process for this project.
COMMITTEE RECOMMENDATION:
This item was reviewed by the Safety and Communities Committee on September 12, 2022, and they recommended this item be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an Agreement with O’Dell Engineering Inc. to prepare the Tuolumne River Regional Park (TRRP) Master Plan Update for an amount of $268,641, plus $32,237 for additional services, if needed, for an agreement total not to exceed $300,878 and authorizing the City Manager, or his designee to execute the Agreement. #10..
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City Council, September 27, 2022
Tuolumne River Regional Park Master Plan Update Award
Approved by:
Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement – O’Dell Engineering
3. Financial Interest Disclosure Form – O’Dell
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09/27/2022/PRN/NHoux 1 2022-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION APPROVING AN AGREEMENT WITH O’DELL
ENGINEERING INC. TO PREPARE THE TUOLUMNE RIVER REGIONAL PARK (TRRP) MASTER PLAN UPDATE FOR AN AMOUNT OF $268,641, PLUS $32,237 FOR ADDITIONAL SERVICES, IF NEEDED, FOR AN AGREEMENT TOTAL NOT TO EXCEED $300,878 AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, the Tuolumne River Regional Park consists of 500-acres of riparian land within the City of Modesto and Stanislaus County; and WHEREAS, in the early 1960’s, the community determined the Tuolumne River waterway within Modesto should be restored, preserved, and enhanced as an open space river corridor to provide Stanislaus County residents with conservation and recreation benefits and contribute to the economics of the region; and WHEREAS, this effort resulted in the development of a land use plan and refined Master Plan(s) for specific sections of the river corridor; and WHEREAS, these preliminary efforts were the basis for the 1972 formation of the Tuolumne River Regional Park (TRRP) Joint Powers Authority (JPA), consisting of the City of Ceres, City of Modesto and County of Stanislaus; and WHEREAS, in 1999, the Tuolumne River Regional Park Commission updated the original land use plan, which included preparation of a TRRP Master Plan and Master Environmental Impact Report; and
WHEREAS, the Master Plan and Master Environmental Impact Report (MEIR) were developed over a two-year period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001; and
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WHEREAS, since adoption of the 2001 TRRP Master Plan, economic, operational and site conditions, have changed and to meet the needs of the public demand and pursue a more sustainable operating structure for TRRP, the TRRP Commission recognizes the need for a Master Plan Update; and
WHEREAS, there are four areas of the Master Plan Update which are anticipated to be the focus of the intensive design changes during this update: Legion Park Area, northern half of the Gateway Parcel Area, Golf Course Area and Carpenter Road Area; and
WHEREAS, the Master Plan Update process shall include community and stakeholder outreach, concept plan preparation, opportunities and constraints analysis including program development, preliminary and final master plans, environmental documentation, economic development strategy, and multi-agency government approvals; and
WHEREAS, in accordance with Administrative Directive 3.1, “Selection Procedures for Professional Consultants Who Provide Architectural & Engineering for Capital Projects,” staff initiated a Request for Qualifications and Proposals (RFQ/P) to perform Professional Design Consulting Services; and
WHEREAS, on September 15, 2021, the City’s Parks Planning and Development Division issued a Request for Proposals (RFP) # PPD-21-02 for professional design consulting services for the TRRP Master Plan Update; and WHEREAS, on October 19, 2021, staff received one (1) consultant proposal and a consultant selection committee was formed and met to review the proposal received; and #10..
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09/27/2022/PRN/NHoux 3 2022-XXX
WHEREAS, the committee determined that the prospective professional design consultant, O’Dell Engineering, Inc., is well qualified to complete the project; and WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the agreement is for professional services and, therefore, exempt from the bidding requirement.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an agreement with O’Dell Engineering Inc. to prepare the Tuolumne River Regional Park (TRRP) Master Plan Update for an amount of $268,641, plus $32,237 for additional services, if needed, for an agreement total not to exceed $300,878.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 27th day of September, 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:
DIANE NAYARES-PEREZ,
CMC, City Clerk
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09/27/2022/PRN/NHoux 4 2022-XXX
APPROVED AS TO FORM:
BY: ___________________________
JOSE M. SANCHEZ, City Attorney
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STANDARD AGREEMENT
FOR CONSULTANT SERVICES
FOR TRRP MASTER PLAN UPDATE
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this ________ day of _________, 2022, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and O’DELL ENGINEERING, INC, a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that a Master Plan Update should be prepared for the Tuolumne River Regional Park; Profession Design Consulting Services are needed for the Tuolumne River Regional Park Master Plan Update Project.
B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "Project". The Consultant shall perform the services as described in Exhibit "A" in a manner consistent with the professional skill and care ordinarily provided by firms practicing in the same or similar locality under the same or similar circumstances (hereinafter the “Standard of Care”) , and shall produce a fully complete project that is acceptable to City. #10..
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2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “Project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the Project in the manner described in Exhibit "A", as of the Effective Date of this Agreement. Consultant shall diligently proceed with the Professional Design Consulting Services of the Project until the completion of items outlined in Exhibit “A”.
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed $268,641 (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, #10..
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and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.
No retainage will be withheld by City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE Consultants and subconsultants.
Reimbursable Expenses including all printing and reproduction, travel, vehicle mileage, delivery and horticultural soils samples expenses will be billed at cost. The total cost for all reimbursable expenses for the Project shall not exceed $3,300, and is included in the not exceed figure of $268,641. It is the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget. Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due.
Additional services may be authorized by the Department Director in an amount up to, but not to exceed 12% of the agreed maximum compensation, or $32,237. In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department Director, or designee, indicating the reason for additional work, scope #10..
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and cost of such work. The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed $300,878. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all professional licenses, qualifications and approvals legally required to conduct business. Consultant represents that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further represents that it will exercise the Standard of Care to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding the Project.
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Chad Kennedy, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that twenty percent (20%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person. #10..
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6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this Agreement without the express prior written consent of City.
Title to Data
If, as a part of this Agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this Agreement will be delivered to City upon the completion or termination of services under this Agreement.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City. City agrees to indemnify, defend and hold the Consultant harmless from and against all claims or damages that may result from the subsequent use, reuse, transfer or modification of Consultant’s drawing and specifications, except use by the City for the purpose for which Consultant originally prepared such drawing and specifications.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this #10..
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Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of the term of this Agreement if so required at the option of City.
Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the consultant; to solicit or secure this contract; and that he/she has not paid or agreed to pay any company or person other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award, or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability, or at its discretion; to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of #10..
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work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services.
10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.
Consultant has no authority or responsibility to exercise any rights or power vested in the City.
No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement. #10..
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Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance. #10..
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12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in this Agreement, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: O’Dell Engineering, Inc.
Address: 1165 Scenic Dr., Suite A
Modesto, CA 95350
Attention: Chad Kennedy, PLA
Phone: (209) 571-1765
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Laurie A. Smith
Phone: (209) 577-5344
Email: [email protected]
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14. INSURANCE REQUIREMENTS.
The Consultant 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 Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the Project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General #10..
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Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and $2,000,000 policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
If at any time any of said policies shall be unsatisfactory to the City or State of California, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City or State of California, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City or State of California, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City of Modesto, City of Ceres, Stanislaus County and State of California, its agents, officers, #10..
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employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City of Modesto, City of Ceres, Stanislaus County and State of California, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City or State of California. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City of Modesto, City of Ceres, Stanislaus County or State of California; 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. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY of Modesto’s, City of Ceres’, Stanislaus County and State of California additional insured status as to both the general liability and automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to this project, the CONSULTANT’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 CONSULTANT’S insurance and shall not contribute with it.
15. TERMINATION OF AGREEMENT.
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Termination by City for Default of Consultant
Should Consultant 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 Consultant. 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 Consultant, dishonesty or theft.
Termination by City for Convenience
TheCitymay also terminate theConsultant's performance underthe Agreement, eitherin whole orin part, at its own discretion, or when conditions encountered duringthe term of this Agreement make it impossible orimpracticable to proceed, or when theCityis prevented fromproceedingwith this 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 Projectfor any reason. TheCity shall provide no lessthan ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant 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 Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in #10..
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the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Agreement 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 subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Project 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 mayhave been accumulated by the Consultant in performing the Project 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 Project as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Project and/or property related to the Project;
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sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the Project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant 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 Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under this Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Agreement such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Project properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of this Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk #10..
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in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City of Modesto, City of Ceres, Stanislaus County and State of California, 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 wrongful act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
Consultant's obligation to defend, indemnify, and hold the City of Modesto, 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 Consultant to procure and maintain a policy of insurance.
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18. DISPUTE RESOLUTION.
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, shall be in the Superior Court of Stanislaus County.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. 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. #10..
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22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license.
27. LIMITATION OF LIABILITY
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To the fullest extent permitted by law, the total liability, in the aggregate, of Consultant and its officers, directors, partners, employees, agents, and subconsultants, to City, and anyone claiming through or under City, for any claims, losses, costs, or damages whatsoever arising out of, resulting from or in any way relating to this Project or Contract, from any cause or causes, including but not limited to tort (including negligence and professional errors and omissions), strict liability, breach of contract, or breach of warranty shall not exceed the total compensation received by Consultant or $1,000,000, whichever is greater.
28. MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES
Consultant and City waive damages for loss of use, profits, revenue, business opportunity, or production, for claims, disputes, or other matters arising out of or relating to the Contract or the services provided by Consultant, regardless of whether such claim or dispute is based upon breach of contract, willful misconduct or negligent act or omission of either of them or to their employees, agents, subconsultants, or other legal theory, even if the affected party has knowledge of the possibility of such damages. This mutual waiver shall survive termination or completion of this Agreement.
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95353
(209) 577-5344
modestogov.com
EXHIBIT ‘A’
SCOPE OF WORK
PROJECT BACKGROUND
As it resides today, the Tuolumne River Regional Parks consists of 500-acres of riparian lands meandering through the City of Modesto within the Country of Stanislaus. The park runs approximately 7-miles along the river’s edge stretching from the Mitchell Road bridge on the eastern boundary to just west of the Carpenter Road bridge on the western boundary. Within the park there are (6) identified zones: Airport Area, Legion Park Area, Gallo/Mancini Area, Gateway Parcel Area, Golf Course Area and Carpenter Road Area.
In the early 1960’s, the community determined the Tuolumne River waterway that meanders through the Modesto should be restored, preserved, and enhanced as an open space river corridor to provide Stanislaus County residents with conservation and recreation benefits and contribute to the economics of the region. This effort resulted in the development of a land use plan and refined Master Plan(s) for specific sections of the river corridor. This plan was visionary for its day. These preliminary efforts were the basis in the formation of the Tuolumne River Regional Park (TRRP) Joint Powers Authority (JPA), consisting of the City of Ceres, City of Modesto and County of Stanislaus.
In the early years of progress, three significant issues arose: insufficient public funds, changes in environmental laws and additional land added to the park. These issues caused the Tuolumne River Regional Park Commission to proceed with an update of the original land use plan, preparation of the TRRP Master Environmental Impact Report and Master Plan.
The Master Environmental Impact Report (MEIR) and Master Plan were developed over a two-year period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001.
In the subsequent years, 2006-2019, various sections of the TRRP were developed into riparian conservation and recreation areas, open for public use. The majority of this work has been focused within the Gateway Area.
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In recent years the TRRP Commission authorized work to begin planning and design work to construct three new Class 1 bike trails (leading from the Gateway Parcel Area), the Neece Drive Non-Motorized Boat Launch Facility (Golf Course Area), Bellenita Soccer Field Complex (Carpenter Road Area), Gateway River Overlook (Gateway Parcel Area), Legion Park River Pavilion (Legion Park Area) and Legion Park Learning Theater (Legion Park Area) projects. These projects will begin construction soon and continue through 2025.
Since adoption of the 2001 TRRP Master Plan, economic conditions, site opportunities and constraints have again changed. To meet the needs of the TRRP, public demand and pursue a more stainable operating structure, the TRRP Commission recognizes the need for a Master Plan update. Many of the areas of TRRP will have minimal updates based on the work completed to date and/or future planned work. There are four areas of the Master Plan update which are anticipated to be the focus of the intensive design changes: portion of Legion Park Area, northern half of the Gateway Parcel Area, Golf Course Area and Carpenter Road Area.
SCOPE OF PROFESSIONAL DESIGN CONSULTING SERVICES
The Master Plan Update shall reflect current planning efforts, including the City of Modesto’s Bike and Pedestrian Master Plan, City of Modesto Downtown Redevelopment Plan, completed TRRP phases of work, and future TRRP phases in development (previously noted). The focus of the intensive design changes are anticipated in the specific areas listed below.
Legion Park Area – Update Master Plan to include program considerations such as a TRRP recreational vehicle, tent and group campgrounds, river center destination, ropes adventure course, neighborhood connections and/or other active recreation uses to be determined. Additionally, comply with the upcoming construction of the Legion Park River Pavilion and Learning Theater Project and planned construction of the west-bound Riverwalk Trail Project extension to Gateway Parcel via the pending Gallo property acquisition and Dry Creek channel bridge crossing.
Northern Half of the Gateway Parcel Area – The Tuolumne Road extension concept illustrated in the TRRP Gateway Parcel Precise Plan is extremely unlikely to be constructed. TRRP Master Plan update shall consider new concepts, access connections and programming opportunities for this undeveloped portion of Gateway Area. Additionally, enable completion of and comply with portions of the Gateway Area already completed. Specifically, addressing completion of the amphimeadow and the need for event parking, lighting and wayfinding signage.
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Golf Course Area – Update Master Plan to include program considerations such as a bike pump track, address conflicting uses of the Riverwalk Trail encroachment(s) onto the Dryden Golf Course, neighborhood connections as well as explore other possible programming opportunities in the area.
Additionally, comply with the upcoming construction of the Neece Drive NonMotorized Boat Launch Project and north-bound Riverwalk Trail Project extension to Gateway Parcel.
Carpenter Road Area – Updated Master Plan shall explore a new concept(s), neighborhood connections and programming opportunities for this undeveloped area. Additionally, comply with the planned construction of the Carpenter Road improved floodplain management area improvements and Bellenita Soccer Complex projects.
The Master Plan Update process shall include community and stakeholder outreach, concept plan preparation, opportunities and constraints analysis including program development, preliminary and final master plans, environmental documentation, economic development strategy, and required multi-agency government approvals.
Additionally, the Master Plan Update should be more refined for the four-(4) focus areas noted above and provide concept design details similar to the 2005 Gateway Parcel Precise Plan layout.
The project will require an experienced full-service consultant (team) with the ability to evaluate the existing conditions and make recommendations in a wide range of services including but not limited to: civil engineering, landscape architectural, planning, environmental planning, economic development and special studies.
The consultant will need to be familiar with all applicable adopted local building codes (City of Modesto), City of Modesto Park Design Standards, the existing TRRP Draft MEIR, TRRP Final MEIR, Gateway Parcel Precise Plan, subsequent environmental documentation for the Gateway Parcel Precise Plan and existing project improvements within the TRRP.
Consultant shall coordinate with all necessary Federal and State agencies to obtain approval of any environmental documentation necessary for the TRRP Master Plan Update prior to final acceptance by the TRRP JPA Partners and City of Modesto.
Monthly progress payment invoices shall include the minimum attachments: Detailed description or itemization of work completed for the time period, task billing summary, hourly rates from all consultants, per Exhibit B of this agreement. #10..
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Format Requirements: As applicable, CAD files shall be compatible with AutoCAD Civil 3D 2018 or newer. Files shall be exported using Etransmit command including all fonts, textures, references and pen settings. All sheets are to be included in one zip file.
PROFESSIONAL DESIGN CONSULTING SERVICES TO INCLUDE
Based on the above, the following scope of services to be performed in chronological order. Listed below are tasks and conditions that the consultant is expected to perform and meet on this project. It is not intended the tasks shown are the only tasks required on this project. The City will provide electronic copies of the necessary background documentation.
Task #1 – Project Initiation
1.1 Kick-Off Meeting (Staff Meeting #1) – Conduct an interdepartmental start up meeting to begin the Master Plan Update process. Meeting to be held in Modesto.
A. Determine goals, objectives, schedule and desired outcome.
B. Determine review process and other administrative procedures.
C. Determine preliminary project concerns, and formalize contacts.
D. Provide meeting agenda and written meeting minutes.
1.2 Task Schedule – Prepare and update project task schedule as necessary. The consultant will provide a schedule showing all internal and external deadlines, milestones, and expectations. This schedule will clearly outline expectations for submittals and show estimated internal review times. The schedule be update at each round of submittal.
1.3 Site Mapping – Prepare a base map utilizing completed and in progress project improvement plans, site condition observations, existing topographical, utility, GIS and aerial information. Consultant understands the following data is available from Federal, State, and local data sources for the study area:
A. Land Use/Agriculture: Statewide Crop Mapping (DWR 2018); Stanislaus County Land Use (DWR 2010).
B. Soils: National Resource Conservation Service, Soils Eastern Stanislaus County (2021).
C. Hydrology & Flooding: FEMA National Flood Hazard Layer (2020).
D. Habitats & Wetlands: National Wetland Inventory (2021); California Department of Fish and Wildlife, Great Valley Vegetation (2009) E. Recreation Facilities: California Protected Area Database (2020) Deliverables: Consultant will provide up to eight (8) individual GIS based figures and associated data.
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1.4 File Review – Obtain historical information relevant to master planning process, including at minimum:
A. Record documents of park improvements and utility drawings B. Previous master plan documentation.
C. Environmental documents and reports
D. Citywide planning documents
E. Related planning documents and general plan sections from the City of Modesto, City of Ceres and Stanislaus County.
F. Research into current County demographic patterns, which will be used to create a document that is relevant to the current and projected population.
G. The consultant will survey regional parks of similar size and demographics to the TRRP to determine the current park and recreation facilities standards that exist in those parks. These benchmark regional parks will include comparable parks mutually agreed upon by the City and consultant. This list will be finalized before the team proceeds with contacting the park system managers for specific information. Matrices will be created with a number of qualities pertaining to parks and recreation amenities located in these benchmark regional parks and show TRRP metrics for each item alongside the comparable. This will assist in understanding TRRP’s current level of services and status of facilities as compared to benchmark communities.
H. The consultant will also secure copies of the Open Space and Parks & Recreation Element of the General Plans in the benchmark parks and review those documents for specifics concerning regional park sizes, type of facilities (sports fields, game courts, day use areas, camping, play apparatus areas, passive open space, etc.), and special recreation elements (community centers, boat launches, trails systems, etc.). This information will be compiled into a user friendly format that can be compared to the TRRP current park facilities.
1.5 Site Investigation (Staff Meeting #2) – Conduct a site walk with City Staff, document site observations photographically, complete a site observations survey of existing conditions in written notes. Notes and photos documenting existing conditions will be shared with the project team.
1.6 Website/Interactive Map - a project specific website will be managed and regularly maintained in order to provide a single location for all members of the public to access information quickly and easily during the entire public outreach process. This website will be hosted, and updated regularly by the consultant with current information, public meeting notices, public survey links, draft & final documents, and an interactive map for ease of use. Following project completion, the information could be transferred to the City of Modesto website, or hosting could be transferred to the JPA or City of Modesto. #10..
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1.7 Outreach Program Development – Work with City staff to develop appropriate level of community and stakeholder outreach. Prepare written outreach plan to document meetings, dates, locations, materials, and outcomes. Propose outreach to include the following:
A. Providing electronic materials to be posted on the project specific web page.
B. Preparation of meeting notifications (distribution by the City).
C. Schedule meetings, including arranging venues.
D. Coordinate online announcements.
1.8 Opportunities and Constraints Plan Development:
A. Prepare an opportunities and constraints plan
B. Existing conditions map (including completed phases of work) with opportunities and constraints superimposed
C. Program options board to include images of potential program elements that could work within the areas of focus
D. Prepare other supporting materials for the public workshop including existing photographs, project background, etc.
1.9 Round One Public Outreach – Conduct multiple public outreach meetings.
A. Prepare and present formal presentation to combined Citizens Advisory Committee / TRRP Commission (Public Meeting #1). Meeting to be presented in presentation format.
B. Prepare and present formal presentations at (2) community meetings, to be held as two separate community meetings at two different meeting locations in an effort to maximize participation. Provide on-line Zoom option for public meeting attendance. Meetings to be presented in open house format. (Public Meeting #2 and #3).
C. Present an overview of the Master Plan Update process, discuss current statues of the existing Master Plan and constructed phases. Discuss goals and objectives for the Master Plan Update, obtain public input on the opportunities and constraints, concept plans and programming opportunities.
D. Provide meeting agenda and written meeting minutes.
1.10 Community Survey – As part of the outreach effort, consultant will create, use, and compile data from a community survey to determine what the community’s needs are as related to the TRRP parks and open space. The intent of this survey is to determine general community needs and how current regional park facilities measure up to those needs. This survey should identify perceived efficiencies and deficiencies in the parks system.
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and Parks Association will be used to determine what elements are most appropriate to serve the JPA’s current and future park and recreation needs. The survey will be distributed to the community via email, mail, at community meetings, and through other means in order to produce data that can be used to determine community needs.
In order for the survey to meet statistically valid results, a complete spread of the population must be polled. There will need to be a focused effort by JPA Commission Members and City staff to solicit survey responses from all facets of the community and through multiple methods. The survey will be prepared in both English and Spanish versions to help reach across even more demographic barriers.
Importance/Satisfaction based survey questions will be used as a gauge to determine under-serviced or unrecognized opportunities, in essence determining where limited resources can make the most impact. Data processing and analysis will allow data to be plotted on a chart indicating the value of the given object as it pertains to importance to the survey-taker, as well as the individual’s satisfaction with that aspect of the TRRP system. The Importance/Satisfaction questions help identify where the JPA will get the most benefit for its efforts and prioritize improvements that truly matter to the citizens of the County.
The following are also survey objectives:
A. Determine current community satisfaction levels
B. Increase exposure to the community
C. Obtain data pertinent to recreation programs and services D. Identify appropriate branding efforts
E. Identify areas for improvement
Task #2 – Draft Site Master Plan
2.1 Meeting with City Staff (Staff Meeting #3) – Conduct an interdepartmental meeting with City staff and present Master Plan Update progress, share public input received and reach consensus on key concept ideas and programming opportunities. Meeting to be held in Modesto. Provide meeting agenda and written meeting minutes.
2.2 Draft Site Concept Plan Alternatives – Prepare (4)-100 scale Concept Plan Alternative Drawings, (1) for each of the (4) focus areas identified in the Master Plan Update Description. Provide concept image board(s) to illustrate proposed Master Plan Update concept ideas and programming opportunities.
2.3 Meeting with City Staff (Staff Meeting #4) – Conduct an interdepartmental meeting with City staff and present Master Plan Alternative concept image #10..
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boards and drawings. Solicit staff input and discuss refinements to the drawings and illustrations presented. Meeting to be held in Modesto. Provide meeting agenda and written meeting minutes.
2.4 Draft Site Master Plan Alternative Refinements – Following interdepartmental City review update drawings, illustrations and documents as necessary per City staff comments received.
2.5 Round Two Public Outreach – Conduct multiple public outreach meetings.
A. Prepare and present formal presentation to combined Citizens Advisory Committee / TRRP Commission (Public Meeting #4). Meeting to be presented in presentation format.
B. Prepare and present formal presentations at (2) community meetings, to be held as two separate community meetings at two different meeting locations in an effort to maximize participation (Public Meeting #5 and #6).
Meetings to be presented in open house format. Provide on-line Zoom option for public meeting attendance.
C. Present an overview of the Master Plan Update process, discuss Concept Master Plan input received to date and Concept Master Plan Alternatives.
Obtain public input on the Alternatives presented.
D. Provide meeting agenda and written meeting minutes.
Task #3 – Final Site Master Plan
3.1 Conduct with City Staff (Staff Meeting #5) – Conduct an interdepartmental meeting with City staff and present Master Plan Update progress, share commission and public input received. Determine final direction on concept ideas, programming opportunities for the Master Plan. Meeting to be held in Modesto. Provide meeting agenda and written meeting minutes.
3.2 Final Draft Site Master Plan Development:
A. Provide final draft site Master Plan Update, to include an overall plan drawing at Approx. 1,000-scale and (4) enlargement plan drawings at 100- scale. Plans to be labeled and color rendered.
B. Provide additional representative images to convey the design intent of the Master Plan Update.
C. Provide computer rendered perspective of up to (5) renderings of select area within the Master Plan Update area(s).
3.3 Estimates of Probable Costs – Prepare an estimate of probable construction costs including: costs associated with delivering/constructing the project(s), administration costs, final design costs, permitting, inflation and contingencies.
3.4 Phasing Considerations – Provide a phasing diagram for the Master Plan Update project(s).
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3.5 Conduct with City Staff (Staff Meeting #6) – Conduct an interdepartmental meeting with City staff and present Final Draft Master Plan Update, estimate of probable construction costs and phasing diagram to City staff. Discuss and determine if there are any revisions or additional information needed. Meeting to be held in Modesto. Provide meeting agenda and written meeting minutes.
3.6 Round Three Public Outreach – Conduct multiple public outreach meetings.
A. Prepare and present formal presentation to combined Citizens Advisory Committee / TRRP Commission (Public Meeting #7). Meeting to be presented in presentation format.
B. Prepare and present formal presentations at (2) community meetings, to be held as two separate community meetings at two different meeting locations in an effort to maximize participation (Public Meeting #8 and #9).
Meetings to be presented in open house format. Provide on-line Zoom option for public meeting attendance.
C. Present an overview of the Master Plan input received to date and supporting materials. Obtain public input on information presented.
D. Provide meeting agenda and written meeting minutes.
3.7 Master Plan Refinements – Update materials based upon all input received.
Compile the Master Plan Update in book format, with the prior work products attached including: meeting summaries, prior concepts, prior estimates, background data and other relevant information used in the development of the Final Draft Master Plan. Final plan to be supplemented by text descriptions for the process used and the concepts developed.
3.8 TRRP Commission Meeting (Public Meeting #10) – Prepare and present formal presentation to combined Citizens Advisory Committee / TRRP Commission.
Meeting to be presented in presentation format. Meeting to be held in Modesto.
Provide meeting agenda and written meeting minutes.
3.9 Master Plan Refinements – Update materials based upon all input received.
3.10 Combined TRRP JPA Partner Agency Meeting (Public Meeting #11) – Prepare and present formal presentation to City of Modesto Council, Ceres City Council and Stanislaus County Board of Supervisors. Meeting to be presented in presentation format. Meeting to be held in Modesto. Provide meeting agenda and written meeting minutes.
Task #4 – Environmental Documentation
4.1 Environmental Impact Report – Project work will include preparation of an updated Master EIR, which will reflect changes due to projects that have already been implemented and proposed updates to undeveloped areas. The proposed update would include improvements that were not evaluated in the 2001 EIR; #10..
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therefore, additional environmental review will be required. The City has used a tiering format of individual development projects, and staff desires to continue this practice. Therefore, the EIR for the Tuolumne River Regional Park Master Plan update needs to be focused on usability for tiering of subsequent development proposals.
A. Deliverables: One (1) electronic copy (PDF/Word Format) of the ADMEIR B. Deliverables: One copy of draft CEQA review noticing (including Notice of Completion).
4.2 The environmental sub-consultant will attend the kick-off meeting outlined in Task #1.1 of this scope of work.
4.3 The environmental sub-consultant will work with the project team to complete the site mapping outlined in Task #1.3 of this scope of work.
4.4 The environmental sub-consultant will attend and assist the consultant in conducting the site investigation meeting as outlined in Task #1.5.
4.5 The environmental sub-consultant will work with the project team to complete the opportunities and constraints plan outlined in Task #1.8 of this scope of work.
4.6 The environmental sub-consultant will provide technical assistance or policy and implementation measure development for the proposed project during Task #2.
Building on the environmental setting and mitigation strategies previously developed under Task #1, and by incorporating stakeholder concerns, recommendations for policy and implementation programs (or measures) focusing on environmental resource topics (including biological resources, habitats, water quality, etc.) will be provided. Implementation programs or measures addressing current State laws regarding energy conservation, air quality, and reductions of vehicle miles travelled, and greenhouse gas emissions will be included, as appropriate for the Master Plan. Additional measures regarding applicable State and Federal biological and cultural resource protection standards will also be considered. Inclusion of these policies, backed by definitive implementation programs, will help lessen potential impacts identified in the EIR, reducing the need for additional mitigation measures.
4.7 Prepare and Circulate Notice of Preparation (NOP) – The environmental subconsultant will prepare a NOP to elicit agency and public input on the scope of the EIR analyses. Once the NOP is finalized after receiving City/Team comments, the environmental sub-consultant will submit it to the State Clearinghouse for State agency review; City staff will be responsible for distribution of the NOP to other agencies, stakeholders, and the public. This will #10..
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initiate the 30-day public review and comment period as required by the State CEQA Guidelines.
As part of this task, the environmental sub-consultant will conduct one public scoping workshop to enable the public to submit additional comments on the content of the EIR. On completion of the public scoping workshop, the environmental sub-consultant will prepare and submit to City staff a memorandum that provides a comprehensive summary of the public comments received during the public workshop.
Environmental sub-consultant shall provide:
A. Draft NOP - One (1) electronic copy (PDF/Word format).
B. Final NOP - One (1) camera-ready copy and One (1) electronic copy.
C. Submittal to the State Clearinghouse via CEQAnet.
D. Memorandum of public comments.
4.8 Prepare and Submit Administrative Draft MEIR (ADMEIR) – The environmental sub-consultant will prepare and submit an ADMEIR to the City/Team assessing the environmental impacts of the updated Master Plan (proposed project), which together will constitute the “project” addressed in the MEIR. The ADMEIR will include a thorough discussion of the impacts of future development and will identify the policies and implementations incorporated into the plan that will mitigate or minimize potentially adverse impacts associated with implementation of the updated Master Plan.
A. In order to prepare a MEIR that meets the needs of the City/Team and requirements of CEQA, the ADMEIR will include the following technical sections:
1. Executive Summary of the MEIR
2. Introduction to the MEIR
3. Project Description
4. Impacts and Mitigation Measures
5. Alternative Analysis of up several alternatives including up to two additional alternatives that will be aimed at eliminating or reducing significant impacts
6. Cumulative Impacts
7. All other Statutory Sections required by CEQA
B. All environmental resource topics identified in the NOP will be addressed in the MEIR, including the following areas of study:
1. Biological Resources
2. Cultural/Tribal Resources
3. Hydrology/Water Quality/Geology/Soils
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4. Traffic – Including a Transportation Study prepared by a traffic sub-consultant for the project
5. Air Quality/GHG Emissions
6. Noise
7. Energy
8. Hazards/Hazardous Materials
9. Land Use/Agriculture/Aesthetic/Recreation
10. Cumulative Impacts
C. Environmental sub-consultant shall provide:
1. One (1) electronic copy (PDF/Word format) of the Transportation Study for the Project.
2. One (1) electronic copy (PDF/Word format) of the ADMEIR.
3. One (1) copy of draft CEQA review noticing (including the Notice of Completion).
4.9 Conduct Air Quality/GHG Modelling and Related EIR Support – environmental sub-consultant will estimate operational criteria air pollutants, ozone precursor, and GHG emissions using the latest version of the California Emissions Estimator Model (CalEEMod) and modeling inputs from the Transportation Study prepared for the proposed project. These results will be incorporated into the Air Quality, Climate Change, and Energy sections of the MEIR. As part of this task, KD Anderson will provide QAQC technical support.
4.10 Prepare and Submit Public Draft MEIR - Upon receipt of the City/Team’s comments on the ADMEIR, the environmental sub-consultant will prepare the draft MEIR (DMEIR) for public distribution. The environmental sub-consultant will prepare and submit the DMEIR and Notice of Completion to the State Clearinghouse to initiate the 45 day public review period for the DMEIR.
Environmental sub-consultant shall provide:
A. One (1) camera-ready copy and one (1) electronic copy (PDF/Word Format) of the DMEIR.
B. Submittal to the State Clearinghouse via CEQAnet. GEI assumes that the City will be responsible for any additional mailing and distribution of the DMEIR.
4.11 Prepare and Submit Administrative Final MEIR - At the conclusion of the 45-day public comment period, the environmental sub-consultant will meet with City/Team staff to discuss the comments received (both written and oral) during the public comment period and the appropriate responses to those comments. It is anticipated that the administrative final MEIR (AFMEIR) will consist of the DMEIR, comments and “responses to comments” on the DMEIR, and minor edits #10..
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to the text of the DMEIR. This task assumes that the text changes needed to respond to all public/agency comments will not require additional technical analysis and that up to 20 comment letters will be received on the DMEIR.
Environmental sub-consultant shall provide:
A. One (1) camera-ready copy and one (1) electronic copy (PDF/Word Format) of the DMEIR.
4.12 Prepare and Submit Final MEIR - Upon receipt of the City/Team’s comments on the AFMEIR, the environmental sub-consultant will prepare the final MEIR (FMEIR). This scope assumes that the City will provide a single consolidated set of non-contradictory comments.
Environmental sub-consultant shall provide:
A. One (1) camera-ready copy and one (1) electronic copy (PDF/Word Format) of the FMEIR. The City will be responsible for mailing and distribution of the FMEIR as appropriate.
4.13 Prepare and Submit Findings and Statement of Overriding Consideration – The environmental sub-consultant will produce a Statement of Findings and Overriding Considerations that addresses the significant unavoidable impacts identified in the FMEIR (if any). This document will demonstrate the relationship of the FMEIR to the project and identify the mitigation measures to be considered by the City and the TRRP JPA. The findings will conform to the requirements of CEQA Guidelines, Sections 15091 and 15093.
Environmental sub-consultant shall provide:
A. One (1) electronic copy (PDF/Word format) of draft Findings and Statement of Overriding Considerations.
B. One (1) camera-ready copy and one (1) electronic copy (PDF/Word format) of final.
Task #5 – Reimbursable Expenses
5.1 In addition to billing for the above services, all printing and reproduction, travel, vehicle mileage, delivery and horticultural soils samples are eligible reimbursable expenses. These costs will be itemized on the monthly invoice(s) and compared with the total allowances approved in the contract. All reimbursable expenses may be marked up 10%. Waiting for Chad to confirm
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Task #6 – Promotional Materials & Economic Development
6.1 Provide a sub-consultant who can complete an economic impact study and business development strategy of the existing site and proposed Master Plan site amenities. Impact study and business development strategy shall provide the TRRP JPA a determination of the economic development return on investment for existing and proposed amenities; and prioritize continued development of the updated TRRP Master Plan with the goal of maximizing the financially sustainable of TRRP. Economic impact of amenities shall consider revenue generation resulting from public use of amenities such as family picnic area rentals, campsite rentals, special events, and recreational activity or class program sales.
6.2 Provide a sub-consultant whom specializes in developing public outreach campaigns. Conduct an interdepartmental meeting with City Staff to develop a digital and printed promotional campaign for the Tuolumne River Regional Park (Staff Meeting #12). The campaign shall promote use of previously constructed park amenities and funded park amenities to be constructed.
6.3 Consultant will provide an economic assessment for a range of potential recreation activities and amenities within TRRP. For this assessment we will conduct several baseline research tasks including a review of existing operations and supply and market demand for identified use options including but not limited to a range of day use and camping amenities.
In addition, Consultant will conduct three in-person or virtual meetings focused on obtaining valuable insight into the economic analysis. A final economic impact assessment report document will show potential revenues at various fee and occupancy levels, and associated operations and costs specifically targeting return on investment findings for selected revenue producing elements.
Consultant will then provide a business development strategy that can help guide an economically sustainable TRRP for managers, residents, and visitors.
The economic analysis is designed to provide the planning process with an economic risk assessment for various development elements and an accompanying sustainable development strategy. All economic study efforts will be conducted concurrently with the overall planning process. Draft economic findings may be included as part of a draft Master Plan to be developed through a public input and client review. A final report document will be provided with the Final TRRP Master Plan Update.
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The market analysis will rely on data available from the TRRP JPA including detailed operations information. Data gathered from any area private operations may be limited to estimates and provided to the extent these businesses are willing to share their information.
Consultant will develop conceptual economic models for selected site elements that will allow the TRRP JPA to understand what might happen at the site under existing market conditions – these projections are not a guarantee of revenues but will show a range of revenues that could be achieved with optimized management and marketing expertise.
This is not a formal Financial Profit and Loss Statement but a planning and decision-making tool. This assessment will not address depreciation or cost of money over project lifetime. Public input process may determine plan priorities regardless of economic factors.
Economic models for selected site elements illustrate possible outcomes based on annual use and occupancy rates. Actual outcomes will depend on regional economic conditions and management activities including but not limited to customer service, marketing and other market-competitive strategies.
Business development strategy will utilize results from the overall planning process, including public input, and will be developed cooperatively.
6.4 Prepare materials for the promotion of the Tuolumne River Regional Park for general recreational purposes. All digital graphics, images and components shall be compatible with and provided in Adobe Design Suite: Illustrator and/or InDesign format, latest edition. Digital files for use on social media shall be formatted for Facebook and Instagram. Materials should include at least the following:
A. Provide four-(4) promotional outreach graphic sets highlighting recreational information for use on the City’s social media websites and City’s general website. Each set should include one-(1) 5.5” x 8.5” digital postcard flyer formatted for printing and one-(1) complementing digital graphic post for use on social media.
B. The four-(4) promotional outreach graphics sets shall promote four-(4) different recreational opportunities which take place within the Tuolumne River Regional Park. This may include but not be limited to the following opportunities:
1. RecFest Event
2. Trail Bike Riding
3. Group River Rafting
4. Group Beachfront Recreation
5. Group Picnicking
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6.5 Develop a web based interactive digital map highlighting the six-(6) areas of the Tuolumne River Regional Park and the four-(4) promotional outreach recreational areas selected as part of Task 6.4-B. Web based interactive digital map shall be compatible with web platform approved by the City of Modesto and “VisitModesto.com”.
PROJECT SCHEDULE:
Proposed milestones for the project tasks are as follows:
MILESTONE DATE
Award Design Contract Tuesday, September 27, 2022
Design Start
Project Completion
October 2022
October 2023
PROPOSED COMPENSATION:
The following fees are based on the scope of work described previously in Exhibit ‘A’.
Payments will be made on a monthly basis when portions of the tasks are completed.
The monthly billing at the Hourly Rates included in Exhibit ‘B’, and verifiable documentation on any reimbursable expenses incurred.
Task #1 – Project Initiation (not to exceed) $ 37,309.00 Task #2 – Draft Site Plan (not to exceed) $ 35,194.00
Task #3 – Final Site Master Plan (not to exceed) $ 60,902.00 Task #4 – Environmental Documentation (not to exceed) $ 85,902.00 Task #5 – Reimbursable Expenses (not to exceed) $ 3,300.00 Task #6 – Promotional Materials & Economic Development (not to exceed) $ 46,100.00 Total Contract Amount $268,641.00
Additional Services (not to exceed 12%) $ 32,237.00
Grand Total $300,878.00
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95353
(209) 577-5344
modestogov.com
EXHIBIT ‘B
Hourly Rates
The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved. In addition, monthly progress payment invoices shall include the minimum attachments: Detailed description or itemization of work completed for the time period, task billing summary, hourly rates from all consultants.
O’Dell Engineering
Landscape Architect / Civil Engineer / Land Survey
Principal $280
Senior Civil Engineer $215
Senior Engineer 2 $200
Senior Engineer 1 $185
Engineer 2 $180
Engineer 1 $170
Assistant Engineer 2 $145
Assistant Engineer 1 $130
Senior Landscape Architect 2 $200
Senior Landscape Architect 1 $180
Landscape Architect 2 $170
Landscape Architect 1 $160
Landscape Designer 3 $155
Landscape Designer 2 $145
Landscape Designer 1 $135
Planner $175
Assistant Planner $140
Dry Utility Project Manager 2 $170
Dry Utility Project Manager 1 $150
Utility Engineer $135
CADD Operator 2 $115
CADD Operator 1 $95
Survey Manager $205
Senior Land Surveyor 2 $195
Senior Land Surveyor 1 $170
Surveyor 2 $150
Surveyor 1 $140
Assistant Surveyor 2 $130
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Assistant Surveyor 1 $130
Survey Crew 2-man / 1-man $320/$180
Survey Crew 2-man / 1-man (Prevailing Wage) $396/$225
Administrative $96
GEI Consultants
Environmental
Staff Professional – Grade 1 $89
Staff Professional – Grade 2 $105
Project Professional – Grade 3 $118
Project Professional – Grade 4 $143
Senior Professional – Grade 5 $164
Senior Professional – Grade 6 $188-$205
Senior Professional – Grade 7 $243
Senior Consultant – Grade 8 $274
Senior Consultant – Grade 9 $279
Senior Principal – Grade 10 $279
Senior Drafter and Designer $145
Drafter / Designer and Senior Technician $118
Field Professional $106
Technician, Word Processor, Administrative Staff $84
Office Aide $83
Bronzan Consulting
Public Policy
Principal Engineer $150
KD Anderson & Associates
Traffic Engineer
Principal Engineer $175
Traffic Engineer $150
Technician / Clerical $50
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CITY OF MODESTO
COMMITTEE AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: August 30, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Sensory Wall Purchase for The Awesome Spot Playground CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider approving the competitive bidding process from National Purchasing Partners (NPPGov), League of Oregon Cities, with Park Associates, Inc. DBA Park Planet for the Purchase and Delivery of a Sensory Wall for The Awesome Spot Playground at Beyer Community Park, for a cost not to exceed $172,400. (Funding Source: American Rescue Plan Act Funding)
STRATEGIC PLAN ELEMENT:
This item is consistent with the following 2020-2025 Strategic Plan Area of Focus: Quality of Life and Governance and Service Delivery.
BACKGROUND:
In 2015, the community rallied together in support of designing an all-inclusive playground at Beyer Park. The desire was to build a playground that would be the first of its kind in the region, providing accessibility to people of all ages with a wide range of physical abilities to be able to play together side-by-side.
On March 22, 2016, by Resolution No. 2016-103, Council approved a Grant and License Agreement with Shane’s Inspiration for the conceptual design services related to the development of an inclusive playground at Beyer Community Park. Since that time the project has been officially titled “The Awesome Spot Playground” (TASP) and construction documents have been completed with the help of local design professionals.
TASP was born through the efforts of a group of residents who approached City staff regarding the development of an inclusive playground in Modesto. These residents have organized into the TASP Team and have been working to raise funds for the project. On June 5, 2018, by Resolution No. 2018-191 Council approved a fiscal #11..
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City Council, September 27, 2022
Sensory Wall Purchase for The Awesome Spot Playground
sponsorship agreement with Valley Mountain Regional Center (VMRC) to act as the non-profit sponsor of the project. VMRC is assisting TASP Team by allowing the use of their 501(c)3 status to pursue grants, and receive charitable donations to support the development and long-term maintenance of the project.
DISCUSSION:
The total estimated project budget is approximately $5.7 Million. To date, the TASP Team has received donations or pledges totaling approximately $2.3 Million and on July 14, 2022, the TASP team held a groundbreaking event for Phase 1 of the construction.
Site demolition and grading began in July 2022, and the TASP team has asked that the City of Modesto purchase one of the play equipment elements, the sensory wall, which will be needed to finish up the site construction for phase 1.
On July 12, 2022, by Resolution No. 2022-307, Council approved the use of American Rescue Plan Act (ARPA) funding in the amount of $500,000 to purchase playground equipment and other materials for TASP. Staff worked with TASP team to obtain a bid for the needed sensory wall, which is a play element that also acts as a retaining wall in the playground.
On October 14, 2020, National Purchasing Partners, LLC., (NPP) issued Request for Proposals (RFP) # 2060 for Park, Playground and Recreation Equipment advertised in the USA Today1, The Oregon Daily Journal2, the City of Oregon website3, Find RFP website4 and NPP website5.
The Original RFP close date was November 20, 2020, due to COVID-19 this date was extended to January 15, 2021, to allow adequate time for review and respond for all eligible vendors. The subsequent contract milestone dates have also been updated based on this close date change.
On January 15, 2021, ten (10) proposals were received and eight (8) contracts were awarded for the Park, Playground and Recreation Equipment.
National Purchasing Partners analysts streamline the procurement process by developing RFPs for national competitive solicitations that meet or exceed local requirements. The competitive process is continually refined to best meet agency needs and allows NPP to offer exceptional products from nationally acclaimed vendors. Park Planet was awarded contract #PS21050 effective April 1, 2021 through April 1, 2027. Through this contract, Park Planet has provided a quote for the sensory wall at Beyer Community Park in the amount of $172,400.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid.
However, exceptions to the formal bidding process are granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set for in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality.” In addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California and other units of government in cooperative purchasing plans when the best cost savings interest of the City would be served.
1 USA
2 The Oregon Daily Journal
3 www.orcities.org
4 www.findrfp.com
5 www.nppgov.com
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City Council, September 27, 2022
Sensory Wall Purchase for The Awesome Spot Playground
The installation of the sensory wall is not included in the purchase price. The installation of the sensory wall will be completed at no cost to the City by Harris Builders, Inc., who is a local contractor who has volunteered his time to serve as the general contractor for TASP. A memorandum of understanding was executed on July 18, 2022, which provides permission for Harris Builders, Inc. to act as the general contractor and construct TASP at Beyer Community Park.
FISCAL IMPACT:
As noted above, on July 12, 2022, per Council Resolution 2022-307, City Council approved the revised spending plan for the American Rescue Plan Act (ARPA), which included $500,000 for The Awesome Spot Playground. The cost to purchase the sensory wall will be covered by this allotment, which is budgeted in project #100984. After the purchase of the sensory wall, the remaining $327,600 of ARPA funds will be used for future playground equipment or material purchases. Those purchases will be brought back to the Council for approval at a later date.
CEQA/NEPA REQUIREMENTS:
City staff prepared a Notice of Exemption No. EA/PR&N 2022-01 and determined the project is categorically exempt from CEQA due to the fact that it is a replacement of an existing facility which has substantially the same purpose, is located at the same site and is not anticipated to significantly increase the use of the park.
ARPA Funded projects are not subject to NEPA review per the Treasury Department’s guidelines for use of these funds.
COMMITTEE RECOMMENDATION:
This item was reviewed by the Safety and Communities Committee on September 12, 2022, and they recommended this item be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the competitive bidding process from National Purchasing Partners (NPPGov), League of Oregon Cities, with Park Associates, Inc. DBA Park Planet for the Purchase and Delivery of a Sensory Wall for The Awesome Spot Playground at Beyer Community Park, for a cost not to exceed $172,400; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
Approved by:
Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
Attachments:
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City Council, September 27, 2022
Sensory Wall Purchase for The Awesome Spot Playground
1. Resolution
2. Master Price Agreement - League of Oregon Cities and Park Associates Inc DBA Park Planet
3. Park Planet Quote for Sensory Wall
4. Scoring Abstract
5. NPPGov RFP #2060
6. Park Planet Proposal for RFP #2060
7. Financial Interest Disclosure Form – Park Planet
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09/27/2022/PRN/NHoux 1 2022-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION APPROVING THE COMPETITIVE BIDDING PROCESS FROM
NATIONAL PURCHASING PARTNERS (NPPGOV), LEAGUE OF OREGON CITIES, WITH PARK ASSOCIATES, INC. DBA PARK PLANET FOR THE
PURCHASE AND DELIVERY OF A SENSORY WALL FOR THE AWESOME
SPOT PLAYGROUND AT BEYER COMMUNITY PARK, FOR A COST NOT TO EXCEED $172,400; AND AUTHORIZING THE PURCHASING MANAGER, OR
HER DESIGNEE, TO ISSUE THE PURCHASE ORDER
WHEREAS, in 2015, the community rallied together in support of designing an allinclusive playground at Beyer Park; and WHEREAS, the desire was to build a playground that would be the first of its kind in the region, providing accessibility to people of all ages with a wide range of physical abilities to be able to play together side-by-side; and
WHEREAS, on March 22, 2016, by Resolution No. 2016-103, Council approved a Grant and License Agreement with Shane’s Inspiration for the conceptual design services related to the development of an inclusive playground at Beyer Community Park; and
WHEREAS, the project has been officially titled “The Awesome Spot Playground” (TASP) and construction documents have been completed with the help of local design professionals; and
WHEREAS, on June 5, 2018, by Resolution No. 2018-191 Council approved a fiscal sponsorship agreement with Valley Mountain Regional Center (VMRC) to act as the non-profit sponsor of the project; and
WHEREAS, on July 12, 2022, by Resolution No. 2022-307, Council approved the use of American Rescue Plan Act (ARPA) funding in the amount of $500,000 to purchase playground equipment and other materials for TASP; and #11..
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09/27/2022/PRN/NHoux 2 2022-XXX
WHEREAS, staff worked with TASP team to obtain a bid for the needed sensory wall, which is a play element that also acts as a retaining wall in the playground; and WHEREAS, Finance Department’s Purchasing Division suggested “piggyback” on an existing competitively bid contract, National Purchasing Partners, LLC., (NPP) Request for Proposals (RFP) # 2060 for Park, Playground and Recreation Equipment, advertised in the USA Today, The Oregon Daily Journal, the City of Oregon website, Find RFP website, and NPP website; and
WHEREAS, on January 15, 2021, ten (10) proposals were received and eight (8) contracts were awarded for the Park, Playground and Recreation Equipment; and WHEREAS, Park Planet was awarded contract #PS21050 effective April 1, 2021 through April 1, 2027; and
WHEREAS, through this contract, Park Planet has provided a quote for the sensory wall at Beyer Community Park in the amount of $172,400; and WHEREAS, the installation of the playground equipment is not included in the purchase price and will be completed by the general contractor for TASP at no cost to the City, and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set for in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality.” In addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with #11..
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09/27/2022/PRN/NHoux 3 2022-XXX
the State of California and other units of government in cooperative purchasing plans when the best cost savings interest of the City would be served.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the competitive bidding process from National Purchasing Partners (NPPGov), League of Oregon Cities, with Park Associates, Inc. DBA Park Planet for the Purchase and Delivery of a Sensory Wall for The Awesome Spot Playground at Beyer Community Park, for a cost not to exceed $172,400.
BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the purchase order.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 27th day of September, 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:
DIANE NAYARES-PEREZ,
CMC, City Clerk
APPROVED AS TO FORM:
BY: ___________________________
JOSE M. SANCHEZ, City Attorney
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LEAGUE OF OREGON CITIES
MASTER PRICE AGREEMENT
This Master Price Agreement is effective as of the date of the last signature below (the “Effective Date”) by and between the LEAGUE OF OREGON CITIES, an Oregon public corporation under ORS Chapter 190 (“LOC” or “Purchaser”) and Park Associates Inc. DBA Park Planet (“Vendor”).
RECITALS
WHEREAS, the Vendor is in the business of selling certain PARK, PLAYGROUND, AND RECREATION EQUIPMENT, as further described herein; and
WHEREAS, the Vendor desires to sell and the Purchaser desires to purchase certain products and related services all upon and subject to the terms and conditions set forth herein; and WHEREAS, through a solicitation for PARK, PLAYGROUND, AND RECREATION EQUIPMENT the Vendor was awarded the opportunity to complete a Master Price Agreement with the LEAGUE OF OREGON CITIES as a result of its response to Request for Proposal No. 2060 for PARK, PLAYGROUND, AND RECREATION EQUIPMENT; and
WHEREAS, the LEAGUE OF OREGON CITIES asserts that the solicitation and Request for Proposal meet Oregon public contracting requirements (ORS 279, 279A, 279B and 279C et. seq.); and WHEREAS, Purchaser and Vendor desire to extend the terms of this Master Price Agreement to benefit other qualified government members of National Purchasing Partners, LLC dba Public Safety GPO, dba First Responder GPO, dba Law Enforcement GPO and dba NPPGov;
NOW, THEREFORE, Vendor and Purchaser, intending to be legally bound, hereby agree as follows:
ARTICLE 1 – CERTAIN DEFINITIONS
1.1 “Agreement” shall mean this Master Price Agreement, including the main body of this Agreement and Attachments A-F attached hereto and by this reference incorporated herein, including Purchaser’s Request for Proposal No. 2060 (herein “RFP”) and Vendor’s Proposal submitted in response to the RFP (herein “Vendor’s Proposal”) as referenced and incorporated herein as though fully set forth (sometimes referred to collectively as the “Contract Documents”).
1.2 “Applicable Law(s)” shall mean all applicable federal, state and local laws, statutes, ordinances, codes, rules, regulations, standards, orders and other governmental requirements of any kind.
1.3 “Employee Taxes” shall mean all taxes, assessments, charges and other amounts whatsoever payable in respect of, and measured by the wages of, the Vendor’s employees (or subcontractors), as required by the Federal Social Security Act and all amendments thereto and/or any other applicable federal, state or local law.
1.4 “Purchaser’s Destination” shall mean such delivery location(s) or destination(s) as Purchaser may prescribe from time to time.
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1.5 “Products and Services” shall mean the products and/or services to be sold by Vendor hereunder as identified and described on Attachment A hereto and incorporated herein, as may be updated from time to time by Vendor to reflect products and/or services offered by Vendor generally to its customers.
1.6 “Purchase Order” shall mean any authorized written order for Products and Services sent by Purchaser to Vendor via mail, courier, overnight delivery service, email, fax and/or other mode of transmission as Purchaser and Vendor may from time to time agree.
1.7 “Unemployment Insurance” shall mean the contribution required of Vendor, as an employer, in respect of, and measured by, the wages of its employees (or subcontractors) as required by any applicable federal, state or local unemployment insurance law or regulation.
1.8 “National Purchasing Partners” or “(NPP)” is a subsidiary of two nonprofit health care systems. The Government Division of NPP, hereinafter referred to as “NPPGov”, provides group purchasing marketing and administrative support for governmental entities within the membership. NPPGov’s membership includes participating public entities across North America.
1.9 “Lead Contracting Agency” shall mean the LEAGUE OF OREGON CITIES, which is the governmental entity that issued the Request for Proposal and awarded this resulting Master Price Agreement.
1.10 “Participating Agencies” shall mean members of National Purchasing Partners for which Vendor has agreed to extend the terms of this Master Price Agreement pursuant to Article 2.6 and Attachment C herein.
For purposes of cooperative procurement, “Participating Agency” shall be considered “Purchaser” under the terms of this Agreement.
1.11 “Party” and “Parties” shall mean the Purchaser and Vendor individually and collectively as applicable.
ARTICLE 2 – AGREEMENT TO SELL
2.1 Vendor hereby agrees to sell to Purchaser such Products and Services as Purchaser may order from time to time by Purchase Order, all in accordance with and subject to the terms, covenants and conditions of this Agreement. Purchaser agrees to purchase those Products and Services ordered by Purchaser by Purchase Order in accordance with and subject to the terms, covenants and conditions of this Agreement.
2.2 Vendor may add additional products and services to the contract provided that any additions reasonably fall within the intent of the original RFP specifications. Pricing on additions shall be equivalent to the percentage discount for other similar products. Vendor may provide a web-link with current product listings, which may be updated periodically, as allowed by the terms of the resulting Master Price Agreement. Vendor may replace or add product lines to an existing contract if the line is replacing or supplementing products on contract, is equal or superior to the original products offered, is discounted in a similar or to a greater degree, and if the products meet the requirements of the solicitation. No products may be added to avoid competitive procurement requirements. LOC may reject any additions without cause.
2.3 All Purchase Orders issued by Purchaser to Vendor for Products during the term (as hereinafter defined) of this Agreement are subject to the provisions of this Agreement as though fully set forth in such Purchase Order. The Vendor retains authority to negotiate above and beyond the terms of this Agreement to meet the Purchaser or Vendor contract requirements. In the event that the provisions of this Agreement conflict with any Purchase Order issued by Purchaser to Vendor, the provisions of this Agreement shall govern. No other terms and conditions, including, but not limited to, those contained in Vendor’s standard printed terms and DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 #11..
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conditions, on Vendor’s order acknowledgment, invoices or otherwise, shall have any application to or effect upon or be deemed to constitute an amendment to or to be incorporated into this Agreement, any Purchase Order, or any transactions occurring pursuant hereto or thereto, unless this Agreement shall be specifically amended to adopt such other terms and conditions in writing by the Parties.
2.4 Notwithstanding any other provision of this Agreement to the contrary, the Lead Contracting Agency shall have no obligation to order or purchase any Products and Services hereunder and the placement of any Purchase Order shall be in the sole discretion of the Participating Agencies. This Agreement is not exclusive. Vendor expressly acknowledges and agrees that Purchaser may purchase at its sole discretion, Products and Services that are identical or similar to the Products and Services described in this Agreement from any third party.
2.5 In case of any conflict or inconsistency between any of the Contract Documents, the documents shall prevail and apply in the following order of priority:
(i) This Agreement;
(ii) The RFP;
(iii) Vendor’s Proposal;
2.6 Extension of contract terms to Participating Agencies:
2.6.1 Vendor agrees to extend the same terms, covenants and conditions available to Purchaser under this Agreement to Participating Agencies, that have executed an Intergovernmental Cooperative Purchasing Agreement (“IGA”) as may be required by each Participating Agency’s local laws and regulations, in accordance with Attachment C. Each Participating Agency will be exclusively responsible for and deal directly with Vendor on matters relating to ordering, delivery, inspection, acceptance, invoicing, and payment for Products and Services in accordance with the terms and conditions of this Agreement as if it were “Purchaser” hereunder. Any disputes between a Participating Agency and Vendor will be resolved directly between them under and in accordance with the laws of the State in which the Participating Agency exists. Pursuant to the IGA, the Lead Contracting Agency shall not incur any liability as a result of the access and utilization of this Agreement by other Participating Agencies.
2.6.2 This Solicitation meets the public contracting requirements of the Lead Contracting Agency and may not be appropriate under or meet Participating Agencies’ procurement laws. Participating Agencies are urged to seek independent review by their legal counsel to ensure compliance with all local and state solicitation requirements.
2.6.3 Vendor acknowledges execution of the Vendor Administration Fee Agreement, Contract Number PS21050, with NPPGov, pursuant to the terms of the RFP.
2.7 Oregon Public Agencies are prohibited from use of Products and Services offered under this Agreement that are already provided by qualified nonprofit agencies for disabled individuals as listed on the Department of Administrative Service’s Procurement List (“Procurement List”) pursuant to ORS 279.835-.855.
See www.OregonRehabilitation.org/qrf for more information. Vendor shall not sell products and services identified on the Procurement List (e.g., reconditioned toner cartridges) to Purchaser or Participating Agencies within the state of Oregon.
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ARTICLE 3 – TERM AND TERMINATION
3.1 The initial contract term shall be for three (3) calendar years from the Effective Date of this Agreement (“Initial Term”). Upon termination of the original three (3) year term, this Agreement shall automatically extend for up to three (3) successive one (1) year periods; (each a “Renewal Term”); provided, however, that the Lead Contracting Agency and/or the Vendor may opt to decline extension of the MPA by providing notification in writing at least thirty (30) calendar days prior to the annual automatic extension anniversary of the Initial Term.
3.2 Either Vendor or the Lead Contracting Agency may terminate this Agreement by written notice to the other party if the other Party breaches any of its obligations hereunder and fails to remedy the breach within thirty (30) days after receiving written notice of such breach from the non-breaching party.
ARTICLE 4 – PRICING, INVOICES, PAYMENT AND DELIVERY
4.1 Purchaser shall pay Vendor for all Products and Services ordered and delivered in compliance with the terms and conditions of this Agreement at the pricing specified for each such Product and Service on Attachment A, including shipping. Unless Attachment A expressly provides otherwise, the pricing schedule set forth on Attachment A hereto shall remain fixed for the Initial Term of this Agreement; provided that manufacturer pricing is not guaranteed and may be adjusted based on the next manufacturer price increase. Pricing contained in Attachment A shall be extended to all NPPGov, Public Safety GPO, First Responder GPO and Law Enforcement GPO members upon execution of the IGA.
4.2 Vendor shall submit original invoices to Purchaser in form and substance and format reasonably acceptable to Purchaser. All invoices must reference the Purchaser’s Purchase Order number, contain an itemization of amounts for Products and Services purchased during the applicable invoice period and any other information reasonably requested by Purchaser, and must otherwise comply with the provisions of this Agreement. Invoices shall be addressed as directed by Purchaser.
4.3 Unless otherwise specified, Purchaser is responsible for any and all applicable sales taxes.
Attachment A or Vendor’s Proposal (Attachment D) shall specify any and all other taxes and duties of any kind which Purchaser is required to pay with respect to the sale of Products and Services covered by this Agreement and all charges for packing, packaging and loading.
4.4 Except as specifically set forth on Attachments A and F, Purchaser shall not be responsible for any additional costs or expenses of any nature incurred by Vendor in connection with the Products and Services, including without limitation travel expenses, clerical or administrative personnel, long distance telephone charges, etc. (“Incidental Expenses”).
4.5 Price reductions or discount increases may be offered at any time during the contract term and shall become effective upon notice of acceptance from Purchaser.
4.6 Notwithstanding any other agreement of the Parties as to the payment of shipping/delivery costs, and subject to Attachments A, D, and F herein, Vendor shall offer delivery and/or shipping costs prepaid FOB Destination. If there are handling fees, these also shall be included in the pricing.
4.7 Unless otherwise directed by Purchaser for expedited orders, Vendor shall utilize such common carrier for the delivery of Products and Services as Vendor may select; provided, however, that for expedited orders Vendor shall obtain delivery services hereunder at rates and terms not less favorable than those paid by Vendor for its own account or for the account of any other similarly situated customer of Vendor.
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4.8 Vendor shall have the risk of loss of or damage to any Products until delivery to Purchaser.
Purchaser shall have the risk of loss of or damage to the Products after delivery to Purchaser. Title to Products shall not transfer until the Products have been delivered to and accepted by Purchaser at Purchaser’s Destination.
ARTICLE 5 – INSURANCE
5.1 During the term of this Agreement, Vendor shall maintain at its own cost and expense (and shall cause any subcontractor to maintain) insurance policies providing insurance of the kind and in the amounts generally carried by reasonably prudent manufacturers, suppliers or installers in the industry, with one or more reputable insurance companies licensed to do business in Oregon and any other state or jurisdiction where Products and Services are sold hereunder. Such certificates of insurance shall be made available to the Lead Contracting Agency upon 48 hours’ notice. BY SIGNING THE AGREEMENT PAGE THE VENDOR AGREES TO
THIS REQUIREMENT AND FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN CANCELLATION OF THIS MASTER PRICE AGREEMENT.
5.2 All insurance required herein shall be maintained in full force and effect until all work or service required to be performed under the terms of this Agreement is satisfactorily completed and formally accepted.
Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect the Lead Contracting Agency. The insurance policies may provide coverage that contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to the Lead Contracting Agency under such policies. Vendor shall be solely responsible for the deductible and/or selfinsured retention and the Lead Contracting Agency, at its option, may require Vendor to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit.
5.3 Vendor shall carry Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor’s employees engaged in the performance of the work or services, as well as Employer’s Liability insurance. Vendor waives all rights against the Lead Contracting Agency and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the Workers’ Compensation and Employer’s Liability or commercial umbrella liability insurance obtained by Vendor pursuant to this Agreement.
5.4 Insurance required herein shall not be permitted to expire, be canceled, or materially changed without thirty days (30 days) prior written notice to the Lead Contracting Agency.
ARTICLE 6 – INDEMNIFICATION AND HOLD HARMLESS
6.1 Vendor agrees that it shall indemnify, defend and hold harmless Lead Contracting Agency, its respective officials, directors, employees, members and agents (collectively, the “Indemnitees”), from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including, without limitation, reasonable attorney’s fees), suffered directly or indirectly by any of the Indemnitees to the extent of, or arising out of, (i) any breach of any covenant, representation or warranty made by Vendor in this Agreement, (ii) any failure by Vendor to perform or fulfill any of its obligations, covenants or agreements set forth in this Agreement, (iii) the negligence or intentional misconduct of Vendor, any subcontractor of Vendor, or any of their respective employees or agents, (iv) any failure of Vendor, its subcontractors, or their respective employees to comply with any Applicable Law, (v) any litigation, proceeding or claim by any third party relating in any way to the obligations of Vendor under this Agreement or Vendor’s performance under this Agreement, (vi) any Employee Taxes or Unemployment Insurance, or (vii) any claim alleging that the Products and Services or any DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 #11..
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part thereof infringe any third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property interest. Such obligation to indemnify shall not apply where the damage, claim, loss, expense, cost, obligation or liability is due to the breach of this Agreement by, or negligence or willful misconduct of, Lead Contracting Agency or its officials, directors, employees, agents or contractors. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph.
The indemnity obligations of Vendor under this Article shall survive the expiration or termination of this Agreement for two years.
6.2 LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURIES
TO PERSONS OR TO PROPERTY OR LOSS OF PROFITS OR LOSS OF FUTURE BUSINESS OR
REPUTATION, WHETHER BASED ON TORT OR BREACH OF CONTRACT OR OTHER BASIS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 The same terms, conditions and pricing of this Agreement may be extended to government members of National Purchasing Partners, LLC. In the event the terms of this Agreement are extended to other government members, each government member (procuring party) shall be solely responsible for the ordering of Products and Services under this Agreement. A non-procuring party shall not be liable in any fashion for any violation by a procuring party, and the procuring party shall hold non-procuring parties or unrelated purchasing parties harmless from any liability that may arise from action or inaction of the procuring party.
ARTICLE 7 – WARRANTIES
Purchaser shall refer to Vendor’s Proposal for all Vendor and manufacturer express warranties, as well as those warranties provided under Attachment B herein.
ARTICLE 8 - INSPECTION AND REJECTION
8.1 Purchaser shall have the right to inspect and test Products at any time prior to shipment, and within a reasonable time after delivery to the Purchaser’s Destination. Products not inspected within a reasonable time after delivery shall be deemed accepted by Purchaser. The payment for Products shall in no way impair the right of Purchaser to reject nonconforming Products, or to avail itself of any other remedies to which it may be entitled.
8.2 If any of the Products are found at any time to be defective in material or workmanship, damaged, or otherwise not in conformity with the requirements of this Agreement or any applicable Purchase Order, as its exclusive remedy, Purchaser may at its option and at Vendor’s sole cost and expense, elect either to (i) return any damaged, non-conforming or defective Products to Vendor for correction or replacement, or (ii) require Vendor to inspect the Products and remove or replace damaged, non-conforming or defective Products with conforming Products. If Purchaser elects option (ii) in the preceding sentence and Vendor fails promptly to make the necessary inspection, removal and replacement, Purchaser, at its option, may inspect the Products and Vendor shall bear the cost thereof. Payment by Purchaser of any invoice shall not constitute acceptance of the Products covered by such invoice, and acceptance by Purchaser shall not relieve Vendor of its warranties or other obligations under this Agreement.
8.3 The provisions of this Article shall survive the expiration or termination of this Agreement.
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ARTICLE 9 – SUBSTITUTIONS
Except as otherwise permitted hereunder, Vendor may not make any substitutions of Products, or any portion thereof, of any kind without the prior written consent of Purchaser.
ARTICLE 10 - COMPLIANCE WITH LAWS
10.1 Vendor agrees to comply with all Applicable Laws and at Vendor’s expense, secure and maintain in full force during the term of this Agreement, all licenses, permits, approvals, authorizations, registrations and certificates, if any, required by Applicable Laws in connection with the performance of its obligations hereunder.
At Purchaser’s request, Vendor shall provide to Purchaser copies of any or all such licenses, permits, approvals, authorizations, registrations and certificates.
10.2 Purchaser has taken all required governmental action to authorize its execution of this Agreement and there is no governmental or legal impediment against Purchaser’s execution of this Agreement or performance of its obligations hereunder.
ARTICLE 11 – PUBLICITY / CONFIDENTIALITY
11.1 No news releases, public announcements, advertising materials, or confirmation of same, concerning any part of this Agreement or any Purchase Order issued hereunder shall be issued or made without the prior written approval of the Parties. Neither Party shall in any advertising, sales materials or in any other way use any of the names or logos of the other Party without the prior written approval of the other Party.
11.2 Any knowledge or information which Vendor or any of its affiliates shall have disclosed or may hereafter disclose to Purchaser, and which in any way relates to the Products and Services covered by this Agreement shall not, unless otherwise designated by Vendor, be deemed to be confidential or proprietary information, and shall be acquired by Purchaser, free from any restrictions, as part of the consideration for this Agreement.
ARTICLE 12 - RIGHT TO AUDIT
Subject to Vendor’s reasonable security and confidentiality procedures, Purchaser, or any third party retained by Purchaser, may at any time upon prior reasonable notice to Vendor, during normal business hours, audit the books, records and accounts of Vendor to the extent that such books, records and accounts pertain to sale of any Products and Services hereunder or otherwise relate to the performance of this Agreement by Vendor. Vendor shall maintain all such books, records and accounts for a period of at least three (3) years after the date of expiration or termination of this Agreement. The Purchaser’s right to audit under this Article 12 and Purchaser’s rights hereunder shall survive the expiration or termination of this Agreement for a period of three (3) years after the date of such expiration or termination.
ARTICLE 13 - REMEDIES
Except as otherwise provided herein, any right or remedy of Vendor or Purchaser set forth in this Agreement shall not be exclusive, and, in addition thereto, Vendor and Purchaser shall have all rights and remedies under Applicable Law, including without limitation, equitable relief. The provisions of this Article shall survive the expiration or termination of this Agreement.
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ARTICLE 14 - RELATIONSHIP OF PARTIES
Vendor is an independent contractor and is not an agent, servant, employee, legal representative, partner or joint venture of Purchaser. Nothing herein shall be deemed or construed as creating a joint venture or partnership between Vendor and Purchaser. Neither Party has the power or authority to bind or commit the other.
ARTICLE 15 - NOTICES
All notices required or permitted to be given or made in this Agreement shall be in writing. Such notice(s) shall be deemed to be duly given or made if delivered by hand, by certified or registered mail or by nationally recognized overnight courier to the address specified below:
If to Lead Contracting Agency:
LEAGUE OF OREGON CITIES
1201 Court St. NE
Suite 200
Salem OR 97301
ATTN: Jamie Johnson-Davis
Email: [email protected]
If to Vendor:
Park Associates Inc. DBA Park Planet
415 Elm St.
Red Bluff CA 96080
ATTN: Cynthia Cooper
Email: [email protected]
Either Party may change its notice address by giving the other Party written notice of such change in the manner specified above.
ARTICLE 16 - FORCE MAJEURE
Except for Purchaser’s obligation to pay for Products and Services delivered, delay in performance or non-performance of any obligation contained herein shall be excused to the extent such failure or nonperformance is caused by force majeure. For purposes of this Agreement, “force majeure” shall mean any cause or agency preventing performance of an obligation which is beyond the reasonable control of either Party hereto, including without limitation, fire, flood, sabotage, shipwreck, embargo, strike, explosion, labor trouble, accident, riot, acts of governmental authority (including, without limitation, acts based on laws or regulations now in existence as well as those enacted in the future), acts of nature, and delays or failure in obtaining raw materials, supplies or transportation. A Party affected by force majeure shall promptly provide notice to the other, explaining the nature and expected duration thereof, and shall act diligently to remedy the interruption or delay if it is reasonably capable of being remedied. In the event of a force majeure situation, deliveries or acceptance of deliveries that have been suspended shall not be required to be made upon the resumption of performance.
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ARTICLE 17 - WAIVER
No delay or failure by either Party to exercise any right, remedy or power herein shall impair such Party’s right to exercise such right, remedy or power or be construed to be a waiver of any default or an acquiescence therein; and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power. No waiver hereunder shall be valid unless set forth in writing executed by the waiving Party and then only to the extent expressly set forth in such writing.
ARTICLE 18 - PARTIES BOUND; ASSIGNMENT
This Agreement shall inure to the benefit of and shall be binding upon the respective successors and assigns of the Parties hereto, but it may not be assigned in whole or in part by Vendor without prior written notice to Purchaser which shall not be unreasonably withheld or delayed.
ARTICLE 19 - SEVERABILITY
To the extent possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under Applicable Law. If any provision of this Agreement is declared invalid or unenforceable, by judicial determination or otherwise, such provision shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of the Parties shall be construed and enforced accordingly.
ARTICLE 20 - INCORPORATION; ENTIRE AGREEMENT
20.1 All the provisions of the Attachments hereto are hereby incorporated herein and made a part of this Agreement. In the event of any apparent conflict between any provision set forth in the main body of this Agreement and any provision set forth in the Attachments, including the RFP and/or Vendor’s Proposal, the provisions shall be interpreted, to the extent possible, as if they do not conflict. If such an interpretation is not possible, the provisions set forth in the main body of this Agreement shall control.
20.2 This Agreement (including Attachments and Contract Documents hereto) constitutes the entire Agreement of the Parties relating to the subject matter hereof and supersedes any and all prior written and oral agreements or understandings relating to such subject matter.
ARTICLE 21 - HEADINGS
Headings used in this Agreement are for convenience of reference only and shall in no way be used to construe or limit the provisions set forth in this Agreement.
ARTICLE 22 - MODIFICATIONS
This Agreement may be modified or amended only in writing executed by Vendor and the Lead Contracting Agency. The Lead Contracting Agency and each Participating Agency contracting hereunder acknowledge and agree that any agreement entered into in connection with any Purchase Order hereunder shall constitute a modification of this Agreement as between the Vendor and the Participating Agency. Any DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 #11..
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modification of this Agreement as between Vendor and any Participating Agency shall not be deemed a modification of this Agreement for the benefit of the Lead Contracting Agency or any other Participating Agency.
ARTICLE 23 - GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon or in the case of a Participating Agency’s use of this Agreement, the laws of the State in which the Participating Agency exists, without regard to its choice of law provisions.
ARTICLE 24 - COUNTERPARTS
This Agreement may be executed in counterparts all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year last written below.
PURCHASER:
Signature: ____________________________________
Printed Name:
Title: ____________________________________________
LEAGUE OF OREGON CITIES
Dated: ____________________________
VENDOR:
Signature: ______________________________
Printed Name:
Title: _____________________________
Park Associates Inc. DBA Park Planet
Dated: ____________________________
DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 C.O.O , Vice President
Cindy Cooper
April 1, 2021 | 9:10 AM PDT
April 1, 2021 | 9:15 AM PDT
Mike Cully
Executive Director
#11..
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ATTACHMENT A
to Master Price Agreement by and between VENDOR and PURCHASER.
PRODUCTS, SERVICES, SPECIFICATIONS AND PRICES
PRODUCT CATEGORY DISCOUNT
OFFERED
1. School Age Playgrounds and Components
(except custom concrete or GFRC items see other #8)
-10%
2. Aquatic & Other Playgrounds & Components -5%
3. Shelters and Shade Structures -7%
4. Outdoor Fitness Equipment -7%
5. Safety Surfacing - PIP, Synthetic Turf, Rubber tiles Rubber mulch and wood fiber
- 7%
6. Site Amenities (Except Kay Park -5%) -7%
7. Installation FIXED
8. Other Playground Equipment - IDS, UPC Parks
And Themed Concepts (Custom concrete & GFRC
-5%
Services & Labor
o Demo of existing, removal and off haul of old product FIXED (Not to exceed cost plus 25% plus prevailing wage if applicable) o Assembly & Installation of New playground equipment FIXED (Not to exceed 65% of Equipment retail plus Prevailing wage if applicable) o Assembly & Installation of New Shade shelters/structures FIXED (Not to exceed 65% of structures retail plus Prevailing wage if applicable) o Site Work & Site Prep for playgrounds, including but not limited to Excavating and grading - Not to exceed 65% of equipment retail cost ofthe equipment being installed.
Installation of Rubber Tiles - $4.50 per sq ft FIXED
Install wood fiber - manual spread $18 yd FIXED
Install wood fiber - blow in - $24 yd FIXED
Install Poured in Place surfacing - see above discount
o Concrete Curb, walkway, ADA ramp or concrete slab FIXED(Cost plus 25%, plus prevailing wage, if applicable)
o ADD Custom Footings Shelters - Pier $2500 ea FIXED
• ADD Custom Footings Shelters - Spreadea. $3500 FIXED
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• ADD Custom Grade Beams for Shelters $5000 ea FIXED
• ADD Custom Cutting of Roof Angles $2500 FIXED
• Engineering - Drawings & Calculations for shade FIXED or playgrounds Not to exceed 10% of retail cost of equipment. FIXED • Special Insurance Requirements - Not to exceed Cost plus 20% FIXED • Offloading services - .25 per lb. of equipment FIXED
• Temporary Fencing - $13 per lineal foot FIXED
• Performance and/Payment Bonds - Not to exceed cost plus 20% FIXED *Prevailing wage adds for State or Federal Wages can increase overall installation up to10% of the cost of the retail equipment or materials.
FREIGHT FOR ABOVE EQUIPMENT
Playground Freight --West Coast $ .50 lb.
Shelter Freight --West Coast $1.00 lb.
Aquatic Freight --West Coast $5.50 lb.
Rubber Surfacing --West Coast $1,000 per truck
Wood Fiber --West Coast $1500 per truckSite
Amenities --West Coast $1,200 per truck
Outdoor Fitness --West Coast $ 2000 per truck
*Other - Including --West Coast $3500 per truckIDS,
Themed Concepts
UPC Parks & ConcretePlayground
items
Midwest $1.00 lb.
Midwest $1.25 lb.
Midwest $5.50 lb.
Midwest $1000 per truck load
Midwest $1500 per truck load
Midwest $1,200 per truck load
Midwest $2,000 per truck load
Midwest $4500 per truck load
*Weather, COVID-19 and Changes in fuel prices can affect freight costs Pricing contained in this Attachment A shall be extended to all NPPGov members upon execution of the Intergovernmental Agreement.
Participating Agencies may purchase from Vendor’s authorized dealers and distributors, as applicable, provided the pricing and terms of this Agreement are extended to Participating Agencies by such dealers and distributors. [ A current list may be obtained from Vendor.]
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ATTACHMENT B
to Master Price Agreement by and between VENDOR and PURCHASER.
ADDITIONAL SELLER WARRANTIES
To the extent possible, Vendor will make available all warranties from third party manufacturers of Products not manufactured by Vendor, as well as any warranties identified in this Agreement and Vendor’s Proposal.
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14 ATTACHMENT C
to Master Price Agreement by and between VENDOR and PURCHASER.
PARTICIPATING AGENCIES
The Lead Contracting Agency in cooperation with National Purchasing Partners (NPPGov) entered into this Agreement on behalf of other government agencies that desire to access this Agreement to purchase Products and Services. Vendor must work directly with any Participating Agency concerning the placement of orders, issuance of the purchase orders, contractual disputes, invoicing, and payment. The Lead Contracting Agency shall not be held liable for any costs, damages, etc., incurred by any Participating Agency.
Any subsequent contract entered into between Vendor and any Participating Agency shall be construed to be in accordance with and governed by the laws of the State in which the Participating Agency exists. Each Participating Agency is directed to execute an Intergovernmental Cooperative Purchasing Agreement (“IGA”), as set forth on the NPPGov web site, www.nppgov.com. The IGA allows the Participating Agency to purchase Products and Services from the Vendor in accordance with each Participating Agency’s legal requirements as if it were the “Purchaser” hereunder.
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15 ATTACHMENT D
to Master Price Agreement by and between VENDOR and PURCHASER.
Vendor’s Proposal
(The Vendor’s Proposal is not attached hereto.)
(The Vendor’s Proposal is incorporated by reference herein.) DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 #11..
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16 ATTACHMENT E
to Master Price Agreement by and between VENDOR and PURCHASER.
Purchaser’s Request for Proposal
(The Purchaser’s Request for Proposal is not attached hereto.) (The Purchaser’s Request for Proposal is incorporated by reference herein.) DocuSign Envelope ID: 334133CC-098E-46D9-97F8-7940978A3E45 #11..
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17 ATTACHMENT F
to Master Price Agreement by and between VENDOR and PURCHASER.
ADDITIONAL VENDOR TERMS OF PURCHASE, IF ANY.
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1 Quote #: Q22-1206
Date: August 23, 2022
Project: Awesome Spot
City: Modesto
Sales Rep - Email: Gary Kimbrough -
[email protected]
Terms: 50% Ppd - Rem 10dys /
Delivery
Park Planet
a Division of Park Associates Inc
415 Elm Street
Red Bluff California 96080
(530) 244-6116
Quoted To:
City of Modesto
City of Modesto Finance
Modesto, CA 95353-0642
Contact: Nathan Houx
Phone: 209.571.5526 / Email: [email protected]
# Description Vendor Item No Qty Rate Amount
EQUIPMENT
1 Item Description: Sensory Wall / 27'-3" long x 6'-9" tall Coated metal steel wall with sensory wall details on front side of wall as per construction details page L8.0. Wall to be curved per drawings.
*Themed Concepts steel wall can be used as the front wall form liner for concrete retainer poured wall
*Includes a protective plywood or similar wall in front of finished wall. Intent is leave on until after construction is done around the wall area, and then plywood wall is taken off to reveal finished wall
*Includes a GFRC small half round finished edge outlining all of the different finishes on the wall - everywhere the art concepts shows a black line. This will allow the different materials a termination and transition point for the next material.
*Includes Themed Concepts technician at the site to adjust anything when protective plywood wall is to be removed
*Includes holes in steel frame to allow onsite electrical where needed - can have frame on backside if needed to mount
junction box
*Includes spring details on bugs and elephant trunk
*Includes moveable eyelids on frogeyes
*Built and shipped in 1 piece
*Includes built in lifting brackets to set in place, estimated weight of approx 7000 lbs
*Includes floor anchors to secure to ground for additional support while filling concrete retaining wall
Themed
Concepts
CustomThemed
Concepts
1 161,600.00 161,600.00
DISCOUNT
2 National Purchasing Partners Contract #PS21050
City of Modesto Member ID#: M-5697377
Legacy ID#: 266122
*NPP Discount not valid unless customer is an NPP member National
Purchasing
Partners
DiscountNPP-TX1 -8,080.00 -8,080.00
SHIPPING
QUOTE
#11..
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2 Sub Total 160,310.00
CA-Stanislaus (7.875%) 12,089.70
Total $172,399.70
QUOTE GOOD FOR 30 DAYS - DUE TO THE CURRENT INDUSTRY WIDE VOLATILITY OF STEEL, AFTER 30 DAYS STEEL PRICES MAY ADJUST.
CURRENTLY EXPERIENCING SIGNIFICANTLY EXTENDED LEAD TIMES DUE TO NATIONWIDE TRANSPORTATION DELAYS - LEAD TIMES MAY EXCEED 14 WEEKS, PLEASE DISCUSS WITH A PARK PLANET REPRESENTATIVE. # Description Vendor Item No Qty Rate Amount
3 Themed Concepts Freight
PLEASE NOTE!
Themed Concepts equipment is EXTREMELY heavy and will
require special equipment to offload. Please discuss with a Park Planet representative PRIOR to placing an order.
Themed
Concepts
TCF 1 6,790.00 6,790.00
ORDER / DELIVERY INFORMATION:
A PURCHASE ORDER OR SIGNED CHANGE ORDER MUST BE RECEIVED BEFORE ADDITIONAL EQUIPMENT, INSTALLATION, OR SERVICES CAN PROCEED. IF PAYING BY CREDIT CARD, A SURCHARGE WILL BE ASSESSED ON PAYMENT AMOUNT FOR 3.5% VISA/MC OR 5% AMEX.
Authorized Signature: ___________________________________________________________ Date:_____________________ **Purchasing agent who is authorized to enter into binding agreement for quoted entity. **By signing this quote, I have read and agree to the quote Terms & Conditions listed below, on the following 2 pages. #11..
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3 TERMS & CONDITIONS
1. General Notes
*Assembly and Installation NOT included unless otherwise noted *Payment and Performance bonds are NOT included unless otherwise stated. If required, additional charges will apply. Please call for details! *Customer responsible for quoted quantities and model numbers, please check! *Price reflects quoted quantity. Please request revision if alternate quantity is desired.
2. Payment / Ordering
*Most repeat customers are given the terms of 50% Deposit with order; Remainder within 30 Days from Delivery. *Others require a onepage credit application or payment with order *TO ORDER, please sign quote and return via email or fax to avoid any shipping delays. Fax or email copy deemed to be legal equivalent of original. If Payment with Order is required, please sign quote below and return with payment. All past due accounts subject to 1 ½% monthly finance charge. In the event legal action is required to effect collection venue shall be Red Bluff, CA.
3. Shipping / Unloading
*Shipped by Common Carrier – Customer will need 2 to 4 people to unload. Liftgate NOT included. Items will be boxed and / or stretch wrapped to pallets and customer is responsible for offloading. Delivery Drivers do NOT unload **IMPORTANT: Customer is responsible for receiving and checking quantities and condition at time of delivery Please note any shortages or damages on delivery copy.
*Notwithstanding anything to the contrary in any Contract Documents, Customer understands that estimated shipment times for materials are an estimate only.
We have no control over shipment dates. We thus make no guarantee to Owner or Customer regarding the projected shipment dates for materials and shall not be liable for any loss caused by the timing of shipments.
4. Engineered Wood Fiber
*Customer to provide access for Engineered Wood Fiber delivery with tractor truck and 53’ trailer. *Compaction of the Engineered Wood Fiber is NOT included in the installation cost, if desired, please request an updated proposal.
5. General Notes for Purchased Installation
*Installation does NOT include ground preparation, excavation, safety surfacing, and/or safety surfacing borders, prep work, flat work, grading, rerouting of water, electric, drainage or sprinkler lines unless otherwise noted in the proposal *Demo of existing equipment or safety surfacing is NOT included unless otherwise stated in the proposal *ROCK CLAUSE: Pricing is based on normal soil conditions which would allow an auger on a tractor to dig footings. If rocks/boulders interfere with the progress of the excavation, additional fees may apply.
*ACCESS CLAUSE: Installation based on clear access to area. Crane service is NOT included. Customer to provide access for bobcat to work area, bobcat will be provided by installer. Minimum access shall be 7’ wide and 7’ high. If adequate access is not provided additional charges may apply and repairs to landscape and irrigation may be required. Customer is responsible for any repairs to landscape if proper access is not provided. *UTILITY CLAUSE: Unless stated in writing in the quote proposal, installation does not include marking of utilities by Dig Alert or other similar entities.
Customer can, however, call Dig Alert directly. Dig Alert CANNOT locate any private lines, PVC or plastic water lines. Installation does NOT include repair or relocating any underground utilities, such as drainage, irrigation, live water lines, main low voltage lines, gas, electrical, communication, or sewer etc.
Customers responsibility to provide locations of any utilities prior to commencement of work. *Customer is responsible for all landscape repairs such as, but not limited to damaged trees, bushes, lawn, curbing, sidewalks and/or asphalt paving caused by materials truck and/or 2ton bobcat needed to complete project. *Installation does NOT include ground preparation, excavation, safety surfacing, and/or safety surfacing borders unless otherwise noted *Before we proceed with the playground installation, the playground area MUST be compacted, be free of debris, and excavated accordingly. Please call for details.
*Concrete pad for surface mount items NOT included and MUST be provided by customer unless otherwise stated. *Surface mount anchoring to asphalt and paver areas is NOT included unless otherwise stated. *Private Utility Locator is NOT included unless otherwise noted. Private Utility Locator CANNOT locate any PVC or plastic water lines *Installation does NOT include saw cutting and/or core drilling unless otherwise noted *Installation does NOT include jackhammering. Please call for details. *Area MUST have normal soil conditions and be level.
*All Athletic Equipment Goals such as soccer, football, etc, install location MUST be marked out by customer prior to installation, if installation was purchased.
6. Temporary Fencing
*Security guards and/or temporary fencing to prevent injuries, vandalism and/or accidental damage to install area or to the rubberized surface while it sets is NOT included unless noted on quote. If desired, the installers can put up caution tape, but Temporary Fencing is recommended. Although the fencing, if provided, is intended to provide this security, the overall security of the property is ultimately the responsibility of customer. We are not responsible for any vandalism or injuries even with the provision of the fencing.
7. ADA Access
*Play Equipment MUST be installed over an impactabsorbing surface such as ADA compliant Engineered Wood Fiber or Rubber Surfacing. If not quoted, please call for details.
*This area is NOT ADA compliant without the installation of compliant surfacing and an accessible route up to and into the playground area. Please call for details.
8. PouredinPlace Rubber Surfacing
*Rubber Surfacing cure time is normally 4872 hours and can vary depending on weather conditions. *Rubber Surfacing cannot be installed during extreme weather conditions and may also not be installed if rain or frost is forecast during the cure time. *48Hour Manned Security is NOT included for rubber.
9. Shade Shelters (non DSA)
*Shade Shelter installation price EXCLUDES – unless otherwise stated in this quote engineering, drawings, calculations, permits, permit submittal, site plans, special inspections, soil reports, impact fees, special assessment fees. Customer is responsible for any and all of these items if required by the City/County. *Shade Shelter manufacture time is 8 weeks. Permitting can add 24 weeks or more to lead time. PLEASE NOTE: Shade Orders are NOT released into production until permit is issued!
*Shade Shelter installation price EXCLUDES concrete pad, footings, masonry columns, electrical wiring and lights unless otherwise noted. #11..
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4 TERMS & CONDITIONS (Continued)
10. Shade Shelters (DSA)
**8-10 Week lead time is AFTER DSA approval by your architect of choice * Customer to receive shade shelter. If receiving by us is needed, please call for pricing and details! * Job to be completed in one mobilization. Additional moves will be additional pricing if we are required to remobilize due to schedule issues, stop work or a delay in work not caused by us.
*Pricing does NOT include, architectural drawings, site/plot plans, DSA submittal fees, job site inspector fees, shop welding inspection fees, and/or permits *DSA inplant Welding Inspector to be hired by the School District. Welding Inspector fee has NOT been quoted. *School District / Architect responsible for submission of plans to DSA for DSA approval *Fabrication cannot start until inspections have been coordinated, colors have been selected, and approved plans received. *Pricing does NOT include footings, steel cages, anchor bolts, or erecting of shade shelter unless otherwise noted.
11. Prevailing Wages
*Prevailing Wages NOT included unless otherwise noted. (ie: Davis Bacon, TERO, ect.) If this is a Prevailing Wage project, please request alternate pricing. *If Prevailing Wages / Davis Bacon Wages were INCLUDED, all other special work fees NOT included Additional Labor Charges may apply if alternate labor is required.
*If DIR Project Registration is required, work may not begin until we receive DIR Project ID number. *Park Planet does not meet the Skilled & Trained Workforce Requirements and will not participate in same. Park Planet will not sign any PLA's for Union Work and is not signatory to any unions.
12. Indemnity Provision
*Notwithstanding anything to the contrary in any Contract Documents we shall have no duty to defend or indemnify Owner, Customer, or any other party we agree to defend or indemnify in any Contract Documents for that portion of any claim arising out of the comparative fault of any party we agree to defend or indemnify in any Contract Documents.
13. Park Planet General Insurance
Call for Proof of Insurance & W-9
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LEAGUE OF OREGON CITIES
PARK, PLAYGROUND, AND RECREATION EQUIPMENT
Request for Proposal Solicitation No. 2060
CLOSE DATE EXTENSION
Due to the current world-wide Coronavirus (COVID-19) pandemic, the dates of this RFP have been extended to allow adequate time for review and respond for all eligible vendors. The extended close date for this RFP will be January 15, 2021. The subsequent contract milestone dates have also been updated based on this close date change.
All responses are directed to a 3rd party facility. The Response and Inquiries address has been updated and included.
Pursuant to RFP Section 4.2.2, Proposers are hereby notified that the close date has been extended for PARK, PLAYGROUND, AND RECREATION EQUIPMENT.
Deadline for submission of proposals is 5:00 P.M. PST on January 15, 2021.
All Proposals must be signed, sealed, and addressed to:
LOC “PARK, PLAYGROUND, AND RECREATION EQUIPMENT RFP” #2060
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
and marked “RFP #2060 PARK, PLAYGROUND, AND RECREATION EQUIPMENT” Proposed Opening Date: January 18, 2021
Approximate Selection and Negotiation Period: February 1, 2021 to February 15, 2021 Approximate Award of Proposal: March 8, 2021
NOTE: THE LEAGUE OF OREGON CITIES WILL NOT ACCEPT PROPOSAL ENVELOPES WITH INSUFFICIENT POSTAGE.
INQUIRIES:
LOC “PARK, PLAYGROUND, AND RECREATION EQUIPMENT RFP” #2060
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
[email protected]
NOTE: LEAGUE OF OREGON CITIES PUBLISHES ITS NOTICE OF SOLICITATIONS IN THE OREGON DAILY JOURNAL OF COMMERCE, USA TODAY, AND ONLINE AT www.orcities.org, http://www.findrfp.com and www.nppgov.com REQUESTS FOR PROPOSALS (RFP’s) ARE AVAILABLE FOR VIEWING AND/OR DOWNLOADING ONLINE AT www.orcities.org, http://www.findrfp.com and www.nppgov.com #11..
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NOTICE OF SOLICITATION
LEAGUE OF OREGON CITIES
RFP NUMBER 2060
SOLICITATION FOR: PARK, PLAYGROUND, AND RECREATION EQUIPMENT Notice is hereby given that the LEAGUE OF OREGON CITIES (LOC) will accept sealed proposals for PARK, PLAYGROUND, AND RECREATION EQUIPMENT at the address listed below, until 5:00 PM PST on NOVEMBER 30TH, 2020. Those proposals will be for the LEAGUE OF OREGON CITIES and members of National Purchasing Partners Government Division (“NPPGov”) across the nation, including but not limited to governmental units incorporated by “ATTACHMENT H” of the Request for Proposal (RFP), WIPHE members identified in “ATTACHMENT G” of the RFP, as well as government units in all other states (collectively, “Participating Agencies”). Significant sales potential exists because the resulting Master Price Agreement for national proposers will include piggy backing language that permits use of the Master Price Agreement nationwide which may allow Participating Agencies to forego duplicating the formal solicitation process and expend staff resources and funds.
All Proposals must be signed, sealed and addressed to:
Mailing Address:
LOC PUBLIC “PARK, PLAYGROUND, AND RECREATION EQUIPMENT RFP” #2060
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
All Proposals must clearly state RFP #2060 and Proposing company’s full name on the OUTERMOST packaging.
NOTE: THE LEAGUE OF OREGON CITIES WILL NOT ACCEPT PROPOSAL ENVELOPES WITH INSUFFICIENT POSTAGE.
INQUIRIES:
LOC “PARK, PLAYGROUND, AND RECREATION EQUIPMENT RFP” #2060
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
[email protected]
The solicitation documents may be reviewed at the office address listed above.
NOTE: NOTICES OF SOLICITATION WILL BE PUBLISHED IN THE OREGON DAILY JOURNAL OF COMMERCE AND THE USA TODAY.
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IMPORTANT
PLEASE READ BEFORE SUBMITTING YOUR PROPOSAL
SOLICITATIONS FOR: PARK, PLAYGROUND, & RECREATION EQUIPMENT
1.0 INTENT:
1.1 GENERAL INTENT
The LEAGUE OF OREGON CITIES (“LOC”) serves as the “Lead Contracting Agency” for this solicitation on behalf of its members, and as authorized by the LOC Intergovernmental Agreement, which is an agreement for intergovernmental cooperation among select local Oregon governments and recognized under ORS Chapter 190. LOC, in association with the members of National Purchasing Partners, LLC dba NPPGov (hereinafter referred to as “NPPGov”), comprises a cooperative procurement group. NPPGov membership includes government entities, non-profit organizations across the nation, members of Public Safety GPO, First Responders GPO, and Law Enforcement GPO, Hawaii, and Oregon local government units (ATTACHMENT H), and WIPHE members (ATTACHMENT G), as well as all other government units in all other states, as authorized under the terms of the Intergovernmental Cooperative Purchasing Agreement executed by all Lead Contracting and Participating Agencies (the foregoing list of entities hereinafter referred to as “Participating Agencies”). This procurement group is soliciting proposals from qualified companies (hereinafter referred to as “Proposer”) to enter into a Master Price Agreement for PARK, PLAYGROUND, ANDREATION EQUIPMENT.
The intent of this Interstate Cooperative Procurement Solicitation (hereinafter referred to as “Solicitation” or “RFP”) is to invite Proposers to submit a competitive pricing proposal offering PARK, PLAYGROUND, & RECREATION EQUIPMENT to LOC, which will then be made available to NPPGov members locally and nationwide; to reduce expenses by eliminating multiple requests for proposals and multiple responses by Vendors; and to obtain discounted pricing through volume purchasing. Significant sales potential exists because the Master Price Agreement will be used nationwide which may allow Participating Agencies to forego duplicating the formal solicitation process and expend staff resources. Preferably, the successful Proposer will provide its entire catalog of products and/or services in order that Participating Agencies who wish to access the Master Price Agreement may order a broad range of goods and services as needed.
With the exception of successful local Proposer(s) capable of servicing LOC and Participating Agencies within the state of Oregon, successful Proposer(s) should have a strong national presence for PARK, PLAYGROUND, & RECREATION EQUIPMENT for use by government agencies nationwide.
This Solicitation meets Oregon public contracting requirements (ORS 279A et. seq.) and may not be appropriate under or meet Participating Agencies’ procurement laws. Participating Agencies are urged to seek independent review by their legal counsel to ensure compliance with all local and state solicitation requirements.
1.2 POTENTIAL MARKET
The LOC is publishing this RFP to create publicly awarded contracts for use by its members, which may also benefit the thousands of fellow members of NPPGov, Public Safety GPO, First Responders GPO, and Law Enforcement GPO. These are nationwide programs representing member government agencies in all 50 states. We encourage each Proposer’s response to be a collaborative effort including manufacturer and distributor (when they are not the same company) to ensure nationwide contract #11..
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utilization.
Proposer’s response should also take into consideration the considerable market potential for this Solicitation. Because the successful proposal will be incorporated into a nationwide cooperative procurement program including tens of thousands of state, local government and non-profit participants from all 50 states, the LOC believes that contracts created from this Solicitation will provide vendors with a significant market advantage. Members of NPPGov, Public Safety GPO, First Responders GPO, and Law Enforcement GPO and current vendors who participate in the program indicate the ability to shorten the sale cycle by eliminating the need to complete individual RFP processes is a significant advantage to participation.
The LOC believes that participation in the NPPGov purchasing program benefits both its Participating Agencies and successful Proposers. NPPGov engages with successful proposers who complete the Vendor Administration Agreement through a marketing and sales partnership. This partnership includes (but is not limited to) contract promotion to members, contract administration support to potential customers and live customer phone support.
1.3 REQUIREMENTS
1.3.1 The RFP and resulting Master Price Agreement are anticipated for use by the LOC’s government members, as well as other Participating Agencies across the nation. The LOC has entered into an Intergovernmental (interlocal) Cooperative Purchasing Agreement with other Participating Agencies for the purpose of obtaining Master Price Agreements with various vendors. Interlocal cooperative purchasing agreements allow Participating Agencies to make purchases at the LOC’s accepted proposal price, terms and conditions, provided that the Participating Agency has satisfied all of its local and state cooperative procurement requirements. By submitting a proposal, the Proposer(s) agrees to make the same proposal terms and price, exclusive of any possible rebates, incentives, freight and transportation fees, available to other Participating Agencies. The LOC and NPPGov will not incur any direct liability with respect to specifications, delivery, payment, or any other aspect of purchases by such Participating Agencies or nonprofit institutions. The Intergovernmental Cooperative Purchasing Agreement is incorporated by reference herein and is available upon request — See Attachment A.
The successful Proposer must work directly with the Participating Agencies concerning the placement of orders, disputes, invoicing and payment. The LOC and NPPGov shall not be held liable for any costs or damages incurred by or as a result of the actions of the Vendor or any Participating Agency. Successful Proposers must comply with the state and local laws, rules and regulations in each state and locality where the product or service is provided.
1.3.2 Each Participating Agency shall execute a Participating Agency Endorsement and Authorization included in the Intergovernmental Cooperative Purchasing Agreement. While the terms of the Master Price Agreement shall govern the general pricing terms, each Participating Agency may request modification of the Master Price Agreement in accordance with each Participating Agency’s state and/or local purchasing laws, rules, regulations and procedures, provided said modifications are not material changes. Each Participating Agency may, at its discretion, and upon written agreement by the Participating Agency and Successful Proposer, request additional legal and procedural provisions not included herein that the successful Proposer must adhere to if it wishes to conduct business with said Participating Agency using the Master Price Agreement.
1.3.3 NPPGov, Public Safety GPO, First Responders GPO, and Law Enforcement GPO provide vendor exposure/marketing and contract utilization support for the successful Proposer’s products and services. Successful Proposers servicing the awarded contract to Participating Agencies shall pay a Contract Administration Fee representing 2% percent of actual net sales under the Master Price Agreement as established in the NPPGov Vendor Administration Agreement (available upon request). Administration fee may not be listed or charged as a separate line item to users of the contract. The value of trade-ins or rebates shall not affect the amount of the administration fee paid to NPPGov.
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1.4 MULTIPLE AWARDS
Multiple awards may be granted to meet the requirements of this Solicitation provided that such awards are differentiated by product make and model, service, and/or distribution regions and capabilities of the successful Proposers. Specifically, the LOC may award separate contracts to Proposers in order to cover all local and national geographical markets, electronic purchasing capabilities, and products and services identified in this Request for Proposal, as well as the diverse and large number of Participating Agencies.
The award of multiple contracts is to be determined upon receipt and review of all proposals, and based upon the general criteria provided herein. The LOC may solicit proposals from local qualified companies with or without a national presence provided that the successful Proposer is able to provide the LOC with the products and services requested. Multiple awards will ensure fulfillment of current and future requirements of the diverse and large number of Participating Agencies. In the event a local Proposer with no national distribution capabilities best meets the proposal selection criteria, multiple local and nationwide responsive proposals may be awarded simultaneously in the best interests of local commerce, compliance with local laws, and the Participating Agencies nationwide.
Proposers should be able to serve the needs of Participating Agencies on a national basis. However, this requirement shall not exclude local Proposers without a national presence that are capable of meeting the requirements of the LOC within the state of Oregon.
1.5 CONTRACT USAGE
The actual utilization of any Master Price Agreement will be at the sole discretion of LOC and the other Participating Agencies. It is the intent of this Request for Proposal and resulting Master Price Agreement that Participating Agencies may buy directly from Successful Proposers without the need for further solicitation. However, Participating Agencies are urged to seek independent review by their legal counsel to ensure compliance with all local and state solicitation requirements as well as the need of further notice prior to utilizing the Master Price Agreement
1.6 BACKGROUND OF NPPGov
NPPGov, owned by two non-profit healthcare organizations, provides group purchasing opportunities and purchasing administrative support for governmental entities and nonprofit institutions within its membership. NPPGov’s membership includes participating public and nonprofit entities across North America.
1.7 EQUAL OPPORTUNITY
The LOC encourages Minority and Women-owned Small Business Proposers to submit proposals.
1.8 QUALIFIED REHABILITATION FACILITIES
Oregon Public Agencies are prohibited from use of products and services offered under this contract that are already provided by qualified nonprofit agencies for disabled individuals as listed on the Department of Administrative Service’s Procurement List pursuant to ORS 279.835 ORS 279.855. Please see www.OregonRehabilitation.org/qrf for more information.
2.0 SCOPE OF WORK:
2.1 REQUIREMENTS OF PROPOSERS SUBMITTING A RESPONSE:
Proposers must present clear and concise evidence indicating Proposer’s ability to comply with the requirements stated herein and to provide and deliver the specified products and services to Participating Agencies.
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2.1.1 PROPOSER COMMITMENTS
Each Proposer is required to commit to low pricing, and accurate and timely reporting to NPPGov pursuant to the reporting requirements identified in the NPPGov Vendor Administration Agreement (available upon request). In addition, successful Proposer(s) with a national presence must commit to marketing of the Master Price Agreement nationwide and that the sales force will be trained, engaged and committed to offering NPPGov pricing to member government agencies nationwide, including the opportunity for NPPGov to train the Vendor sales staff.
2.1.2 PROPOSERS MUST COMPLETE “ATTACHMENT B” – PROPOSER PROFILE WORKBOOK”.
2.2 PRODUCTS AND SERVICES:
2.2.1 Provide a description of the PARK, PLAYGROUND, AND RECREATION EQUIPMENT offered as set forth in ATTACHMENT C. The primary objective is for the Proposer(s) to provide the Proposer(s)’s entire catalog of products and services (“catalog discount”) that are responsive to this RFP so that Participating Agencies may order a broad range of products and services as appropriate for their needs. Anticipated future models and related products/services that may be offered during the term of the resulting Master Price Agreement should also be in included in Vendor’s Proposal.
2.2.2 All products offered must be new, unused and the most current product lines, unless otherwise clearly identified as remanufactured goods.
2.2.3 Describe any special programs that Proposer offers that shall improve the ability of the Participating Agencies to access the products, such as retail store availability, expedited delivery intervals, item sourcing, or other unique plans and services.
2.2.4 Additional Benefits: Proposer shall identify any other added value it offers to the LEAGUE OF OREGON CITIES (“LOC”) and Participating Agencies (e.g. convenience cards, individual/member discounts, additional admin fee, etc.)
2.3 PRICING:
2.3.1 Pricing for the products and services may be based on “ATTACHMENT D” - PRICING SCHEDULE as follows:
A A fixed percentage (%) off marked price based on the Proposer’s catalog or retail store price for each CATEGORY specified in ATTACHMENT D – PRICING SCHEDULE.
Proposer shall identify the catalog used.
Option (A) is preferred. If option (A) is not feasible proposer may use option (B) provided Proposer includes a justification.
B Alternatively, contract pricing may be based upon fixed prices (contingencies for economic price adjustments must be identified in the proposal), or a combination fixed percentage off and firm fixed prices. Proposer may offer additional discounts to LOC and Participating Agencies based on volume.
If proposers are responding with option “B”, proposers may request price increases based on manufacturer costs, cost of labor and/or materials that must be supported by appropriate documentation. If LOC agrees to the price modification, LOC may approve in writing, including electronic mail, without the need for a written amendment to the Master Price Agreement.
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2.3.2 Proposers may also add additional products and services provided that any additions reasonably fall within the intent of the original RFP specifications. Pricing on additions shall be equivalent to the percentage discount for other similar products. Proposer may provide a web-link with current product listings, which may be updated periodically, as allowed by the terms of the resulting Master Price Agreement. Proposer may replace or add product lines to an existing contract if the line is replacing or supplementing products on contract, is equal or superior to the original products offered, is discounted in a similar or to a greater degree, and if the products meet the requirements of the solicitation. No products may be added to avoid competitive procurement requirements. LOC may reject any additions without cause.
2.3.3 Explain any additional pricing incentives that may be available such as large volume purchases, cash terms, or rebates to Participating Agencies. However, steeper discounts are preferred to rebates.
2.3.4 All pricing proposals shall clearly explain how freight and/or delivery costs are determined as described in ATTACHMENT D PRICING SCHEDULE herein.
2.4 TAX:
Proposers shall strictly adhere to all federal, state and local tax requirements applicable to their operation, and to any contract or activity resulting from this Solicitation.
3.0 SPECIAL TERMS & CONDITIONS:
3.1 MASTER PRICE AGREEMENT TERM:
As a result of this Solicitation the successful Proposer(s) shall be awarded a Master Price Agreement for a three (3) year period. The Master Price Agreement may be extended up to a maximum of three (3) additional one (1) year periods.
3.2 MASTER PRICE AGREEMENT ACCESS PROVISIONS
Utilization of the Master Price Agreement will be at the discretion of the LEAGUE OF OREGON CITIES (“LOC”) and Participating Agencies. The LOC shall be under no obligation to purchase off of the Master Price Agreement. Assuming all local competitive solicitation requirements have been met, Participating Agencies may purchase directly from the successful Proposer(s) without the need for further solicitation.
3.3 INDEMNIFICATIONS AND INSURANCE:
Indemnification and insurance requirements will vary based on the nature of the RFP. Proposer is responsible for submitting appropriate indemnification and insurance coverage as applicable.
3.3.1 Indemnification
The successful Proposer shall indemnify the LOC and NPPGov as specified in the Master Price Agreement.
3.3.2 Insurance Requirements.
Proposer(s), at Proposer(s)’s own expense, shall purchase and maintain the herein stipulated minimum insurance from a reputable company or companies duly licensed by the State of Oregon. In lieu of State of Oregon licensing, the stipulated insurance may be purchased from a company or companies that are authorized to do business in the State of Oregon, provided that #11..
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said insurance companies meet the approval of the LOC.
Proposer(s)’s insurance shall be primary insurance with respect to the LOC, and any insurance or self-insurance maintained by the LOC shall not contribute to it.
Award of this Solicitation is contingent upon the required insurance policies and/or endorsements identified herein. The LOC shall not be obligated to review such policies and/or endorsements or to advise Proposer(s) of any deficiencies in such policies and endorsements, and such receipt shall not relieve Proposer(s) from, or be deemed a waiver of the LOC’s right to insist on strict fulfillment of Proposer(s)’s obligations under this RFP.
The insurance policies required by this RFP, except Workers’ Compensation, shall name the LOC, its agents, representatives, officers, directors, officials and employees as an Additional Insured.
The policies required hereunder, except Workers’ Compensation, shall contain a waiver of transfer of rights of recovery (subrogation) against the LOC, its agents, representatives, officers, directors, officials and employees for any claims arising out of Proposer(s)’s work or service.
3.3.3 Commercial, automobile and workers’ compensation insurance.
3.3.3.1 Commercial General Liability. Proposer(s) shall maintain Commercial General Liability Insurance (CGL) and, if necessary, Commercial Umbrella Insurance. The policy shall include coverage for bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of the Master Price Agreement.
3.3.3.2 Automobile Liability. Proposer(s) shall maintain Automobile Liability Insurance and, if necessary, Commercial Umbrella Insurance. If hazardous substances, materials, or wastes are to be transported, MCS 90 endorsement shall be included.
3.3.3.3 Workers’ Compensation and Employer’s Liability. Proposer(s) shall carry Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Proposer(s)’s employees engaged in the performance of the work or services, as well as Employer’s Liability insurance.
In case any work is subcontracted, Proposer(s) will require the SubProposer(s) to provide Workers’ Compensation and Employer’s Liability insurance to at least the same extent as required of Proposer(s).
4.0 SCHEDULE, RESPONSE PREPARATION AND SUBMISSION
4.1 SCHEDULE OF EVENTS
4.1.1 Publication of Request for Proposal
Publication of this Solicitation conforms with ORS 279B, to include Public Notice by publication in a newspaper of general circulation in the area where the LEAGUE OF OREGON CITIES (“LOC”) is located no less than 30 days prior to the proposal due date, as well as posting of the Public Notice on the web site that typically posts Public Notices concerning the LOC.
Sollicitation Notice Publication: OCTOBER 14th , 2020
4.1.2 Question and Answer period
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The LOC will post questions and answers concerning this Solicitation no later than 10 days prior to the proposal due date. All questions shall be submitted in writing via email to 2060, Contract Manager, at [email protected]. The LOC reserves the right to accept and answer questions after the question and answer period has expired. All questions and answers will be posted on the LOC website at www.orcities.org.
4.1.3 Submission of Proposals
There will be no mandatory pre-proposal meeting. All questions must be submitted via email as directed above. If necessary, questions can be submitted in writing to LEAGUE OF OREGON CITIES, c/o Jamie Johnson-Davis, RFP Manager -1567 Edgewater Street NW Salem, OR 97304 or [email protected].
Close date: Deadline for submission of proposals is 5:00 PM PST, on NOVEMBER 30TH, 2020. The LOC must receive all proposals before 5:00 PM PST on the above closing date in the office of the LEAGUE OF OREGON CITIES, c/o Jamie Johnson-Davis, RFP Manager -1567 Edgewater Street NW Salem, OR 97304
Approximate opening date: 9:00 AM PST on DECEMBER 1ST, 2020 at the office of the LEAGUE OF OREGON CITIES, c/o Jamie Johnson-Davis, RFP Manager -1567 Edgewater Street NW Salem, OR 97304
Proposal selection: DECEMBER 1ST, 2020 to DECEMBER 15TH, 2020.
Approximate award date: JANUARY 4TH, 2021.
All responses to this Solicitation become the property of the LOC. Proposers should mark those aspects of the proposal that they consider trade secrets and exempt from public disclosure. The LOC will not be held accountable if parties other than the LOC obtain material from proposal responses without the written consent of the Proposer(s).
4.1.4 Withdrawal of Proposal
The Proposer(s) may withdraw its proposal at any time prior to the hour and date set for the receipt of proposals. Withdrawal will not preclude the submission of another proposal prior to the deadline.
4.2 REVIEW, INQUIRIES AND NOTICES:
4.2.1 The solicitation documents may be reviewed in person at the following address:
LEAGUE OF OREGON CITIES
1201 Court St. NE
Suite 200
Salem, OR 97301
All inquiries concerning information herein shall be addressed to:
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
Administrative telephone inquiries shall be addressed to:
Mike Cully
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Email inquiries shall be addressed to: [email protected] Inquiries are required to be submitted by email to the Administrative Contact listed above.
No oral communication is binding on the LOC.
4.2.2 Proposal Interpretation of the RFP Documents and Issuance of Addenda If any Proposer(s) finds discrepancy in, or omissions from, or is in doubt to the true meaning of any part of the RFP document, he/she shall submit a written request for a clarification or interpretation thereof to:
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
Any request for clarification or interpretation must be received at least ten (10) calendar days prior to the RFP closing date.
The LOC is not responsible for any explanation, clarification, interpretation, or approval made or given in any manner, except by addenda. Addenda, if necessary, will be issued not later than five (5) days prior to the RFP closing date by publication on the LOC’s web site and NPPGov website.
Oral interpretations or statements cannot modify the provisions of this Request for Proposal. If inquiries or comments by Proposers raise issues that require clarification by the LOC, or the LOC decides to revise any part of this Request for Proposal, addenda will be published and provided to all persons who receive the Request for Proposal. Receipt of an addendum must be acknowledged by signing and returning it with the proposal.
4.3 INSTRUCTIONS FOR PREPARING AND SUBMITTING PROPOSALS:
Proposers are to provide two (2) hard copies and two (2) electronic copies of the complete proposal.
Each electronic copy is to be submitted on a USB flash drive with the core response in a file less than 10 MB, when possible. Electronic files may be used by the Evaluation Committee so they should be organized and named in an easy to understand manner. Proposers are to address proposals identified with return address, RFP number and title in the following manner:
LOC “PARK, PLAYGROUND, AND RECREATION EQUIPMENT RFP”
#2060
LEAGUE OF OREGON CITIES
c/o Jamie Johnson-Davis, RFP Manager
1567 Edgewater Street NW
Salem, OR 97304
All prices shall be held firm for a period of sixty (60) days after the Solicitation closing date. Any Proposer may withdraw its proposal if a Master Price Agreement has not been executed within sixty (60) days from the RFP closing date.
4.4 EXCEPTIONS AND DEVIATIONS TO THE RFP
The Proposer shall identify and list all exceptions taken to all sections of this RFP and list these exceptions, referencing the section (paragraph) where the exception exists and stating the proposed #11..
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revision. The Proposer shall list these exceptions under the heading, “Exception to the Solicitation, RFP Number 2060.” Exceptions not listed under the heading “Exception to the Solicitation, RFP Number 2060.” shall be considered invalid. The LOC reserves the right to reject exceptions, render the proposal non-responsive, enter into negotiation on any of the Proposer exceptions, or accept any or all exceptions.
The Proposer shall detail any and all deviations from specifications, if any, contained in this Solicitation and Attachments, as requested. The LOC may accept or reject deviations, and all LOC decisions shall be final.
4.5 RESPONSE FORMAT AND CONTENT:
To aid in the evaluation, it is desired that all proposals follow the same general format. The proposals are to be submitted in binders and have sections tabbed as follows:
4.5.1 Letter of Transmittal
4.5.2 Table of Contents
4.5.3 Short introduction and executive summary. This section shall contain an outline of the general approach utilized in the proposal.
4.5.4 The proposal should contain a statement of all of the programs and services proposed, including conclusions and generalized recommendations. Proposals should be all-inclusive, detailing the Proposer’s best offer. Additional related services should be incorporated into the proposal, if applicable.
4.5.5 Qualifications – This section shall describe the Proposer’s ability and experience related to the programs and services proposed.
4.5.6 Exceptions to the Solicitation, RFP Number 2060.
4.5.7 PRICING SCHEDULE (“ATTACHMENT D”).
4.5.8 PROPOSER PROFILE WORKBOOK (“ATTACHMENT B”).
4.5.9 Complete, Current Catalog Pricing shall be submitted on a USB flash drive.
4.5.10 Format Proposal to specifically address each individual sub-section and sub-set of the SCOPE OF WORK (Section 2.0).
4.5.11 Signed Addenda, if any.
4.5.12 Proposal Final Certification.
5.0 EVALUATION AND POST SUBMISSION
5.1 EVALUATION OF PROPOSAL – SELECTION FACTORS:
LOC will evaluate each Proposal and prepare a scoring of each Proposal. Each Proposal received and reviewed shall be awarded points under each criterion solely on the judgment and determination of the Evaluation Committee and the LOC. There is a maximum score of 500 points and Proposer’s average total score must be at least 200 points for consideration of an award. Proposals will be evaluated on the following criteria and further defined in the Proposal Evaluation Form (ATTACHMENT E) utilizing the point system indicated on the form:
1) Pricing 2) Product Line (within each category) 3) Marketing 4) Customer Service 5) Proven #11..
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Experience & References 6) Coverage 7) Conformance
At the LOC’s discretion, Proposers may be invited to make presentations to the Evaluation Committee.
LOC reserves the right to make multiple awards to meet the national membership needs of this Solicitation.
5.1.1 Additional criteria/preferences that are not necessarily awarded points.
5.1.1.1 Pursuant to ORS 279A.128, Lead Contracting Agency shall give preference to goods fabricated or processed within state or services performed within state.
5.1.1.2 Pursuant to ORS 279A.125, Lead Contracting Agency shall give preference to the procurement of goods manufactured from recycled materials.
5.1.1.3 Pursuant to ORS 279A.120, Lead Contracting Agency shall give preference to goods and services that have been manufactured or produced within the State of Oregon if price, fitness, availability and quality are otherwise equal; and the Lead Contracting Agency shall add a percent increase to the proposal of a nonresident Proposer equal to the percent, if any, of the preference given to the Proposer in the state in which the Proposer resides. All Proposers shall identify the state to which it is a resident bidder.
5.1.1.4 Lead Contracting Agency shall consider proposals for printing, binding and stationary work in accordance with ORS 282.210, incorporated herein by this reference.
5.1.1.5 Proposer shall comply with all federal, state and local laws applicable to the work under the Master Price Agreement awarded as a result of this Solicitation, including, without limitation, the provisions of ORS 279A and ORS 279B, including those provisions set forth on “ATTACHMENT F”, attached hereto and incorporated herein by this reference.
5.1.1.6 Pursuant to Section 1.7, the Lead Contracting Agency encourages Minority and Women-owned Small Business Proposers to submit proposals.
5.2 RIGHT OF LEAGUE OF OREGON CITIES TO AWARD OR REJECT PROPOSALS
5.2.1 The Request for Proposal does not commit the LOC to award a Master Price Agreement for the products or services specified within the Request for Proposal document. The LOC may cancel the procurement or reject any or all proposals in accordance with ORS 279B.100. Under no circumstance will the LOC pay the costs incurred in the preparation of a response to this request.
5.2.2 The LOC reserves the right to:
5.2.2.1 Accept or reject any or all proposals and proposal terms and conditions received as a result of the Request for Proposals;
5.2.2.2 Accept a proposal and subsequent offers for a Master Price Agreement from proposer(s) other than the lowest cost proposer;
5.2.2.3 Waive or modify any irregularities in proposals received after prior notification to the Proposer(s).
5.2.3 The award, if there is one, will be made to that Proposer(s) who is determined to be the most qualified, responsible and responsive within a competitive price range based upon the evaluation of the information furnished under this RFP.
5.3 PROTEST PROCESS
A prospective Proposer may protest the procurement process of the Solicitation for an Agreement solicited under ORS 279B. Before seeking judicial review, a prospective Proposer must file a written #11..
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protest with the LOC and exhaust all administrative remedies. Written protests must be delivered to the LOC at c/o Jamie Johnson-Davis, RFP Manager -1567 Edgewater Street NW Salem, OR 97304 not less than ten (10) days prior to the date upon which all proposals are due. The written protest shall contain a statement of the desired changes to the procurement process or Solicitation document that the protester believes will remedy the conditions upon which the protest is based. The LOC shall consider the protest if it is timely filed and meets the conditions set forth in ORS 279B.405. The LOC shall respond pursuant to ORS 279B.405. If the LOC upholds the protest, in whole or in part, the LOC may in its sole discretion either issue an Addendum reflecting its disposition or cancel the procurement or solicitation. The LOC may extend the due date of proposals if it determines an extension is necessary to consider and respond to the protest.
A Proposer may protest the Award of the Contract, or the intent to Award the Contract, if the conditions set forth in ORS 279B.410 are satisfied. Judicial review of the protest and the LOC’s decision shall be governed by ORS 279B.415.
5.4 NON-ASSIGNMENT
If a Master Price Agreement is awarded, Proposer shall not assign the Agreement in part or in total.
5.5 POST AWARD MEETING:
The successful Proposer(s) may be required to attend a post-award meeting with the LOC to discuss the terms and conditions of the Master Price Agreement.
5.6 PROPOSAL FINAL CERTIFICATION
The Proposer must certify the following:
a) I hereby certify that the Proposal contained herein fully and exactly complies with the instruction for proposers and specifications as they appear in this Notice of Solicitation. b) I hereby further certify that I am authorized by the Board of Directors or Corporate Officers of the Corporation to sign the Requests for Proposals and proposals in the name of the corporation listed below:
Proposer Name: ____________________________________________ Signature: _________________________________________________ Name Typed: ______________________ Title: ___________________ Proposer is a resident bidder of the state of _______________________ Date: _____________________
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ATTACHMENT A
INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENT
(The Intergovernmental Cooperative Purchasing Agreement is not attached hereto, but the current version is available upon request from the Lead Public Agency)
(The Intergovernmental Cooperative Purchasing Agreement is incorporated by reference herein) #11..
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ATTACHMENT B
Proposer Profile Workbook to be completed by all responders as directed herein (fillable form available upon request)
1.0 GENERAL QUESTIONS:
Section 1.1 only to be completed by vendors with a national presence; i.e. vendors with a sales territory in 25 states or more.
1.1 The “Yes” or “No” questions below are to help evaluators familiarize themselves with national vendors.
Indicate “Yes” or “No” as it applies to your company.
Do you have a national sales force adequate in size to meet the demands of multiple agencies and their unique needs for the products and services listed herein? Yes No
Do you have a national distribution network that will support sales resulting from this RFP? Yes No
Can you provide product availability to meet the requirements for materials and services listed herein for government and nonprofit agencies nationwide in a timely manner? Yes No
Does your company have the ability to provide toll-free telephone/fax access, and an online presence? Yes No
Can you provide a single point of contact (National Account Manager) to interact with the lead agency and NPPGov staff?
Yes No
Are you a strong competitor in the industry with a minimum of three consecutive years of demonstrated success in all business practices and pursuits?
Yes No
1.2 Provide at least three references of government agencies within the United States that have purchased products/services from Proposer similar to those specified in this solicitation within the last year. If proposed products/services are new to market, please use most similar business references available. Include:
Agency name and address
Contact name, phone and email
Description of products/services sold and date.
LOC may use other information, however learned, in evaluation of the response.
1.3 OPTIONAL: If a Dun and Bradstreet Comprehensive Report (or similar) for your company is available, please submit it with your response.
1.4 OPTIONAL: Attach any case studies, white papers and/or testimonials supporting your company and products/services.
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2.0 ABOUT PROPOSER:
2.1 State of incorporation:
2.2 Federal Tax Identification Number:
2.3 If applicable to the product(s) and/or service(s), describe the Proposer’s ability to conduct Ecommerce or online ordering. [Insert response in box below]
2.4 Describe Proposer’s system for processing orders from point of customer contact through delivery and billing. [Insert response in box below]
2.5 Describe Proposer’s ability to provide detailed electronic reporting of quarterly sales correlated with NPPGov Member ID numbers of Participating Agency purchases as set forth in Addendum A to Vendor Administration Agreement (VAA), a copy of which is available upon request from the LOC. [Insert response in box below]
2.6 Describe the capacity of Proposer to meet Minority and Women Business Enterprises (MWBE) preferences, which may vary among Participating Agencies. [Insert response in box below]
2.7 Proposer acknowledges compliance with Davis Bacon wage requirements where labor is concerned by indicating “yes” or “no” below.
2.8 By submitting a Proposal in response to this RFP, Proposer agrees, if applicable, to comply with all applicable provisions of Title 2, Subtitle A, Chapter II, PART 200—UNIFORM ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS contained in Title 2 C.F.R. § 200 et seq. Indicate “yes” or “no” below.
2.9 Complete Exhibit 1, located at the end of this workbook.
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3.0 DISTRIBUTION SYSTEM:
3.1 Describe distribution of products and/or services available in Proposer’s response through Proposer’s distribution system (including Alaska and Hawaii), including any limitations. [Insert response in box below]
3.1.A Is it your intent to offer the proposed products and/or services through a designated distribution/dealer network, indicate “yes” or “no” below? YES NO
3.2 Provide Proposer’s shipping and delivery policy, including standard delivery time and any options and costs for expedited delivery and return policies. [Insert response in box below]
3.3 Third party and/or subcontracting may be allowed. If applicable, detail the sub-contracting process (ordering, shipment, invoicing, billing) for those products not carried in Proposer’s distribution center.
Alternatively, if proposer utilizes a third-party ordering, shipment, invoicing or billing partner, please describe in detail. [Insert response in box below]
3.4 What is Proposer’s backorder policy? Is your policy to classify as “immediate or cancel” (requiring the Participating Agency to reorder if item is backordered) or “good until cancelled”? [Insert response in box below]
3.5 Indicate whether the Proposer has any dealer or distributors that are authorized to fulfil purchases? Yes No
[Check one]
3.6 If answered yes to 3.5, include a copy of or link to authorized dealers or distributors. #11..
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4.0 MARKETING:
4.1 Outline Proposer’s plan for marketing the Products and Services to the Participating Agencies on a local and national basis. Include any marketing incentives such as committed dollars for advertising, conferences/travel and custom marketing materials. [May attach marketing plan or insert response in box below]
4.2 Explain how Proposer will educate its local and national sales force about the use of the Master Price Agreement. [Insert response in box below]
4.3 Indicate the Proposer’s willingness to allow training to its local and national sales force about the use of the Master Price Agreement. [Insert response in box below]
5.0 POINT OF CONTACT:
Proposer POC who will administer, coordinate, and manage this program with NPPGov and the LEAGUE OF OREGON CITIES:
Contact Person: Title:
Mailing Address:
City: State & Zip:
Email Address:
Phone #: Fax #:
Attach current resume of National Account Manager that will be the POC managing this contract. #11..
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6.0 CUSTOMER SUPPORT SERVICES:
Explain Proposer’s policy regarding each of the following if applicable to product(s) and/or service(s):
6.1 Auditing for order completeness. [Insert response in box below]
6.2 Replacement policy (i.e., damaged or defective goods). [Insert response in box below]
6.3 Minimum order requirement (e.g., Individual item vs. case lot). [Insert response in box below]
6.4 Customer service hours/days of operation [Insert response in boxes below] Monday: Tuesday: Wednesday: Thursday: Friday: Saturday: Sunday:
6.5 Special Orders. [Insert response in box below]
6.6 Post sale services issues. [Insert response in box below]
6.7 Repair services, including repair warranty programs, if any. Proposer shall identify, where applicable, authorized factory repair facilities that will honor the warranty of items on contract. [Insert response in box below]
6.8 Technical support services Proposer provides. [Insert response in box below]
6.9 Product substitution policy. [Insert response in box below]
6.10 Identify trade-in program criteria (if applicable). [Insert response in box below]
6.11. After hours service (including weekends and holidays) [Insert response in boxes below] Monday: Tuesday: Wednesday: Thursday: Friday: Saturday: Sunday:
6.12 Shipment tracking. [Insert response in box below]
6.13 Back order tracking process. [Insert response in box below] #11..
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6.14 Return Item process, including any/all associated fees (e.g., restocking, shipping, turnaround time on returns). [Insert response in box below]
6.15 Electronic billing. [Insert response in box below]
6.16 Explain how Proposer will resolve complaints, issues, or challenges. [Insert response in box below]
6.17 Other services not already covered. [Insert response in box below] #11..
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7.0 DELIVERY AND FREIGHT CHARGES:
7.1 Identify delivery and/or shipping costs or provide a shipping rate schedule based on weight, item, and/or destination for all items ordered within the continental U.S. (and Hawaii/Alaska). The Proposer shall identify all exceptions to this shipping rate schedule. [Insert response in box below]
7.2 Identify policy for transfer of product ownership (delivery) and damage/issue resolution. [Insert response in box below]
8.0 VENDOR TERMS AND CONDITIONS.
8.1 Does Proposer require that customers/Participating Agencies agree to standard terms and conditions related to their purchase? Yes No [Circle one]
8.2 If answered yes to 8.1, include a copy of or link to terms and conditions.
9.0 WARRANTY INFOMATION:
9.1 Identify warranty options, if applicable. [Insert response in box below] #11..
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Exhibit 1
PARK, PLAYGROUND, AND RECREATION EQUIPMENT Coverage
RETAIL, DISTRIBUTION AND SERVICE/SUPPORT LOCATIONS
Number of retail
stores in each state?
(leave blank for
none)
Number of
distribution centers
in each state?
(leave blank for
none)
Number of support
locations in each
state? (leave blank
for none)
ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
FLORIDA
GEORGIA
HAWAII
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY
NEW MEXICO
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
OHIO
OKLAHOMA
OREGON
PENNSYLVANIA
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Number of retail stores in
each state? (leave blank
for none)
Number of distribution
centers in each state?
(leave blank for none)
Number of support
locations in each state?
(leave blank for none)
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
VIRGINIA
WASHINGTON
WEST VIRGINIA
WISCONSIN
WYOMING
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THE FORM LISTED BELOW MUST BE SIGNED AND RETURNED WITH SOLICITATION RESPONSE #11..
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Exhibit 2
Declaration of Non-Collusion
The undersigned does hereby declare that there has been no collusion between the undersigned, the LEAGUE OF OREGON CITIES, and National Purchasing Partners, and in further support of said Declaration, states as follows:
The person, firm, association, co-partnership or corporation herein named has not, either directly or indirectly, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding or solicitation in the preparation and submission of a proposal to the LEAGUE OF OREGON CITIES for consideration in the award of a contract or Master Price Agreement negotiated as a result of this Request for Proposal.
DATED this ______ day of _____________, _______.
(Name of Firm)
By:
(Authorized Signature)
Title:
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ATTACHMENT C
SPECIFICATIONS
PARK, PLAYGROUND, AND RECREATION EQUIPMENT
These specifications are intended to cover the complete range of PARK, PLAYGROUND, AND RECREATION EQUIPMENT. Several categories are included below but are in no means intended to limit the Proposer to responding to just these categories if there are other related products and services that Proposer would like to be considered for the award.
Proposers should respond with pricing for all products and services they wish to be considered in the evaluation for a possible award and master price agreement.
The following categories are provided to indicate the intended extent of the RFP but do not necessarily represent the format of the Proposer’s response. Proposers may combine any and all categories and elements in a format that is most appropriate to represent their business in their response.
NOTE: Proposers are not required to respond to all categories. Proposals will only be evaluated based on the categories to which they respond.
CATEGORY 1: SCHOOL AGE PLAYGROUNDS AND COMPONENTS: Including but not limited to climbers, tubes, ramps, slides, ladders, bridges, panels, enclosures, barriers, swings, towers, decorative accessories, etc.
CATEGORY 2: AQUATIC & OTHER PLAYGROUNDS AND COMPONENTS:
Including but not limited to climbers, tubes, ramps, slides, ladders, bridges, panels, enclosures, barriers, swings, towers, decorative accessories, etc.
CATEGORY 3: SHELTERS AND SHADE STRUCTURES: Including but not limited to shelters, pavilions, shades, gazebos, pergolas, etc.
CATEGORY 4: OUTDOOR FITNESS EQUIPMENT: Including but not limited to cardio equipment, resistance equipment, lifting equipment, beams, bars, benches, steps, etc.
CATEGORY 5: SAFETY SURFACING: Including but not limited to wood fiber, rubber, sand, synthetic turf, etc.
CATEGORY 6: SITE AMENITIES: Including but not limited to benches, bike racks, tables, trash cans, etc.
CATEGORY 7: INSTALLATION of park and playground equipment, surfaces, amenities and related items
CATEGORY 8: OTHER: Other Park and Playground Equipment, Surfaces & Amenities not included in other categories including but not limited to soccer goals, basketball hoops, batting cages, field game equipment, etc.
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ATTACHMENT D
PRICING SCHEDULE
The intent is for each Proposer to submit their complete product line so that Participating Agencies may order a wide array of products and services as appropriate for their needs. Proposer is encouraged but is not required to respond to all categories. Proposer may suggest additional categories and sub-categories as applicable. Proposer may subcontract items Proposer does not supply.
The Proposer should not necessarily limit the proposal to the performance of the services in accordance with this document but should outline any additional services and their costs if the Proposer deems them necessary to accomplish the program.
Pricing and resulting relative discount to LOC and NPPGov membership shall be clearly delineated on each proposal. Contract admin fee (established in the “Requirements” Section of the RFP) may not be listed or charged as a separate line item to users of the contract. Contract pricing shall be based upon:
1) Fixed discount(s) off published price list(s) or catalog(s) 2) Firm fixed price with economic adjustment (contingencies for economic price adjustments must be identified in the proposal)
3) A combination of the above.
EXAMPLE
PARK, PLAYGROUND, AND RECREATION EQUIPMENT
Product Category Percentage (%) off List
Price*
(OR fixed price if % off
pricing is not available)
SCHOOL AGE PLAYGROUNDS &
COMPONENTS
AQUATIC & OTHER PLAYGROUNDS &
COMPONENTS
SHELTERS AND SHADE STRUCTURES
OUTDOOR FITNESS EQUIPMENT
SAFETY SURFACING
SITE AMMENITIES
INSTALLATION
OTHER
Options
Proposers shall provide pricing on all options, modifications, and accessories in a format that best represents their product line and pricing structure. This may include specific pricing for some options and may also include general pricing/discounts for categories of options. Proposer may also indicate availability and pricing of all other non-specified options. The intent is to provide Proposers the opportunity to present as much product as possible in the format that fits within their individual formatting needs so that the resulting award allows LOC and NPPGov members the greatest number of procurement options.
Miscellaneous
Proposers should include any applicable pricing information related to Section 2.3 of the RFP including but not limited to: large volume purchases, cash terms, rebates, freight/delivery costs and individual discounts.
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ATTACHMENT E
PROPOSAL EVALUATION FORM
Proposals will be evaluated using a two-step process.
The first step evaluates the responsiveness of the proposer and determines 1) if the proposer is deemed fully responsive enabling the proposal to move to the second step and 2) if the proposal will be evaluated as a local response (within the State of Oregon), regional response (covering multiple States, but not the entire US) or a national response (covering the entire US, or at least the continental US).
The second step of the evaluation process will only occur with proposals deemed fully responsive from the first step. The second step fully evaluates the proposer’s response based on the criteria found in the proposal evaluation form.
STEP 1
Proposal Responsiveness
Component YES NO
Submitted on time
Company name and RFP number on outermost
packaging
Completed Proposer Profile Workbook (PPW)
Included pricing structure
Included references
Proposal signed
Deemed Fully Responsive YES NO
Categorized as Local, Regional or National Local Regional National #11..
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Proposal Evaluation Form
STEP 2
Full Evaluation of Proposal
Point Value Definitions
(5) Exceeded Requirements - Compelling Detail, Showed Ability to Complete (4) Met Requirements - Thorough, Provided Supportive Material/Examples (3) Satisfied Requirements - Sufficient
(2) Unclear if Requirements Met - Poor or Confusing
(1) Did Not Comply with Requirements - Substandard or Blank
Component Evaluated Weight Possible
Points
(1-5)
Total
Points
(Weight
x PP)
Evaluator’s Comments
Pricing: Product price and
discounts proposed included
favorable pricing for
cooperative purchasing.
Shipping conditions.
PPW Section 7.0 and Pricing
structure.
25 Comments:
Product Line (Score only
categories proposed):
Breadth, variety, quality of
product line and innovation
of products. Warranty
availability.
PPW Section 9.0.
15 Comments:
Marketing: Marketing plan
to promote the resulting
contractual agreement and
ability to incorporate use of
agreement in their sales
system throughout indicated
coverage region.
Willingness to allow
training of salesforce.
PPW Section 4.0.
15 Comments
Customer Service: Support
dedicated to Participating
Agencies. Ability to meet
promised delivery timelines.
Additional services offered.
Conduct e-commerce.
PPW Sub-Sections 2.3 & 2.4
and Section 6.0.
15 Comments:
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Proven Experience: Success
in providing products and
services in a timely manner.
Years in business,
references and reputation.
Experience with cooperative
purchasing.
PPW Sub-Section 1.2.
15 Comments:
Coverage: Ability to provide
products and services for
indicated coverage region
including distribution, retail
& service facilities,
coordination of
manufacturer and
distribution, and staff
availability. Clearly states
distribution model and
provides dealer list if
applicable.
PPW Section 3.0 and Exhibit 1.
10 Comments:
Conformance: Completeness
of proposal and the degree
to which the Proposer
responded to the terms and
all requirements and
specifications of the RFP.
Followed the response
format and content, was
clear and easily understood.
Provided Term’s and
Condition’s, if applicable.
PPW Section 8.0 and 4.5 of
RFP.
5 Comments:
TOTAL 100
General Comments:
Name of Evaluator _________________________
Signature _________________________________
Date _________________
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ATTACHMENT F
OREGON REVISED STATUTES (AS MAY BE AMENDED) REQUIREMENTS Successful Proposer (Contractor) shall comply with the requirements of this ATTACHMENT F to the extent required by any applicable federal or state law.
(1) Contractor shall pay promptly, as due, all persons supplying labor or materials for the performance of the work provided for in the contract and shall be responsible for such payment of all persons supplying such labor or material to any Subcontractor.
(2) Contractor shall promptly pay all contributions or amounts due the Industrial Accident Fund from such Contractor or Subcontractor incurred in the performance of the contract. (3) Contractor shall not permit any lien or claim to be filed or prosecuted against the LOC or any Participating Agency on account of any labor or material furnished and agrees to assume responsibility for satisfaction of any such lien so filed or prosecuted.
(4) Contractor and any Subcontractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167
(5) If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or materials furnished to the Contractor or a Subcontractor by any person in connection with the contract as such claim becomes due, the LOC or any Participating Agency may pay such claim to the persons furnishing the labor or material and charge the amount of payment against funds due or to become due Contractor by reason of the contract. The payment of a claim in the manner authorized hereby shall not relieve the Contractor or Contract surety from Contractor or its obligation with respect to any unpaid claim. If the LOC or any Participating Agency is unable to determine the validity of any claim for labor or material furnished, the District may withhold from any current payment due Contractor an amount equal to said claim until its validity is determined and the claim, if valid, is paid. (6) Contractor shall promptly, as due, make payment to any person, co-partnership, association, or corporation, furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to employees of such Contractor, of all sums which the Contractor agrees to pay for such services and all monies and sums which the Contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. (7) In a contract for personal services, contractor shall pay employees at least time and half for all overtime worked in excess of 40 hours in any one week under the contract in accordance with ORS 653.010 to 653.261 and the Fair Labor Standards Act of 1938 (29 USC 201, et seq.). In contracts for services, contractors shall pay employees at least time and a half pay for work performed on the legal holidays specified in a collective bargaining agreement or in ORS 279B.020(1)(b)(A) to (G) and for all time worked in excess of 10 hours in any one day or in excess of 40 hours in any one week, whichever is greater.
(8) The Contractor must give notice in writing to employees who work on this contract, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and the days per week that the employees may be required to work. (9) All subject employers working under the contract are either employers that will comply with ORS 656.017, or employers that are exempt under ORS 656.126.
(10) All sums due the State Unemployment Compensation Trust Fund from the Contractor or any Subcontractor in connection with the performance of the contract shall be promptly so paid. (11) The contract may be canceled at the election of LOC for any willful failure on the part of Contractor to faithfully perform the contract according to its terms.
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(12) Contractor certifies compliance with all applicable Oregon tax laws, in accordance with ORS 305.385. (13) Contractor certifies that it has not discriminated against minorities, women, emerging small business enterprises certified under ORS 200.055, or business enterprises owned or controlled by or that employ a disabled veteran in obtaining any required subcontractors.
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ATTACHMENT G
WIPHE RESPONSE FORM
THIS FORM MUST BE RETURNED WITH SOLICITATION RESPONSE
Vendor servicing Washington State AGREES to sell items included in this solicitation to WIPHE institutions at prices offered, unless otherwise noted below:
________ DOES NOT agree to sell to WIPHE Institutions.
________ AGREES to sell to WIPHE Institutions at same prices and discounts, with the following exceptions: (attach additional pages as necessary)
Vendor must state geographic areas or specific institution(s) listed below within the State of Washington that are EXCLUDED from the contract(s) resulting from this solicitation:
Washington Institutions of Public Higher Education (WIPHE). See list on following page.
If Vendor agrees to sell to the WIPHE Institutions, a WIPHE Contract number will be assigned and the information will be reported to the Council of Presidents. The Council of Presidents notifies all the other schools when a WIPHE contract has been awarded and a master list will be maintained and the WIPHE website updated.
WIPHE shall determine, at its absolute discretion, whether it shall accept and/or utilize the contract resulting from the Request for Proposal
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Washington Institutions of Public Higher Education (WIPHE)
FOUR-YEAR UNIVERSITIES
CENTRAL WASHINGTON UNIVERSITY
EASTERN WASHINGTON UNIVERSITY
THE EVERGREEN STATE COLLEGE
UNIVERSITY OF WASHINGTON
WASHINGTON STATE UNIVERSITY
WESTERN WASHINGTON UNIVERSITY
COMMUNITY AND TECHNICAL COLLEGES:
BATES TECHNICAL COLLEGE
BELLEVUE COMMUNITY COLLEGE
BELLINGHAM TECHNICAL COLLEGE
BIG BEND COMMUNITY COLLEGE
CASCADE COMMUNITY COLLEGE
CASCADIA COLLEGE
CENTRALIA COLLEGE
CLARK COLLEGE
CLOVER PARK TECHNICAL COLLEGE
COLUMBIA BASIN COLLEGE
EDMONDS COMMUNITY COLLEGE
EVERETT COMMUNITY COLLEGE
GRAYS HARBOR COLLEGE
GREEN RIVER COMMUNITY COLLEGE
HIGHLINE COMMUNITY COLLEGE
LAKE WASHINGTON TECHNICAL COLLEGE
LOWER COLUMBIA COLLEGE
OLYMPIC COLLEGE
PENINSULA COLLEGE
PIERCE COLLEGE
RENTON TECHNICAL COLLEGE
SEATTLE CENTRAL COMMUNITY COLLEGES
SHORELINE COMMUNITY COLLEGE
SKAGIT VALLEY COLLEGE
SOUTH PUGET SOUND COMMUNITY COLLEGE
SPOKANE COMMUNITY COLLEGES
STATE BOARD FOR TECHNICAL & COMMUNITY
COLLEGES
WENATCHEE VALLEY COLLEGE
YAKIMA VALLEY COMMUNITY COLLEGE
WHATCOM COMMUNITY COLLEGE
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Miscellaneous local agencies within Washington State*
ADAMS COUNTY
PUYALLUP SCHOOL DIST 3
KITSAP COUNTY
FIFE SCHOOL DIST 417
RIVERVIEW SCHOOL DIST 407
GONZAGA UNIVERSITY
PLANNED PARENTHOOD OF WESTERN
WASHINGTON
SNOHOMISH COUNTY
MASON COUNTY
FEDERAL WAY SCHOOL DIST
SPOKANE COUNTY
ISSAQUAH SCHOOL DIST 411
ADAMS COUNTY FIRE DISTRICT
ADAMS COUNTY HEALTH DISTRICT
AFFILIATED HEALTH SERVICES
ALDERWOOD WATER DISTRICT
ANACORTES PORT OF
ANACORTES SCHOOL DISTRICT 103
ANNAPOLIS WATER DISTRICT
ASOTIN COUNTY
AUBURN SCHOOL DISTRICT 408
BAINBRIDGE IS SCHOOL DISTRICT 303
BAINBRIDGE ISLAND FIRE DEPARTMENT
BAINBRIDGE ISLAND PARKS
BATTLE GROUND SCHOOL DISTRICT 119
BELLEVUE SCHOOL DISTRICT 405
BELLINGHAM PORT OF
BELLINGHAM SCHOOL DISTRICT 501
BENTON COUNTY
BENTON COUNTY FIRE DISTRICT
BENTON COUNTY PUD
BENTON FRANKLIN COUNTY
BENTON FRANKLIN PRIVTE INDUST CNCL
BENTON PORT OF
BETHEL SCHOOL DISTRICT 403
BIG BROTHERS BIG SISTERS OF KING CO
BIRCH BAY WATER & SEWER DISTRICT
BLANCHET SCHOOL DISTRICT
BREMERTON KITSAP CO HEALTH DISTRICT
BREMERTON PORT OF
BREMERTON SCHOOL DISTRICT 100
BURLINGTON EDISON SCHOOL DIST 100
CANCER RESEARCH AND BOISTATISTICS
CASCADE BLUE MT FD SHR
CASCADE IRRIGATION DISTRICT
CASHMERE SCHOOL DISTRICT 222
CATHOLIC COMM SVCS OF KING CO
CENTRAL KITSAP SCHOOL DISTRICT 401
CENTRAL WAS COMP MENTAL HEALTH
CENTRALIA SCHOOL DISTRICT 40
CHEHALIS SCHOOL DISTRICT 302
CHELAN COUNTY
CHELAN COUNTY COMMUNITY HOSPITAL
CHELAN COUNTY FIRE DISTRICT
CHELAN COUNTY PUD 1
CHELAN DOUGLAS COUNTY HEALTH DIST
CHENEY CARE CENTER
CHILD CARE RESOURCE & REFERRAL
CHILDRENS THERAPY CENTER
CHIMACUM SCHOOL DISTRICT 49
CLALLAM COUNTY
CLALLAM COUNTY FIRE DISTRICT
CLALLAM COUNTY HOSPITAL DISTRICT
CLALLAM COUNTY PUD
CLARK COUNTY
CLARK COUNTY FIRE DISTRICT
CLARK COUNTY PUD
CLE ELUM-ROSLYN SCHOOL DISTRICT 404
CLOVER PARK SCHOOL DISTRICT 400
CNTRL WHIDBEY FIRE & RESCUE
COAL CREEK UTILITY DISTRICT
COALITION AGAINST DOMESTIC VIOLENCE
COLUMBIA COUNTY
COLUMBIA IRRIGATION DISTRICT
COLUMBIA MOSQUITO CONTROL DISTRICT
COMMUNITY CHRISTIAN ACADEMY
COMMUNITY PSYCHIATRIC CLINIC
COMMUNITY TRANSIT
CONFEDERATED TRIBES OF CHEHALIS
CONSOLIDATED DIKING IMPROVEMENT DIST
CONSOLIDATED IRRIGATION
COWLITZ COUNTY
COWLITZ COUNTY FIRE DISTRICT
COWLITZ COUNTY PUD
CROSS VALLEY WATER DISTRICT
DAYTON SCHOOL DISTRICT 2
DOUGLAS COUNTY
DOUGLAS COUNTY FIRE DISTRICT
DOUGLAS COUNTY PUD
DRUG ABUSE PREVENTION CENTER
E COLUMBIA BASIN IRRIGATION DIST
EAST WENATCHEE WATER
EATONVILLE SCHOOL DIST 404
EDMONDS SCHOOL DISTRICT 15
EDUCATIONAL SERVICE DIST 114
EDUCATIONAL SERVICE DISTRICT 113
ELLENSBURG SCHOOL DIST 401
ENUMCLAW SCHOOL DIST
EVERETT PORT OF
EVERETT PUBLICE FACILITIES DIST
EVERGREEN MANOR INC
EVERGREEN SCHOOL DIST 114
FEDERAL WAY FD
FERRY COUNTY
FERRY COUNTY PUBLIC HOSPITAL
FERRY OKAHOGAN FPD
FOSS WATERWAY DEVELOPMENT AUTHORITY
FRANKLIN COUNTY
FRANKLIN COUNTY PUD
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FRANKLIN PIERCE SCHOOL DIST 402
FRIDAY HARBOR PORT OF
GARDENA FARMS IRRIGATION DIST 13
GARFIELD COUNTY
GRAND COULEE PROJECT
GRANDVIEW SCHOOL DIST 116/200
GRANITE FALLS SCHOOL DIST 332
GRANT COUNTY
GRANT COUNTY HEALTH DIST
GRANT COUNTY PUD
GRAYS HARBOR COUNTY
GRAYS HARBOR COUNTY FIRE DIST
GRAYS HARBOR COUNTY PUD # 1
GRAYS HARBOR PORT OF
GRAYS HARBOR PUB DEV AUTH
GRAYS HARBOR TRANSIT
GRIFFIN SCHOOL DIST 324
HARBORVIEW MEDICAL CENTER
HAZEL DELL SEWER DIST
HEALTHY MOTHERS HEALTHY BABIES COAL
HIGHLINE SCHOOL DIST 401
HIGHLINE WATER DIST
HOMESIGHT
HOPELINK
HOQUIAM SCHOOL DIST 28
HOUSING AUTHORITY OF PORTLAND
ILWACO PORT OF
INCHELIUM SCHOOL DIST 70
ISLAND COUNTY
ISLAND COUNTY FIRE DIST
JEFFERSON COUNTY
JEFFERSON COUNTY FIRE DIST
JEFFERSON COUNTY LIBRARY
JEFFERSON COUNTY PUD
JEFFERSON GENERAL HOSPITAL
KARCHER CREEK SEWER DIST
KELSO SCHOOL DIST 458
KENNEWICK GENERAL HOSPITAL
KENNEWICK SCHOOL DISTRICT 17
KENT SCHOOL DIST 415
KETTLE FALLS SCHOOL DIST 212
KING COUNTY
KING COUNTY FIRE DIST
KING COUNTY HOUSING AUTHORITY
KING COUNTY LIBRARY
KING COUNTY WATER SEWER
KINGSTON PORT OF
KITSAP COUNTY FIRE & RESCUE
KITSAP COUNTY LIBRARY
KITSAP COUNTY PUD 1
KITTITAS COUNTY
KITTITAS COUNTY PUD
KITTITAS COUNTY RECLAMATION DIST
KLICKITAT COUNTY
KLICKITAT COUNTY PUD
LAKE CHELAN RECLAMATION DIST
LAKE STEVENS SCHOOL DIST 4
LAKE WASHINGTON SCHOOL DIST 414
LAKEHAVEN UTILITY DIST
LAKEWOOD SCHOOL DIST 306
LEWIS CO PUD 1
LEWIS COUNTY
LEWIS COUNTY FIRE DIST
LEWIS PUBLIC TRANSPORTATION
LIBERTY LAKE SEWER & WATER DIST
LINCOLN COUNTY
LINCOLN COUNTY FIRE DIST
LONGVIEW PORT OF
LONGVIEW SCHOOL DIST 122
LOTT WASTEWATER ALLIANCE
LUMMI INDIAN NATION
MANCHESTER WATER DIST
MARYSVILLE SCHOOL DIST 25
MASON COUNTY FIRE DIST
MASON COUNTY PUD
MEAD SCHOOL DIST 354
METRO PARK DISTRICT OF TACOMA
MID COLUMBIA LIBRARY
MIDWAY SEWER DISTRICT
MONROE SCHOOL DIST 103
MORTON SCHOOL DIST 214
MOSES LAKE PORT OF
MOUNT BAKER SCHOOL DIST
MT VERNON SCHOOL DISTRICT 320
MUKILTEO SCHOOL DIST 6
MUKILTEO WATER DIST
NAVAL STATION EVERETT
NE TRI COUNTY HEALTH DIST
NORTH CENTRAL REGIONAL LIBRARY DIST
NORTH KITSAP SCHOOL DIST 400
NORTH SHORE UTILITY DISTRICT
NORTH THURSTON SCHOOL DISTRICT
NORTHSHORE SCHOOL DIST 417
NORTHWEST KIDNEY CTR
NORTHWEST WORK FORCE DEVELOPMENT CO
NW REGIONAL COUNCIL
OAK HARBOR SCHOOL DIST 201
OAKVILLE SCHOOL DIST 400
OCOSTA SCHOOL DIST 172
OKANOGAN COUNTY
OKANOGAN COUNTY FIRE DIST
OKANOGAN COUNTY PUD
OKANOGAN SCHOOL DISTRICT
OLYMPIA PORT OF
OLYMPIA SCHOOL DISTRICT 111
OLYMPIA THURSTON CHAMBER FOUNDATION
OLYMPIC AREA AGENCY ON AGING
OLYMPIC MEMORIAL HOSPITAL DIST
OLYMPIC REGION CLEAN AIR AGENCY
OLYMPIC VIEW WATER & SEWER DIST
OLYMPUS TERRACE SEWER DIST
PACIFIC COUNTY
PACIFIC COUNTY FIRE
PARATRANSIT SERVICES
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PASCO SCHOOL DIST
PEND OREILLE COUNTY CONSERV DIST
PEND OREILLE COUNTY PUB HOSP DIST
PEND OREILLE COUNTY PUD
PENINSULA SCHOOL DISTRICT 401
PERRY TECHNICAL INSTITUTE
PIERCE COUNTY
PIERCE COUNTY FIRE DIST
PORT ANGELES PORT OF
PORT ANGELES SCHOOL DISTRICT 121
PRESCOTT SCHOOL DIST
PUGET SOUND CLEAN AIR AGENCY
PUGET SOUND SCHOOL DIST
QUINCY COLUMBIA BASIN IRRIG DIST
RICHLAND SCHOOL DIST 400
S KITSAP SCHOOL DISTRICT 402
S SNOHOMISH CO PUBLIC FAC DIST
SAFEPLACE
SAMISH WATER DIST
SAMMAMISH WATER AND SEWER DIST
SAN JUAN COUNTY
SAN JUAN COUNTY FIRE DIST
SEA MAR COMM HEALTH CTR
SEATTLE JEWISH PRIMARY SCHOOL
SEATTLE PORT OF
SEATTLE SCHOOL DIST 1
SEATTLE UNIVERSITY
SECOND AMENDMENT FOUNDATION
SECOND CHANCE INC
SENIOR OPPORTUNITY SERVICES
SHELTON SCHOOL DISTRICT 309
SILVERDALE WATER
SKAGIT COUNTY
SKAGIT COUNTY CONSERVATION DIST
SKAGIT COUNTY FIRE DIST
SKAGIT COUNTY ISLAND HOSPITAL
SKAGIT COUNTY PORT OF
SKAGIT COUNTY PUD 1
SKAGIT TRANSIT
SKAMANIA COUNTY
SKOOKUM INC
SNOHOMISH COUNTY LIBRARY
SNOHOMISH COUNTY PUD
SNOHOMISH HEALTH DISTRICT
SNOHOMISH SCHOOL DISTRICT 201
SOAP LAKE SCHOOL DISTRICT 156
SOOS CREEK WATER AND SEWER DIST
SOUND TRANSIT
SOUTH COLUMBIA BASIN IRRIG DIST
SOUTH EAST EFFECTIVE DEVELOPMENT
SOUTH SOUND MENTAL HEALTH SERVICES
SOUTHWEST YOUTH & FAMILY SERVICES
SPECIAL MOBILITY SERVICES INC
SPOKANE CO AIR POLLUTION CNTRL AUTHORITY
SPOKANE COUNTY FIRE DIST
SPOKANE COUNTY LIBRARY
SPOKANE SCHOOL DISTRICT 81
ST JOSEPH/MARQUETTE SCHOOL
STANWOOD SCHOOL DIST 410
STEVENS COUNTY
STEVENS COUNTY PUD
STILLAGUAMISH TRIBE OF INDIANS
SUMNER SCHOOL DISTRICT 320
SUNNYSIDE PORT OF
SUNNYSIDE SCHOOL DISTRICT 201
SUQUAMISH TRIBE
SW CLEAN AIR AGENCY
SWINOMISH TRIBE
TACOMA DAY CHILD CARE AND PRESCHOOL
TACOMA MUSICAL PLAYHOUSE
TACOMA PORT OF
TACOMA SCHOOL DISTRICT 10
TACOMA-PIERCE CO
TAHOMA SCHOOL DISTRICT 409
TERRACE HEIGHTS SEWER DISTRICT
THURSTON COMMUNITY TELEVISION
THURSTON COUNTY
THURSTON COUNTY CONSERVATION DIST
THURSTON COUNTY FIRE DISTRICT
TOPPENISH SCHOOL DISTRICT 202
TOUCHET SD 300
TRIUMPH TREATMENT SERVICES
TUKWILA SCHOOL DIST 406
TUMWATER SCHOOL DISTRICT 33
U S DEPARTMENT OF TRANSPORTATION
UNITED WAY OF KING COUNTY
UNIVERSITY PLACE SCHOOL DIST
UPPER SKAGIT INDIAN TRIBE
VAL VUE SEWER DISTRICT
VALLEY TRANSIT
VALLEY WATER DISTRICT
VANCOUVER PORT OF
VANCOUVER SCHOOL DISTRICT 37
VASHON ISLAND SCHOOL DISTRICT 402
VERA IRRIGATION
VETERANS ADMINISTRATION
VOLUNTEERS OF AMERICA
WA ASSOC OF SCHOOL ADMINISTRATORS
WA ASSOC SHERIFFS & POLICE CHIEFS
WA GOVERNMENTAL ENTITY POOL
WA LABOR COUNCIL AFL-CIO
WA PUBLIC PORTS ASSOCIATION
WA RESEARCH COUNCIL
WA ST ASSOCIATION OF COUNTIES
WA STATE PUBLIC STADIUM AUTHORITY
WAHKIAKUM COUNTY
WALLA WALLA COLLEGE
WALLA WALLA COUNTY
WALLA WALLA COUNTY FIRE DISTRICT
WALLA WALLA PORT OF
WALLA WALLA SD 140
WASHINGTON ASSOCIATION
WASHINGTON COUNTIES RISK POOL
WASHINGTON FIRE COMMISSIONERS ASSOC
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WASHINGTON HEALTH CARE ASSOCIATION
WASHINGTON PUBLIC AFFAIRS NETWORK
WASHINGTON STATE MIGRANT COUNCIL
WEST VALLEY SCHOOL DISTRICT 208
WEST VALLEY SCHOOL DISTRICT 363
WESTERN FOUNDATION THE
WHATCOM CONSERVATION DIST
WHATCOM COUNTY
WHATCOM COUNTY FIRE DISTRICT
WHATCOM COUNTY RURAL LIBRARY DIST
WHIDBEY GENERAL HOSPITAL
WHITMAN COUNTY
WHITWORTH WATER
WILLAPA COUNSELING CENTER
WILLAPA VALLEY SCHOOL DISTRICT 160
WILLAPA VALLEY WATER DISTRICT
WINLOCK SCHOOL DISTRICT 232
WOODINVILLE FIRE & LIFE SAFETY DIST
WOODLAND PORT OF
YAKIMA COUNTY
YAKIMA COUNTY FIRE DISTRICT
YAKIMA COUNTY REGIONAL LIBRARY
YAKIMA SCHOOL DISTRICT 7
YAKIMA VALLEY FARMWORKERS CLINIC
YAKIMA-TIETON IRRIGATION DISTRICT
YELM COMMUNITY SCHOOL DISTRICT
YMCA - TACOMA PIERCE COUNTY
YMCA OF GREATER SEATTLE
*Washington State cities and other unnamed
Washington State local and municipal agencies may
also utilize the resulting Master Price Agreement;
provided they enter into the Intergovernmental
Cooperative Purchasing Agreement.
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ATTACHMENT H
ELIGIBLE POLITICAL SUBDIVISIONS BY STATE
ATTACHMENT H: ELIGIBLE POLITICAL SUBDIVISION BY STATE is included as a separate document and incorporated by reference herein.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 27, 2022
Date: August 30, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: American Legion Hall Fire Remediation Emergency Work CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider authorizing payments not to exceed $160,000 to Belfor Property Restoration, Modesto, CA and other vendors for emergency work related to the American Legion Hall fire remediation. (Funding Source: JPA TRRP Special Revenue Fund – CIP and Future Insurance Proceeds)
STRATEGIC PLAN ELEMENT:
This item is consistent with the following 2020-2025 Strategic Plan Area of Focus: Quality of Life and Governance and Service Delivery.
BACKGROUND:
On July 21, 2022, the American Legion Hall was heavily damaged by a fire. The Modesto Fire Department responded to the scene, located at 1021 South Santa Cruz Avenue, and was able to extinguish the blaze and limit the interior damage as much as possible; however, the damage is significant.
The City contacted Alliant, the property insurance company that insured the structure on behalf of the City, to establish a claim and to identify the next steps. The insurance company dispatched Belfor Property Restoration of Modesto, CA (Belfor) to complete emergency work at the site.
DISCUSSION:
Starting on July 22, 2022, Belfor provided emergency services and mitigation to secure the property against additional damages, perform environmental testing, remove debris resulting from the fire, remove the deck and fence the structure off to protect the public from unnecessary hazards. Belfor’s initial budget estimate for this work is between $123,000 and $126,000.
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City Council, September 27, 2022
American Legion Hall Fire Remediation Emergency Work