Agenda packet, first session — Modesto City Council, December 6, 2022 (part 3 of 6)

To ensure a seamless transition without interruption of Golf Course operations, staff completed a bid waiver so that the City could assume ownership of the lease Agreement. Formal bidding procedures require the City to issue a Request for Bids; however, the length of time required to issue a bid would have required closure of the golf course until a vendor was selected. This would have caused a loss of green fee revenue to the City.

On March 16, 2021, the bid waiver was approved, and the transition of the lease occurred.

Since then, staff continued to complete the steps required to rebuild the clubhouse. As the lease Agreement neared its end in March 2022, staff contacted the vendor to transition the lease to a month-to-month lease.

The City is now nearing $50,000 in payments to the vendor which requires a formal bid and Agreement. However, the increased costs of switching vendors and possibly closing the golf course would cause a loss in green fee revenue. Purchasing approved extending the lease with WillScot due to these factors.

Staff anticipates the Dryden Golf Clubhouse renovation to be completed by late 2024. As such, this lease Agreement is being extended to December 28, 2024. The monthly cost is estimated at $1,776 per month. Staff is requesting the existing Purchase Order to be increased by $45,362 from $49,638 to $95,000. This increase will cover the twenty-four (24) month extension and any applicable fees and/or taxes.

Modesto Municipal Code Section (MMC) 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(d) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality. WillScot qualifies for exemption from the formal bidding procedure in accordance with MMC 8-3.204(d) because a change in vendor would incur removal and installation fees as well as a possible loss in green fee revenue while the building is being replaced.

FISCAL IMPACT:

The total amount expended to date is $36,910 for the modular building, since the initial lease Agreement began in March 2021. All expenses are fully funded in the multi-year project for the Dryden Golf Clubhouse Renovation (No. 101294). Expenses are reimbursed through payments made by the City’s insurance provider. Alliant has issued two payments to the City totaling $700,000. Staff anticipates receiving additional funding soon to cover monthly expenses for the Clubhouse through 2024. These funds will cover all costs associated with the lease extension.

COMMITTEE RECOMMENDATION:

This item was approved by the Safety and Communities Committee on November 14, 2022, where the Committee recommended forwarding to Council for approval. #14..
- 662 -
City Council, December 6, 2022
Lease Agreement and Purchase Order with Williams Scotsman, Inc. for Modular Building at Dryden Golf Course

Page 3 of 3 ends

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Amendment to Lease Agreement for the Modular Building at Dryden Golf Course and approving the increase of a Purchase Order with Williams Scotsman, Inc., Fresno, California, for a revised total amount not to exceed $95,000; and authorizing the City Manager or his designee to execute the Amendment.

Approved by:

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

1. Resolution

2. WillScot Lease Agreement No. 1437388

3. WillScot Amendment to Lease Agreement

4. Bid Waiver
#14..
- 663 -
12/06/2022/PRND/SMITH 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-

RESOLUTION APPROVING AN AMENDMENT TO LEASE AGREEMENT FOR

THE MODULAR BUILDING AT DRYDEN GOLF COURSE AND APPROVING

THE INCREASE OF A PURCHASE ORDER WITH WILLIAMS SCOTSMAN, INC., FRESNO, CALIFORNIA, FOR A REVISED TOTAL AMOUNT NOT TO EXCEED $95,000; AND AUTHORIZING THE CITY MANAGER OR HIS

DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, the City owns real property located at 920 Sunset Avenue (APN 037-036-003), and known as the Dryden Golf Course; and
WHEREAS, on August 4, 2020, the Dryden Golf Park Clubhouse was heavily damaged by a fire; and
WHEREAS, the City’s property insurance company, Alliant, engaged Contractor to lease a modular building to serve as the Golf Course’s temporary Clubhouse; and WHEREAS, the City’s property insurance company, Alliant, transferred ownership of the lease to the City because their insurance services were no longer needed but the modular building needed to remain until the Clubhouse was rebuilt; and WHEREAS, the City assumed ownership of the lease in March 2021 to prevent an interruption in golf services and a loss in golf green fee revenue; and WHEREAS, the lease agreement lapsed in March 2022, and the City has been on a month-to-month lease; and
WHEREAS, the City is nearing fifty thousand dollars in payments to the Contractor; and
WHEREAS, staff anticipates the Clubhouse renovation to be completed by late 2024 and recommends the lease agreement be extended to December 28, 2024; and #14..
- 664 -
12/06/2022/PRND/SMITH 2 2022-?
WHEREAS, the monthly cost is estimated at $1,776 per month and staff recommends the existing Purchase Order to be increased by $45,362 to a revised total not to exceed $95,000; and
WHEREAS, Modesto Municipal Code Section (MMC) 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(d) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality; and
WHEREAS, Contractor qualifies for exemption from the formal bidding procedure in accordance with MMC 8-3.204(d) because a change in vendor would incur removal and installation fees as well as a possible loss in green fee revenue while the building is being replaced.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Amendment to Lease Agreement for the Modular Building at Dryden Golf Course and approves the increase of a Purchase Order with Williams Scotsman, Inc., Fresno, California, for a revised total not to exceed $95,000.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Amendment to Lease Agreement in a form approved by the City Attorney.
#14..
- 665 -
12/06/2022/PRND/SMITH 3 2022-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 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
#14..
- 666 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• _ Fresno, CA 93725-2224
Lease Agreement
Lessee: 23645637
City of Modesto
123
Modesto, California, 95351
TM
Contact:

Bob Quintella
123
Modesto, CA, 95351
Phone: 209 324 8495
Your Williams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Ship To Address:

Contract Number:1437388
Revision: 1
Date: March 03, 2021
920 Sunset Ave, .

MODESTO, CA, 95351 .

E-mail: [email protected]
Delivery Date(on or about):
3/12/2021
Rental Pricing Per Month
64x12 Mobile Office (60x12 Box)
Bas. Entrance-Steps T2
General Liability - Allen Insurance
Property Damage Waiver (11 /12)
ADA/IBC Ramp -w/ switchback
Prof. 2-Office/Conf Package T2
Minimum Lease Term: 12 Months
Delivery & Installation
Final Return Charges*
Tiedown-Asphalt Removal
Skirting Removal - Wood LF
Ramp - Knockdown & Return
Teardown
Return Freight
Scope Of Work '
Unit Number:

Quantity Price
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
Total Monthly Building Charges:
• Subtotal of Other Monthly Charges:

Total Rental Charges Per Month:

Total Delivery & Installation Charges:
12 144
1 $47.92
$7.33
$1 ,452.00
$240.00
$1 ,410.34
Due On Final Invoice*:

Total Charges Including ( 12 ) Month Rental, Delivery, Installation & Return*•:

Extended
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
$799.00
$761.00
$1,560.00
$0.00
$575.04
$1 ,055.52
$1,452.00
$240.00
$1,410.34
$4,732.90
$23,452.90
*Please note this quote accounts for any Prevailing Wage Labor Rates. This does not account for Permits or Pilot Cars that may be required for delivery/ return. Any applicable taxes or fees will be listed on the initial invoice. Building comes with Pre-Wired CAT-6 Phone/Data Hub & Window/Door Security included. Rates will be itemized on the initial invoice.

Summary of Charges
Model: MO6412 QUANTITY: Total Charges for (1) Building(s): $23,452.90 #14..
- 667 -

I WILLSCOT
I Williams Scotsman, Inc.
2829 S. Chestnut Avenue
Fresno, CA 93725-2224
TM
Your Williams Scotsman Representative ·
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500

INSURANCE REQUIREMENTS AODENDUM

QTY PRODUCT
MO6412
Lessee:City of Modesto

EQUIPMENT VALUE/BUILDING
$31795.00

DEDUCTIBLE PER UNIT
$3000.00
Contract Number:1437388
Revision: 1
Date: March 03, 2021
Pursuant to the Williams Scotsman Lease Agreement and its Terms and Conditions ("Agreement"), a Lessee is obligated to provide insurance to Williams Scotsman, Inc. {"Lessor") with the following insurance coverage:

1. Commercial General Liability Insurance: policy of combined bodily injury and property damage insurance insuring Lessee and Lessor against any liability arising out of the use, maintenance, or possession of the Equipment. Such insurance shall be in an amount not less than $1 ,000,000 per occurrence, naming the Lessor as Additional Insured and Loss Payee.

2. Commercial Property Insurance: covering all losses or damage, in an amount equal to 100% of the Equipment Value set forth in the Lease providing protection against perils included within the classification and special extended perils (all "risk" insurance), naming the Lessor as Additional Insured and Loss Payee.

By signing below, the Lessee agrees to the terms and conditions stated herein. All other general Terms and Conditions of the Agreement shall remain the same and in full force and effect. Each party is hereby authorized to accept and rely upon a facsimile or electronic signature of the other party on this Addendum. Any such signature shall be treated as an original signature for all purposes.

Commercial General Liability Insurance
Lessee elects to participate in the Commercial General Liability Insurance Program, whereby Lessee will receive insurance coverage through American Southern Insurance Company ("Insurer") and administered by Allen Insurance Group ("Agent"). The Lessee acknowledges and agrees that the policy issued by the Insurer is a third party liability policy that covers those amounts that Lessee is legally obligated to pay due to bodily insurance and property damage arising from the proper use and occupancy of Equipment leased from Williams Scotsman up to the policy limits. Coverage is subject to underwriting and specific terms and conditions set forth in the policy. An outline of cover is available upon request. By signing below, Lessee understands and agrees that the Lessor is not providing the insurance coverage and serves only as a billing agent for the Insurer and its Agent; and, accordingly, it assumes no liability therefore.

Signature of Lessee: ~..,.,._...,_~~-- -----PrintName: ~o/~ Date:

Damage Waiver Program
Lessee elects to participate in the Lessor's Damage Waiver Program. Lessee understands and agrees that under this program, the Lessor waives, for a fee, Lessee's obligation to carry Commercial Property Insurance and Lessee's liability to Lessor for rep.,iir or_replacement of the modular units leased from Williams Scotsman resulting from loss or damage as specified in the Lease Agreement. Lessee remains liable to Williams Scotsman for the amount of the damage deductible per unit of equipment noted above. Please refer to the Agreement for specific details on coverage, exclusions and restrictions on coverage. The Property Damage Waiver is not and shall not constitute a contract for insurance. s;goat,reofles~ec ~ Pdo!Namec J"'¥/.7t.-wz_ Date _ q__, IZ.7( 1 Please return this signed document with the signed lease agreement ifitr
#14..
- 668 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
T"
Clarifications
Your Williams Scotsman Representative
1Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500
Contract Number:1437388
Revision: 1
Date: March 03, 2021
*Final Return Charges are estimated and will be charged at Lessor's market rate at time of return for any Lease Term greater than twelve (12) months. **All prices exclude applicable taxes. All Lessees and Leases are subject to credit review. In addition to the stated prices, customer shall pay any local, state or provincial, federal and/or personal property tax or fees related to the equipment identified above ("Equipment"), its value or its use. Lessee acknowledges that upon delivery of the Equipment, this Agreement may be updated with the actual serial number(s), delivery date(s), lock serial number(s), etc, if necessary and Lessee will be supplied a copy of the updated information. Prices exclude taxes, licenses, permit fees, utility connection charges, site preparation and permitting which is the sole responsibility of Lessee, unless otherwise expressly agreed by Lessor in writing.

Lessee is responsible for locating and marking underground utilities prior to delivery and compliance with all applicable code requirements unless otherwise expressly agreed by the Lessor in writing. Price assumes a level site with clear access. Lessee must notify Lessor prior to delivery or return of any potentially hazardous conditions or other site conditions that may otherwise affect delivery, installation, dismantling or return of any Equipment.

Failure to notify Lessor of such conditions will result in additional charges, as applicable. Physical Damage & Commercial Liability insurance coverage is required beginning on the date of delivery. Lessor is not responsible for changes required by code or building inspectors. Pricing is valid for thirty (30) days.

Please note the following important billing terms:

In addition to the first month rental and initial charges, last month rent for building, other monthly rentals/service (excluding last month for General Liability Insurance and Property Damage Waivers), will be billed on the initial invoice. Any amounts prepaid to Williams Scotsman will be credited on the final invoice.

Invoices are due on receipt, with a twenty (20) day grace period. Interest will be applied to all past due amounts.

Invoices are due on receipt, with a twenty (20) day grace period. Late fees will be applied to all past due amounts.

Williams Scotsman preferred method of payment is ACH . Payments made by check are subject to a Paper Check Fee, charged on the next invoice following payment by check.

Williams Scotsman preferred method of invoicing is via electronic transmission. Customers are encouraged to provide an email address or use BillTrust. Invoices sent standard mail are subject to a paper invoice fee, charged on the following invoice.

Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor Modular Equipment and Value Added Products (as such items are defined in Lessor's General Terms & Conditions) selected by Lessee as set forth in this Agreement. All such items leased by the Lessee for purposes of this Lease shall be referred to collectively as the "Equipment". By its signature below, Lessee hereby acknowledges that it has read and agrees to be bound by the Lessor's General Terms & Conditions (09-01-19) located on Lessor's internet site {https://www.willscot.com/About/terms-conditions) in their entirety, which are incorporated herein by reference and agrees to lease the Equipment from Lessor subject to the terms therein. Although Lessor will provide Lessee with a copy of the General Terms & Conditions upon written request, Lessee should print copies of this Agreement and General Terms & Conditions for record keeping purposes. Each party is authorized to accept and rely upon a facsimile signature, digital, or electronic signatures of the other party on this Agreement. Any such signature will be treated as an original signature for all purposes and shall be fully binding. The undersigned represent that they have the express authority of the respective party they represent to enter into and execute this Agreement and bind the respective party thereby.

Invoicing Options (select one)
[ ]Paperless Invoicing Option
Willia s cotsman prefers electronic invoicing, an efficient, convenient and environmentally friendly process. To avoid fees, provide us with the proper email address for your invoices.

A/P Email: APVuzdorS € moc/4.s+oqov. Com
A/P Email on File:

Signatures
Lessee:: City of Modesto
Signature:

Print Nam
Title:

Date:

PO#
PLEASE RETURN SIGNED AGREEMENT TO: [email protected] Lessor:
[ ]Standard Mail Option
Customer prefers to receive paper invoice via mail. Fees may apply.

Invoices will be mailed to:
123
Modesto California 95351
Enter a new billing address: _____ ______ __ _
Williams Scotsman, Inc.

Signature:

Print Name:

Title:

Date:
#14..
- 669 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
Lease Agreement
Lessee:

City of Modesto
123
Modesto, California, 95351
TM
Contact:

Bob Quintella
123
Modesto, CA, 95351
Phone: (209) 577-6217
Your WIiiiams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500
Ship To Address:

Contract Number:1437388
Revision: 1
Date: March 03, 2021
920 Sunset Ave,
MODESTO, CA, 95351
E-mail: [email protected]
Delivery Date(on or about):
3/12/2021
Rental Pricing Per Month
64x12 Mobile Office (60x12 Box) Unit Number:

Bas. Entrance-Steps T2
General Liability - Allen Insurance
Property Damage Waiver (11/12)
ADA/IBC Ramp -w/ switchback
Prof. 2-Office/Conf Package T2
Minimum Lease Term: 12 Months
Delivery & Installation
Final Return Charges•
Tiedown-Asphalt Removal
Skirting Removal - Wood LF
Ramp - Knockdown & Return
Teardown
Return Freight
Quantity Price
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
Total Monthly Building Charges:

Subtotal of Other Monthly Charges:

Total Rental Charges Per Month:

Total Delivery & Installation Charges:
12 144
$47.92
$7.33
$1,452.00
$240.00
$1,410.34
Due On Final Invoice•:

Total Charges Including ( 12) Month Rental, Delivery, Installation & Return":

Scope Of Work
Extended
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
$799.00
$761.00
$1,560.00
$0.00
$575.04
$1,055.52
$1,452.00
$240.00
$1,410.34
$4,732.90
$23,452.90
*Please note this quote accounts for any Prevailing Wage Labor Rates. This does not account for Permits or Pilot Cars that may be required for delivery/ return. Any applicable taxes or fees will be listed on the initial invoice. Building comes with Pre-Wired CAT-6 Phone/Data Hub & Window/Door Security included. Rates will be itemized on the initial invoice.

Summary of Charges
Model: MO6412 QUANTITY: Total Charges for (1) Building(s): $23,452.90 #14..
- 670 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
TM

INSURANCE REQUIREMENTS ADDENDUM
Your Williams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500

QTY PRODUCT
MO6412

EQUIPMENT VALUE/BUILDING
$31795.00

DEDUCTIBLE PER UNIT
$3000.00
Lessee:City of Modesto
Contract Number:1437388
Revision: 1
Date: March 03, 2021
Pursuant to the Williams Scotsman Lease Agreement and its Terms and Conditions ("Agreement"), a Lessee is obligated to provide insurance to Williams Scotsman, Inc. ("Lessor") with the following insurance coverage:

SignatureofLessee: ~ Print Name: , ~k Date: ~ .. ,._·I .. J._.•~------- Damage Waiver Program
Lessee elects to participate in the Lessor's Damage Waiver Program. Lessee understands and agrees that under this program, the Lessor waives, for a fee, Lessee's obligation to carry Commercial Property Insurance and Lessee's liability to Lessor for repair or replacement of the modular units leased from Williams Scotsman resulting from loss or damage as specified in the Lease Agreement. Lessee remains liable to Williams Scotsman for the amount of the damage deductible per unit of equipment noted above. Please refer to the Agreement for specific details on coverage, exclusions and restrictions on coverage. The Property Damage Waiver is not and shall not constitute a contract for insurance.

Signature of Lessee: Jfa ---~......_,__:....:;.., _ ____ Print Name: J~~e_ Date:

Please return this signed document with the signed lease agreement #14..
- 671 -
~---------~c,

W I LL I AMS
SCOTSMAN 800. 782.1500
AnALGECO SCOTSMAN Company w w w . w i I I s c o t .c o m ... -,
I\ /I 0-~

IT) I T) I IMI IMI
I/ \I I/ \I
,:__.:, ,:__.:, .--, ... -, I\ /I I\ /I

IT) I IT) I
IM~ IMI
~-\ I/ \I ,:__.:,
Specifications
Size
64' Long (including hitch)
60' Box size
12' Wide nominal
8' Ceiling height nominal
0-~

T) I IMI
I/ \I
,:__.:, ... -, I\ /I
IT) I
IMJZI ~-'
Interior Finish
Paneled walls
Vinyl tile floors
Grid ceiling
... -,
I\ II

I T) I IMI
I/ \I
,:__.:,
... -, I\ /I

IT) I IMI
I/ \I
,:__.:,
60'-0"
0-~ ... -, I\ /I

T) I IT) I IMI IMI
I I \I I/ \I
,:__.:, ,:__.:,
... -, ... -, I\ /I I\ /I

IT) I IT) I

IMJZI IMI
~-\ I/ \I ,:__.:,
Electric
Fluorescent ceiling lights
120/240 volt single phase electric
100 AMP breaker panel
Windows/Doors
Horizontal slider windows
Std doors w/ vison panel, std lockset
M06412

MOBILE OFFICE

FLOOR PLAN
~-12] ... -, I\ /I I T) IT) I IM I IMI
I/ \I 111 ,:__.:, .-, I\ /I I\ /I
IT) I IT) I IM I ~Ml I/ \I
,:__.:, I-~
I
Exterior Finish/Frame
-
>
-
Wood siding & trim
I-Beam outrigger frame
Standard drip rail gutters
Heating & Cooling
Wall mount HVAC
Additional floor plans available. Floor plans and specifications may vary from those shown and are subject to in-stock availability.

CAD FILE: I OWG # f REV# I REP: I APPROVAL:

WS2013· IA-1 10 I . I ---------~---------+--------4--------~ SCALE: I SERIAL#: I DATE I OWN BY: I APVL DATE:
1/8"=1' I I I I

THE USE OF THIS DRAWING FDR ANY MEANS OTHER THAT

INTENDED IS STRICTLY PROHIBITED WITHOUT THE PRIOR

WRITTEN CONSENT OF AN AUTHORIZED WILLIAMS
SCOTSMAN REPRESENTATIVE.
{C) Wllllams Scotsman, Inc. All Rights Reserved.
. • ..
" ..
f
#14..
- 672 -
Amendment Lease Renewal 5-5-2021

AMENDMENT TO LEASE AGREEMENT
(LEASE TERM RENEWAL)
LESSEE:

CITY OF MODESTO
1010 10TH ST #5200
MODESTO, CA 95354
EQUIPMENT LOCATION:
920 SUNSET AVE
MODESTO, CA 95351
Contract Number: 1338487
Equipment Serial/Complex Number: UM2-51303
Insurance Replacement Value: $31,795.00
By this Amendment, Williams Scotsman, Inc. and the Lessee (listed above) agree to modify the original lease agreement, dated 03/29/2021 (“Lease Agreement”) as set forth below.

1. The rental term for the equipment identified above, shall be renewed from 012/29/2022 through 12/28/2024 (the “Lease Renewal Term”).

2. The rental rate during the Lease Renewal Term shall be $838.95 plus applicable taxes, which Lessee agrees to pay Lessor in advance as set forth in the Lease during the Lease Renewal Term.

3. Knockdown and return freight shall be at Lessor’s prevailing rate at the time the Equipment is returned.

4. BAS. ENTRANCE-STEPS (1) (Monthly) $78.75
ADA/IBC RAMP -W/ SWITCHBACK (1) (Monthly) $341.25
PROF. 2-OFFICE/CONF PACKAGE (1) (Monthly) $262.50
GENERAL LIABILITY - ALLEN INSU (1) (Monthly) $22.00
PROPERTY DAMAGE WAIVER (1) (Monthly) $89.00

5. All other Terms and Conditions of the original Lease Agreement shall remain the same and in full force and effect.

ACCEPTED:

LESSEE: CITY OF MODESTO LESSOR: WILLIAMS SCOTSMAN, INC.

Signature: Signature:

Print
Name:

Print Name:

Title: Title:

Date: Date:
#14..
- 673 -
Bid Waiver Approval Form
Supplier Name: Amount of Bid Waiver Request:

Supplier Contact: Supplier Phone No:

Are Federal Funds being utilized for portion of purchase? A bid waiver is required for any procurement commitment greater than $ 3,500 where a minimum of three bids are not obtained.

Justification for waiving the competitive bid requirements is limited to the following (provide detailed information in the comments section of form):

Reason for Bid Waiver - Check Box:

Sole Source - The item/service is unique in its specifications such that only one vendor is qualified to provide the good or service (Formal bidding exception under MMC 8-3.204(b))
OEM - Original Equipment Manufacturer / Distributor
Inflexible time constraints preclude the bidding process - Exigent circumstances (Formal bidding exception under MMC 8-3.204 (c))
The incumbent's cost, delivery and quality can be compared to a previous quote/bid obtained within the last six months, for the same or similar item/service (Total purchase must be less than $50,000)
Professional Services defined under MMC 8-3.103 (Formal bidding exception under MMC 8-3.204 (a))
Single Bid/Proposal – More than one supplier could provide the goods or service, but only one supplier provided bid/proposal for solicitation.

Requisition No: Department:

Project Description:

The purchase of any item utilizing any Federal Funding must comply with current applicable Circular Yes No
Williams Scotsman, Inc. (dba Willscot) $45,362 (new total of PO $95,000) [email protected] (559) 498-5905 N/A PRN Dryden Golf Course Modular Trailer #14..
- 674 -
Other (requires detailed comments)
Comments:

Approval Name Signature Date
Requestor
Division Manager
Department Director
Chief Information Officeri
Buyer
Purchasing Manager
Director of Finance
i
Information technology (IT) purchases will require Chief Information Officer Signature Buyer Comments:
10/27/22
10/27/22
The Office Modular building at Dryden Golf Course has been on-site since the Clubhouse fire in 2020. The City's insurance provider originally contracted this vendor and transitioned ownership to the City in March 2021. The Clubhouse was expected to be rebuilt by early 2022. However, the Clubhouse has yet to be rebuilt and the Purchase Order with WillScot has since ended in March 2022. Since, then the City has been on a month-to-month lease and is now nearing the $50,000 threshold which requires a formal agreement and Council approval. Changing to a new building will come with additional removal and installation costs and possibly closing the Golf Course causing a loss of revenue to the City. MMC 8-3.204(D) exempts this from formal bidding procedures because of the costs noted above and the loss of green fee revenue while the building is being replaced. Jessica Franco 10/27/2022 n/a Laurie A. Smith n/a Kathy Crandall Cynthia Kline Deanna Christensen #14..
- 675 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 6, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: First Amendment to Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau
CONTACT: Laurie A. Smith, Director, [email protected], 209-577-5347 DESCRIPTION:

Consider approving the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau, Inc., for the Year 2 allocation of $250,000 in American Rescue Plan Act funding. (Funding Source:

American Rescue Plan Act Funds)
STRATEGIC PLAN ELEMENT:

This item supports each of the initiatives in the City’s 2020-2025 Strategic Plan.

BACKGROUND:

In April 2021, President Biden signed into law the American Rescue Plan Act (ARPA), a $1.9 trillion emergency relief measure intended to provide relief from the impact of COVID-19. The legislation also made a historic investment into local governments that includes $45,894,056 to the City of Modesto to address the local impact of COVID-19. The investment is being made in two tranches, with fifty percent made available within sixty days of enactment of the law and fifty percent to be distributed twelve months later. The deadline to obligate funds is December 31, 2024. The deadline to expend the funds is December 31, 2026.

In developing a proposed expenditure plan, the City solicited priorities from the public and Council at three standing City Council Committees: Economic Development, Safety and Communities, and Finance. Three areas of focus were identified to be potentially eligible based on the Treasury Department guidelines available at the time: Economic Vitality, Governance and Service Delivery, and Quality of Life.

On June 22, 2021, by Resolution No. 2021-194, Council approved the Pandemic Recovery Strategy – Modesto Forward (Modesto Forward). Modesto Forward’s comprehensive spending plan is designed to support the local recovery from the pandemic. Part of the City’s first tranche (Year 1) of funding included $7,108,500 for Economic Vitality initiatives, with $250,000 allocated to the Modesto Convention and Visitors Bureau (CVB).
#15..
- 676 -
City Council, December 6, 2022
First Amendment to Modesto Forward Grant Agreement
with the Modesto Convention and Visitors Bureau

Page 2 of 3 ends

On February 8, 2022, by Resolution No. 2022-104, Council approved the Pandemic Recovery Strategy – Modesto Forward – Grant Agreement with the CVB for the allocation of $250,000 in Year 1 funds. The CVB, also known as “Visit Modesto”, plans to use the funding to create sustainable tourism oriented in economic recovery programs in Modesto.

DISCUSSION:

On July 12, 2022, by Resolution No. 2022-237, Council approved the Year 2 expenditure plan for the second tranche of ARPA funding. The plan allocates the second $250,000 to the CVB.

For the disbursement of funding to the CVB, staff recommends allocating the second installment in the CVB Grant Funding Agreement from $250,000 to $500,000.

The CVB’s initiatives over the next twenty-four months are designed to impact the local economy (lodging, dining, entertainment, and more), create customer awareness that Modesto is a desirable destination for a variety of purposes, generate public relations exposure, increase local resident awareness of the amenities and benefits of Modesto, drive revenue/tax dollars from visitors outside the city and increase both the visitor and local experience when spending time in Modesto. Initiatives include: Wayfinding, Seasonal Programs, Agricultural Tourism, Arts & Entertainment, and Special Programs.

FISCAL IMPACT:

The Budget Division will process any budget adjustments necessary to allow payment to be made to the CVB within the next 30 days. The CVB is required to expend funding on or before December 31, 2026 in compliance with the terms and conditions of the Grant Agreement.

COMMITTEE RECOMMENDATION:

This agenda item was considered on November 14, 2022 by the Safety & Communities Committee on November 14, 2022, where the committee recommended forwarding to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau, Inc., for the Year 2 allocation of $250,000 in American Rescue Plan Act funding, and authorizing the City Manager, or his designee, to execute the First Amendment and carry out the necessary steps to implement the spending plan for the second allocation.

Approved by:

Laurie A. Smith, Director of Parks, Recreation &
Neighborhoods
Joseph P. Lopez, City Manager
#15..
- 677 -
City Council, December 6, 2022
First Amendment to Modesto Forward Grant Agreement
with the Modesto Convention and Visitors Bureau

Page 3 of 3 ends

Attachments:

1. Resolution

2. First Amendment

3. Agreement
#15..
- 678 -
12/06/2022/PRND/SMITH 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022

RESOLUTION APPROVING THE FIRST AMENDMENT TO THE CITY OF MODESTO PANDEMIC RECOVERY STRATEGY – MODESTO FORWARD

GRANT AGREEMENT WITH THE MODESTO CONVENTION AND VISITORS BUREAU, INC, FOR THE YEAR 2 ALLOCATION OF $250,000 IN AMERICAN

RESCUE PLAN FUNDING, AND AUTHORIZING THE CITY MANAGER, OR

HIS DESIGNEE, TO EXECUTE THE FIRST AMENDMENT AND CARRY OUT

THE NECESSARY STEPS TO IMPLEMENT THE SPENDING PLAN FOR THE

SECOND ALLOCATION
WHEREAS, in April 2021, President Biden signed into law the American Rescue Plan Act (ARPA), a $1.9 trillion emergency relief measure intended to provide relieve from the impact of COVID-19; and
WHEREAS, the legislation made a historic investment into local governments, include $45,894,056 to the City of Modesto to address the local impact of COVID-19; and
WHEREAS, by Resolution No. 2021-194, Council approved the Pandemic Recovery Strategy – Modesto Forward (Modesto Forward), a comprehensive spending plan designed to support the local recovery from the pandemic; and WHEREAS, the spending plan included $7,105,500 for Economic Vitality initiatives, with $250,000 allocated to the Modesto Convention and Visitors Bureau (CVB) in the City’s Year 1 and Year 2’s spending plan; and WHEREAS, by Resolution No. 2022-104, Council approved the Pandemic Recovery Strategy – Modesto Forward – Grant Agreement with the CVB for $250,000 in Year 1 funding to create sustainable tourism and economic recovery programs, and WHEREAS, by Resolution No. 2022-237, Council approved the Year 2 spending plan for the second tranche of ARPA funding, including the second allocation of $250,000 to the CVB; and
#15..
- 679 -
12/06/2022/PRND/SMITH 2 2022-?
WHEREAS, all funds must be obligated by December 31, 2024 and expended by December 31, 2026.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward – Grant Agreement between the City of Modesto and Modesto Convention and Visitors Bureau for the Year 2 allocation of $250,000 in American Rescue Plan Act funding.

BE IT FURTHER RESOLVED, that the City Manager, or his designee, is authorized to execute the First Amendment, approved as to form by the City Attorney, and carry out the necessary steps to implement the spending plan for the second allocation.
#15..
- 680 -
12/06/2022/PRND/SMITH 3 2022-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 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
APPROVED AS TO FORM:

BY: ___________________________
JOSE M. SANCHEZ, City Attorney
#15..
- 681 -
Funding Contribution First Amendment to Agreement – $500,000

FIRST AMENDMENT TO THE

CITY OF MODESTO PANDEMIC RECOVERY STRATEGY - MODESTO FORWARD

GRANT AGREEMENT
This First Amendment to the Modesto Forward Grant Agreement (“First Amendment”) is entered into in the City of Modesto, State of California, this ____ day of ______________ 2022 (“Effective Date”) by and between the City of Modesto, a California municipal corporation (“City”), and the Modesto Convention and Visitors Bureau, Inc. also known as “Visit Modesto”, a California non-profit corporation (“Recipient”). The City and Modesto Convention and Visitors Bureau, Inc. shall be collectively referred to hereinafter as the “Parties”.

This Agreement is made with regard to the following recitals:

WHEREAS, the City received an allotment of funds from the United States Department of Treasury through the Coronavirus Local Fiscal Recovery Fund established by the American Rescue Plan Act (“ARPA”); and
WHEREAS, on June 22, 2021, by Resolution No. 2021-194, Council approved the Pandemic Recovery Strategy – Modesto Forward, hereinafter referred to as “Modesto Forward”, to support local recovery from the pandemic; and WHEREAS, in alignment with the City’s 5-Year Strategic Plan, Modesto Forward includes three post pandemic funding initiatives to help the community exit the pandemic period and focused on Economic Vitality, Governance and Service Delivery, and Quality of Life; and WHEREAS, Economic Vitality initiatives are intended to improve the economic vitality of the community; Governance and Service Delivery initiatives are intended to improve the organization and service delivery for residents; and Quality of Life initiatives are intended to improve the quality of life for residents; and
WHEREAS, Modesto Forward includes a comprehensive spending plan, which includes ARPA funding, to programs supporting the economic recovery initiatives; and WHEREAS, on February 8, 2022, the City Council adopted Resolution No. 2022-104 awarding a grant of Two Hundred and Fifty Thousand Dollars($250,000) to Recipient for the purposes set out in Exhibit A, subject to the terms and conditions set out in this agreement; and WHEREAS, the City and Recipient previously entered into that certain Modesto Forward Grant Agreements dated _______________, 2022 (the “Agreement”) to establish the terms and conditions of the grant; and
WHEREAS, on July 12, 2022, the City Council adopted Resolution No. 2022-327, allocating an additional Two Hundred and Fifty Thousand Dollars ($250,000) from the second #15..
- 682 -
Funding Contribution First Amendment to Agreement – $500,000 tranche of funding to Recipient for the purposes set out in Exhibit A, subject to the terms and conditions set out in the Agreement and this First Amendment; and WHEREAS, the City and Recipient desire to enter into this First Amendment to increase the funding provided to the Recipient .

NOW THEREFORE, in consideration of their mutual promises and the terms, conditions and covenants hereinafter, the Parties desire to enter into this First Amendment and amend the Agreement as follows:

AGREEMENT
SECTION 1. The recitals above are true and correct and herein incorporated by reference.

SECTION 2. Section 2 of the Agreement entitled “Grant Award” is hereby amended as follows (strikethrough is deleted, italics is addition):
“SECTION 2. Grant Award”
A. The City shall provide Recipient with a grant of Two Hundred Fifty Thousand Dollars($250,000) Five Hundred Thousand Dollars ($500,000)(the “Grant”) for the purposes and activities further specified in Exhibit A, attached hereto and incorporated by referenced (the “Activities”). Disbursement of the Grant is dependent upon Recipient providing all records and documentation reasonably required by the City.

B. Recipient shall expend the Grant solely on the Activities, as specified in Exhibit A. Recipient shall not use the Grant for any other purpose or activity without the prior written consent of the City.

C. The Recipient shall operate within the territorial limits of the City of Modesto and the beneficiaries, if any, of the Activities shall be the residents of the City of Modesto or persons visiting or temporarily in Modesto.

D. Recipient shall expend the entirety of the Grant by no later than December 31, 2026. Any portion of the Grant that has not been expended by December 31, 2026 shall be returned to the City no later than January 10, 2027.

SECTION 3. Except as modified and amended by this First Amendment, all other provisions of the Agreement remain unchanged and in full force.

IN WITNESS WHEREOF, the CITY has authorized the execution of this FIRST AMENDMENT in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2022- , adopted by the City Council of the City of Modesto on the ____ day of #15..
- 683 -
Funding Contribution First Amendment to Agreement – $500,000 ___________________, 2022, and Modesto Convention and Visitors Bureau has caused this First Amendment to Agreement to be duly executed.

#15..
- 684 -
Funding Contribution First Amendment to Agreement – $500,000

EXHIBIT A
CONTACT: Todd Aaronson
TITLE: CEO
ADDRESS: 1008 12th Street, Modesto, CA 95354
PHONE: 209.526.5588
EMAIL: [email protected]
URL: visitmodesto.com
BUSINESS NAME: Modesto Convention and Visitors Bureau, Inc.

EXECUTIVE COMMITTEE (SIGNEE OPTIONS):

Board Chair: Chris Murphy
Board Vice Chair: Thomas Lopes
Treasurer: Bert Tabrizi
FUNDING AMOUNT: $250,000 – YEAR 1
FUNDING AMOUNT: $250,000 – YEAR 2
Mo Impact ARPA Funding Outline presented by Visit Modesto Business Purpose (from by-laws):

The specific purposes for which this Corporation was formed are: (1) To attract visitors to the area by promoting and marketing Modesto as a convention, sports, tourism, and leisure travel destination; (2) to provide coordination and leadership for the community and the visitor industry on matters relating to convention activity and tourism; (3) to gather community information designed to convey to opinion leaders and the public at large the status of the visitor industry; and (4) to work with local governmental agencies, private enterprise and other interested parties to structure suitable financing plans for the Corporation, and to implement those plans.

The Corporation shall be non-profit and non-partisan and shall neither participate in nor lend its support to the election of any candidate for public office.

OBJECTIVE:

Visit Modesto plans to create sustainable tourism oriented economic recovery programs in Modesto. The purpose of the combined initiatives over the next 30-60 months are designed to impact the local economy (lodging, dining, entertainment and more), create consumer awareness that Modesto is a desirable destination for a variety of purposes, generate Public Relations exposure, increase local resident awareness of the amenities and benefits of Modesto, #15..
- 685 -
Funding Contribution First Amendment to Agreement – $500,000 drive revenue/tax dollars from visitors outside the city and increase both the visitor and local experience when spending time in Modesto.

Note that by providing a myriad of destination promotions and programs there will be online and social popularity created for (and about) Modesto as a destination for regional business travel, youth sporting events, tour & travel buses as well as groups, conventions and special events.

GOALS:
- Increase awareness of Modesto as a destination
- Increase occupancy and/or average rate on an annual basis - Develop programs (reasons) for visitors that influences future trips - Increase ‘time in market’ for out of town travelers
- Drive more group-oriented business leads due to destination value awareness - Increase UGC (user generated content) and social engagement SCOPE:

The initiatives will comprise of a combination of the following deliverables; - Wayfinding;
This project will initiate a citywide approach to finding information and places of interest, entertainment, shopping and dining as budget allows. The program would allow sections of Modesto to maintain an independent image while fitting into the grand citywide wayfinding schema. Phase I would be to concept where wayfinding is needed to find Visit Modesto and amplify downtown with info kiosks and a lighting theme that includes the winter holiday season. Phase II, depending upon budget, would be to implement installation of directional wayfinding signage as noted in Phase I.
- Seasonal Initiatives;
These programs are based upon creating awareness of audience specific reasons to visit Modesto.

Day trippers and overnighters all stimulate the local economy and generate future visits. Thus targeted marketing initiatives will be launched for programs outlined and each will be tracked for results. In a post-pandemic world regional and one-day drive travel will be the norm for some time to come.

The key programs under consideration for seasonal initiatives that would be sustainable on an annual basis are;
o Winter/Get Mo Cheer – Holidays in Modesto focused on activities and events with Modesto on Ice, Holiday Parade and Rockin’ Holidays as centerpieces from mid-November through mid-January.
o Early Spring/Almond Blossom Cruise – the focus will shift to include national/international overnight guests as well as regional drive tourism
o Spring/Outdoor Events; recreation focused with the Modesto Marathon/Marathon Weekend to include all things in the region based upon outdoor things to do with continued communications through early winter (running, cycling, kayaking, fishing, hiking, trail riding, etc.).
o Summer/Ag Tourism and more – As noted below, Agricultural Tourism is the foundation upon which we will build interest in the region April through August. This will include a form #15..
- 686 -
Funding Contribution First Amendment to Agreement – $500,000 of Graffiti Summer and car culture as one of the many activities for entertainment during this season.
o Fall/Get Mo Pink (or similar) – This will be a month-long focus on programs, partners and events that celebrate women’s culture and raise awareness for women’s advocacy programs. This initiative will have a unique mission to drive ‘giving back’ and may include other local programs plus support of breast cancer programs in the area, Haven House and other women’s support programs.
- Agricultural Tourism;
According to U.C. Davis, “Agricultural tourism is a commercial enterprise at a working farm or ranch conducted for the enjoyment and education of visitors, and that generates supplemental income for the owner or operator. Agritourism can include farm stands or shops, U-pick, farm stays, tours, onfarm classes, fairs, festivals, pumpkin patches, corn mazes, Christmas tree farms, winery weddings, orchard dinners, youth camps, barn dances, hunting or fishing, guest ranches, and more.” Visit Modesto will work with the support offered by the State of California and guidance of the U.C.

Davis program to develop more programs, like the Almond Blossom Cruise, to drive increased interest and tourism highlighting the bounties of the area. - Sustainable/Environmental Tourism;
Working with programs like KindTravel through the Visit California partnership, Visit Modesto will work towards creating environmentally focused programming, destination sustainability and other initiatives that fit into the new trend for this type of considerate travel and support of visiting destinations that consider the environmental initiatives. - Arts & Entertainment;
Working with local artists, entertainment venues, restaurants and special events, Visit Modesto will be creating programs that drive interest in the arts, food, music and cultural programs of the area. A specific focus will be on original and creative programs as well as events that bring popular artists to play in Modesto. This initiative will have a focus on events that are both free to the public (locals included) and also ticketed events at private venues.
- Special Programs;
Over the next 36 months Visit Modesto will be working with local businesses, entrepreneurs and partners to develop several annual ‘weekend’ programs that celebrate cuisine, wine, spirits, agriculture and culture. These would range from Food & Wine education weekends to Family Fun weekends.
#15..
- 687 -
Funding Contribution First Amendment to Agreement – $500,000 PROPOSED TIMELINE and BUDGET;
The first program anticipated to launch will be in March 2022 and extend into 2023 as follows; Item ARPA Year 1 ARPA Year 2 Project Total
Wayfinding - Tourism Specific $35,000.0 $40,000.0 $75,000.0 Seasonal Initiatives $55,000.0 $65,000.0 $120,000.0
Agricultural Tourism $75,000.0 $75,000.0 $150,000.0
Arts & Entertainment $35,000.0 $20,000.0 $55,000.0
Sustainable/Environmental $20,000.0 $25,000.0 $45,000.0 Special Programs $30,000.0 $25,000.0 $55,000.0
TOTAL SPENDING $250,000.0 $250,000.0 $500,000.0

FINANCIAL TRACKING
Visit Modesto will track the results of each program using a variety of tools; - Financial; a new ‘fund’ allocation has been created by our book keeper (PBF CPA) for ARPA tracking specifically. All expenses associated with ARPA shall be coded and tracked with vendor, amounts and other info included.
#15..
- 688 -
Funding Contribution First Amendment to Agreement – $500,000

EXHIBIT B
U.S. DEPARTMENT OF THE TREASURY

CORONAVIRUS LOCAL FISCAL RECOVERY FUND

AWARD TERMS AND CONDITIONS

1. Use of Funds.
a. Recipient understands and agrees that the funds disbursed under this award may only be used in compliance with section 603(c) of the Social Security Act (the Act), U.S.

Department of Treasury’s (“Treasury”) regulations implementing that section, and guidance issued by Treasury regarding the foregoing.
b. Recipient will determine prior to engaging in any project using this assistance that it has the institutional, managerial, and financial capability to ensure proper planning, management, and completion of such project.

2. Period of Performance. The period of performance for this award begins on the date hereof and ends on December 31, 2026. As set forth in Treasury’s implementing regulations, Recipient may use award funds to cover eligible costs incurred during the period that begins on March 3, 2021, and ends on December 31, 2026.

3. Reporting. Recipient agrees to comply with any reporting obligations established by Treasury as they relate to this award.

4. Maintenance of and Access to Records
a. Recipient shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of the Act, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing. b. The Treasury Office of Inspector General and the Government Accountability Office, or their authorized representatives, shall have the right of access to records (electronic and otherwise) of Recipient in order to conduct audits or other investigations. c. Records shall be maintained by Recipient for a period of five (5) years after all funds have been expended or returned to Treasury, whichever is later.

5. Pre-award Costs. Pre-award costs, as defined in 2 C.F.R. § 200.458, may not be paid with funding from this award.

6. Administrative Costs. Recipient may use funds provided under this award to cover both direct and indirect costs.

7. Cost Sharing. Cost sharing or matching funds are not required to be provided by Recipient.

8. Conflicts of Interest. Recipient understands and agrees it must maintain a conflict of interest policy consistent with 2 C.F.R. § 200.318(c) and that such conflict of interest policy is applicable to each activity funded under this award. Recipient and subrecipients must disclose in writing to #15..
- 689 -
Funding Contribution First Amendment to Agreement – $500,000 Treasury or the pass-through entity, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2 C.F.R. § 200.112.

9. Compliance with Applicable Law and Regulations.
a. Recipient agrees to comply with the requirements of section 602 of the Act, regulations adopted by Treasury pursuant to section 602(f) of the Act, and guidance issued by Treasury regarding the foregoing. Recipient also agrees to comply with all other applicable federal statutes, regulations, and executive orders, and Recipient shall provide for such compliance by other parties in any agreements it enters into with other parties relating to this award.
b. Federal regulations applicable to this award include, without limitation, the following:
i. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable to this Award and subject to such exceptions as may be otherwise provided by Treasury. Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply to this award. ii. Universal Identifier and System for Award Management (SAM), 2 C.F.R. Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
iii. Reporting Subaward and Executive Compensation Information, 2 C.F.R. Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
iv. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19. v. Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
vi. Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part 20. vii. New Restrictions on Lobbying, 31 C.F.R. Part 21.
viii. Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
ix. Generally applicable federal environmental laws and regulations. c. Statutes and regulations prohibiting discrimination applicable to this award include, without limitation, the following:
#15..
- 690 -
Funding Contribution First Amendment to Agreement – $500,000 i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance;
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability; iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance;
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and
v. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.

10. Remedial Actions. In the event of Recipient’s noncompliance with section 602 of the Act, other applicable laws, Treasury’s implementing regulations, guidance, or any reporting or other program requirements, Treasury may impose additional conditions on the receipt of a subsequent tranche of future award funds, if any, or take other available remedies as set forth in 2 C.F.R. § 200.339. In the case of a violation of section 602(c) of the Act regarding the use of funds, previous payments shall be subject to recoupment as provided in section 602(e) of the Act and any additional payments may be subject to withholding as provided in sections 602(b)(6)(A)(ii)(III) of the Act, as applicable.

11. Hatch Act. Recipient agrees to comply, as applicable, with requirements of the Hatch Act (5 U.S.C. §§ 1501-1508 and 7324-7328), which limit certain political activities of State or local government employees whose principal employment is in connection with an activity financed in whole or in part by this federal assistance.

12. False Statements. Recipient understands that making false statements or claims in connection with this award is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

13. Publications. Any publications produced with funds from this award must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLFRP2096 awarded to County of Stanislaus by the U.S. Department of the Treasury.”

14. Debts Owed the Federal Government.
#15..
- 691 -
Funding Contribution First Amendment to Agreement – $500,000 a. Any funds paid to Recipient (1) in excess of the amount to which Recipient is finally determined to be authorized to retain under the terms of this award; (2) that are determined by the Treasury Office of Inspector General to have been misused; or (3) that are determined by Treasury to be subject to a repayment obligation pursuant to sections 602(e) and 603(b)(2)(D) of the Act and have not been repaid by Recipient shall constitute a debt to the federal government.
b. Any debts determined to be owed the federal government must be paid promptly by Recipient. A debt is delinquent if it has not been paid by the date specified in Treasury’s initial written demand for payment, unless other satisfactory arrangements have been made or if the Recipient knowingly or improperly retains funds that are a debt as defined in paragraph 14(a). Treasury will take any actions available to it to collect such a debt.

15. Disclaimer.
a. The United States expressly disclaims any and all responsibility or liability to Recipient or third persons for the actions of Recipient or third persons resulting in death, bodily injury, property damages, or any other losses resulting in any way from the performance of this award or any other losses resulting in any way from the performance of this award or any contract, or subcontract under this award. b. The acceptance of this award by Recipient does not in any way establish an agency relationship between the United States and Recipient.

16. Protections for Whistleblowers.
a. In accordance with 41 U.S.C. § 4712, Recipient may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. b. The list of persons and entities referenced in the paragraph above includes the following:
i. A member of Congress or a representative of a committee of Congress; ii. An Inspector General;
iii. The Government Accountability Office;
iv. A Treasury employee responsible for contract or grant oversight or management;
v. An authorized official of the Department of Justice or other law enforcement agency;
#15..
- 692 -
Funding Contribution First Amendment to Agreement – $500,000 vi. A court or grand jury; or
vii. A management official or other employee of Recipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
c. Recipient shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

17. Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Recipient should encourage its contractors to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles.

18. Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Recipient should encourage its employees, subrecipients, and contractors to adopt and enforce policies that ban text messaging while driving, and Recipient should establish workplace safety policies to decrease accidents caused by distracted drivers.

ASSURANCES OF COMPLIANCE WITH CIVIL RIGHTS REQUIREMENTS ASSURANCES OF COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 As a condition of receipt of federal financial assistance from the Department of the Treasury, the recipient named below (hereinafter referred to as the “Recipient”) provides the assurances stated herein. The federal financial assistance may include federal grants, loans and contracts to provide assistance to the Recipient’s beneficiaries, the use or rent of Federal land or property at below market value, Federal training, a loan of Federal personnel, subsidies, and other arrangements with the intention of providing assistance. Federal financial assistance does not encompass contracts of guarantee or insurance, regulated programs, licenses, procurement contracts by the Federal government at market value, or programs that provide direct benefits.

The assurances apply to all federal financial assistance from or funds made available through the Department of the Treasury, including any assistance that the Recipient may request in the future.

The Civil Rights Restoration Act of 1987 provides that the provisions of the assurances apply to all of the operations of the Recipient’s program(s) and activity(ies), so long as any portion of the Recipient’s program(s) or activity(ies) is federally assisted in the manner prescribed above.

1. Recipient ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal financial assistance, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda, and/or guidance documents.

2. Recipient acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP).

Recipient understands that denying a person access to its programs, services, and activities #15..
- 693 -
Funding Contribution First Amendment to Agreement – $500,000 because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Accordingly, Recipient shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure that LEP persons have meaningful access to its programs, services, and activities. Recipient understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication in the Recipient’s programs, services, and activities.

3. Recipient agrees to consider the need for language services for LEP persons when Recipient develops applicable budgets and conducts programs, services, and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. For more information on taking reasonable steps to provide meaningful access for LEP persons, please visit http://www.lep.gov.

4. Recipient acknowledges and agrees that compliance with the assurances constitutes a condition of continued receipt of federal financial assistance and is binding upon Recipient and Recipient’s successors, transferees, and assignees for the period in which such assistance is provided.

5. Recipient acknowledges and agrees that it must require any sub-grantees, contractors, subcontractors, successors, transferees, and assignees to comply with assurances 1-4 above, and agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Recipient and the Recipient’s sub-grantees, contractors, subcontractors, successors, transferees, and assignees:

The sub-grantee, contractor, subcontractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.

6. Recipient understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Recipient, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Recipient for the period during which it retains ownership or possession of the property.

7. Recipient shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. The Recipient shall comply with information requests, on-site compliance reviews and reporting requirements.
#15..
- 694 -
Funding Contribution First Amendment to Agreement – $500,000

8. Recipient shall maintain a complaint log and inform the Department of the Treasury of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Recipient also must inform the Department of the Treasury if Recipient has received no complaints under Title VI.

9. Recipient must provide documentation of an administrative agency’s or court’s findings of noncompliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Recipient and the administrative agency that made the finding. If the Recipient settles a case or matter alleging such discrimination, the Recipient must provide documentation of the settlement. If Recipient has not been the subject of any court or administrative agency finding of discrimination, please so state.

10. If the Recipient makes sub-awards to other agencies or other entities, the Recipient is responsible for ensuring that sub-recipients also comply with Title VI and other applicable authorities covered in this document State agencies that make sub-awards must have in place standard grant assurances and review procedures to demonstrate that that they are effectively monitoring the civil rights compliance of subrecipients.

The United States of America has the right to seek judicial enforcement of the terms of this assurances document and nothing in this document alters or limits the federal enforcement measures that the United States may take in order to address violations of this document or applicable federal law.

Under penalty of perjury, the undersigned official(s) certifies that official(s) has read and understood the Recipient’s obligations as herein described, that any information submitted in conjunction with this assurances document is accurate and complete, and that the Recipient is in compliance with the aforementioned nondiscrimination requirements.
#15..
- 695 -
Funding Contribution First Amendment to Agreement – $500,000

EXHIBIT C

ANNUAL REPORTING REQUIREMENTS
Contractors shall use Exhibit C to provide an annual performance report.

The initial report will cover the period from the date the contract was executed to the following June 30, and will be due to the Recipient within 15 days after the end of the reporting period. Thereafter, the report will cover a 12-month period and contractors will be required to submit the report to Recipient within 15 days after the end of the 12-month period (by July 15).

Notes on using this template
All contractors that are recipients of State and Local Fiscal Recovery Funds (SLFRF) awards are required to produce an Annual Report. The Annual Report provides information on the contractor’s project and how they plan to ensure program outcomes are achieved in an effective and equitable manner.

The initial Annual Report will cover the period from the date of award to the following June 30 and must be submitted to Recipient within 15 calendar days after the end of the reporting period. Thereafter, the Annual Report will cover a 12-month period and contractors will be required to submit the report to Recipient within 15 calendar days after the end of the 12-month period (by July 15).

Annual Report Period Covered Due Date
1 Award – June 30, 2022 July 15, 2022
2 July 1, 2022 – June 30, 2023 July 15, 2023
3 July 1, 2023 – June 30, 2024 July 15, 2024
4 July 1, 2024 – June 30, 2025 July 15, 2025
5 July 1, 2025 – June 30, 2026 July 15, 2026
6 July 1, 2026 – December 31, 2026 January 15, 2027
Instructions:

Contractors should consult the SLFRF Guidance on Recipient Compliance and Reporting Responsibilities (Reporting Guidance) located at https://home.treasury.gov/system/files/136/SLFRF-Compliance-andReporting-Guidance.pdf for detailed guidance on the submission of this report or contact county staff for assistance with completing this exhibit.

Recipient recommends the use of infographics, tables, charts, pictures, case studies, and other explanatory elements in describing their programs.

Text in italics represents the requirements from the Reporting Guidance and is meant to serve as a reference as contractors prepare their Annual Report. This instructions page and the text in italics should be removed before the final transmitted report is published and submitted to Recipient. #15..
- 696 -
Funding Contribution First Amendment to Agreement – $500,000 Modesto Convention and Visitors Bureau, Inc.
202x Annual Report

GENERAL OVERVIEW
Uses of Funds
Describe in further detail contractor’s intended and actual uses of the funds, such as how contractor’s approach would help support a strong and equitable recovery from the COVID-19 pandemic and economic downturn. Describe any strategies employed to maximize programmatic impact and effective, efficient, and equitable outcomes. Given the broad eligible uses of funds and the specific needs of the jurisdiction, explain how the funds would support the communities, populations, or individuals in the County. Address how you are promoting each of the following Expenditure Categories, to the extent they apply:
a. Evaluation and Data Analysis
Promoting equitable outcomes
If applicable, describe how contractor’s planned or current use of funds prioritizes economic and racial equity as a goal, names specific targets intended to produce meaningful equity results at scale, and articulates the strategies to achieve those targets. Explain how contractor’s overall equity strategy translates into the specific services or programs offered by Contractor in the following Expenditure Categories:
a. Negative Economic Impacts (EC 2): assistance to households, small businesses, and nonprofits to address impacts of the pandemic, which have been most severe among low-income populations. This includes assistance with food, housing, and other needs; employment programs for people with barriers to employment who faced negative economic impacts from the pandemic (such as residents of low-income neighborhoods, minorities, disconnected youth, the unemployed, formerly incarcerated people, veterans, and people with disabilities); and other strategies that provide disadvantaged groups with access to education, jobs, and opportunity.
b. Services to Disproportionately Impacted Communities (EC 3): services to address health disparities and the social determinants of health, build stronger neighborhoods and communities (e.g., affordable housing), address educational disparities (e.g., evidence-based tutoring, community schools, and academic, social-emotional, and mental health supports for high poverty schools), and promote healthy childhood environments (e.g., home visiting, child care).

If applicable, describe contractor’s efforts to date and intended outcomes to promote equity using qualitative and quantitative data on how the jurisdiction’s approach achieved or promoted equitable outcomes or progressed against equity goals. Describe any constraints or challenges that impacted project success in terms of increasing equity.
#15..
- 697 -
Funding Contribution First Amendment to Agreement – $500,000 Describe the geographic and demographic distribution of funding, including whether it is targeted toward traditionally marginalized communities.

Community Engagement
Describe how contractor’s planned or current use of funds incorporates written, oral, and other forms of input that capture diverse feedback from constituents, community-based organizations, and the communities themselves. Where relevant, this description must include how funds will build the capacity of community organizations to serve people with significant barriers to services, including people of color, people with low incomes, limited English proficiency populations, and other traditionally underserved groups.
#15..
- 698 -
Funding Contribution First Amendment to Agreement – $500,000

EXHIBIT D

QUARTERLY PROJECT AND EXPENDITURE REPORT REQUIREMENTS
Contractor shall use Exhibit D to provide a quarterly project and expenditure report.

The initial report will cover the period from the date the contract was executed through the end of the quarter, and will be due to the Recipient within 15 days after the end of the reporting period. Thereafter, the report will cover one quarter and contractors will be required to submit the report to Recipient within 15 days after the end of the quarter.

ARPA QUARTERLY PROJECT AND EXPENDITURE REPORT
Reporting on State and Local Fiscal Recovery Funds (SLFRF) Name of Entity:

Project Name:

Reporting Period Start Date:

Reporting Period End Date:

Expenditure Category:

7.2 Evaluation and Data Analysis
Please provide a brief description of the activities conducted:

Category Cumulative
Expenditures to
date ($)
Cumulative
Obligations to
date ($)
Current Period
Expenditures
Current Period
Obligations
7 Administrative

7.2 Evaluation and Data Analysis
[PLEASE SELECT ONE]
5073284.1

PROJECT

EXPENDITURES

PROJECT STATUS
#15..
- 699 -

CITY OF MODESTO PANDEMIC RECOVERY STRATEGY - MODESTO FORWARD

GRANT AGREEMENT
This Modesto Forward Grant Agreement ("Agreement") is entered into in the City of Modesto, State of California, this ~ day of atir;f of t:-: 2~ ("Effective Date") by and between the City of Modesto, a Ca jornia municipal corporation ("City''), and the Modesto Convention and Visitors Bureau, Inc. also known as "Visit Modesto", a California non-profit corporation ("Recipient"). The City and Modesto Convention and Visitors Bureau, Inc. shall be collectively referred to hereinafter as the "Parties".

This Agreement is made with regard to the following recitals:

NOW THEREFORE, the City and Recipient agree as follows:

1. Term
The term of this Agreement (the "Term") shall commence upon the effective date and shall terminate upon the Recipient's completion of all requirements of this Agreement.

Funding Contribution Agreement - $250,000
#15..
- 700 -

2. Grant Award
A. The City shall provide Recipient with a grant of Two Hundred Fifty Thousand Oollars($250,000) (the "Grant") for the purposes and activities further specified in Exhibit A, attached hereto and incorporated by referenced (the "Activities").

Disbursement ofthe Grant is dependent upon Recipient providing all records and documentation reasonably required by the City.

B. Recipient shall expend the Grant solely on the Activities, as specified in Exhibit A.

Recipient shall not use the Grant for any other purpose or activity without the prior written consent of the City.

D. Recipient shall expend the entirety of the Grant by no later than December 31, 2026.

Any portion of the Grant that has not been expended by December 31, 2026 shall be returned to the City no later than January 10, 2027.

3. Recipient's Obligations
A. Throughout the Term of this Agreement, the Recipient shall obtain and maintain all licenses, permits, qualifications and approvals legally required to conduct business.

The Recipient warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to perform the Activities specified by this Agreement. Recipient shall perform the Activities requires pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Recipient is engaged.

B. The Recipient shall provide appropriate acknowledgement of the Grant by using the City's logo or stating the program, project or organization is supported in part, by a grant from the City of Modesto's Pandemic Recovery Strategy "Modesto Forward", to support local recovery from the pandemic in its publicity, promotional materials, information materials, press materials, at public occasions relating to the Activities, or on any website maintained by the Recipient.

4. QUARTERLY Reporting Requirements
Recipient shall submit quarterly reports to the City on the form attached hereto as Exhibit D, and incorporated herein by reference, or on such other form as required by the City.

5. Annual Reporting Requirements
Recipient shall submit an annual report, in accordance with the requirements set forth in Exhibit C, attached hereto and incorporated herein, to the City within 180 days of the Funding Contribution Agreement - $250,000
#15..
- 701 -
end of the Recipient's fiscal year in a form approved by the City. The annual report shall be in addition to the reporting required by Section 4, and shall include:

A. Summary of activities and accomplishments, mandate and/or mission of the organization;
B. List of Board Directors with title, contact information and mandate term of each . Director;
C. Organizational Chart;
D. Project/Program Expenditures-to-date (including receipts); E. Any other information reasonably requested by the City.

6. Audit Requirements
A. In addition to all other reports and records required by this Agreement, the Recipient shall keep and make available proper books of accounts and records of the financial management of the Grant provided under this agreement, in accordance with generally accepted business and accounting practices. Such records shall include, but not be limited to, records providing a full description and accounting of each activity undertaken.

B. Recipient agrees to keep all necessary books and records required by this Agreement for five (5) years following the end of this Agreement, and shall document all transactions so that all expenditures may be properly audited.

C. Recipient agrees that City or any authorized representative has access to and the right to examine all records, books, papers, or documents related to the Activities. Recipient shall allow the City or any authorized representative access to all records, books, papers, or documents related to the Activities within fortyeight (48) hours of a request to examine.

7. Preservation of Assets
Any assets purchased with the Grant, the cost of which exceed $5,000, shall be preserved by the Recipient and shall not be sold, leased, given away or otherwise disposed of prior to the end of the useful life of the asset without prior written consent of the City.

8. Termination, Suspension and/or Repayment of Grant
The City may terminate, suspend and/or require repayment of the Grant in the event of any of the following circumstances, after notice from the City and a reasonable opportunity to cure:

A. The Recipient fails to provide the Activities, or any portion of the Activities, described in Exhibit A of this Agreement or substandard performance of the Activities;
B. The Recipient suspends or fails to carry on and continuously conduct its operations, or there is a disruption on the performance of the Activities; C. The Recipient has a partisan political affiliation and/or participates in partisan political activities.

Funding Contribution Agreement - $250,000
#15..
- 702 -
D. The Recipient uses the Grant for a purpose or activity other than those specified in Exhibit A.

E. The Recipient becomes bankrupt or insolvent, goes into receivership or becomes subject to the provisions of any bankruptcy, insolvency, or any other Act for the benefit of creditors, or makes a general assignment for the benefit of its creditors or otherwise acknowledges its insolvency;
F. The Recipient fails to provide to the City with any report, record, or documentation required by this Agreement, or t fails to provide any documentation requested by the City in accordance with the terms of this agreement;
G. The Recipient has made any material misrepresentation to the City or its representatives with respect to any of the matters contained herein and/or in the Recipient's funding submission/proposal/application for the Grant, or which have been made or may be made in the future surrounding these matters; H. The Recipient breaches any term of this Agreement, after notice from the City and a reasonable opportunity to cure the breach;

9. Compliance with Applicable Laws
Recipient shall carry out, and cause its contractors, consultants, employees and agents to carry out, the Activities, in compliance all applicable federal, state and local laws, rules, ordinances, orders, and regulations, including without limitation and to the extent applicable, the prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and regulations and state prevailing wages pursuant to Labor Code Section 1770 et seq. Without limiting the foregoing, Recipient shall comply with ARPA, the regulations implements ARPA (31 CFR Part 35), any interpretative guidance issued by the United Stated Department of Treasury, and those Grant terms and conditions attached hereto as Exhibit B, and incorporated herein.

10. Non-Assignment
The Recipient shall not assign this Agreement, the Grant, or any part thereof, without the Prior written consent of the City. Any assignment in violation of this section shaU require an immediate repayment of the Grant to City by the Recipient.

11. Indemnity and Liability
A. The Recipient shall indemnify, defend with counsel acceptable to City, and hold harmless the City, its officials, officers, employees, and agents ("lndemnitees") from and against all liability, loss, cost, expense (including without limitation attorneys' fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively "Claims") which, directly or indirectly, arises out of or relates to this Agreement or the performance of the Activities, except to the extent the Claims arise from the gross negligence or willful misconduct of City.

Funding Contribution Agreement - $250,000
#15..
- 703 -
B. The City shall not be liable to the Recipient or any other party in relation to the Grant and/or the services provided by the Recipient pursuant to the terms of this agreement. The Recipient shall be solely responsible for the payment of any individuals employed, engaged or retained by the Recipient for the purpose of assisting it in the fulfilment of its obligations under this agreement.

12. Insurance
The Recipient 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 Recipient 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 Recipient 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 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 The Recipients 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.

Funding Contribution Agreement - $250,000
#15..
- 704 -
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 Recipient 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 Recipient 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 Recipient to obtain and/or maintain any required insurance shall not relieve the Recipient from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Recipient 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 and Professional Liability. 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 The Recipient for the City. The Recipient's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Recipient must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

THE RECIPIENT shall provide CITY with separate endorsements evidencing proof of the CITY's additional insured status as to both the general liability and automobile liability insurance policies. In addition, THE RECIPIENT 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 RECIPIENT'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 RECIPIENT'S insurance and shall not contribute with it.

13. Non-Discrimination
Recipient shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Recipient under this Agreement. Recipient shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Recipient, including but not limited to the satisfaction of any positive obligations required of Recipient thereby.

Funding Contribution Agreement - $250,000
#15..
- 705 -

14. NOTIFICATION
Any notice, communication, amendment, addition or deletion to this Agreement, including change of address of either Party during the term of this Agreement, which Recipient or City shall be required or may desire to make shall be in writing and may be personally served or, alternately, sent by prepaid first class mail to the respective Parties as follows:

To City:

City of Modesto
Attn: Edgar R. Garcia, Management Analyst
1010 10th Street
Modesto, CA 95353
To Recipient:

Modesto Convention and Visitors Bureau, Inc.
1008 12th Street
Modesto, CA 95354
Todd Aaronson, Chief Executive Officer
[email protected]
(209)526-5588

15. SEVERABILITY
If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any federal, state or City statute, ordinance or regulation; the remaining provisions of this Agreement or the application thereof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable.

16. DISPUTE RESOLUTION
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, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.

Funding Contribution Agreement - $250.000
#15..
- 706 -
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by the Recipient with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by The Recipient so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by the Recipient to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to the Recipient. Otherwise, the claim or claims shall be deemed waived in their entirety.

The "fast track' rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the "fast track" rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made. Both City and the Recipient shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the "fast track" rules.

Whether or not City and the Recipient may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.

The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail.

The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.

Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party's actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator's powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.

The Recipient shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and The Recipient involving the Funding Contribution Agreement - $250.000
#15..
- 707 -
work of the subcontractor to be joined. The Recipient's failure to do so shall be a breach of this Agreement.

The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator's award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.

17. INDEPENDENT PARTIES
Nothing in this Agreement is intended to or shall establish the Parties as partners, coventurers, or principal and agent with one another. At all times during the term of this Agreement, Recipient and City shall be independent parties, and Recipient shall not be an employee of the City. Except as Recipient may specify in writing, Recipient shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Recipient shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. At all times during the term of this Agreement, Recipient and

18. ENTIRE AGREEMENT
This Agreement, including the exhibits attached hereto, represents the entire and integrated agreement between City and Recipient ant and supersedes all prior negotiations, representations, or agreements, either written or oral. No amendment of any of the terms or provisions of the Agreement shall be deemed valid unless it is in writing and signed by both Parties.

19. GENERAL PROVISIONS
A. Binding Agreement. This agreement shall be binding on and inure to the benefit of the City, the Recipient and their respective successors and assigns. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.

B. Severability. Any provision of this agreement, which is or becomes prohibited or unenforceable in any jurisdiction, shall not invalidate or impair the remaining provisions of this agreement which shall be deemed severable from the prohibited or unenforceable provision and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable that provision in any other jurisdiction.

C. Waiver. The fact that the City refrains from exercising a remedy it is entitled to exercise under this agreement shall not be considered to be a waiver of such right and, furthermore, partial or limited exercise of a right conferred upon the City shall not prevent the City in any way from later exercising any other right or remedy under this agreement or other applicable law. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party
Funding Contribution Agreement - $250,000
#15..
- 708 -
D. Business license. Recipient will have a valid City of Modesto Business license.

E. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding chose of law rules.

F. Construction of Agreement. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since all of the Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it.

G. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The persons executing this Agreement on behalf of Parties have been duly authorized to do so.

Funding Contribution Agreement - $250,000
#15..
- 709 -
IN WITNESS WHEREOF, the Parties have executed this MOU as of the effective date set forth above.

ITV OF MODESTO
By: ~
Jo~ P7opez
City Manager
City of Modesto, State of California
of the City of Modesto, State of California
PPROVED AS TO FORM:
ose M. Sanchez,
ity Attorney
Print Name & Title: -\ &,.~ ?tcro t\.Y\ ('\
Funding Contribution Agreement - $250,000
C.EO
#15..
- 710 -

EXHIBIT A
---~\SI)-- --==
CONTACT: Todd Aaronson
TITLE: CEO

MODESTO

CALIFORNIA
VISIT MODE STO.C OH
ADDRESS: 1008 12th Street, Modesto, CA 95354
PHONE: 209.526.5588
EMAIL: [email protected]
URL: visitmodesto.com
BUSINESS NAME: Modesto Convention and Visitors Bureau, Inc.

EXECUTIVE COMMITTEE (SIGNEE OPTIONS):

Board Chair: Chris Murphy
Board Vice Chair: Thomas Lopes
Treasurer: Bert Tabrizi
FUNDING AMOUNT: $250,000- YEAR 1
Mo Impact ARPA Funding Outline presented by Visit Modesto Business Purpose (from by-laws):

The Corporation shall be non-profit and non-partisan and shall neither participate in nor lend its support to the election of any candidate for public office.

OBJECTIVE:

Visit Modesto plans to create sustainable tourism oriented economic recovery programs in Modesto. The purpose of the combined initiatives over the next 30-60 months are designed to impact the local economy (lodging, dining, entertainment and more), create consumer awareness that Modesto is a desirable destination for a variety of purposes, generate Public Relations exposure, increase local resident awareness of the amenities and benefits of Modesto, drive revenue/tax dollars from visitors outside the city and increase both the visitor and local experience when spending time in Modesto.

Funding Contribution Agreement - $250,000
#15..
- 711 -
GOALS:

SCOPE:

Increase awareness of Modesto as a destination
Increase occupancy and/or average rate on an annual basis Develop programs (reasons) for visitors that influences future trips Increase 'time in market' for out of town travelers
Drive more group-oriented business leads due to destination value awareness Increase UGC (user generated content) and social engagement The initiatives will comprise of a combination of the following deliverables; Wayfinding;
This project will initiate a citywide approach to finding information and places of interest, entertainment, shopping and dining as budget allows. The program would allow sections of Modesto to maintain an independent image while fitting into the grand citywide wayfinding schema. Phase I would be to concept where wayfinding is needed to find Visit Modesto and amplify downtown with info kiosks and a lighting theme that includes the winter holiday season. Phase II, depending upon budget, would be to implement installation of directional wayfinding signage as noted in Phase I.

Seasonal Initiatives;
These programs are based upon creating awareness of audience specific reasons to visit Modesto.

The key programs under consideration for seasonal initiatives that would be sustainable on an annual basis are;
o Winter/Get Mo Cheer - Holidays in Modesto focused on activities and events with Modesto on Ice, Holiday Parade and Rockin' Holidays as centerpieces from mid-November through mid-January.
o Early Spring/ Almond Blossom Cruise - the focus will shift to include national/international overnight guests as well as regional drive tourism
o Spring/Outdoor Events; recreation focused with the Modesto Marathon/Marathon Weekend to include all things in the region based upon outdoor things to do with continued communications through early winter (running, cycling, kayaking, fishing, hiking, trail riding, etc.).
o Summer/Ag Tourism and more-As noted below, Agricultural Tourism is the foundation upon which we will build interest in the region April through August. This will include a form of Graffiti Summer and car culture as one of the many activities for entertainment during this season.

Funding Contribution Agreement - $250,000
#15..
- 712 -
o Fall/Get Mo Pink (or similar) - This will be a month-long focus on programs, partners and events that celebrate women's culture and raise awareness for women's advocacy programs. This initiative will have a unique mission to drive 'giving back' and may include other local programs plus support of breast cancer programs in the area, Haven House and other women's support programs.

Agricultural Tourism;
According to U.C. Davis, "Agricultural tourism is a commercial enterprise at a working farm or ranch conducted for the enjoyment and education of visitors, and that generates supplemental income for the owner or operator. Agritourism can include farm stands or shops, U-pick, farm stays, tours, onfarm classes, fairs, festivals, pumpkin patches, corn mazes, Christmas tree farms, winery weddings, orchard dinners, youth camps, barn dances, hunting or fishing, guest ranches, and more." Visit Modesto will work with the support offered by the State of California and guidance of the U.C.

Davis program to develop more programs, like the Almond Blossom Cruise, to drive increased interest and tourism highlighting the bounties of the area.

Sustainable/Environmental Tourism;
Working with programs like KindTravel through the Visit California partnership, Visit Modesto will work towards creating environmentally focused programming, destination sustainability and other initiatives that fit into the new trend for this type of considerate travel and support of visiting destinations that consider the environmental initiatives.

Arts & Entertainment;
Working with local artists, entertainment venues, restaurants and special events, Visit Modesto will be creating programs that drive interest in the arts, food, music and cultural programs of the area. A specific focus will be on original and creative programs as well as events that bring popular artists to play in Modesto. This initiative will have a focus on events that are both free to the public (locals included) and also ticketed events at private venues.

Special Programs;
Over the next 36 months Visit Modesto will be working with local businesses, entrepreneurs and partners to develop several annual 'weekend' programs that celebrate cuisine, wine, spirits, agriculture and culture. These would range from Food & Wine education weekends to Family Fun weekends.

Funding Contribution Agreement - $250,000
#15..
- 713 -
PROPOSED TIMELINE and BUDGET;
The first program anticipated to launch will be in March 2022 and extend into 2023 as follows; Item ARPAYear1 ARPAYear2 Project Total
Wayfinding - Tourism Specific $35,000.0 $40,000.0 $75,000.0 Seasonal Initiatives $55,000.0 $65,000.0 $120,000.0
Agricultural Tourism $75,000.0 $75,000.0 $150,000.0
Arts & Entertainment $35,000.0 $20,000.0 $55,000.0
Sustainable/Environmental $20,000.0 $25,000.0 $45,000.0 Special Programs $30,000.0 $25,000.0 $55,000.0
TOTAL SPENDING $250,000.0 $250,000.0 $500,000.0

FINANCIAL TRACKING
Visit Modesto will track the results of each program using a variety of tools; Financial; a new 'fund' allocation has been created by our book keeper (PBF CPA) for ARPA tracking specifically. All expenses associated with ARPA shall be coded and tracked with vendor, amounts and other info included.

Funding Contribution Agreement - $250,000
#15..
- 714 -

1. Use of Funds.

EXHIBIT B
U.S. DEPARTMENT OF THE TREASURY

CORONAVIRUS LOCAL FISCAL RECOVERY FUND

AWARD TERMS AND CONDITIONS
a. Recipient understands and agrees that the funds disbursed under this award may only be used in compliance with section 603(c) of the Social Security Act (the Act), U.S.

Department of Treasury's (''Treasury'') regulations implementing that section, and guidance issued by Treasury regarding the foregoing.
b. Recipient will determine prior to engaging in any project using this assistance that it has the institutional, managerial, and financial capability to ensure proper planning, management, and completion of such project.

2. Period of Performance. The period of performance for this award begins on the date hereof and ends on December 31, 2026. As set forth in Treasury's implementing regulations, Recipient may use award funds to cover eligible costs incurred during the period that begins on March 3, 2021, and ends on December 31, 2026.

3. Reporting. Recipient agrees to comply with any reporting obligations established by Treasury as they relate to this award.

4. Maintenance of and Access to Records
a. Recipient shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of the Act, Treasury's regulations implementing that section, and guidance issued by Treasury regarding the foregoing. b. The Treasury Office of Inspector General and the Government Accountability Office, or their authorized representatives, shall have the right of access to records (electronic and otherwise) of Recipient in order to conduct audits or other investigations. c. Records shall be maintained by Recipient for a period of five (5) years after all funds have been expended or returned to Treasury, whichever is later.

5. Pre-award Costs. Pre-award costs, as defined in 2 C.F.R. § 200.458, may not be paid with funding from this award.

6. Administrative Costs. Recipient may use funds provided under this award to cover both direct and indirect costs.

7. Cost Sharing. Cost sharing or matching funds are not required to be provided by Recipient.

8. Conflicts of Interest. Recipient understands and agrees it must maintain a conflict of interest policy consistent with 2 C.F.R. § 200.318(c) and that such conflict of interest policy is applicable to each activity funded under this award. Recipient and subrecipients must disclose in writing to Funding Contribution Agreement - $250,000
#15..
- 715 -
Treasury or the pass-through entity, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2 C.F.R. § 200.112.

Funding Contribution Agreement - $250,000
#15..
- 716 -
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury's implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance;
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability; iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance;
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury's implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and
v. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.

10. Remedial Actions. In the event of Recipient's noncompliance with section 602 of the Act, other applicable laws, Treasury's implementing regulations, guidance, or any reporting or other program requirements, Treasury may impose additional conditions on the receipt of a subsequent tranche of future award funds, if any, or take other available remedies as set forth in 2 C.F.R. § 200.339. In the case of a violation of section 602(c) of the Act regarding the use of funds, previous payments shall be subject to recoupment as provided in section 602(e) of the Act and any additional payments may be subject to withholding as provided in sections 602(b)(6)(A)(ii)(III) of the Act, as applicable.

12. False Statements. Recipient understands that making false statements or claims in connection with this award is a violation of federal law and may result In criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

13. Publications. Any publications produced with funds from this award must display the following language: "This project [is being] [was] supported, in whole or in part, by federal award number SLFRP2096 awarded to County of Stanislaus by the U.S. Department of the Treasury."

14. Debts Owed the Federal Government.

Funding Contribution Agreement - $250,000
#15..
- 717 -
a. Any funds paid to Recipient (1) in excess of the amount to which Recipient is finally determined to be authorized to retain under the terms of this award; (2) that are determined by the Treasury Office of Inspector General to have been misused; or (3) that are determined by Treasury to be subject to a repayment obligation pursuant to sections 602(e) and 603(b)(2)(D) of the Act and have not been repaid by Recipient shall constitute a debt to the federal government.
b. Any debts determined to be owed the federal government must be paid promptly by Recipient. A debt is delinquent if it has not been paid by the date specified in Treasury's initial written demand for payment, unless other satisfactory arrangements have been made or if the Recipient knowingly or improperly retains funds that are a debt as defined in paragraph 14(a). Treasury will take any actions available to it to collect such a debt.

16. Protections for Whistleblowers.
a. In accordance with 41 U.S.C. § 4712, Recipient may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. b. The list of persons and entities referenced in the paragraph above includes the following:
i. A member of Congress or a representative of a committee of Congress; ii. An Inspector General;
iii. The Government Accountability Office;
iv. A Treasury employee responsible for contract or grant oversight or management;
v. An authorized official of the Department of Justice or other law enforcement agency;
Funding Contribution Agreement - $250,000
#15..
- 718 -
vi. A court or grand jury; or
vii. A management official or other employee of Recipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
c. Recipient shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

ASSURANCES OF COMPLIANCE WITH CIVIL RIGHTS REQUIREMENTS ASSURANCES OF COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 As a condition of receipt of federal financial assistance from the Department of the Treasury, the recipient named below (hereinafter referred to as the "Recipient'') provides the assurances stated herein. The federal financial assistance may include federal grants, loans and contracts to provide assistance to the Recipient's beneficiaries, the use or rent of Federal land or property at below market value, Federal training, a loan of Federal personnel, subsidies, and other arrangements with the intention of providing assistance. Federal financial assistance does not encompass contracts of guarantee or insurance, regulated programs, licenses, procurement contracts by the Federal government at market value, or programs that provide direct benefits.

The assurances apply to all federal financial assistance from or funds made available through the Department of the Treasury, including any assistance that the Recipient may request in the future.

The Civil Rights Restoration Act of 1987 provides that the provisions of the assurances apply to all of the operations of the Recipient's program(s) and activity(ies), so long as any portion of the Recipient's program(s) or activity(ies) is federally assisted in the manner prescribed above.

2. Recipient acknowledges that Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency," seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP).

Recipient understands that denying a person access to its programs, services, and activities Funding Contribution Agreement - S250,000
#15..
- 719 -
because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury's implementing regulations. Accordingly, Recipient shall initiate reasonable steps, or comply with the Department of the Treasury's directives, to ensure that LEP persons have meaningful access to its programs, services, and activities. Recipient understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication in the Recipient's programs, services, and activities.

4. Recipient acknowledges and agrees that compliance with the assurances constitutes a condition of continued receipt of federal financial assistance and is binding upon Recipient and Recipient's successors, transferees, and assignees for the period in which such assistance is provided.

5. Recipient acknowledges and agrees that it must require any sub-grantees, contractors, subcontractors, successors, transferees, and assignees to comply with assurances 1-4 above, and agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Recipient and the Recipient's sub-grantees, contractors, subcontractors, successors, transferees, and assignees:

The sub-grantee, contractor, subcontractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury's Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with "Limited English Proficiency" in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by the Department of the Treasury's Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.

Funding Contribution Agreement - $250.000
#15..
- 720 -

9. Recipient must provide documentation of an administrative agency's or court's findings of noncompliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Recipient and the administrative agency that made the finding. If the Recipient settles a case or matter alleging such discrimination, the Recipient must provide documentation of the settlement. If Recipient has not been the subject of any court or administrative agency finding of discrimination, please so state.

Under penalty of perjury, the undersigned official(s) certifies that official(s) has read and understood the Recipient's obligations as herein described, that any information submitted in conjunction with this assurances document is accurate and complete, and that the Recipient is in compliance with the aforementioned nondiscrimination requirements.

Funding Contribution Agreement - $250,000
#15..
- 721 -

EXHIBIT C

ANNUAL REPORTING REQUIREMENTS
Contractors shall use Exhibit C to provide an annual performance report.

Notes on using this template
All contractors that are recipients of State and Local Fiscal Recovery Funds (SLFRF) awards are required to produce an Annual Report. The Annual Report provides information on the contractor's project and how they plan to ensure program outcomes are achieved in an effective and equitable manner.

Annual Report Period Covered Due Date
1 Award - June 30, 2022 July 15, 2022
2 July 1, 2022 -June 30, 2023 July 15, 2023
3 July 1, 2023 - June 30, 2024 July 15, 2024
4 July 1, 2024 - June 30, 2025 July 15, 2025
5 July 1, 2025 - June 30, 2026 July 15, 2026
6 July 1, 2026 - December 31, 2026 January 15, 2027
Instructions:

Recipient recommends the use of infographics, tables, charts, pictures, case studies, and other explanatory elements in describing their programs.

Funding Contribution Agreement - $250,000
#15..
- 722 -

GENERAL OVERVIEW
Uses of Funds
Modesto Convention and Visitors Bureau, Inc.
202x Annual Report
Describe in further detail contractor's intended and actual uses of the funds, such as how contractor's approach would help support a strong and equitable recovery from the COVID-19 pandemic and economic downturn. Describe any strategies employed to maximize programmatic impact and effective, efficient, and equitable outcomes. Given the broad eligible uses of funds and the specific needs of the jurisdiction, explain how the funds would support the communities, populations, or individuals in the County. Address how you are promoting each of the following Expenditure Categories, to the extent they apply:
a. Evaluation and Data Analysis
Promoting equitable outcomes
If applicable, describe how contractor's planned or current use of funds prioritizes economic and racial equity as a goal, names specific targets intended to produce meaningful equity results at scale, and articulates the strategies to achieve those targets. Explain how contractor's overall equity strategy translates into the specific services or programs offered by Contractor in the following Expenditure Categories:
a. Negative Economic Impacts (EC 2): assistance to households, small businesses, and nonprofits to address impacts of the pandemic, which have been most severe among low-income populations. This includes assistance with food, housing, and other needs; employment programs for people with barriers to employment who faced negative economic impacts from the pandemic (such as residents of low-income neighborhoods, minorities, disconnected youth, the unemployed, formerly incarcerated people, veterans, and people with disabilities); and other strategies that provide disadvantaged groups with access to education, jobs, and opportunity.
b. Services to Disproportionately Impacted Communities (EC 3): services to address health disparities and the social determinants of health, build stronger neighborhoods and communities (e.g., affordable housing), address educational disparities (e.g., evidence-based tutoring, community schools, and academic, social-emotional, and mental health supports for high poverty schools), and promote healthy childhood environments (e.g., home visiting, child care).

If applicable, describe contractor's efforts to date and Intended outcomes to promote equity using qualitative and quantitative data on how the jurisdiction's approach achieved or promoted equitable outcomes or progressed against equity goals. Describe any constraints or challenges that impacted project success in terms of increasing equity.

Funding Contribution Agreement - $250,000
#15..
- 723 -
Describe the geographic and demographic distribution of funding, including whether it is targeted toward traditionally marginalized communities.

Community Engagement
Describe how contractor's planned or current use of funds incorporates written, oral, and other forms of input that capture diverse feedback from constituents, community-based organizations, and the communities themselves. Where relevant, this description must include how funds will build the capacity of community organizations to serve people with significant barriers to services, including people of color, people with low incomes, limited English proficiency populations, and other traditionally underserved groups.

Funding Contribution Agreement - $250,000
#15..
- 724 -

EXHIBIT D

QUARTERLY PROJECT AND EXPENDITURE REPORT REQUIREMENTS
Contractor shall use Exhibit D to provide a quarterly project and expenditure report.

ARPA QUARTERLY PROJECT AND EXPENDITURE REPORT
Reporting on State and Local Fiscal Recovery Funds (SLFRF)

PROJECT
Name of Entity: Project Name:

Reporting Period Start Date: Reporting Period End Date:

Expenditure Category:

7.2 Evaluation and Data Analysis
Please provide a brief description of the activities conducted:

Category
7 Administrative

7.2 Evaluation and Data Analysis
[PLEASE SELECT ONE]
5073284.1

EXPENDITURES
Cumulative Cumulative
Expenditures to Obligations to
date($) date($)

PROJECT STATUS
Funding Contribution Agreement - $250,000
Current Period
Expenditures
Current Period
Obligations
#15..
- 725 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 6, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Fourth Amendment to Agreement between City and the Baseball Club of Modesto, LLC
CONTACT: Laurie A. Smith, Director, [email protected], 209-577-5347 DESCRIPTION:

Consider approving the Fourth Amendment to Agreement with The Baseball Club of Modesto, as Successor in Interest to HWS Baseball IV, LLC, to revise the expiration date in the Accelerated Termination Provision from December 31, 2022 to December 31, 2023. (Funding Source: CIP Project 101019/General Fund)
STRATEGIC PLAN ELEMENT:

This action supports the City’s 2020-2025 Strategic Plan’s Area of Focus to promote its economic vitality goals to drive the success of a vibrant and economically sustainable business climate, build and promote a recognizable and desirable identity of the City of Modesto, and to make downtown Modesto a regional destination.

BACKGROUND:

The City owns the property, stadium, and parking facilities that comprise John Thurman Field located at 601 Neece Drive. From 2006-2016, the City leased the facility to the Modesto Nuts Baseball Club, an affiliate of the Seattle Mariners. On December 13, 2016, by Resolution No. 2016-503, the City and HWS Baseball IV, LLC, also known as the Modesto Nuts Baseball Club, entered into a ten-year agreement to operate, manage, and maintain the facility while the City retains ownership and control of the asset (“Agreement”). The Agreement requires the Club to maintain the facility and field and pay an annual license fee of $70,000 to the City. In return, the City contributes $120,000 per year for capital improvement and deferred maintenance projects for the stadium.

In 2018, staff entered into discussions regarding the replacement of the outdated videoboard and stadium seating. The replacement, estimated at $500,000, exceeded the available CIP funding. As a result, by Resolution No. 2018-451, Council approved the First Amendment to the Agreement, which advanced one of the $120,000 annual CIP Deposits to help fund the project in advance of the 2019 season.
#16..
- 726 -
City Council, December 6, 2022
Fourth Amendment to Agreement between City
and The Baseball Club of Modesto, LLC

Page 2 of 3 ends

In Spring 2020, the COVID-19 pandemic forced the State to shut down all non-essential operations, services, and programs. The State’s actions in response to the COVID-19 pandemic, were outside the Club’s control and, prevented it from providing a full schedule of professional baseball games at John Thurman Field for the 2020 season. In addition, that same year, HWS Baseball IV, LLC assigned all obligations and rights under the Agreement to The Baseball Club of Modesto, LLC (“Club”). The Club is owned by Mariners Investment, LLC c/o The Seattle Mariners. Prior to this assignment, the Seattle Mariners owned 51% of the team.

The change in assignment gives the Club full ownership of the Modesto Nuts franchise under the Seattle Mariners as the parent club.

On January 12, 2020, in response to the negative economic impacts of COVID-19 and the reassignment of the Club, Council, by Resolution No. 2020-007, approved the Second Amendment to the Agreement. The Second Amendment included the following: 1) extended the term of the Agreement through 2027; 2) waived the Club’s 2020 $70,000 annual license fee payment and added it to the 2027 season; and 3) deferred the City’s Fiscal Year 2020-2021 $120,000 CIP Deposit to Fiscal Year 2025-2026.

On July 23, 2021, the City notified the Club of its intent to reopen the terms of the Agreement and commence the meet and confer process. The Club declined the City’s request, triggering the Agreement to expire on December 31, 2021. Although the Club declined the City’s request for the reopener, all Parties agreed that operations should continue in compliance with the Agreement. To facilitate this in a timely manner, Council, by Resolution No. 2021-497 amended the Agreement to extend the expiration date in the accelerated termination provision to December 31, 2022.

DISCUSSION:

Last year’s extension provided time for the Club and City to assess and discuss the best course of action for both Parties. Over the past year, the Club and City met and conferred on several matters, including Major League Baseball’s stadium requirements for Minor League facilities, possible changes to the terms and conditions, and the rising costs to do business. Discussions continue today.

With that, an extension to the accelerated termination clause in the current Agreement needs to be amended. The amendment will extend it for an additional year to December 31, 2023. This action provides additional time for the Club and City to assess and discuss the best course of action for both Parties.

FISCAL IMPACT:

If approved, there is no fiscal impact with the implementation of the Fourth Amendment.

COMMITTEE RECOMMENDATION:

This agenda item was considered on November 14, 2022, by the Safety & Communities Committee on November 14, 2022, where the committee recommended forwarding to Council for approval.
#16..
- 727 -
City Council, December 6, 2022
Fourth Amendment to Agreement between City
and The Baseball Club of Modesto, LLC

Page 3 of 3 ends

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Fourth Amendment to Agreement with The Baseball Club of Modesto, as Successor in Interest to HWS Baseball IV, LLC, to revise the expiration date in the Accelerated Termination Provision from December 31, 2022 to December 31, 2023, and authorizing the City Manager, or his designee to execute the Fourth Amendment to Agreement.

Approved by:

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

1. Resolution

2. Fourth Amendment

3. Third Amendment

4. Second Amendment

5. First Amendment

6. Agreement
#16..
- 728 -
12-6-2022/PRN/Laurie A Smith 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022

RESOLUTION APPROVING THE FOURTH AMENDMENT TO AGREEMENT

WITH THE BASEBALL CLUB OF MODESTO, LLC, AS SUCCESSOR IN

INTEREST TO HWS BASEBALL IV, LLC, TO REVISE THE EXPIRATION

DATE IN THE ACCELERATED TERMINATION PROVISION FROM
DECEMBER 31, 2022 TO DECEMBER 31, 2023, AND AUTHORIZING THE

CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE FOURTH

AMENDMENT TO AGREEMENT
WHEREAS, the City is the owner of the property, stadium, and parking facilities that comprise John Thurman Field; and
WHEREAS, by Resolution No. 2016-503, Council approved a ten (10) year Agreement (“Agreement”) with HWS Baseball IV, LLC, aka The Modesto Nuts Baseball Club, (“Club”) for the use, operation, and management of John Thurman Field; and
WHEREAS, by Resolution No. 2018-451, Council approved the First Amendment to the Agreement to advance one (1) annual deposit to help fund the replacement of a video board and stadium seating as well as various minor changes; and WHEREAS, by Resolution No. 2020-007, Council approved the Second Amendment to the Agreement with The Baseball Club of Modesto, LLC, as the successor in interest to HWS Baseball IV, LLC, to extend the term through December 31, 2027, waive the 2020 annual license payment, and defer the fiscal year 2020-2021 Capital Improvement Project deposit to Fiscal Year 2025-2026; and WHEREAS, by Resolution No. 2022-497, Council approved the Third Amendment to the Agreement with the Baseball Club of Modesto, as successor in interest to HWS Baseball IV, LLC, to revise the expiration date in the accelerated termination provision from December 31, 2021 to December 31, 2022; and #16..
- 729 -
12-6-2022/PRN/Laurie A Smith 2 2022-?
WHEREAS, the City and the Club desire to amend the Agreement to revise the expiration date in the accelerated termination provision from December 31, 2022 to December 31, 2023.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Fourth Amendment to the Agreement with the Baseball Club of Modesto, LLC, as successor in interest to HWS Baseball IV, LLC, to revise the expiration date in the accelerated termination provision from December 31, 2022 to December 31, 2023.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Fourth Amendment, in a form approved by the City Attorney. #16..
- 730 -
12-6-2022/PRN/Laurie A Smith 3 2022-?
The foregoing Resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 2022, by Council Member ?, who moved its adoption, which motion being duly seconded by Council Member ?, was upon roll call carried and the Resolution adopted by the following vote:

AYES: Council Members:

NOES: Council Members:

ABSENT: Council Members:

ATTEST:

DIANE NAYARES-PEREZ, City
Clerk
APPROVED AS TO FORM:

BY: ___________________________
JOSE M. SANCHEZ, City Attorney
#16..
- 731 -
1 FOURTH AMENDMENT TO AGREEMENT BETWEEN CITY OF MODESTO AND

THE BASEBALL CLUB OF MODESTO

FOR THE USE, OPERATION AND MANAGEMENT OF

JOHN THURMAN FIELD
THIS FOURTH AMENDMENT (this “FOURTH AMENDMENT”) amending that certain agreement dated January 1, 2017, by and between the City of Modesto (the “CITY”), a California charter and HWS Baseball IV, LLC (“HWS Baseball”), a Delaware limited liability corporation (as amended, the “Agreement”) is entered into this ______ day of ___________, 2022, by and between the CITY and THE BASEBALL CLUB OF MODESTO, LLC (the “CLUB”), a Delaware limited liability corporation, as successor in interest to HWS Baseball. The CITY and the CLUB are collectively referred to herein as the “Parties.”
RECITALS:

WHEREAS, CITY owns John Thurman Field, located at 601 Neece Drive, Modesto, CA 95351; and
WHEREAS, by Resolution No. 2016-503, CITY and the CLUB entered into the Agreement for the use, operation, management, and maintenance of John Thurman Field, located at 601 Neece Drive, Modesto, CA 95351 (“Stadium,” “Stadium Premises,” “Premises” or “Stadium Facilities”); and
WHEREAS, by Resolution No. 2018-451, CITY and CLUB entered into a First Amendment to the Agreement on October 9, 2018, to amend Section 4 of the Agreement to reflect a $240,000 Capital Improvement Program (CIP) Deposit to help fund the purchase of a replacement videoboard at the Stadium and set forth a CIP Deposit schedule for the remaining deposits required under the Agreement, and WHEREAS, by Resolution No. 2021-007, CITY and CLUB entered into a Second Amendment to the Agreement on January 12, 2021, to extend the term of the Agreement through December 31, 2027, waive the 2020 Annual License Fee Payment, and defer the Fiscal Year 2020-2021 CIP Deposit to Fiscal Year 2025-2026, and amend reopener terms, and
WHEREAS, by Resolution No. 2021-497, CITY and CLUB entered into a Third Amendment to the Agreement on December 14, 2021, to revise the expiration date in the accelerated termination provision from December 31, 2021 to December 31, 2022; and WHEREAS, the CITY and CLUB desire to amend the Agreement to revise the expiration date in the accelerated termination provision from December 31, 2022 to December 31, 2023.
#16..
- 732 -
2 NOW, THEREFORE, in consideration of their mutual promises and the terms, conditions and covenants hereinafter specified, the Parties desire to amend the Agreement as follows:

AGREEMENT
Section 1. The recitals above are true and correct and herein incorporated by reference.

Section 2. Section 2 of the Agreement entitled “TERM OF AGREEMENT” is hereby amended as follows (strikethrough is delete, italics is addition):
“SECTION 2. TERM OF AGREEMENT.

The Term of this Agreement shall commence upon the 1st day of January, 2017, and shall continue until December 31, 2027, subject to sooner termination as herein provided.

Either party may request to reopen the terms of this Agreement during the period January 1, 2021, through September 30, 2021. In the event either party makes such a request, the parties shall meet and confer on the request until either party declares impasse, or the parties agree to include new terms (or term) in this Agreement, but in any case, for no less than five (5) face-to face meetings at the request of either party. Either party may refuse a request to change the Agreement in its absolute discretion for any reason or for no reason. If a request is made and no agreement on new terms are reached, the Agreement will expire on December 31, 2022 December 31, 2023. Any agreed to changes must be made in writing as an amendment to this Agreement.”
Section 3. Except as modified and amended by this Fourth Amendment to Agreement, all other provisions of the Agreement remain unchanged and in full force and effect.

IN WITNESS WHEREOF, the CITY has authorized the execution of this FOURTH AMENDMENT in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. _________, adopted by the City Council of the City of Modesto on the _____ day of ___________, 2022, and CLUB has caused this Fourth Amendment to Agreement to be duly executed.

SIGNATURES ON FOLLOWING PAGE
#16..
- 733 -
1 THIRD AMENDMENT TO AGREEMENT BETWEEN CITY OF MODESTO AND

THE BASEBALL CLUB OF MODESTO

FOR THE USE, OPERATION AND MANAGEMENT OF

JOHN THURMAN FIELD
THIS THIRD AMENDMENT (this “THIRD AMENDMENT”) amending that certain agreement dated January 1, 2017, by and between the City of Modesto (the “CITY”), a California charter and HWS Baseball IV, LLC (“HWS Baseball”), a Delaware limited liability corporation (as amended, the “Agreement”) is entered into this ______ day of ___________, 2021, by and between the CITY and THE BASEBALL CLUB OF MODESTO, LLC (the “CLUB”), a Delaware limited liability corporation, as successor in interest to HWS Baseball. The CITY and the CLUB are collectively referred to herein as the “Parties.”
RECITALS:

DocuSign Envelope ID: 68DE8625-4D0A-4A21-AC31-92A491C15D07 December
14th
#16..
- 734 -
2 NOW, THEREFORE, in consideration of their mutual promises and the terms, conditions and covenants hereinafter specified, the Parties desire to amend the Agreement as follows:

AGREEMENT
Section 1. The recitals above are true and correct and herein incorporated by reference.

Section 2. Section 2 of the Agreement entitled “TERM OF AGREEMENT” is hereby amended as follows (strikethrough is delete, italics is addition):
“SECTION 2. TERM OF AGREEMENT.

The Term of this Agreement shall commence upon the 1st day of January, 2017, and shall continue until December 31, 2027, subject to sooner termination as herein provided.

Either party may request to reopen the terms of this Agreement during the period January 1, 2021, through September 30, 2021. In the event either party makes such a request, the parties shall meet and confer on the request until either party declares impasse, or the parties agree to include new terms (or term) in this Agreement, but in any case, for no less than five (5) face-to face meetings at the request of either party. Either party may refuse a request to change the Agreement in its absolute discretion for any reason or for no reason. If a request is made and no agreement on new terms are reached, the Agreement will expire on December 31, 2021 December 31, 2022. Any agreed to changes must be made in writing as an amendment to this Agreement.”
Section 3. Except as modified and amended by this Third Amendment to Agreement, all other provisions of the Agreement remain unchanged and in full force and effect.

SIGNATURES ON FOLLOWING PAGE
DocuSign Envelope ID: 68DE8625-4D0A-4A21-AC31-92A491C15D07 IN WITNESS WHEREOF, the City of Modesto, a
municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2021-497 adopted by the Council of the City of Modesto on the 14th day of December, 2021, and The Baseball Club of Modesto, LLC, a Delaware limited liability company has caused this agreement to be duly executed in duplicate as of the Effective Date.
#16..
- 735 -

CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
DANA SANCHEZ, Interim City Clerk

CONSULTANT,
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:

BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:

BY: ____________________________
CHRISTINA D. ALGER
Director of Human Resources (Risk)
Consultant’s Federal ID # ___________
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal.

Partnership - signature of a partner required Sole
Proprietorship - signature of proprietor
required
DocuSign Envelope ID: 68DE8625-4D0A-4A21-AC31-92A491C15D07 The Baseball Club of Modesto,
a Delaware limited liability
company
Trevor Gooby SVP operations
81-3004078
Trevor Gooby Senior Vice President,
Ballpark Operations
12/28/2021
#16..
- 736 -

AGREEMENT TRANSMITTAL SHEET
Subject of Agreement:

Vendor Name: Division:

Contact Person: Extension:

Attorney Reviewer Name:

The attached agreement is the final agreement approved by Council on and pulled from Unity for routing via DocuSign.

PINS Approval Business License
Council Agenda Report 700 Form (for Consultants)
Signed or Unsigned Resolution W-9
Council Meeting Minutes (Only if unsigned
Resolution is provided)
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E X
Diane Sheatsley 75418
Second Amendment to Agreement
The Baseball Club of Modest, LLC.

X
X
X
On File.

Stephanie Downs
Second Amendment to Agreement
January 12, 2021
X
PRND
X
X
DS
#16..
- 737 -
1 SECOND AMENDMENT TO AGREEMENT BETWEEN CITY OF MODESTO AND

THE BASEBALL CLUB OF MODESTO

FOR THE USE, OPERATION AND MANAGEMENT OF

JOHN THURMAN FIELD
THIS SECOND AMENDMENT (this “SECOND AMENDMENT”) amending that certain agreement dated January 1, 2017 by and between the City of Modesto (the “CITY”), a California charter and HWS Baseball IV, LLC (“HWS Baseball”), a Delaware limited liability corporation (as amended, the “Agreement”) is entered into this ______ day of ___________, 2021, by and between the CITY and THE BASEBALL CLUB OF MODESTO, LLC (the “CLUB”) a Delaware limited liability corporation, as successor in interest to HWS Baseball. The CITY and the CLUB are collectively referred to herein as the “parties.”
RECITALS:

WHEREAS, the CITY and the CLUB entered into the Agreement for the use, operation, management, and maintenance of John Thurman Field, located at 601 Neece Drive, Modesto, CA 95351 (“Stadium”, “Stadium Premises”, “Premises” or “Stadium Facilities”); and
WHEREAS, Section 2 of the Agreement states the term of the Agreement shall commence upon the 1st day of January, 2017 and shall continue until December 31, 2026; and
WHEREAS, the CITY and the CLUB desire to amend the Agreement to extend the term of the Agreement by one year to December 31, 2027; and WHEREAS, Section 3 of the Agreement requires that the CLUB pay to the CITY an annual fee of Seventy Thousand and No/100 dollars ($70,000); and WHEREAS, Section 1, Sub-Section A of the Agreement states the CLUB’s failure to provide a full schedule of professional baseball games at the Stadium Premises for each year during the term of this Agreement shall be a breach of the Agreement and grounds for immediate termination unless the cause of such breach is a professional baseball strike, a natural disaster, or similar force majeure outside of the control of CLUB and rendering CLUB’s performance impossible; and WHEREAS, in March 2020, the COVID-19 global pandemic prevented the CLUB from providing a full schedule of professional baseball games at the Stadium Premises; and
WHEREAS, the CITY desires to waive the 2020 annual fee due from the CLUB; and
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E 12th
January
#16..
- 738 -
2 WHEREAS, Section 4 of the Agreement provides that the CITY will allocate specified amounts on certain dates toward the Stadium Capital Improvements Needs Fund (the “CIP Deposit”); and
WHEREAS, the COVID 19 global pandemic negatively impacted the City’s Fiscal Year 2020-2021 General Fund operating budget from which the annual CIP Deposit for Stadium improvements is funded; and
WHEREAS, the CITY desires to defer the CIP Deposit that was due to be deposited by July 31, 2020 to July 31, 2025.

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

AGREEMENT
Section 1. The recitals above are true and correct and herein incorporated by reference.

Section 2. Section 2 of the Agreement entitled “TERM OF AGREEMENT” is hereby amended as follows (strikethrough is delete, italics is addition):
“SECTION 2. TERM OF AGREEMENT.

The Term of this Agreement shall commence upon the 1st day of January, 2017, and shall continue until December 31, 2026 December 31, 2027, subject to sooner termination as herein provided.

Either party may request to reopen the terms of this Agreement during the period January 1. 2021, through September 30, 2021. In the event either party makes such a request, the parties shall meet and confer on the economic issues between them request until either party declares impasse, or the parties agree to include new terms (or term) in this Agreement, but in any case, for no less than five (5) face-to face meetings at the request of either party. In order for any reopener to be effective, the non-requesting party must agree in writing to the reopener during the aforementioned time period. Either party may refuse a request to change the Agreement in its absolute discretion for any reason or for no reason. If a request is made and no agreement on new terms have been are reached, the Agreement will expire on December 31, 2021. Any agreed to changes must be made in writing as an amendment to this Agreement.” Section 3. The CITY hereby waives payment of the 2020 annual fee in the amount of Seventy Thousand Dollars ($70,000) due from the CLUB to the CITY.

DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 739 -
3 Section 4. Subsection B. of Section 4 of the Agreement, entitled “CITY Stadium Capital Improvement Needs Fund Obligation” is hereby deleted in its entirety and replaced as follows:
“B. CITY Stadium Capital Improvement Needs Fund Obligation. CITY’s share of the Net Naming Rights Revenues shall be deposited into the Stadium Capital Improvement Needs Fund, together with a portion of CITY’s annual General Fund Expenditure Savings realized during the Term. One goal of this Agreement is for the CITY to substantially reduce its General Fund operating subsidy and to roll a portion of the CITY’s expenditure savings realized by this Agreement into capital improvements to the Stadium Premises. The specific contribution amount from the General Fund or any other fund the CITY deems appropriate will be approved by the CITY through the annual budget process or through separate council action.

The CITY shall make deposits to the Stadium Capital Improvement Needs Fund balance (“CIP Deposit”), at the times and in no less than the listed amounts, pursuant to the schedule set forth below:

CIP Deposit 1: $120,000 by January 31, 2017
CIP Deposit 2: $120,000 by January 31, 2018
CIP Deposit 3: $240,000 by October 31, 2018
CIP Deposit 4: $120,000 by July 31, 2019
CIP Deposit 5: $120,000 by July 31, 2021
CIP Deposit 6: $120,000 by July 31, 2022
CIP Deposit 7: $120,000 by July 31, 2023
CIP Deposit 8: $120,000 by July 31, 2024
CIP Deposit 9: $120,000 by July 31, 2025
Section 5. Section 41 of the Agreement entitled “NOTICES” is hereby deleted in its entirety and replaced as follows:
“SECTION 41. NOTICE.

Any and all notices which either party desires or is required by this Agreement to give or furnish to the other party shall be in writing and personally delivered or deposited in the United States postal service, postage prepaid, certified mail, return receipt requested, addressed as follows:

CITY:

City of Modesto
Joseph P. Lopez
P.O. Box 642 Modesto, CA 95353
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 740 -
4 With a copy to:

Laurie A. Smith
Director of Parks, Recreation and Neighborhoods
P.O. Box 642
Modesto, CA 95353
CLUB:

Zach Brockman, General Manager
The Baseball Club of Modesto, LLC
601 Neece Drive
Modesto, CA 95351”
Section 6. Except as modified and amended by this Second Amendment to Agreement, all other provisions of the Agreement remain unchanged and in full force and effect.

WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2021-________, adopted by the Council of the City of Modesto on the ___________ day of ______________________, 2021 and The Baseball Club of Modesto, LLC has caused this Agreement to be duly executed.

SIGNATURES ON FOLLOWING PAGE
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E 12th
007
January
#16..
- 741 -

CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
STEPHANIE LOPEZ, City Clerk

BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:

BY: ____________________________
JILES SMITH II, Risk Manager
Consultant’s Federal ID # ___________
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal.

Partnership - signature of a partner required Sole
Proprietorship - signature of proprietor
required
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E The Baseball Club of Modesto, LLC
81-3004078
Trevor Gooby Senior Vice President
Zach Brockman General Manager
3/22/2021
#16..
- 742 -

INFO CONTRACT NUMBER PROJECT NUMBER PROJECT NAME DEPARTMENT NAME PROJECT STATUS = e The Baseball Club of Modesto, LLC Parks, Recreation and Neighborhoods General Liability
Manual Entry
02/01/2021 — 02/01/2022
Policy: 1000100100211
Insurer: Starr Indemnity & Liability Company
Automobile Liability
Manual Entry
02/01/2021 — 02/01/2022
Policy: KKO0000008683500
Insurer: National Casualty Company
Excess
Manual Entry
02/01/2021 — 02/01/2022
Policy: XKO0000008683700
Insurer: National Casualty Company
Workers Compensation
Manual Entry
11/01/2020 — 11/01/2021
Policy: 9287446-20
Insurer: State Compensation Insurance Fund
Requirements Notes: 
Approved 3/5/21 KLay
e The Baseball Club of Modesto, LLC
Overall Status: APPROVED

APPROVED 
Required Policies

Each Occurrence: $2,000,000
Fire Damage (any one fire): $2,000,000
Med.exp (any one person): $
Personal/adv Injury: $2,000,000
General (Aggregate): $4,000,000
Products-comp/op Agg: $4,000,000
APPROVED 
Combined Single Limit (Ea Accident): $2,000,000
Bodily Injury (Per Person): $0
Bodily Injury (Per Accident): $0
Property: $0
APPROVED 
Limit: $8,000,000
APPROVED 
E.L. Each Accident: $1,000,000
E.L. Disease - Ea Employee: $1,000,000
E.L. Disease - Policy Limit: $1,000,000
APPROVED 
Required Documents 
User Uploaded Documents 
Help
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 743 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

January 12, 2020
Date: November 10, 2020
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods SUBJECT: Second Amendment to Agreement between City and The Baseball Club of Modesto, LLC
CONTACT: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods, [email protected], 577-5347
DESCRIPTION:

Consider approving the Second Amendment to Agreement with The Baseball Club of Modesto, as successor in interest to HWS Baseball IV, LLC, to extend the term through December 31, 2027, waive the 2020 annual license fee payment, and defer the Fiscal Year 2020-2021 Capital Improvement Project deposit to Fiscal Year 2025-2026. (Funding Source: CIP Project 101019/General Fund)
STRATEGIC PLAN ELEMENT:

BACKGROUND:

The City owns the property, stadium and parking facilities that comprise John Thurman Field.

From 2006-2016, the City leased the facility to the Modesto Nuts Baseball Club, an affiliate of the Seattle Mariners. On December 13, 2016, by Resolution No. 2016-503, the City and HWS Baseball IV, LLC, also known as the Modesto Nuts Baseball Club (Club), entered into a ten-year agreement to operate, manage, and maintain the facility while the City retains ownership and control of the asset (Agreement). The Agreement specifies the Club maintain the facility and field and pay an annual license fee of $70,000 to the City. In return, the City contributes $120,000 per year for capital improvement and deferred maintenance projects for the stadium.

In 2018, staff entered into discussions regarding replacement of the outdated videoboard and stadium seating. The replacement, estimated at $500,000, exceeded the available CIP funding.

As a result, by Resolution No. 2018-451, Council approved the First Amendment to the DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 744 -
City Council, January 12, 2021
Second Amendment to Agreement between City and
The Baseball Club of Modesto, LLC

Page 2 of 3 ends

Agreement which advanced one of the $120,000 annual CIP Deposits to help fund the project in advance of the 2019 season.

DISCUSSION:

In Spring 2020, COVID-19 forced the State to shut down all non-essential operations, services and programs. This force, outside the control of the Club, prevented the Club from providing a full schedule of professional baseball games at John Thurman Field for the 2020 season. As a result, the season was cancelled and the Club requested that the City waive or defer the $70,000 annual license fee.

In response to the negative economic impacts of COVID-19, staff met with the Club to discuss options. As result, staff recommends amending the Agreement as follows:
1) Add one additional year to the term of the Agreement and extend it through 2027. 2) Waive the 2020 annual license fee payment and add it to the 2027 season. 3) Defer the City’s Fiscal Year 2020-2021 $120,000 CIP Deposit to Fiscal Year 2025-2026.

On November 3, 2020, the City was notified that HWS Baseball IV, LLC assigned all obligations and rights under the Agreement to The Baseball Club of Modesto, LLC. The Baseball Club of Modesto, LLC is owned by Mariners Investment, LLC c/o The Seattle Mariners. Prior to this assignment, the Seattle Mariners owned 51% of the team. The change in assignment gives The Baseball Club of Modesto, LLC full ownership of the Modesto Nuts franchise under the Seattle Mariners as the parent club.

With its long history and partnership, staff believes it is in the best interest of both parties to continue working together during these difficult and uncertain times. As proposed, the City’s waiver of this year’s annual payment provides much needed financial relief to the Club until state restrictions are lifted and new guidelines and protocols are put in place for the 2021 spring season. Likewise, the deferral of the City’s CIP Deposit also provides similar relief to the City’s general fund budget and covers the Club’s annual payment loss of revenue. Staff is recommending both the waiver and deferral and amending the Club information to reflect the changes in ownership and name.

FISCAL IMPACT:

The City’s operating budget for John Thurman Field for Fiscal Year 2020-2021 is $117,315.

Staff expects to realize some cost savings in utilities and maintenance expenses due to COVID19. However, the deferral of the $70,000 license fee payment may create a shortfall in General Funds routinely used to offset nearly 65% of the operating expenses.

Deferral of the City’s FY 2020-2021 $120,000 CIP Deposit to Fiscal Year 2025-2026 may impede the City’s ability to fund capital projects throughout the year. At this time, $21,350 is available for capital projects.

COMMITTEE RECOMMENDATION:

This item was approved by the Finance Committee on October 26, 2020 and recommended it be forwarded to Council for approval. Note: The Finance Committee agenda report did not include the change in ownership assignments as this information was received after the meeting.

DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 745 -
City Council, January 12, 2021
Second Amendment to Agreement between City and
The Baseball Club of Modesto, LLC

Page 3 of 3 ends

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Second Amendment to Agreement with The Baseball Club of Modesto, as successor in interest to HWS Baseball IV, LLC, to extend the term through December 31, 2027, waive the 2020 annual license fee payment, defer the Fiscal Year 2020- 2021 Capital Improvement Project deposit to Fiscal Year 2025-2026, and authorizing the City Manager, or designee, to execute the Second Amendment to Agreement.

Approved by:

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

1. Resolution

2. Second Amendment to Agreement

3. First Amendment to Agreement

4. Agreement
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 746 -
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 747 -
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 748 -
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 749 -
DocuSign Envelope ID: 74204E1F-37DA-43AF-84E4-AC804CE73F8E #16..
- 750 -
#16..
- 751 -
#16..
- 752 -
#16..
- 753 -
AGREEMENT BET\VEEN CITY OF MODESTO AND
1-IWS BASEBALL IV, LLC, aka THE MODESTO NUTS BASEBALL CLUB FOR THE USE, OPERATION AND lvIANAGE!vIENT OF
JOI IN TI IURlvIAN FIELD
This AGREEMENT "" is made and entered i~t? this I -s- . day of JtW~ 20~i!1 by and between the CI1Y OF MODESTO, a muruapal corporanon of the State of Califorrua, ("CI1Y") and HWS BASEBALL IV, LLC, a Delaware limited liability corporation, licensed to do business in California as THE ~·IODESTO NUTS BASEBALL CLUB ("CLUB").

RECITALS
A. CI1Y owns john Thurman Field, located at 601 Neece Drive, Modesto, CA 95351, ("Stadium Premises" or "Premises" or "Stadium Facilities") as more particularly described in the attached Exhibit A.

B. The City Manager is charged with the oversight of this Agreement on behalf of CI1Y and the use of Stadium Premises.

C. CLUB desires to use, operate, manage and maintain the Stadium Premises for the presentation of Modesto Nuts baseball games, as well as, recreational activities, sporting events, concerts and other events.

D. CI1Y desires to contract with CLUB for CLUB to operate Stadium Premises in accordance with the provisions of th.is Agreement.

NOW, THEREFORE, in consideration of their mutual promises and the terms, conditions and covenants hereinafter specified, the parties agree as follows:

SECTION 1. OPERATION AND MANAGEMENT.

A. CIIT engages CLUB to operate and manage the Stadium Premises in accordance with the provisions of this Agreement. As a material inducement for CI1Y to enter into this Agreement, CLUB agrees that it shall use the Stadium Premises for the presentation of the Modesto Nuts Class A professional baseball games, including without limitation, exhibition games, regular season games and playoff games as the "home park" of the Modesto Nuts for the entire term of this Agreement. Except as provided in 1.B, CLUB's failure to provide a full schedule of professional baseball games at the Stadium Premises for each year during the term of this Agreement shall be a breach of this Agreement and ground for immediate termination of this Agreement by CI1Y, unless the cause of such breach is a professional baseball strike, a natural disaster, or similar force majeure outside of the control of CLUB rendering CLUB's performance impossible.

B. CLUB shall have the right to play up to four (4) of CLUB's home games each year at a location other than at Stadium Premises. CLUB shall pay to CllY for each of said four (4) home games played by CLUB at a location other than at Stadium Premises the sum of ONE 1 #16..
- 754 -
THOUSAND ONE HUNDRED AND 00/ 100 ($1,100.00) for each of said four (4) home games played by CLUB at a location other than at Stadium Premises.

C. In the event that the Modesto Nuts terminate use of the Stadium Premises as their "home park," this Agreement will terminate as provided for in Section 38, below.

D. When the Stadium Premises are not in use for Modesto Nuts baseball games, CLUB may schedule other commercial activities C'Special Events") subject to CLUB obtaining any required Entertainment Permits for activities other than professional baseball. In the coordination of the parking lot for these other commercial activities, CLUB shall comply with the requirements provided in Section 19. In this AGREEMENT, baseball games and Special Events arc collectively referred to as "Stadium Events".

E. Relationship with CITY and Community. CLUB shall attend (at no expense to the CITY) all public meetings of CITY of which CLUB is notified and reasonabl}' requested to attend and at which matters concerning the Stadium are to be considered and shall meet regularly as reasonably necessary with CITY representatives to be designated by CITY for the purposes of providing CITY with information to which CITY is entitled of CLUB's activities hereunder. In addition, when reasonably requested to do so by CITY upon reasonable notice, CLUB shall meet with representatives of ,•arious community groups and organizations, in order to promote public understanding of the Stadium Facilities or to provide CITY any information related to CLUB's compliance with the terms of this Agreement.

F. CLUB shall operate and manage, and cause to be operated and managed, the Stadium at the ".Applicable Standard." The "Applicable Standard" is defined as:

1. A standard of performance, operation (including bookings) and maintenance equal to or exceeding those generally applicable ro contemporary comparable minor league stadiums in the United States at which l'vliLB games arc played. 2 .. Except as otherwise noted in this Agreement, with respect to prices, regulation of the advertising and serving of alcoholic beverages and tobacco products, and prevailing wages, the standard shall be equal to comparable l'vliLB stadiums located in Northern California.

G. Name of Team and Stadium.

1. TI1e name of CLUB's Class A Baseball Team which plays at the STADIUM pursuant to tlus AGREEMENT shall include the name "Modesto" unless otherwise agreed to in writing by CITY.

2. The name and nanung rights of the STADIUM, field or any facilities therein shall be witlun the complete discretion of CITY.

3. During each year of this Agreement in which payment is made to the CITY of the CLUB for any STADIUM nanung rights, CITY shall receive up to the first $20,000 received during that year, and CLUB shall receive any amount tl1at is in excess of $20,000 received for 2 #16..
- 755 -
that year. This shall be the distribution for each year revenues are received in the case of a multi-year distribution.

CITY acknowledges that all CITY's Net Naming Rights Revenues generated from such naming rights are to be deposited in the Stadium Capital Imprm•ement Needs Fund. As used in this section, City's Net Naming Rights shall mean CITY's naming rights revenues received during any year that are in excess of costs incurred by the CITY in furtherance or execution of any provision of this Agreement other than agreed upon capital needs.

SECTION 2. TERM OF AGREEMENT. The Term of this Agreement shall commence upon the 1st day of January, 2017, and shall continue until December 31, 2026, subject to sooner termination as herein provided.

Either party may request to reopen the terms of this Agreement during the period January 1, 2021, through September 30, 2021. In the event either party makes such a request, the parties shall meet and confer on the economic issues between them until either party declares impasse, or the parties agree to include new terms (or term) in this Agreement, but in any case, for no less than five (5) face-to-face meetings at the request of either party. In order for any reopener to be effective, the non-requesting party must agree in writing to the reopener during the aforementioned time period. Either party may refuse a request to change the Agreement in its absolute discretion for any reason or for no reason. If no agreement on new terms have been reached, the Agreement will expire on December 31, 2021.

SECTION 3. PAThIENT BY CLUB TO CITY. For the permission herein contained to use, operate and manage the Stadium Premises, CLUB agrees to pay CITY:

A. Annual Fee. An annual fee of SEVENTY THOUSAND AND NO/100 DOLLARS ($70,000.00). The Annual Fee of SEVENTY THOUSAND AND 00/100 DOLLARS ($70,000.00) shall be paid in four (4) equal installments in the sum of SEVENTEEN THOUSAND FIVE I IUNDRED AND 00/100 DOLLARS ($17,500.00) for each installment. An installment shall be due on the fifteenth (15th) day ofMay,June,July and August of each calendar year during the term hereof which shall be considered the "due date". Each payment shall be made without withhold, abatement, set off or deduction.

B. CITY agrees that the final quarterly maintenance payment due from CLUB for 2016 under the prior License Agreement is hereby waived by the CITY. CITY agrees to reduce the portion of the final payment of the Annual Total Gross Receipts percentage due from the Club under the prior License Agreement in the amount of $70,000.

C. Failure by CLUB to make payments in the amounts and at the times hereinabm•e specified shall constitute a material breach of this Agreement.

D. If CLUB fails to pay on or before its due date the fees required under this Agreement, CLUB shall be responsible for and shall pay a late charge equal to interest on the amount of the 3 #16..
- 756 -
unpaid charges at the maximum rate permitted under Section 1 (2) of Article )\."V of the California Constitution (not to exceed ten percent (10%) per annum) from the date when said payment should have been made, which late charge shall be added to and become part of the delinquent past due amount. The amount of the past due and late charge to be paid by CLUB on any unpaid fee shall be reassessed and added to CLUB's obligation for each successive monthly period accruing after the date on which the late charge is initially imposed. This provision shall not be deemed as a forbearance on the payments of such amounts, and CITY retains any and all remedies for nonpayment of such amounts.

SECTION 4. STADIUM CAPITAL IMPROVEMENT NEEDS FUND.

A. Stadium Capital Improvement Needs Fund. CITY will maintain a Stadium Capital Improvement Needs Fund and shall be used solely for CITY•approved Stadium Capital Improvements and deferred maintenance. The Stadium Capital Improvement Needs Fund will be established and managed by CITY.

B. CITY Stadium Capital Improvement Needs Fund Obligation. CITY's share of the Net Naming Rights Revenues shall be deposited into the Stadium Capital Improvement Needs Fund, together with a portion of CITY's annual General Fund Expenditure Savings realized during the Term. One goal of this Agreement is for the CITY to substantially reduce its General Fund operating subsidy and to roll a portion of the CITY's expenditure savings realized by this Agreement into capital improvements to the Stadium Premises. The specific contribution amount from the General fund or any other fund the CITY deems appropriate will be approved by the CITY though it's annual budget process, and shall be no less than $120,000 per calendar year. The first year's allocation for the 2017 calendar year shall be set at $120,000 beginning at the adoption this Agreement.

SECTION 5. BASEBALL: CLUB to Provide Class A or Class AA Professional Baseball.

A. Standing. At all times during the term of this AGREEMENT, CLUB shall endeavor to remain a member in good standing of the California Baseball League, or its successor, and it shall play Class A or Class AA Professional Baseball.

B. CLUB shall furnish CJTY its schedule of play, practice games and practice for each season as soon as the California Baseball League establishes the playing schedule.

C. Equipment. CLUB shall provide its players and personnel all equipment necessary to allow them to play baseball in Stadium Premises. CLUB shall provide all team equipment, furniture, and facilities to provide for efficient operation and functioning of the team and its business operations.

SECTION 6. RECORDS, ACCOUNTING AND AUDIT.

A. CLUB shall have prepared an annual financial statement by certified public accountant(s) in accordance with generally accepted accounting principles of all financial transactions of the preceding fiscal year related to CLUB's operation under this Agreement. The 4 #16..
- 757 -
annual report will be made available for viewing to the City Manager upon request within 100 days after the end of the calendar year, and each year thereafter while this Agreement is in effect.

The City 1\fanager may request additional supporting documentation as needed to determine prudent fiscal operation of the City-owned asset and compliance of the CLUB with the terms of this Agreement. The CITY will keep the contents of this report and any additional supporting documentation viewed strictly confidential and shall not become part of the CITY's files in any manner which would subject the financial statement to access by the public except as required by law.

SECTION 7. QUALITY OF OPERATIONS.

A. CLUB shall, at all times operate the Stadium Premises in a good businesslike manner which meets the Applicable Standard. In the event that the City Manager finds that service rendered by the CLUB fails to meet the Applicable Standard, CLUB, upon being advised of the nonperformance or noncompliance, shall, within 30 (thirty) days of notice of nonperformance or noncompliance, immediately cure any violations, deficiencies or omissions which cause the nonperformance or noncompliance. CLUB shall be in default of this Agreement if it fails to take corrective action, within 30 (thirty) days of notice of nonperformance or noncompliance, which cures the violations, deficiency or omission causing nonconformance or noncompliance.

B. Maintenance Standard. CLUB shall maintain tl1e Stadium Facilities and any improvements thereto in accordance with maintenance standards equal to or exceeding the Applicable Standard. The CITY and CLUB acknowledge that the Applicable Standard is set by professional baseball and as such compliance with the Applicable Standard is the sole responsibility of the CLUB. The CITY shall not be obligated to maintain or fund maintenance of the facility to meet the Applicable Standard.

C. CLUB's responsibilities and duties with respect to the Stadium Parking Facilities shall be general maintenance, including day-to-day sweeping of and litter removal from the Stadium Parking Facilities. All repairs to the parking facility shall be programmed and paid for through the Stadium Capital lmprm•ement Needs Fund or by one-time budget requests to the CITY.

D. CLUB shall be responsible for performing and paying for the cost and expense of trash removal and sweeping of the CITY public walk·ways and sidewalks immediately adjoining the Stadium Facilities after Stadium Events to the extent CLUB and CITY reasonably determine that extraordinary debris results from patrons of the Stadium.

E. CLUB shall maintain all furnishings, fi.xtures and equipment in the Stadium Facilities to the standard set forth above, but in any event not less than maintenance standards and requirements set forth in applicable manuals and specifications provided by equipment manufacturers and suppliers.

F. CLUB shall maintain the Stadium Facilities and landscaping of the Stadium Facilities to the standard set forth above, but in no event less than the reasonable maintenance standards and requirements established by CITY, provided that as fully described in Section 26 below, the City at its sole expense shall maintain the structural elements of the Stadium. 5 #16..
- 758 -
SECTION 8. EMPLOYEES. Any and all personnel employed by the CLUB in conducting the operations of Stadium Premises shall be qualified to perform the duties assigned to them by CLUB and shall be of good moral character. Sa.id employees shall be neatly attired and shall conduct themselves at all times in a courteous and businesslike manner.

SECTION 9. NONDISCRIMINATION BY CLUB. CLUB shall not discriminate in any way against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of dus Agreement.

SECTION 10. COMPLIANCE WITH ALLL\WS.

A. CLUB shall comply with all applicable CITY, state and federal laws, regulations and rules related to the use and operation of the Stadium Premises and to the sale of merchandise, including but not limited to, laws, regulations and rules applicable to health, safety and equal opportunity employment. Without limiting the generality of the foregoing, CLUB shall comply with and enforce the provisions of CITY's "No-Smoking" ordinance regulating smoking at certain public places including applicable provisions of section 5-8.301, Modesto Municipal Code as it may be amended from time to time. CLUB acknowledges receipt of a copy of CITY's "No-Smoking" ordinance.

B. CLUB shall pay before delinquency any and all taxes (including sales and possessory• interest tixes), assessments, licenses, fees and other public charges which may be levied, assessed or imposed upon any of CLUB's interest, or which may be imposed upon CLUB 's business, or which may be imposed upon CLUB for the privilege of selling merchandise or for occupying Stadium Premises permitted to be used and operated by CLUB, which may be imposed upon any other property of CLUB. CLUB understands and agrees that this Agreement may create a possessory interest on which a possessory interest tax may be imposed. CLUB shall pay any such possessory interest tax witl10ut obligation to CITY.

C. Pursuant to California Ci,ril Code Section 1812.97, d1c following warning is set ford1:

Warning: Use of steroids to increase strength or growth can cause serious health problems. Steroids can keep teenagers from growing to their full height; they can also cause heart disease, stroke and damaged liver function. Men and women using steroids may develop fertility problems, personality changes, and acne. Men can also experience premature balding and development of breast tissue. These health hazards are in addition to the civil and criminal penalties for unauthorized sale, use or exchange of anabolic steroids.
6 #16..
- 759 -
D. CLUB shall conspicuously post the warning set forth above in subsection 10.C in each locker room of the Stadium. The warning shall be printed in prominent bold type in conformance with California Civil Code Section 1812.97.

SECTION 11. CLUB RIGHTS AND STATUS.

The parties hereto mutually agree that CLUB and CLUB's employees hired to perform CLUB's obligations hereunder are and shall be at all times independent contractors and not agents or employees of the CITY, and that CLUB and CLUB's employees shall not be entitled to any salary, fringe benefits, pension, \'X'orkers' Compensation, sick leave, insurance or any other benefit or right connected witl1 employment by CITY, or compensation other than as prescribed herein, and CLUB expressly waives any claim it may have to any such rights.

SECTION 12. [not used]
SECTION 13. ASSIGNMENT PROHIBITED. This Agreement is not assignable by CLUB and any attempt by CLUB to assign any rights, duties or obligations arising under the provisions of this Agreement without the written consent of the City Manager shall be void and of no effect. Further, any assignment or attempt at assignment by the CLUB without the written consent of the City Manager shall constitute a material breach for which this Agreement, at CITY's sole option, may be automatically terminated without notice. Notwithstanding the foregoing, CLUB may, without CIIT's prior written consent, but upon written notice to CIIT, assign CLUB's interest in this Agreement to: (i) a subsidiary, affiliate, parent or other entity to CLUB which controls, is controlled by, or is under common control with, CLUB; (ii) a successor entity to CLUB resulting from merger, consolidation, non-bankruptcy reorganization, or government action; (iii) a purchaser of all or any significant portion of CLUB's stock or assets; or (iv) The Baseball Club of Modesto, LLC, an affiliate of CLUB.

SECTION 14. ADVERTISING. CLUB shall have the right to sell, display and maintain advertising on the inside of the outfield fence facilities, scoreboard, first and third base coaching boxes, and on signs which may be attached by CLUB to the back of the bleachers and other areas as agreed upon by the City Manager within the Premises, only. CLUB shall, at CLUBs sole cost and expense, provide, maintain, repair and replace all advertising locations and advertising, including but not limited to, any required improvements and/or alterations to Stadium Premises as required by CITY. However, CLUB shall not sell, display or maintain any advertising for tobacco or marijuana products, services of businesses.

SECTION 15. ALCOHOL SERVICE.

A. CLUB may serve beer and wine at the Stadium Premises in accordance with all appropriate licenses and pursuant to applicable laws and regulations. CLUB shall not permit the consumption of alcohol on the Stadium Premises other than beer and wine. Additional alcoholic beverages may be sold provided the Modesto Nuts obtain and act in accordance with all appropriate licenses and pursuant to applicable rules and regulations. 7 #16..
- 760 -
B. CLUB shall develop and implement an education program to educate and train CLUB's employees, including without limitation, parking lot attendants, vendors, ticket takers and security personnel, regarding the responsible consumption of beer and wine at events held at the Stadium Premises.

C. CLUB shall not permit the consumption of beer or wine at the Stadium Premises after the 7th inning of basebaU games. At events other than baseball games, CLUB shall not permit the consumption of beer or wine later than one hour prior to the scheduled conclusion of the event.

SECTION 16. ACCESS TO STADIUM PREl\HSES.

A. CLUB shall have full and unimpaired access to Stadium Premises at all times during the term of this Agreement.

B. Access for CITY Personnel. Officers, employees, agents and other authorized persons of CITY in the performance of their duties shall have access to the Stadium at all times, subject to reasonable security measures during non-business hours, as may be imposed by CLUB, and provided that access to exclusive areas of the Stadium shall be only to perform CITY's obligation hereunder or under circumstances that access to private property is generally permitted to CITY agents. 111crc shall be no charge for such access, including parking, during events at the Stadium, provided that such access shall not entitle any such persons to have viewing rights to Stadium Events except as otherwise provided herein. Parking shall be in designated areas and subject to availability.

C. CITY and its authorized representatives shall have the right to enter the Stadium Premises at all times for any of the following purposes:

1. To determine whether the Premises arc in good condition and whether CLUB is complying with its obligations under this Agreement.

2. To do any necessary maintenance or inspection, and to make any restoration to the Premises that CITY has the right or obligation to perform.

3. To respond to any emergency.

SECTION 17. CITY'S STADIUM USE RJGIJTS.

CLUB and CITY understand and agree that CITY retains the right to use Stadium Premises for up to five (5) CITY events per year with no rental fee charged to tl1e CITY. Such events will be limited to CITY sponsored organizational not-for-profit events. CITY will agree to reimburse the CLUB for costs associated with operating tl1c facility during the event and tl1c CLUB retains all concession rights during the event.
8 #16..
- 761 -
SECTION 18. [not used]
SECTION 19. PARKING LOT USE AND rvIANAGEMENT.

A. It is understood and agreed by and between the parties that the parking facilities, as shown in Exhibit A for Stadium, are deemed and construed to be the parking facilities of Stadium as of the date of execution of this Agreement.

B. CITY will provide the Overflow Parking Lot as shown in Exhibit A to be used for overflow parking for CLUB's home games and Stadium Events allowed under this Agreement, conditioned upon CLUB providing to CITY a minimum advance notice of 2 (two) weeks and no individual or organization having reserved the Overflow Parking Lot prior to CLUB's request.

C. Except as otherwise provided in this Agreement, CLUB shall have the right to operate and control the parking lot facilities for its home games and special events allowed under this Agreement. The staffing and operation of said parking facilities will be at CLUB's expense. All parking receipts shall be secured, handled, and accounted for by CLUB. CLUB shall control the issuance and distribution of any and all parking credentials, if any, for its home games and special events.

D. The parking of all automobiles and other vehicles by patrons of CLUB's home games shall be within the parking areas designated by City Manager, or dcsignee.

E. CLUB acknowledges that CITY shall have the right to provide the parking of all automobiles and other vehicles by patrons for any event scheduled at Stadium by, or on behalf of CITY for its CITY sponsored events described in Section 17 at no cost to the CITY SECTION 20. STAGING, LIGHTING, SOUND.

A. CLUB, at its expense, shall be responsible for the installation and removal of any staging required for the presentation of an event.

B. CLUB shall have the right to use the public address system, sound system, and broadcast booths located on the Stadium Premises. CLUB, at its expense, shall be responsible for obtaining any additional sound broadcasting equipment, which the CLUB may desire or require for the presentation of an event.

C. CLUB, at its expense, shall be responsible for any additional lighting, other than the lighting which is permanently installed on tl1e Stadium Premises, and which the CLUB may desire or require for the presentation of an event.

SECTION 21. EVENT STAFFING AND CLEANUP.

A. CLUB shall provide, at its own expense, all event personnel, all playing field personnel, including, without limitation, ticket sellers, ticket takers, ushers, janitors, medical 9 #16..
- 762 -
persons, sound and scoreboard persons, supervisory personnel, and all other personnel reasonably necessary for the operation of the Premises for the events held therein. The number and type of such personnel shall be based upon the number of spectators and the type of event.

B. CLUB shall be responsible, ac its expense, for cleaning the Premises, including equipment removal, at the conclusion of each event held on Premises.

C. If CllY should provide any of the labor or services described in subsections A and B above, CLUB shall reimburse CilY for its labor, materials, supplies and administrative overhead costs.

SECTION 22. UTILITIES AND .ADDITIONAL SERVICES.

A. CLUB shall make arrangements for and pay for all utilities and services furnished to or used by it, including, without limitation, gas, electricity, non-irrigation water, sewer, telephone service, and for all connection charges. CilY will pay for playing field irrigation water and trash collection for Premises.

B. If the City l\fanager determines that any event will likely result in excessive parking and traffic congestion or other increased community impacts, CLUB shall reimburse CllY for the cost of additional parking, traffic control, or other staff assigned by CITY to the vicinity of Stadium Premises.

SECTION 23. SECURITY. CLUB shaU make arrangements for and pay for all reasonably necessary security at each and every event held at the Stadium Premises under the provisions of this Agreement. The number and type of such personnel shall be based upon the type of event and the number of spectators in determining reasonably necessary security.

SECTION 24. EQUIPMENT, REPAIRS AND OWNERSHIP.
. A. CLUB agrees to accept Stadium Premises in an "as is condition," and as equipped by the CllY as of the effective date of this Agreement. "As is condition" also includes the attached list of Stadium Capital Improvements Needs and maintenance items both parties have agreed are the top priorities, and are to be accomplished in the timetables established with every reasonable effort of the Parties to have d1e top priority improvements ready for opening day 2017. If, in the e,•ent d1e CilY does not achieve projects it is responsible for within d1ese timetables due to non-performance that is within its control, the CLUB is entitled to a 25% reduction in its annual fee payment (Exhibit B). In d1e event CLUB determines, in CLUB's sole discretion, drnt additional and/ or new equipment is necessary for the smood1 operation of Stadium Premises, CLUB may, at CLUB's sole cost and expense, purchase such additional and/ or new equipment.

B. Attached as Exhibit C to th.is Agreement is a list oflarge and small maintenance equipment purchased and used by the City of Modesto in the performance of maintenance of the Stadium Premises prior to the date of dus Agreement. Effective upon the effective date of this Agreement, ownership of all equipment listed on Exhibit C, together with any and all small 10 #16..
- 763 -
maintenance equipment located on the Stadium Premises as of the effective date shall transfer to CLUB. CLUB shall pay CITY TEN THOUSAND AND NO/ 100 DOLL\RS (Sl0,000) as the full purchase price for all such large and small equipment. During the first calendar year of this Agreement, CITY shall provide CLUB personnel with up to two hundred (200) hours of training in the use of the large equipment at no additional charge. CLUB shall, at CLUB's sole cost and expense and in CLUB's sole discretion as to its condition, maintain and repair all equipment, including fixed and portable which is used in the operation of Stadium Premises.

C. Upon expiration, or sooner termination of th.is Agreement, any and all equipment purchased from CITY pursuant to section 24.B, and any equipment purchased by CLUB for use in the operation of the Stadium Premises, shall become the property of CITY and shall remain at the Stadium Premises.

SECTION 25. IMPROVEMENTS, tvlAINTENANCE AND REPAIRS.

A. Capital, Improvements, Repairs and Replacements. CLUB shall prepare a Capital Budget for CITY's approval in accordance with the next paragraph. Capital improvements, including normal repairs and capital replacement, shall mean any repair ,replacement or deferred maintenance with a value of over FIVE THOUSAND AND NO/ 100 DOLLARS ($5,000) and an expected useful life of over five (5) years.

B. Prior to August 1 of each calendar year, CLUB shall prepare and submit to CITY for its approval a preliminary budget for the following fiscal year that reasonably itemizes and estimates the cost of all normal Capital repairs and replacements. CITY shall review and approve the preliminary budget which approval shall not be unreasonably withheld or delayed and shall be approved no later than October 1. The Capital Budget shall not exceed the Stadium Capital Improvement Needs Fund balance that will be available to pay for budgeted amounts, and neither party shall be required by the other to make additional deposits to the Capital Improvement Needs Fund or pay for budgeted items from its separate funds without its prior written consent, which may be withheld in its sole discretion. The preliminary budget, as and when approved by CITY (including any agreed to revisions by CITY) shall constitute the Capital Budget. CLUB may not make any Capital Repairs and Replacements, other than Emergency Capital Repairs and Replacements, or that are not included in the Capital Budget or not otherwise approved in advance in writing by CITY. Any amounts of the Stadium Capital Improvement Needs Fund which go unused during a calendar year shall be rolled over and remain in the Capital Needs Fund and managed pursuant to the process described in Section 4.

The 2017 list of Stadium Capital Improvement Needs will be made a part of this Agreement along with the list in Section 24 A detailing the Capital Improvement Needs to be completed prior to opening day 2017 (Exhibit B).

C. Implementation of Work. CLUB may, upon approval of CITY, implement the design, construction and repair of normal Capital repairs and replacements. Capital Repairs and Replacements shall be described in CLUB's annual budget approved by CITY, subject to scope, schedule, and permitting requirements of the City.
l 1
#16..
- 764 -
D. To the extent this Agreement provides for CLUB to be reimbursed the cost of such work from the Stadium Capital Improvement Needs Fund, then CLUB shall be reimbursed but only for all hard costs and soft costs reJated to such work, including fees, if any, of a third party construction manager, but shall not be paid a fee for CLUB's staff time or overhead. CLUB shall accept such responsibility as delegated to it by CI1Y.

E. CLUB may also decide to fund solely out of CLUB's funds a Capital Improvement, Capital Repair or Capital Replacement to the Stadium Premises. CLUB shall seek City Manager's written approval of any such Capital Improvements and shall follow the provisio ns of this section in implementing such work. Such Capital Improvements, Capital Repairs or Capital Replacements shall remain the property of C11Y unless CLUB has followed the process set forth in Section 28 "Ownership of Alterations."
F. All applicable local, state and federal laws, rules and regulations, and all necessary and required approvals of plans and specifications, permits and all other approvals and documents required shall be fully applicable to, and obtained by CLUB for all work projects carried out by CLUB under this Agreement. CLUB agrees to exercise its supervisory responsibilities hereunder with the objective that all such work and materials utilized therein shall be of the highest quality appropriate to the uses to which such improvements and materials are intended and as are reasonably consistent with the nature of the improvements, the amount budgeted therefore and the Applicable Standard. To the extent that any work is a public work, CLUB shall also comply with the construction requirements as set forth in Exhibit E.

G. Emergency Capital Repairs and Replacements. Cl1Y may make Emergency Capital Repairs and Replacements consistent with established Cl1Y procedures for handling civil emergencies. CITY shall provide CLUB with the names and telephone numbers of the City Manager's Office to contact in the event of an emergency involving d1e Stadium. Unless any delay would present a material risk to human life or the strucrural integrity of the Stadium Facilities or prevents the holding of a scheduled event, CLUB shall notify the City Manager's Office at the emergency number provided to CLUB, and receive the CITY's prior approval, or wait 24 hours without receiving a response, before commencing Emergency Capital Repairs and Replacements. Cl1Y may elect to perform the Emergency Capital Repairs and Replacements.

IfCI1Y approves CLUB's proposed action, or if CITY neither responds to CLUB's notice nor performs the emergency work itself, then CITY cannot contest the characterization of the work as Emergency Capital Repairs and Replacements. Immediately following completion of the Emergency Capital Repairs and Replacements, the party that performed them shall be reimbursed the cost thereof by the fund or party obligated to pay for them.

H. Except as otherwise provided in Section 26 and except for CapitaJ Repairs and Capital Improvements made pursuant to Section 25, CLUB shall at its sole cost and expense: (a) keep and maintain the Stadium Premises and all equipment, machinery and fixrures located thereon in compliance with the Applicable Standard and all applicable laws and MiLB requirements, and in good, clean, safe and sanitary condition and repair, as a first-class sports facility, and tnake all ordinary and necessary repairs and replacements required for the day to day operation of the Stadium Premises, including but not limited to, the maintenance items and standards and frequency listed in Exhibit D; (b) maintain, or cause to be maintained, all 12 #16..
- 765 -
necessary licenses, permits, approvals and authorizations for the operation of the Stadium Premises; (c) maintain the playing field and all landscaping on the Stadium Premises; (d) perform ordinary maintenance required to keep the Stadium Premises in a neat and orderly condition, free of litter and debris, with grass and shrubbery in trim; (e) maintain all portions of the Stadium Premises outside of the John Thurman Field Ballpark in reasonably good condition, free of litter and debris, and with all grass and shrubbery in trim. CLUB will be responsible for performing ordinary maintenance to preserve the safe condition of all sidewalks and other structures located on the Stadium Premises, inside and outside of the John Thurman Field Ballpark; and (f) not commit waste or destroy, demolish, vacate or abandon any part of the Stadium Premises. In addition, maintenance work anticipated as being necessary to be performed by CLUB on an annual or irregular basis is identified in Exhibit D to this Agreement.

All repairs and replacements shall utilize materials or component parts of substantially the same quality as those being repaired or replaced.

SECTION 26. STRUCTURAL RESTORATION AND REPAIR.

A. Except as provided in this Section 26, and Section 33, CITY, at its cost, shall repair, replace, and maintain the structural integrity of the following:

1. The structural parts of the building and permanent fixtures and other improvements that are a fixed part of the Premises, including, without limitation, the foundations, bearing walls, subflooring, ceiling, roof, perimeter fencing, window and door frames, (not including screens and panes), gutters and down spouts, light poles, grandstands, concession stands, and backstop.

2. The exposed and unexposed electrical, plumbing and sewage systems, including without limitation, those portions of the systems lying outside the Stadium Premises.

B. CITY shall repair the Stadium Premises if they arc damaged by (i) causes outside the Stadium Premises, over which CLUB has no control; (ri) acts or omissions of CITY or its authorized representatives; or (iii) failure to perform its obligations under this Section. CLUB shall, and hereby agrees, to reimburse CITY for CITY's total cost of repairs made necessary by the activities and operations of CLUB, CLUB's agents, employees, contractors or invitees.

SECTION 27. INSPECTION. The City shall have the right to inspect the facility at any time.

SECTION 28. OWNERSHIP OF ALTERATIONS.

A. Upon expiration or termination of this Agreement, CITY shall own all such improvements and thereafter CLUB shall have no rights or interest of ownership therein except as pro,,ided below. During the term of this Agreement, CLUB shall own all Capital Repairs and Replacements paid for solely by CLUB, but upon expiration or termination of this Agreement all such improvement shall be owned by CITY and thereafter CLUB shall have no rights or interest of ownership therein. CITY has an insurable interest in such improvements and may elect to insure them during the course of dus agreement. CITY shall own Capital Repairs and Replacements paid for by CITY, including those paid for out of contributions to the Reserve Fund made by CITY.
13 #16..
- 766 -
B. Upon the expiration or termination of this Agreement, computer software programs related to building systems operation shall be delivered to and belong to CITY, but computer software programs related to CLUB's financial operations shall remain the property of CLUB.

Trade fixtures, furniture and equipment used for the operation of the Stadium Facilities and necessary to the operation of the Stadium in accordance with the Applicable Standard (e.g., computers) shall be surrendered to CITY upon expiration or tennination of th.is Agreement and from and after such time CLUB shall have no further rights or ownership therein except as provided below. CLUB may remove and shall own all of its office artwork, furnituce and moveable equipment and trade fixtures equipment and personal property paid for solely by CLUB provided that CITY and CLUB may agree that CITY may purchase such equipment or trade fixrures pursuant to Section 24(C). CLUB covenants that it will not remove any of said alterations, additions, improvements and fixrures, furnishings and equipment that belongs to CITY which ,vill revert to CITY upon termination of this Agreement, nor take any action regarding said alterations, additions, improvements or fixtures, furnishings and equipment which would diminish CITY's rights and interests therein. The foregoing is subject to the rights of HWS Baseball IV, LLC under the 1\-liLB Agreement and the Nondisrurbance, Attornment and Option Agreement, and subject to the rights of third parties who arc not affiliates of CLUB or I·IWS Baseball IV, LLC.

C. If CLUB desires to fully fund, out of CLUB's own funds, a permanent improvement or Capital Upgrade to the Stadium Premises that the CITY also agrees is beneficial to the Stadium Premises, and CLUB can demonstrate to CITY's satisfaction that the anticipated useful life of the improvement or upgrade exceeds the term of this Agreement, then CITY and CLUB may enter into an amendment to th.is Agreement as further detailed in Section 28(C) of chis agreement, specifying the anticipated useful life of the improvement, and the basis for calculation of payment to CLUB for any remaining useful life of such improvement (i) when the term of this Agreement expires; or (ti) if CITY tenninates this Agreement prior to the expiration of the term without breach of this Agreement by CLUB. If CITY terminates this Agreement due to CLUB's breach of this Agreement, CLUB shall not be entitled to repayment for such costs. In the eYent of condemnation of the Stadium or Stadium Premises or any portion thereof under the power of eminent domain, CLUB and HWS Baseball IV, LLC shall each be entitled to compensation for the value of property rights that they own tl1erein immediately prior to any termination of this Agreement for such cause.

SECTION 29. APPROVAL AND REVIEW OF ALTERATIONS.

A. Except for advertising signage as provided in Section 14 and such capital repairs or capital replacements permitted under Section 2S(B), CLUB shall not make any structural or nonstructural alterations to the Premises without the CITY's consent. The City Manager may act for the CITY in giving such consent.

B. In addition to considering its consent to any cemporary alterations, CITY, by its Attorney, shall determine whether such alteration is a public work under the CITY Charter or tl1e Municipal Code. If such alterations are a public work, CITY shall require, as a condition of 14 #16..
- 767 -
its consent, that CLUB adhere to all applicable bidding procedures relative the construction and installation of such alterations.

C. CI1Y may elect within ninety (90) days before the expiration of the term, to require CLUB to remove any alterations that CLUB has made to the Stadium Premises. If termination is prior to expiration of the term, CITY shall provide such notice to CLUB as soon as reasonably practical. If CITY so elects, CLUB, at its cost, shall restore the Stadium Premises to the condition it was in at the commencement of the term less normal wear and tear within sL'i:ty (60) days after notice of election is given.

SECTION 30. PREVAILING WAGES. CLUB recognizes that maintenance, alterations and construction of Improvements may be a "public work" for the purposes of California Labor Code Sections 1720 et seq., and that pursuant to California Labor Code Section 1771 and to the extent CITY deems these provisions are applicable, CLUB shall be required to pay the general prevailing rate of per diem wages for work of similar character in the Modesto area. CLUB shall also submit any documentation required under the CITY's Standard Specifications regarding payment of prevailing wages.

SECTION 31. INDEMNIFICATION AND HOLD HARMLESS. To the fullest extent permitted by law, CLUB shall hold harmless and agrees to protect, defend, and indemnify CI1Y, its officers, employees, contractors agents, volunteers and invitees against any and all losses or damage, and from any and all liability, losses, damage, or expenses, including reasonable attorney fees, and from any and all suits, actions or claims arising or resulting from any acts, omissions, or activities of CLUB, CLUB's agents, employees or subcontractors in the use and operation of the Stadium Premises for which permission is herein granted, or in the performance of any acti\rity permitted or done pursuant to this Agreement. CLUB shall be liable to CITY for any and all damage to facilities owned or controlled by CI1Y, which results from any act or omission of CLUB, its employees, agents or subcontractors, or is caused by any participant in Stadium Premises acti,rities.

CI1Y agrees to protect, defend, indemnify and save harmless CLUB, its officers, employees, contractors and imritees from any and all losses or damage, and from any and all liability, loss or damages, and from any and all suits, actions or claims arising or resulting from any acts, omissions, or activities of CI1Y, CI1Y's agents, employees or subcontractors in the performance of any activity permitted or done pursuant to this Agreement. CITY shall be liable to CLUB for any and all damage to facilities owned or controlled by CLUB, which results from any act or omission of CITY, its employees, agents or subcontractors.

SECTION 32. INSURANCE REQUIREMENTS. CLUB agrees to have and maintain the policies set forth in Exhibit C, entitled "INSURANCE REQUIREMENTS," which is attached hereto and incorporated herein. All policies, endorsements, certificates and/ or binders shall be subject to approval by the CITY's Risk Manager as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager. CLUB agrees to prmride CITY with a copy of said policies, certificates and/ or endorsements before work commences under this Agreement.
15 #16..
- 768 -
SECTION 33. DESTRUCTION. If, during the term, the Stadium Premises at the sole discretion of the City, are totally or partially destroyed from any cause beyond the intentional act of either party hereto, rendering the Stadium Premises totally or partially inaccessible or unusable, this Agreement shall immediately terminate.

SECTION 34. PARTIES RIGHTS AND OBLIGATIONS IF PREMISES CONDEMNED.

If, during the term, or during the period of time between the dates the term commences and the execution of this Agreement there is any taking of all or any part of the Stadium Premises, or any interest in this Agreement by condemnation, the rights and obligations of the parties shall be detennincd pursuant to Section 35. For purposes of Section 35, the following definitions shall apply:

A. "Condemnation" means:

1. The exercise of any governmental power, whether by legal proceedings or otherwise, by a condemnor; and

2. A voluntary sale or transfer by CITY to any condemnor, either under threat of condemnation or while legal proceedings for condemnation arc pending.

B. "Date of taking" means the date the condemnor has the right to possession of the property being condemned.

C. "Condcmnor" means any public or quasi•public authority, or private corporation or individual, having the power of condemnation.

SECTION 35. TAKING BY CONDEMNATION.

A. If a portion of the Stadium Premises is taken by condemnation, this Agreement shall remain in effect, except that CLUB can elect to terminate this Agreement if the remaining portion of the building or other improvements, or the parking area, that are a part of the Stadium Premises, is rendered unsuitable for CLUB's continued use of the Stadium Premises, and CITY may elect to terminate the Agreement if all or any portion of the John Thurman Stadium building is taken by condemnation. If either CITY or CLUB elects to tenninate this Agreement, such party must exercise its right to terminate pursuant to this section only after the nature and extent of the taking have been finally determined.

B. In the event of condemnation of the Stadium or Stadium Premises or any portion thereof under the power of eminent domain, CLUB and HWS Baseball IV, LLC shall each be entitled to compensation for the value of property rights that they own therein immediately prior to any termination of th.is Agreement for such cause C. If all of the Stadium Premises arc taken by condemnation, tlus Agreement shall terminate effective on the date of taking.

SECTION 36. TIME OF ESSENCE - BR.EACH.

A. Where performance of a covenant is specified herein to be performed on or before a date certain, time shall be of the essence.
16 #16..
- 769 -
B. CLUB's performance of each and every provision of this Agreement is an integral part of the consideration for CITY to enter into this Agreement. CLUB's failure to perform any of the provisions of this Agreement shall constitute a material breach for which CITY, in addition to any other right or remedies available to CITY may immediately terminate this Agreement upon written notice to CLUB.

SECTION 37. EFFECT OF WAIVER. The waiver by CITY of any breach of any term, covenant or condition of this Agreement shall not be deemed a waiver of such term, covenant or condition or a waiver of any subsequent breach of such term, covenant or condition. The consent or approval by CITY to any act by CLUB requiring CITY's approval or consent shall not be deemed to waive provisions for CITY's approval or consent to any subsequent acts by CLUB.

SECTION 38. TERMINATION BY CITY PRIOR TO EXPIRATION OF AGREEMENT In addition to the grounds set forth elsewhere in this Agreement if any, CITY' s City Manager shall have the right to terminate this AGREEMENT, in whole or in part, on the occurrence of any of the following e,•ents:
(a) The abandonment of the premises, or discontinuance of CLUB' s business operations. Should this occur, CITY shall not be responsible for the custodial protection of merchandise, fixtures or equipment abandoned, even though it is necessary for CITY to remove same from the premises for storage or disposal.

SECTION 39. AUTOMATIC TE1Uv1IN1\TION. The rights and privileges given to CLUB shall automatically be deemed terminated and at an end without any notice whatsoever for any of the following reasons in addition to the grounds set forth elsewhere in this Agreement:

A. Any action taken or suffered by the CLUB under any insoh•ency or bankruptcy act, including the appointment of a receiver to take possession of all or substantially all of the assets of the CLUB.

B. Any general assignment by CLUB for the benefit of creditors.

SECTION 40. SURRENDER OF PREMISES. Upon expiration or sooner termination of th.is Agreement, CLUB shall immediately and forthwith surrender possession of the Stadium Premises and all improvements and alterations to the CITY in as good a condition as when received, reasonable wear and tear and damage from casualty excepted. CLUB shall remove all of its personal property and perform all restoration made necessary by the removal of said personal property and by the removal of any alterations in accordance with the provisions of this Agreement.

SECTION 41. NOTICES. Any and all notices which either party desires or is required by this Agreement to give or furnish to the other party shall be in writing and personally delivered or deposited in the United States postal service, postage prepaid, certified mail, return receipt requested, addressed as follows:
17 #16..
- 770 -
CITY:

City of Modesto
James N. Holgersson
City Manager
City of Modesto
P.O. Box 642
Modesto, CA 95353
with a copy to:

Cynthia Birdsill
Director of Community and Economic Development
P.O. Box 642
Modesto, CA 95353
CLUB
Mike Savit, Manager HWS Baseball JV, LLC
572 Washington Street, #7
Wellesley, MA 02482
cc: Mike Gorrasi
Executive Vice-President Modesto Nuts Professional Baseball Club P.O. Box 883
Modesto, CA 95353
The parties may change their respective addresses for purposes of delivering notices b)' sending notice of such change pursuant to this Section.

SECTION 42. MISCELLANEOUS.

A. All exhibits referred to or attached to th.is Agreement arc incorporated by reference.

B. In the event that suit shall be brought by either party to this Agreement, the parties agree that venue shall be exclusi,·ely vested in the State Court of the County of Stanislaus or if federal jurisdiction is appropriate, exclusively in a United States District Court for the Eastern District of California, Fresno Division.

C. The laws of the State of California shall govern tlus Agreement.

D. The captions to the sections or sections of this Agreement are for convenience only.

They arc not to be used in construing this Agreement.

E. Tlus Agreement, including all exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder.

Tlus Agreement may only be modified by written amendment duly executed by tl1e parties to this Agreement.
18 #16..
- 771 -
F. If an}' term, covenant, condition or provision of this Agreement, or the application thereof co any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

G. Where this Agreement refers to CIIT and no officer of the CITY is named, CITY's Manager shall have the authority to act on CITY's behalf.

H. The City Manager has authority to enter into an amendment to this Agreement to pro,·ide partial reimbursement for permanent improvements to the Stadium Premises made at CLL'B's sole cost, as described in Section 28C:, for an aggregate amouat not to exceed FrVE HUNDRED THOUSAND AND NO/100 DOLLARS {SS00,000) over the term of this Agreement.

I. Any provision herein which requires the consent of either party, said consent shall not be unreasonably withheld, delayed or conditioned.

IN WITNESS WHEREOF, the CITY, a Municipal Corporation, has authorized the execution of this AGREEMENT in duplicate by its City Manager and attestation by its City Clerk (under authority of Resolution No. 2016- 5'06 , adopted by the Council of the City of Modesto on the l:'3-tf--. day o~·, ~ and CLUB has caused this AGREEMENT to be duly executed. ~ ~ '"'
CITY
CITY OF tvlODESTO, a municipal
corporation
J\TfEST:

APPROVED AS TO ttl:SK
~__GE~T FORM
BY~DATE]JLr/(I
19 CLUB
HWS BASEBALL TY, LLC, a Delaware
limited liability corporation, doing business
as THE MODESTO N UTS BASEBALL
By
#16..
- 772 -
APPROVED AS TO LEGAL l·OR.M:

ADAl\1 U. LINDGREN, City Attorney \
By c;::;a,..._. ~
APPROVED AS TO RISK l\IANAGEl\IENT FORl\1:
=::>
By_....,,...
~
__________ _
l\lanager
Ust of Exhibits Attached:

Exhibit A: Stadium Premises
Exhibit B: Stadium Capital Improvements Needs and Checklist Exhibit C: Equipment to be Purchased by the Club
Exhibit D: Playing Field and Related Areas l\laintcnance Standards 20 #16..
- 773 -
0 PARKING lOTS

JOHN THURMAN FIELD

FACILITY USAGE BY THE MODESTO NUTS

EXHIBIT A
#16..
- 774 -
..
---'----, I
r
a.
.:t ··-.·· f ci:j a:; 1 ' I I ~
4· - ; • ' . ' ~
. ~ --'1..,;" 1'
·1
I -·-· ..
-· --·--
OVERFLOW PARKING LOT - l"F- .

JOHN THURMAN.FIELD

FACILITY USAGE BY THE MODESTO NUTS
EXHIB_IT A
-.
i
#16..
- 775 -

EXHIBITB

JOHN THURMAN FIELD AGREEMENT
STADIUM CAPITAL IMPROVEMENTS NEEDS (Section 24A)
Improvements/needs to be completed before season opener April 1. 2017

1. Concession Counters renovation

2. Handrail study and repair

3. Linescore renovation

4. Replace anti-skid treads on steps
S. Improve lighting under seating area on concourse (to be completed before March 1, 2017)

6. Little Legends floor removal

7. Replace flooring in both clubhouses
Improvements/needs for remainder of 2017

8. Retrofit hardware on home clubhouse door

9. Replace front gate

10. Awning on club office

11. Painting of stadium green steel

12. Security cameras

13. Outfield wall repair/replacement

14. Seal and stripe parking lot

15. Paint fire plumbing

16. Replace upper box seats (2017/2018)
Maintenance check list dated 11-16-16
Attached
#16..
- 776 -
JOHN THURMAN FIELD -- Maintenance Item Checklist - Exhibit B with Modesto Nuts, Parks Staff and Building Services Staff (current as of 11/16/2016), in addition to previous requests mad1 Time Frame Requested Location Task
by Modesto Nuts
Before Dec.30, 2016 Outside Remove JTF Monument Sign
Before March 1, 2017 Admin Offices Repair damaged awnings Before March 1, 2017 Advance Ticket Bldg. Touch-up paint throughout building Before March 1, 2017 Advance Ticket Bldg. Inspect/repair possible roof leaks near door closure Before March 1 2017 All Areas Prune wisteria on arbors, remove weeds/suckers Before March 1, 2017 Ballfield Repaint phone box and buUpen dock Before March 1, 2017 Ballfield Check phone lines to ensure functionality Before March 1, 2017 Concession Repaint floors
Before March 1, 2017 Concession Inspect all mechanical equipment (cooler tops, hoods, etc.}
Before March 1, 2017 Dugout Paint helmet & bat boxes, repair wood as needed Before March 1, 2017 Gates Reinforce gates/fencing
Before March 1, 2017 Gates Check all gates for alignment & function.

Before March 1, 2017 Gates Check sconces North of main gate (staying on) Before March 1, 2017 Home Clubhouse Refinish wooden lockers Before March 1, 2017 Outfield Secure/anchor loose panels on outfield wall Before March 1, 2017 Partv Deck Replace missing covers on outlets/emergency lights Before March 1, 2017 Party Deck Clean/touch up ceiling
Before March 1, 2017 Pavilion Replace cleat (missing an anchor) Before Marchl, 2017 Pavilion Power wash shade sails
Before March 1, 2017 Pavilion Repair/replace pedestrian gate bolt Before March 1, 2017 Pavilion Remove CLR rust from fence by kitchenette Before March 1, 2017 Pressbox Check and repair ceiling tile stains/leaks near kitchen and media box
Before March 1, 2017 Pressbox Replace damaged fire sprinkler head Before March 1, 2017 Restrooms, All Replace any missing/burnt lights in restrooms Before March 1, 2017 Restrooms, Main Check partitions in Men's and paint as needed Before March 1, 2017 Restrooms, Main Urinal requires maintenance/anchoring Before March 1, 2017 Restrooms, Pavilion Clean vents/windows in women's restroom Before March 1, 2017 Restrooms, Pavilion Clean partitions in men's restroom Before March 1, 2017 Stands Re-sticker peeling number signs (e.g., 208) Before March 1, 2017 Suite Check and repair ceiling tile stains/leaks near corner and by window in E suite
Before March 1, 2017 Suite Replace/repair lock on W. suite (threshhold and weather strip may need replacement)
Before March 1, 2017 Ticket Box Inspect/repair possible roof leaks near window (1st room) and transformer box (2nd room)
Before March 1, 2017 Ticket Box Clean all vents and registers Before March 1, 2017 Ticket Box Inspect lugs (electrician required) #16..
- 777 -
Before March 1, 2017 Visitors Bullpen Install drains near bullpen & VCH doors, or re-grade Before March 1, 2017 Visitors Bullpen Replace hardware on gate Before March 1, 2017 Visitors Clubhouse Touch-up paint throughout (umpire's room) Before March 1, 2017 Visitors Clubhouse Install threshhold on West door Before March 1, 2017 Visitors Clubhouse Replace missing fixture covers/tubes or install LED Before March 1, 2017 Visitors Clubhouse Replace sinks in restroom Before March 1, 2017 Visitors Clubhouse Paint restroom floor Before March 1, 2017 Visitors Clubhouse Paint/clean restroom stalls/partitions Before March 1, 2017 Visitors Clubhouse Install pull plate with handle/lock at SE door Before March 1, 2017 Visitors Clubhouse Repaint floors
Before March 1, 2017 Visitors Clubhouse, Check for roof leaks Restrooms, Ticket Box
Before March 1, 2017 Concourse Fill in/seal large cracks in concourse concrete #16..
- 778 -

EXHIBITC

JOHN THURMAN FIELD AGREEMENT
EQUIPMENT TO BE PURCHASED BY THE CLUB (SECTION 248)
Description

1. John Deere ballfield scooter

2. John Deere Pro Gator

3. John Deere Mower

4. Toro Pro-Core 648 Aerator

5. John Deere Sweeper TC 125

6. Ty-crop Quick Pass Top Dresser

7. Ransomme infield push mower

8. Honda Edger

9. Pressure washers w/Honda Engines, 100' hoses (4)

10. Stihl Backpack Blowers (7)

11. Stihl powerhead with attachments: line trimmer, hedger, chainsaw, broom, edger

12. Dewalt tool kit: drill, saw, trim saw

13. Big Bubba portable batting cage

14. 8' x 8' safety screens 14)

15. 8' x 8' pro L-screens (2)

16. E-2 Pitch portable platform

17. Home plate mat field protector

18. Polaris Service Vehicle

19. Field Tarp

20. Equipment Jack

21. Impact Wrench

22. Compressor

23. Bullpen Tarps

24. Home plate Tarp

25. Pitching Mound Tarp

26. Home plate apron BP protector

27. Bases & Pitching Rubbers

28. Rakes, Shovels, Brooms & Tamper

29. Materials on hand: turface, fertilizer, etc.

30. All bases, home plates

31. Maintenance shed and materials

32. Storage Bins/Units

33. Security Cameras

34. Hand Spreader

35. Ladders

36. Hoses, nozzles, quick connects

37. Plywood

38. Dumpsters, garbage bins and barrels

39. Barricades

40. Garbage compactor

41. Various tools
#16..
- 779 -

EXHIBIT D
PLAYING FIELD AND RELATED AREAS tvIAINTENANCE STANDARDS

1. PLAYING FIELD
Tiffgreen hybrid becmuda with annual rye overseed

1.1 Out Field Area

1.1 .1 Turf area maintenance
Maintain turf with a consistent, deep green color, smooth and even cut; neatly trimmed edges; no holes, hills, divots, wee or dry spots; no weeds, disease or pests

1.1.1.1 Mowing
a. Frequency: every other day in season, 2 times per week out of season b. Mowing Height: upon wishes of club; general guideline, 3/ 4" to 1" in season, 1 +"out of season
c. Smooth and even cut, no torn, shredded or rough cut blades Mowed in two directions
d. Clippings removed after each cutting

1.1.1.2 Aerifying
a. Frequency; 3 times per year; early spring, mid-summer, late summer b. Coring acrifycr
c. Core spacing minimum 6" square
d. Finish; remove plugs; top dress with suitable material (sand and peat) e. Verti-drain in fall, trouble spots as identified during season

1. 1.1. 3 Fertilization
a. Soil analysis to be performed 2 times per year
b. As per soil analysis, general guidelines;
( 1) Granular, 22-3-8, urea coated, with IBDU, every 20 to 30 days March - September, each 6 weeks October- February
(2) Foliar application of Roots 123 @60z/l 000 plus .1 to .2 lb ofN every 14 ~ 21 days, at mid point of granular application schedule co hold color until next granular application
(3) Foliar application of liquid ferrous sulfate 4 times per season pending analysis and observation
l .1.1.4 Renovation and over seeding
a. October
b. mow or renovate to dirt, verticutting 3 directions, aerify. c. Sand, over-seed (annual rye) and top dress with organic mix #16..
- 780 -
,J :.
d. Sod, stolonize or otherwise repair any damaged, weakened or otherwise unacceptable rurf to maintain appearance and playability

1.1. 1.5 Pest/ disease/ weed control, general guidelines; a. Granular pre-emergent for weed control in early spring. Foliar application for pea annual following rurf renovation. Spot application for other turf weed control
b. Preventative insecticide application in spring and late summer c. Fungicide application 3 to 6 week intervals, rotating 3 co 4 different products
cl. Rodent; treat to maintain zero population. Remove mounds and collapse and back fill tunnels if infestation develops

1.1.1.6 Depressions and grading of rurf Add fill and level high spots as needed with major efforts in October, over seed. Remove rodent mounds and collapse and back fill tunnels. Over seed.

1.1. 1.7 Edging. Edge warning path once per week, remove clippings without significantly disturbing surface

1. 1.2 Irrigation Systems .

1.1.2.1 Routine Maintenance
a. Check and maintain sprinkler heads daily; insure proper coverage.

Insure that heads are level and at proper height and retracted properly.

Insure that water is not being applied to inappropriate areas. b. Soil moisture evaluation is to be made daily by instrument. Dry spots, over-wet or boggy areas are not permitted
c. Excess water is to be removed in a timely manner so that other rurf and ballfield maintenance functions can continue in a timely manner

1.1.2.2 Irrigation system replacement/ renovation including valves, heads, controllers and lines.

To insure accurate application of water without leaving dry spots or over water areas.

1.2 INFIELD AREA
Same

1.2.1 Turf area maintenance
Maintain turf with a consistent, deep green color, smooth and even cut; neatly trimmed edges; no holes, hills, divots,'wet or dry spots; no weeds, disease or pests #16..
- 781 -
_, ...

1.2.1.1 Mowing
a. Frequency: every day in season, 2 times per week out of season b. Mowing Height: upon wishes of club; general guideline, 3/ 4" to 1" in season, 1 +" out of season
c. Smooth and even cut, no tom, shredded or rough cut blades. Mowed in two directions
d. Clippings removed after each cutting

1.2.1.2 Acrifying
a. Frequency; 3 times pet year; early spring, mid-summer, late summer b. Coring aerifyer
c. Core spacing minimum 611 square
d. Finish; remove plugs; top dress with suitable material (sand and peat) e. Verti-drain in fall, trouble spots as identified during season

1.2. t .3 Fertilization
a. Soil analysis to be performed 2 rimes per year
b. As pet soil analysis, general guidelines;
(1) Granular, 22-3-8, urea coated with IBDU, every 20 to 30 days March - September, each 6 weeks October - February
(2) Foliar application of Roots 123 @60oz/1000 plus .1 to .2 lb of N every 14-21 days, at mid-point of granular application schedule to hold color until next granular application
(3) Foliar application of liquid ferous sulfate 4 times per season pending analysis and observation

1.2. 1.4 Renovation and over seeding
a. October
b. mow or renovate to dirt, verticutting 3 directions, aerify. c. Sand, over-seed (annual rye) and top dress with organic mix d. Sod, stolonize or otherwise repair any damaged, weakened or otherwise unacceptable nuf to maintain appearance and playability Turf area at front of mound, around on deck circles and around coaches boxes may need frequent resodding

1.2.1 .5 Pest disease/ weed control, general guidelines; a. Granular pre-emergent for weed control in early spring. Foliar application for poa annual following turf renovation. Spot application for other turf weed control.
b. Preventative insecticide application in spring and late summer c. Fungicide application 3 to 6 week intervals, rotating 3 to 4 different products
d. Rodent; treat to maintain zero population. Remove mounds and collapse and back fill tunnels if infestation develops
#16..
- 782 -
.J • ..

1.2.1.6 Depressions and grading of rurf. Add fill and level high spots as needed with major efforts in October, over seed. Remove rodent mounds and collapse and back fill runnels. Over seed.

1.2. t .7. Edging. Edge turf at mound, base paths, coaches boxes, plate area and approaches on deck circles and other interfaces twice per week. Remove clippings without significantly disturbing cinder or dirt surface.

1.2.2 Irrigation Systems

1.2.2.1 Routine Maintenance
a. Check and maintain sprinkler heads daily; insure proper coverage Insure that heads are level and at proper height and retracted properly. Insure that water is not being applied to inappropriate areas
b. Soil moisrure evaluation is to be made daily by instrument. Dry spots, over-wet or boggy areas are not permitted
c. Excess water is to be removed in a timely manner so that other turf and ballfield maintenance functions can continue in a timely manner

1.2.2.2 Irrigation system replacement/ renovation including valves, heads, controllers and lines.

To insure accurate application of water without leaving dry spots or overwater areas. Insure that everything works.

1.2.3 Skinned Area~ maintain skinned area with proper materials to meet PBA standards.

1.2.3.1 Maintain proper surface texture with proportions of soil and additives; soil: 60% cinder(granite) 40%

1.2.3.2 rip and grade frequency six in season

1.2.3.3. Incorporate and maintain "cinder (granite)" or similar moisture absorbing poly colymar to a depth of 12"

1.2.3.4 Nail drag surface twice weekly or more frequently as needed

1.2.3.5 Screen behind plate, maintain for appearance and public safety, insure wire is tied down

1.2.3.6 Pads behind plate. Insure they are in good repair and clean, placed on the level

1.2.3. 7 Turf edges at skinned area
a. Edge twice per week in season. Once per month out-of season b. Maintain turf to dirt edge interface with no lip, rise or drop #16..
- 783 -
J :..

1.2.3.8 Base area
a. Texture, firmness (maintained daily)
b. Grade (check daily

1.3 WARNING PATH

1.3.1 Maintain proper surface texture with proportions of soil and additives; soil: 60% Cinder(granite) 40%
1 .3.2 rip and grade frequency once in season graded six times pre season

1.3.3 Incorporate and maintain cinder (granite) or similar moisture absorbing poly colymar to a depth of 3"

1.3.4 Nail drag surface daily

1.3.5 Maintain turf to dirt edge interface with no lip, rise or drop

1.3.6 Edge twice per week in season. Once per month out-of season

1.3.7 Path is to be reasonably free of depressions and rises

1.3.8 Path is to be free of weeds and rodent mounds or tunnel

1.4 BULL PEN Maintain bullpen areas so that they meet PBA standards

1.4.1 Mounds

1.4.2 Rubbers and plates

1.4.3 Benches, barrier devices, screens

1.SDUGOUTS

1.5.1 Benches, steps, walls racks shelving flooring, fixtures

1.6 MOUND, HOME PLATE AND OTHER NON-TURF AREAS

1.6.1 Mound.
a. Insure that mound conforms co PBA standards with regards to height, dimensions and shape
b. Texture and firmness, basic construction materials and proportions

1.6.2 Plate
#16..
- 784 -
a. Insure that plate conforms to PBA standards with regards to height, dimensions and shape
b. Texture and firmness, basic construction materials and proportions

1.6.3 Batter's box and home plate area
a. Texture and firmness, basic construction materials and proportions

1.6.4 On-deck circle. coaches boxes and other non-turf areas

1.6.5 Tarps and mats

1.7 BASES AND OTHER EQUIPMENT

1.7.1 Bases and base attachments
a. Maintain in a safe and serviceable condition
b. Maintain a high quality appearance
c. Level and square to the base lines
d. Type of base
c. Type of attachment
f. Frequency of replacement. turning

1.8 FOUL POLES AND LINE. DISTANCE MARKINGS

1.8. 1 Poles. Maintain. paint and repair as necessary

1.8.2 Lines. Lines are lo be clearly visible, square to the field. Marked weekly.

1.8.3 Distance markings on foul lines and center field are to be clearly visible from all pans of the playing fields. Not less than 12" in height

2. OTHER AREAS OR FEATURES

2.1 OUTFIELD. WALLS

2. 1.1 Batter's eye area to be maintained

2. 1.2 Fence material to be painted as needed

2. 1.3 . Fence material to be replace as it begins to become unsightly or unsafe

2.1 .4 Fence material to be maintained so as to effectively receive advertisement coverings

2.2 PLAYGROUND .AREAS. Maintain and repair pl2ygroup equipment and surfaces so as to maintain a safe and sanitary condition.
#16..
- 785 -
. . ., .

2.2.1 Remove debris daily

2.2.2 Maintain a safe fall cushion under play apparatus. Rake and groom prior to events

2.2.3 Paint as required

2.2.4 Safety inspections arc to be conducted daily for scheduled events

2.2.5 Replace/repair broken or worn equipment as needed.

2.3 GENERAL LANDSCAPED AREAS Maintain plantings to accepted horticultural standards for commercial

2.3.1 Pruning frequency

2.3.2 Weeding frequency

2.3.3 Irrigation maintenance and repair

2.3.4 Trees

2.3.5 Replanting plant material

2.3.6 Annual color planting

2.4 FLAG POLES AND FLAGS Maintain and repair flag poles so that they are in functional condition. Modesto Nuts arc responsible for the purchase and posting and taking down of flags.

2.5 DRYWELLS Maintain and repair dry wells or other similar drainage structures located in the stadium or parking area.

2.5.1 Vacuum drains annually or as needed

2.5.2 Replenish drain rock as needed

2.6 BATTING CAGE Maintain and repair batting cage structure and repair or replace components as necessary

2. 7 RESTROOM FACILITIES

2.7.1 Frequency; daily

2.7.2 Routine maintenance
a. Floors; Remove debris, sweep, mob and clean
#16..
- 786 -
b. Fixtures, clean and sanitize toilets, urinals, sinks and other fixrures c. Clean and sanitize mirror, tables, counters and windows. d. Clean and sanitize handrails, flush valves, doors, walls, dividers e. Remove excess water
f. Restock paper products
g. Remove graffiti
h. Check and clean signagc, replace as necessary

2.8 SHADE/DECORATIVE STRUCTURES

2.8.1 Maintain, clean and repair shade and decorative structures (except portable structures installed by The Modesto Nuts)

2.8.2 Wash shade structures weekly

3. PRACTICE RELATED ACTIVITIES

3.1 PLAYING FIELD

3. t. 1 Turf Areas

3. t. 1.1 Mowing
a. Frequency: Twice per week in season, not longer than 48 hours before practice time
b. Mowing Height: 3/4" in season,
c. Remove clippings
3 .1. 1 .2 Irrigation
a. Insure that turf area is not over wet
b. Insure that all head are in the down or retracted position. c. Insure there are no tripping hazards
d. Remove litter and debris from playing field

3. 1.2 Skinned Areas; maintain skinned area with proper materials and procedures to meet PBA standards and enhance player safety and appearance. a. Remove tarps
b. Water dirt areas
c. Nail drag skinned areas and base paths if needed
d. Mat drag skinned areas, base paths and warning path
e. Rake and groom base areas, home plate area
f. Water and tamp base areas and plate area
g. Water all skinned areas
h. Rake out and dress turf edges and skinned areas
i. Clean plate and rubber
j. Set and level bases
#16..
- 787 -
. . ,I "
k. Put out cage, screens and protective turf matting
I. Prep mound: Insure that mound conforms to PBA standards with regards to height, dimensions and shape In sure that mound conforms to team and PBA standards for texture and firmness, basic construction materials and proportions
m. Bull Pen: prep mounds and plate areas
n. Line foul lines, and other field markings as directed 3 .2DUGOUTS
a. Clean dugouts, remove debris, spills and dirt from dugouts. b. Inspect and maintain/repair drinking fountains.

3.3 RESTROOMS
Perform as needed:
a. Floors; Remove debris, sweep, mob and clean
b. Fixtures, clean and sanitize toilets, urinals, sinks and other fixtures
c. Clean and sanitize mirror, tables, counters and windows d. Clean and sanitize handrails, flush valves, doors, walls, dividers e. Remove excess water
f. Restock paper products
g. Remove graffiti
h. Check and clean signage, replace as necessary

3.4 REFUSE CONTAINERS

3.4.1 Supply refuse containers appropriate to level of activity.

Containers should be free of objectionable odors.•

3.4.2 Provide plastic liners for containers

3.4.3 Empty containers prior to each practice

4. GAME RELATED ACTIVITIES

4.1 PLAYING FIELD

4. 1.1 Turf Areas

4. 1. 1.1 Mowing
a. Frequency: Twice per week in season, not longer than 24 hours before game Lime
b. Mowing Height: 3/ 4" in season,
#16..
- 788 -
c. Pattern mowing, cross cut each mowing, alternating diagonal and 90 degree patterns weekly
d. Remove clippings

4.1.1.2 Irrigation
a, Insure that turf area is not over wet
b. Insure that all head are in the down or retracted position c. Insure there arc no tripping hazards
d. Remove litter and debris from playing field

4.1.2 Skinned Areas; maintain skinned area with proper materials and procedures to meet PBA standards and enhance player safety and appearance. a. Remove tarps
b. Water dirt areas
c. Nail drag skinned areas and base paths if needed
d. Mat drag skinned areas, base paths and warning path
e. Rake and groom base areas, home plate area
f. Water and tamp base areas and plate area
g. Water all skinned areas
h. Rake out and dress turf edges and skinned areas
i. Clean plate and rubber
j. Set and level bases
k. Put out cage, screens and protective turf matting
I. Prep mound: Insure that mound conforms to PBA standards with regards to height, dimensions and shape. [nsure that mound conforms to team and PBA standards for texture and firmness, basic construction materials and proportions
m. Bull Pen: prep mounds and plate areas
n. Line foul lines, coaches boxes, batters box, on deck circle and ocher field markings as directed

4.1.3 Post game

4.1.3.1 Playing field

4.1.3.2 Facilities

4.2DUGOUTS
a. Clean dugouts, remove debris, spills and dirt from dugouts. b Inspect and maintain/ repair drinking fountains

4.3 RESTROOMS
Insure that:
#16..
- 789 -
... . 4 .. •
a. Floors; Remove debris, sweep, mob and clean
b. Fixtures, clean and sanitize toilets, urinals, sinks and other • fixtures c. Mirror, tables, counters and windows. Clean and sanitize cl. Clean and sanitize - handrails, flush valves, doors, walls, dividers e. Remove excess water
f. Restock paper products
g. Remove graffiti
h. Check and clean signage, replace as necessary

4.4 PUBLIC SEATING AREAS INCLUDING SKYBOXES

4.4.1 Clean public seating areas prior to each game or scheduled event including scats, walkways, landings, steps, handrails and other areas associated with seating.

Remove visible debris

4.4.2 Use high pressure washing equipment as needed to remove spills, gum or other objectionable residue

4.4.3 Remove excess water

4.4.4 Check and clean/ replace signage

4.4.5 Fold seats into upright position

4.4.6 Clean skybox windows

4.4. 7 Replace chairs and other fixtures in skyboxes

4.4.8 Insure that utilities work in skyboxes

4.5 CONCESSION AREAS, PARKING LOTS, WALKWAYS

4.5.1 Remove; large and small debris and litter and dirt

4.5 .2 Clean up spills, gum and other residue for paved areas

4.5.3 Bag and remove litter

4.5.4 Insure that excess water is removed

4.5.5 Clean and sanitize tables, counter, doors, windows, food service areas

4.5.6 Remove graffiti
#16..
- 790 -

4.5. 7 Replace parking lot barricades and dclineators

4.6 REFUSE CONTAINERS

4.6.1 Supply refuse containers appropriate to level of activity. Containers should be free of objectionable odors

4.6.2 Provide plastic liners for containers

4.6.3 Empty containers prior to each practice

4.7 STANDBY SERVICE

4.7.1. Provide standby service for utility, infrastructure or other facility related problems that occur during a game

4.7.2 Insure that all facilities are functioning before game time including; lighting, water and gas services, scoreboard, sound systems, doors, gates and locks

4.7.3 Post game; tum off power

4. 7.4 Post game; secure all locks and closures

4.8 HARD SURF ACE FLOORING

4.8.1 Clean and sanitize hard surface flooring in all public areas prior to each game

4.8.2 Clean up spills during games

4.9 PICNIC/FOOD CONSUMPTION AREAS

4.9.1 Maintain, clean and repair picnic areas and food consumption areas so as to maintain a safe and sanitary condition

4.9.2 Clean and sanitize tables, counters, benches and seating prior to each game

4.9.3 Remove visible debris prior to each game

4.9.4 Replace any equipment or components that arc non•repairablc

5. OTHER SEASON RELATED DIRECT COSTS

5.1 MONTHLY DEEP CLEANING OF SEATING AREAS
#16..
- 791 -

5.1.1 Steam clean or pressure wash seating areas to remove residue, gum or debris that are not removed by regular cleaning

5.2 MONTHLY PRESSURE WASHING OF WALKWAYS

5.2.1 Thoroughly clean walkway areas with pressure washer or steam to remove debris and/or residues that are not removed by regular cleaning

5.3 TURF RENOVATIONS

5.3.1 Repair/ replace turf that is wom by game use.

5.3. 1.1 Aerify as compaction becomes apparent

5.3.1.2 Plug or sod worn turf areas

5.3.1.3 Over seed and top dress as required

5.3. 1.4 Apply supplemental fertilization as required for turf health and appearance

5.4 SKINNED SURFACE RENOVATIONS

5.4.1 Renovate skinned surface areas including warning tracks, infield area, coaches boxes, base paths etc.

5.4.2 Add materials to improve texture, drainage and playability

5.5 MOUNDS, BATTERS BOX, BULLPENS AND SPECIAL FEATURES

5.5.1 Mound.
a. Insure that mound conforms to PBA standards with regards to height, dimensions and shape
b. Texture and firmness, basic construction materials and proportions #16..
- 792 -
~~IIBITE

INSURANCE REQUIREMENTS
CLUB, at CL.UB's sole cost and expense and for the full term of this Agreement or any renewal thereof, shnll obtain and maintain at least n1l of the following minimum insurance requirements:

MINlf\lUM SCOPE OF INSURANCE
Co,•cragc shall be at least as broad as:

A. Commercial Gener.ii Liability (CGL): Insurnnce Scr\'iccs Office Form CG 00 01 co,•cring CGL on nn "occurrence" basis, including products nnd completed operations, property damage, bodilr injury and personnl and ad\•crtising injury with limits no less than $10,000,000 per occurrence. If a general aggregate limit applies, either the genernJ aggregate limit shall apply sep:mucly to this project/location (ISO CG 25 03 or 25 04) or the genernl aggregate limit shall be twice the required occurrence limit. 11tls coverage shall also pro\'ide for:

1. Premises Operations Including Alterations (for sports C\'cnts nnd stadiums). The only exclusion which the Cl1Y will accept to this coverage is that which excludes bodily injury ro athletic participants only and which in no way excludes spcctntors.

This cm•ernge shall also provide co,•crnge for the continual use of office space at the Stidium Premises.

2. Brand Form Contractual Linbiliq•.

3. Broad Form Property damage.

4. Products and Completed Opcr.itions Liability (for the sale of sou\'cnirs, athletic equipment and for the s:ile of food and drink).

5. Pcrsonnl Injury and Coverages A, B, and C.

6. Advertising and Broadcasters Liability with n minimum limit of Sl,000,000 Qn the event CLUB engages or subcontracts nor ad,•ertising or broadcasting to be pro,ided either by CLUB or by said subcontractor).

7. Open Air Parking (for which a charge is made).

8. Li9uor Legal Liability with a minimum limit of Sl ,000,000.

9. Fire Legal Liability ,vith a minimum limit of $100,000.

10. Vendors' Covernge (pro,oided on a "if any" basis as commonly used in the insurance industry; that is, if there is any e."posurc to the risk during the policy period).

B. Automobile Liability: ISO Fonn Number Ct\ 00 01 co,•ering any auto (Code 1), or if CLUB has no owned autos, covering hired, (Code 8) and non-owned autos (Code 9), ,vith limit no less than Sl,000,000 per accident for bodily injUt)' and property damage.

C. Workers' Compensation: as required by the Smee of California, with Stttutory Limits, and Employer's Liability Insurance with limit of no less than St,000,000 per accident for bodily injwy or disease.
21 #16..
- 793 -
D. If the CLUB maintains broader co,·emgc and/or higher limits than the minimums shown abo\'e, the Entity requires and shall be entitled to the broader coverage and/or higher limits maintained by the CLUB.

E. Addidonnl Insured St:atus
The Entity, its officers, officinls, employees, and volunteers arc to be co,•ered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CLUB including materials, parts or equipment furnished in connection with such work or operations. General liability Co\'emgc c:in be pro\,jded in the form of :m endorsement to the CLUB's insurance (at least as broad as JSO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms iflatcr m,jsions used).

F. Primary Covernge
For anr claims related to dus contract, the CLUB 's insurance coverage sh:ill be primary insurance covet":lge nt least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, emplorees, or volunteers shall be excess of the CLUB's insurance and sh:\11 not contribute with it.

G. Notice of Canccll:uion
Each insurance policy required nbO\·e shall pro,,idc thnt coverage sh:1II not be canceled, except with notice to the Entity.

I I. Wai\'cr of Subrogation
CLUB hcreb)' granrs to Entity a wah·er of any right to subrogation which any insurer of said CLUB may acquire against the Entity by ,,irtue of the payment of any loss under such insurance. CLUB agrees to obtain any endorsement that may be necessary to affect tltis waiver of subrogation, but this provision npplies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer.

I. Self-Insured Retentions
Self-insured retentions must be declared to and appro,•ed by the Entity. The Entity may require d1c CLUB to purchase co,·eragc with a lower retention or provide proof of :ibility to pay losses and related im•estigations, claim administr:uion, and defense expenses within the retention.

J. Acceptability of Insurers
Insurnncc is to be plncL-<l with insurers with a current A.l\·L Best's rating of no less than A: VII• unless otherwise acceptnblc to the Entity.

K. Verification of Coverage
CLUB shnll furnish the Entity with original ccrtifkntcs and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. AU certificates and endorsements are to be rcccivcd nnd approved h)' the Entity before work commences. However, failure to obtain the required documents prior to the work 22 #16..
- 794 -
beginning shall not w:Li,•e the CLUB's obligation to pro\'ide chem. The Entity reserves the right to require complete, certified copies of :ill required insurance policies, including endorsements required by these specifications, at :iny time.

L Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior c.'l':pericnce, insurer, co,•erage, or other special circumstances.

M. If the CLUB engages another party to provide d1e operation of refreshment, sou,•enir and /or other concession, d1c CLUB shall also c:iuse the party or parties so engaged, at no cost to CIIT, to obtain and to keep in force throughout the term of this Agreement, a policy or policies of public liability insurance Qncluding products liability coverage) separately pro,,jding limits and co\'erage as aforesaid arising out of each such concessionaire's operations. Before any person other than CLUB op~r:ites any refreshment, souvenir or other concession, CLUB shall notify CIIT of the name and business addn.'Ss of such concessionaire, and obtain and file with CITY such concessionaire's policr and/or certificates as arc herein specified.

N. These insurance requirements may be amended or waived by the mutual agreement of CLUB and the CIIT Risk Manager on behalf of CIIT, pro,ided CITY's Risk Manager determines that d1e amendment or waiver will not substantially lessen the co,•crngc prO\idcd for herein or will nor subsr:intially increase CrIY's liability for activities permitted uncle~ this Agreement.
23 #16..
- 795 -

EXHIBITF
CONSTRUCflON REQUIREMENTS-AWARD OF CONSTRUCTION CONTRACTS.

A. Pl:ins And Specifications. Prior to awarding a contract for construction of :my Capitnl Improvement to the Premises, at CITY's direction, CLUB shull submit for the written review nnd nppro\"al of CITY n complete set of plans and specilications for the work to be performed.

Not\vithstmding the foccgoing1 if the CITY determines that no plan!> and specifications nre ncct.-ssnry for a particular Capital Improvement due to the nature of the Capital Improvement, by written notice the CLUB will not be required to submit plans and specifications.

1. TI1e plans and specifications shall include an estimate of the cost of the work to be performed and a schedule of consuuction.

2. The plans and specifications shall be stamped and approved by the npproprintc design professionals.

3. The plans and specifications shall comply with all applicable fcdcrnl, state :md local requirements including wid10ur limitation, the City of Modesto Department of Public Works St:mdard Specifications, dated Julr 1992, and any subsequent modifications to such Standard Specifications. The pl:ms and specifications shall incorporate nny other design guidelines and requirements provided by the ClTI'.

B. Award of Construction Concrnct. The CLUB shall not construct :my Capit:11 Jmpro,•cment except pursunnt to a construction contract entered into pursuant to the requirements set forth herein.

1. No construction agreement shall be awarded to :my contrnctor od11:r than one qualified and properly licensed in the Stntc of Cnlifomin to perform such construction work.

2. TI1e CLUB shnll be responsible for obtaining all permits, npprovals, and authorizntions necessary to construct a Capital Improvement. CLUB shall not award a construction contrnct for a C:ipit:tl Improvement until it h:is obtained nil such pcnnits, appro\'als and authorizations.

3. \\7herc the cost for construction of d1c Cnpit:tl Jmpro,•ement is less than the amount required under d1e Modesto City Charter for publicly bidding a public works project, the CLUB shall obtain at le:ist three (3) quotes, from three (3) separate contractors, to perform the work as set forth in the npproved plans and specifications. If the CITY has authorized CLUB to obtnin quotes without first having approved plans and specifications, then the proposed work will be described with sufficient detail so as to pro\'ide responding contractors with the information necessary to respond with :m accurate and complete quote. 111e CLUB shall nward the construction contract to the lowest quote obtained, subject to first obtaining Cl1Y's nppro,·nl and the requirements of Section 11.B.S. below.

4. \Vhcre the cost of construction of the C.,pirnl Improvement is o,•er the amount required under the Modesto Cit)• Charter for publiclr bidding a public works project, then the CLUB shall award the construction contract to the lowesc responsive bidder 24 #16..
- 796 -
who is responsible, subject to first obtaining CITY's appro\'al and the requirements of Section 11.B.5. In doing so, CLUB shall comply with the public bidding procedures and requirements as set forth in the Modesto City Charter and in Chapter t 4.04 of the Modesto Municipal Code, as these may be amended.

5. If the lowest quote or bid obtained by the CLUB pursuant to Sections II.B.3. or II.B.4. is m•er the estimate for the Capiti.1 Improvement set forth in the approved plans and specifications, or in the absence of apprm·ed plans and specifications, the estimated amount for d1e Capiti.l Improvement. CLUB and City M11nngl!r shall meet nnd confer in good faith to determine whether to award the construction contract to the Jow bidder, to reduce the scope of the work and obtain new quotes for, or bid or rebid the Capital Improvement project, as applicable, or to proceed in some other manner.

C. Insurance. Every construction agreement for a Capiti.1 lmpro\'ement entered into between d1c CLUB 11nd a contr.Jctor shall contain insurance provisions naming the CITY as nn 11dclitional insured. All policies, endorsements, certificates and/or binders sh:ill be subject to approval by the Director of Finance or the Director's authorized designee as to form and content.

D. Pa)•ment And Performance Bonds. Prior to commencing construction of n Cnpitnl lmpro\·emcnt, CLUB or its contractor sh:ill furnish to CITI', at no expense to CllY, the following bonds: (1) a payment bond securing the pn)'tllent of all construccion labor and materials and (2) a bond of faithful performance securing completion of all the work and construction and if requested by CIIT, (3) a warranty bond protecting the CITY from any work or labor done or materials or equipment furnished under the contrnct for the Capital Improvement, which is defective or not in accordance with the terms of the contrnct. The bonds shall be executed by a surety possessing a \·alid certificate of aud1ority issued by the California Department of Insurance, and shall nnme the CITY as obligee. TI1e payment and performance bonds shall be for an amount equal to one hundred percent (100%) of the toti.l amount of the contrnct secured b)• each rcspecti,•e bond. The form of the bonds shall be appro,•ed by the City Attorney and they shall be filed with the City Clerk. The bonds shall be in d1e fonns set forth in Appendi..._ 1 to di.is Agreement. In the e"ent thnt CITY revises the forms set ford1 in Appendix 1, CLUB, at CITI"'s direction, shall use the revised forms.

E. Construction.

1. Construction of :my Capital Impro,·ement shall be in accorcbnce with d1e pl:ins and specifications approved by the City Manager or authorized dcsignce and the CllY's standard specifications. During construction, CLUB may execute change orders involving minor, routine changes to the plans and specifications as needed to facilitate construction of the Cnpitnl lmprovemenr, pro,ided that no such changes shall alter d1e scope or increase the cost of the Capiml Improvement. CLUB shall not execute a change order im•ohring anything other than a minor, routine change to the plans and specifications without first obtnining the consent of the City Manager or authorized designee.

2. Cl1Y shall hn,•e the right to inspect the work :it any time during the construction of the Cnpiti.l lmprovcmcnt Project. If at any point during construction, CITY detcnnincs that the work is not being performed in a manner that complies with th.is Section II, 25 #16..
- 797 -
CITY shall have the right 10 stop the construction and direct the CLUB to com.'Ct the deficiency.

3. CLUB shall not finally accept any work without first obmining the written approval and acceptance of the City Mllllagcr or authodzcd designce. Immediately following d1e final written approval and acceptance of the Capital Improvement by the City Mnnngcr or authorized dcsignee, the CLUB shall finnlly accept the project and immediately record in the Office of the Stanislaus County Recorder a notice of completion complying with the requirement of C:ilifornin Civil Code Section 3093.

4. Following completion of d1e Capital Improvement, CLUB shall pro,,jde the CJTI' wim two (2) completed sets of as.built drawings and a CAD disk, if drawings were produced on disk, nnd a brcnkdown that shows all costs incurred for such work F. Compliance wim Laws. CLUB shall cause the Capital Improvements to be designed and constructed in nccordnnce with all applicable laws. Without limiting the generality of the foregoing, CLUB shall assume :ill responsibility for coordinating and ob1nining required nppro,•als from all government and regufotory agencies (t.e. City Fire Dcparunent, County I lealth Department and the like) for the design and construction of any Capital Improvement.

CITY ngrecs to cooperate with CLUB in seeking the necessary or desired govcmmcntnl approvnls
26 #16..
- 798 -
APPENDIX l TO EXHIBIT F
Form of Bonds
Bond No. ______ _
Premium ______ _

FAITHFUL PERFORMANCE BOND
\'X11·IEREAS, the CllY or MODESTO, n municipal corporation of the Stntc of Cnlifornia ("CITY''), and _________ ("CLUB''), and ____ , as General Contractor, collectively referred to herein ns principals C'Principa1s''); and \'\1HEREAS, the CLUB h:is entered into :m Agreement entitled ________ _ related to certain faciliC)• impro,•cments at the Modesto Stadium, which is incorporated herein by reference and referred to ns the "Concrnct," pursuant to which the CLUB shall install and complete certain designated public improvements; and
WHEREAS, under the terms of the Contract and prior to commencing any work under the Contract. CLUB is required to furnish a bond to CITI' for faithful performance of the Contract; and Gener:il Contrnctor has agreed ro provide this bond to the City of Modesto on behalf of, and jointly and severall}• with, the CLUB.

NOW, THEREFORE, we the Principals and [insert full nnme of Surety], a corporation dul}' authorized and admitted to trans:ict business and issue surety bonds in the State of Cnlifornfa ("Surety"), arc held finnly bound unto the CITY in the sum of (AMOUNT OF CONSTRUCTION COST] DOLLARS (S ____ , for the payment of which sum weU and truly to be m:idc, we the flrinciprus and Sure[}• bind ourseh•cs, our heirs, executors, administrators. successors and assigns, jointly and severnlly.

TI1c condition of this obligation is such that, if the Principals, Principals' heirs, executors, administrators, successors, or assigns sh:tll in all things smnd to and abide by, and well and truly keep and perform all covenants, conditions, and agreements required to be kept and performed b)• Principals in the Contract and any changes, additions, or alterations made thereto, to be kept and pcrfonned at the time and in the manner therein specified, and in aU respects according to their true intent and meanings, and sh:ul indemnify :ind save harmless Cln', its officers, employees, and agents, as therein provided, then this obligation shall be null :md void; otherwise, it shall be and remain in full force nnd effect.

As n part of the obligation secured hereby and in addition to the sum specified abO\'e, there shall be included all costs, e$pcnses, and fees, including attomc)"s fees, rcasonablr incurred by CITI' in successfully enforcing such obligntion, :ill to be t:ixed 11s costs and included in any judgment rendered.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed thereunder 27 #16..
- 799 -
or to the specifications nccomp:mying the same shall in any wny affect its obligations on this bond, and it docs hereby waive notice of any such change, extension, alteration, or addition.

Gcncml Contr.tctor by executing this bond agrees that the foregoing recitals arc true and correct nnd agrees it is bound to perform its duties and responsibilities as Principal under this bond.

IN WITNESS Wl·IEREOF, this instrument has been duly executed by authorized representatives of the Principals and Surety. SIGNED AND SEALED on _______ _, 200_.

PRINCIPALS: SUREIT: "OPERATOR" _____________ [Insert
Name] (Seal) By _____________ Name: ____________ Title: ____________ _ ______________ [Insert Name] (Sent) B}'
______________ Nnme: ____________ Tidc:
___________ "GENERAL CLUB"
______________ [Principal Name] (Seal) Address: Telephone: Affix Corporate Seals Attach Notnq• Jur:us for All Signatures Attach Power-of-Attorney if executed by Attorney-in-Fact Bond No. _______ Premium ______ _
2B
#16..
- 800 -
PAYMENT (LABOR AND l'vlATERIALS) BOND
WI IEREAS, che CITY OF MODESTO, a municipal corporation of the State of California C'CITI"'), and ---------C'CLUB"), and _____ , as General Contractor, collecti,•cly referred ro herein as principals C'Principals"); nnd WHEREAS, the CLUB has entered into an .Agreement entided ________ _ related to cennin facility improvements at the Modesto Stadium, which is incorporated herein by reference nnd referred ro as the "Contract," pursuant to which the CLUB shall install and complete cennin desigruitcd public impro,·ements; and
\,11-IEREAS, under the terms of the Contract and prior to commencing nny work under the Contract, Contractor is required to furnish a good and sufficient payment bond to the CIIT to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Pnrt 4 of Division 3 of the California Civil Code; and Gencr:il Contractor has agreed to provide this bond to the City of Modesto on behalf of, and jointly and severally with, the Developer.

NOW, THEREFORE, we the Principals and [insert full nnme of Surety], a corporation duly authorized and admitted to transact business and issue surety bonds in the Stare of California ("Surety"), are held 6rmly bound unto the CITY, and unto nil contractors, subcontractors, suppliers, foborers, marerialmen and other persons employed in the performnnce of the Contract and referred to in the aforesaid Civil Code, as obligces, in the sum of [AMOUNT OF CONSTRUCTION COSl] DOLI..ARS (S. ____ _,, on the condition that if Principals shall fail to pay for any materials or equipment furnished or used or for any work or labor thereon of nny kind, or for :imounts due under the Unemployment Insurance Act with respect to such work or labor, or for any amounts required to be deducted, ,vithheld, and paid o,•er to the Employment Development Deparanent from the wages of employees of the Principals and all subcontractors with respect to such work or labor, then the Surety shall pay the same in an amount not exceeding the sum specified above. If suit is brought upon this bond, Surety shall pay, in addition to the abo,•e sum, all costs, e~q,enscs, and fees, including attorney's fees, reasonably incurred by any obligee in successfully enforcing the obligation secured hereb)', all to be taxed as costs and included in the judgment rendered. Should dte condition of this bond be fully performed, then this obligation shall become null and void; otherwise, it shall be :ind rcmrun in full force and effect, :ind shall bind Principals, Surety, their heirs, executors, administrators, successors, and assigns, jointly :ind severally.

IT IS HEREBY E.~PRESSLY STIPULATED AND AGREED that this bond shall inure to the benefit of all persons, companies, corporations, political subdivisions, and State agencies entitled to file claims under Title 15 (commencing with Section 3082) of P:irr 4 of Di"ision 3 of the Ch,iJ Code, so as ro given right of action to them or their assigns in any suit brought upon this bond. The Surety, for value reccived, hereby stipulates nnd agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work ro be performed thereunder or the spcci6cations accompan)'ing the same shall in any way nffect its oblig:uions on this bond, and it docs hereby waive notice of any such change, c.xtension, alteration or addition. 29 #16..
- 801 -
General Contractor by executing this bond :igrces th:it the foregoing rccimls arc true nnd correct and agrees it is bound to perform its duties :ind responsibilities as Principal under this bond.

IN \VITNESS WHEREOF, this instrument has been duly c."Cccuted by authorized rcprcscntntivcs of the Principals and Surety. SIGNED AND SEALED on ---------• 201_. PRINCIPALS: SURETY: "CLUB" _____________ [Insert Name] (Seal) By ____________ Name: __________ _
Tide: _____________________________ nnsert
N:ime] (Sen!) By ____________ Name:
____________ Title: ____________ "GENERAL
CLUB" ______________ [Principal Name] (Sc:il) Address: Telephone:

Affix Corporate Seals Attach Notary Jurnts for All Signatures Attach Power.of-Attorney if executed by Attorney-in-Fact Bond No. _______ Premium ______ _ JO
#16..
- 802 -
\'X1 ARR.ANTI' BOND
WHEREAS, the City of Modesto, a municipal corporation of the State of C:ilifornia ("CIIT") and ______________ f'CLUB"), and ______ Gcner:tl
Contr.1.ctor, collccth•cly referred to herein ns principals (''Principals");and \\;'I-IERfu\S, the CLUB has entered into an Agreement entitled ______________ rclatcd to certain facilit)• improvements at the Modesto Smdium, which is incorporated herein by reference and referred to as the "Contr.tct," pursuant to which the CLUB shall instnll and complete certain designated public improvements; and \'X'I-IEREAS, under the terms of the Contract, CLUB is required to furnish a bond to CllY to make good and protect the CITY against the results of any work or labor done or materials or equipment furnished which nrc dcfec:ti"e or not in accord:mce witl1 the terms of the Contrnct having been used or incorporated in any part of the work so contracted for, which sh:ill ha,·e appi:.'Ued or been disco\·cred, within the period of one (1) year from and after the completion and final acceprnnce of the work done under the Contract; nnd Gcncr:tl Contractor has agreed ro provide this bond to the City of Modesto on behalf of, and jointly and severnll)• with, the Developer.

NOW, THEREFORE, we the Principals and [insert full name ofSuret)•], a corporation duly authorized and admitted to transact business and issue surety bonds in the State of California ("Suretr"), arc held firmly bound unto the CJ1Y in the sum of [AMOUNT OF CONSTRUCTION C0S1] DOLLARS (S _____ , for the payment of which sum well and truly to be made, we tl1c Principals and Surety bind ourscl\'es, our heirs, c..xecutors, ndm.inistrators, successors and assigns, joindy and severally. lbe condition of this obligation is such that, if the Principals shall well and tntl}' make good and protect the Cl1Y against the results of any work or labor done or materials or equipment furnished which arc defective or not in accordance with che terms of the Contract ha,-ing been used or incorporated in any part of the work performed under the Contr.1ct, which shall have appeared or been discovered within said one-year period from and after completion of all work under the Contract and final ncceptnnce by City of said work, then th.is obligation shall be null and ,•oid; otherwise, it shall be and remain in full force and effect.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or the spccific:u:ions accompanying the same shall in any way :iffect its obligations on this bond, and it does hereby waive notice of any change, extension of time, nlterntion or addition.

Gcner:il Contr.:1ctor by executing this bond agrees thar the foregoing recitals nre true and correct and agrees it is bound to perform its duties and responsibilities as Principal under this bond. 31 #16..
- 803 -
IN WITNESS WHEREOF, this instrument has been duly e.xecuted by authorized rcprcscntntivcs of the Principals nnd Surety. SIGNED AND SEALED on _______ _,201_.

PRINCIPALS: SURETI": "CLUB" _____________ [lnsert NnmcJ (Seal) By ____________ Name: __________ _
Title: ___________________________ [Insert
Name} (Seal) By ____________ Nnmc: ____________ Title: ____________ "GENERAL CLUB" ______________ [Principal NruncJ (Seal) Address: Telephone:

Affix Corporate Seals Attnch Notnry Junirs for All Signnrurcs PRINCIPALS: SURETY:
"CLUB" _____________ flnscrt Nnmc] (Seal)
______________ [Insert Name} (St-al) By _____________ Name: ____________ Tide:
____________ By _____________ Name:
____________ Tttlc: ____________ "GENERAL
CLUB" ______________ [Principal N:ime] (Seal) Address: Telephone:

Affix Corporate Seals Attach Notary Jurnrs for All Signantres Attach Power-of-Attorney if t:Xl'CUtcd by Attomcy-in-Fnct
:!7635.20 I
4Hl4--U77,S995.2
32 #16..
- 804 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 6, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Purchase and Sale Agreement for APN 034-018-014 CONTACT: Laurie A. Smith, Director, [email protected], 209-577-5347 DESCRIPTION:

Consider approving the Purchase and Sale Agreement for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor’s Parcel Number 034-018-014, for $795,000, plus $20,000 in anticipated closing costs. (Funding Source: Parks and Air Quality Capital Facility Fee Fund)
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:

Pamela Monterosso Trailhead acts as a primary access point for the Peggy Mensinger Trail along Dry Creek. Planning and concept designing began in the early 2000’s and included easy roundabout access to the trail, a small shade pavilion with a picnic table, landscaping and a parking lot. In 2003, plans to purchase the property for the primary parking lot failed. In 2007, construction was completed for the trailhead’s landscaping, roundabout access, and eight parking spaces. In 2015, the small shade pavilion with picnic table was completed using grant funds.

In 2002, the City moved forward with plans to purchase and develop the vacant parcel on the southeast corner of Scenic Drive and Coffee Road (APN 034-018-014). This parcel would join the Class I and Class II bike paths from Dry Creek and Coffee Road and provide adequate parking for park and trail visitors. However, in 2003, Council elected to return the designated Transportation Equity Act (TEA) grant funding back to StanCOG and the purchase fell through.

As a result, the property owner constructed private parking for the adjacent office complex.

In the last several years, especially since the pandemic, use of the Dry Creek Regional Park and this trailhead has significantly increased. In 2020, the office complex manager (Liberty Property Management) agreed to lease 40 parking spaces to the City ($15,000/year) for park visitors. Council, by Resolution No. 2021-067 approved the lease as an interim solution until the #17..
- 805 -
City Council, December 6, 2022
Purchase and Sale Agreement for APN 034-018-014

Page 2 of 3 ends

City secured funding for the purchase of the parking lot parcel. The lease, is set to expire on December 31, 2022.

DISCUSSION:

Purchase of the parcel (Property) will benefit the community, including several non-profit groups that are active in the recreational and preservation efforts within Dry Creek Regional Park.

These groups include but are not limited to the Dry Creek Trail Riders, Modesto Area Disc Golfers, the Shadowchase Running Club, the La Loma Neighborhood Association, and the Dry Creek Trails Coalition. Organized activities by these groups typically exceed the current eight (8) space parking capacity which forces them to utilize the private property defined in the proposed Agreement. Without the purchase of the 40-space parking lot on this parcel the positive use of the park will be greatly impacted.

In early 2021, representatives for the property owner, Thousand Oaks Executive Center, LLC, expressed interest in selling or developing the Property. The Property is improved with a parking lot, lighting, landscaping, and drainage facilities and provides parking for the adjacent office park. Both the office park and Property share a driveway that connects the parking areas for both properties to Scenic Drive. The entrance of the driveway is located on the office park, and the exit of the driveway is located on the parcel.

In Spring 2021, staff contracted Valbridge Property Advisors to complete an appraisal of the parcel. The market value of the property was appraised at $840,000. Soon after, both parties agreed on a purchase price of $795,000. The Purchase and Sale Agreement includes the following provisions:
1) As part of the sale of the Property, a reciprocal access easement or similar binding agreement will be recorded allowing both parties, as well as their guests and invitees, to use the Shared Driveway, with Seller responsible for the maintenance and repair of the Shared Driveway.
2) Prior to the close of escrow of the Property, the parties agree to enter into and execute a maintenance agreement governing the maintenance of the Property.

FISCAL IMPACT:

If approved, the purchase of the property, APN 034-018-014, will cost $795,000. A portion of the funding for the purchase of the property is budgeted in Project #101393 (Fund 3432). It is anticipated that a budget adjustment to allocate $50,000 from Parks and Air Quality Capital Facility Fees (Fund 3432) will be required to cover the purchase price and the closing costs for this transaction.

Revenue – Project #101393
Current Budgeted Revenue $765,000
Additional Revenue (Fund 3432) $50,000
Total Revenue $815,000
Expenses
Land Acquisition Costs $795,000
Anticipated Closing Costs $20,000
Total Expenses $815,000
#17..
- 806 -
City Council, December 6, 2022
Purchase and Sale Agreement for APN 034-018-014

Page 3 of 3 ends

Annual maintenance for the property, per the forthcoming Maintenance Agreement, is currently estimated at $20,000 per year. Funding is available in the Parks, Recreation & Neighborhoods department’s FY 22/23 Operating Budget.

COMMITTEE RECOMMENDATION:

This agenda item was considered on November 14. 2022 by the Safety & Communities Committee on November 14, 2022, where the committee recommended forwarding to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Purchase and Sale Agreement for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor’s Parcel Number 034-018-014, for $795,000, plus $20,000 in anticipated closing costs; and authorizing the City Manager, or his designee, to execute any documents necessary to carry out the purpose of this Resolution.

Approved by:

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

1. Resolution

2. Purchase and Sale Agreement
#17..
- 807 -
12/06/2022/PRND/SMITH 1 2022-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2022

RESOLUTION APPROVING THE PURCHASE AND SALE AGREEMENT FOR CERTAIN REAL PROPERTY LOCATED AT APPROXIMATELY 1300 SCENIC DRIVE, STANISLAUS COUNTY ASSESSOR PARCEL NUMBER 034-018-014, FOR $795,000, PLUS $20,000 IN ANTICIPATED CLOSING COSTS, AND

AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE

ANY DOCUMENTS NECESSARY TO CARRY OUT THE PURPOSE OF THIS

RESOLUTION
WHEREAS, the Pamela Monterosso Trailhead serves as a primary access point for the Peggy Mensinger Trail that runs along Dry Creek; and WHEREAS, the parking lot serving the trailhead has only eight (8) designated parking spaces which are insufficient to meet the parking needs for those visiting and using the trail; and
WHEREAS, by Resolution No. 2021-067, Council approved a lease for the City’s use of forty (40) parking spaces from the adjacent office complex owned by Thousand Oaks Executive Center, LLC (“Property Owner”); and
WHEREAS, the lease is set to expire on December 31, 2022; and WHEREAS, Property Owner expressed interest in selling Stanislaus County Assessor Parcel No. 034-018-014 to the City, which includes the parking lot adjacent to the trailhead to the City; and
WHEREAS, the City desires to purchase the property which includes a parking lot, lighting, landscaping, drainage facilities, and driveway for the benefit of the community; and
WHEREAS, an appraisal of the property was completed by Valbridge Property Advisors; and
WHEREAS, the market value of the property was appraised at $840,000; and #17..
- 808 -
12/06/2022/PRND/SMITH 2 2022-?
WHEREAS, City and Property Owner agreed on a purchase price of $795,000; and
WHEREAS, it is anticipated that the closing costs for the sale of the property will be $20,000; and
WHEREAS, funding for the sale is budgeted in Capital Improvement Project No. 101393 (Monterosso Trailhead Parking) and Air Quality and Park Capital Facilities Fees; and
WHEREAS, in addition the execution of the Purchase and Sale Agreement, the parties agree to execute a reciprocal access easement or similar binding agreement for use of the shared driveway, and a maintenance agreement governing the maintenance of the property.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Purchase and Sale Agreement between the City of Modesto and Thousand Oaks Executive Center, LLC, for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor Parcel Number 034-018- 014, for $795,000, plus $20,000 in anticipated closing costs BE IT FURTHER RESOLVED, that the City Manager, or his designee, is authorized to execute the Purchase and Sale Agreement and all required documents, approved as to form, by the City Attorney.
#17..
- 809 -
12/06/2022/PRND/SMITH 3 2022-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 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
APPROVED AS TO FORM:

BY: ___________________________
JOSE M. SANCHEZ, City Attorney
#17..
- 810 -
- A-1 -

PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS

THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this “Agreement”) is entered into as of ________, 2022 (the “Effective Date”), by and between the City of Modesto, a California municipal corporation (“Buyer” or “City”), and Thousand Oaks Executive Center, LLC, a California limited liability company (“Seller”). Seller and Buyer may each be referred to herein as a “Party” or collectively as the “Parties.”

RECITALS
A. Seller is the owner of the Scenic Oaks Office Park, located in the City of Modesto, California, adjacent to south side of Scenic Drive east of Coffee Road (the “Office Park”). The Office Park consists of multiple legal parcels, including that certain real property known as Stanislaus County Assessor’s Parcel Number 034-018-017.

B. Seller is also the owner of that certain real property located at approximately 1300 Scenic Drive, also known as Stanislaus County Assessor’s Parcel Number 034-018-014, and more particularly described in Exhibit A, attached hereto and incorporated herein (the “Property”).

C. The Property is currently improved with a parking lot, lighting, landscaping, and drainage facilities. The Property is located adjacent to the Monterosso Park, which is a public parked owned by the City. The Property is currently used by visitors to Monterosso Park pursuant to a lease agreement.

D. The Office Park and Property share a driveway that connects the parking areas for both properties to Scenic Drive. The entrance of the driveway is located on the Office Park, and the exit of the driveway is located on the Property (the “Shared Driveway”).

E. Buyer has offered to purchase the Property from Seller, and Seller has offered to sell the Property to Buyer, for Seven Hundred Ninety Five Thousand Dollars ($795,000).

F. As part of the sale of the Property, a reciprocal access easement or similar binding agreement will be recorded allowing both Parties, as well as their guests and invitees, to use the Shared Driveway, with Seller responsible for the maintenance and repair of the Shared Driveway (the “Reciprocal Access Easement”).

G. Prior to the close of escrow of the Property, the parties agree to enter into and execute a maintenance agreement governing the maintenance of the Property (the “Maintenance Agreement”). The Maintenance Agreement will require the Seller to maintain the improvements on the Property, including storm drain improvements, in exchange for compensation from the City for a specified period of time. A new water meter #17..
- 811 -
- A-2 -
will be installed to ensure that water used on the Property is accounted from separately from the water used on the Office Park.

H. Buyer agrees to purchase the Property, and Seller agrees to sell the Property to Buyer, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:

1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement as if set forth in full.

2. PURCHASE AND SALE.

2.1 Agreement to Buy and Sell. Subject to the terms and conditions set forth herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property from Seller.

2.2 Purchase Price. The purchase price for the Property to be paid by Buyer to Seller (the “Purchase Price”) is Seven Hundred Ninety Five Thousand Dollars ($795,000). The Purchase Price will be paid in immediately available funds to Seller on the Closing Date.

3. ESCROW.

3.1 Escrow Account. Seller has opened, or within three (3) business days of the Effective Date shall open, an escrow account (the “Escrow”) maintained by Cypress Title (the “Title Company”), 1156 Scenic Drive, Ste, 100, Modesto, Ca, Attn:

Diane O’Brien, or such other title company as selected by the City (the “Escrow Holder”), with interest accruing to the benefit of Buyer. Escrow Holder shall perform all escrow and title services in connection with this Agreement.

3.2 Opening of Escrow. Within three (3) business days after the Effective Date, the Parties will deposit into Escrow the fully executed Agreement, or executed counterparts thereto. The date such fully executed Agreement is received by Escrow Holder will be deemed the “Opening of Escrow” and Escrow Holder will give written notice to the Parties of such occurrence.

3.3 Satisfaction of Due Diligence Contingency. Buyer shall have the right, in its sole discretion, to terminate this Agreement for any reason prior to the expiration of the Due Diligence Contingency Period (as defined in Section 5(a) below).

Buyer hereby agrees to provide written notice to Seller prior to the expiration of the Due Diligence Contingency Period if Buyer disapproves any due diligence items or approves all due diligence items (“Approval Notice”). If Buyer disapproves any items through the #17..
- 812 -
- A-3 -
delivery of the Approval Notice to Seller before 5:00 p.m. on the last day of the Due Diligence Contingency Period, this Agreement shall terminate, and all amounts deposited by Buyer into escrow, together with interest thereon, if any, will be returned to Buyer, and neither party shall have any further rights or obligations hereunder except those which expressly survive the termination hereof. Notwithstanding the foregoing, if Buyer fails to timely deliver the Approval Notice to Seller, it will be conclusively presumed that Buyer has approved all such items, matters or documents.

4. PROPERTY DISCLOSURE REQUIREMENTS.

4.1 Condition of Title/Preliminary Title Report. Escrow Holder shall deliver a Preliminary Title Report for the Property (the “Preliminary Report”) to Buyer within three (3) days after the Opening of Escrow. Buyer shall have until the end of the Due Diligence Contingency Period to approve the condition of title to the Property. If Buyer delivers the Approval Notice, Buyer agrees to take title to the Property subject to the following “Permitted Exceptions:” (a) standard printed exceptions in the Preliminary Report; (b) general and special real property taxes and assessments constituting a lien not yet due and payable; and (c) the exceptions to the title referenced in the Approval Notice.

4.2 Environmental and Natural Hazards Disclosure. California Health & Safety Code section 25359.7 requires owners of non-residential real property who know, or have reasonable cause to believe, that any release of hazardous substances are located on or beneath the real property to provide written notice of same to the buyer of real property. Other applicable laws require Seller to provide certain disclosures regarding natural hazards affecting the Property. Seller agrees to make all necessary disclosures required by law within ten (10) business days of the effective date.

5. CLOSING AND PAYMENT OF PURCHASE PRICE.

5.1 Closing. The closing (the “Closing” or “Close of Escrow”) will occur no later than ninety (90) days after the Effective Date (“Closing Date”). The Closing Date may be extended by mutual agreement of the Parties in writing. If Close of Escrow has not occurred by the Closing Date, Seller or Buyer may elect to terminate this Agreement.

5.2 Buyer’s Conditions to Closing. Buyer's obligation to purchase the Property is subject to the satisfaction of all of the following conditions or Buyer's written waiver thereof (in Buyer’s sole discretion) on or before the Closing Date:
(a) Buyer will have sixty (60) days from the Opening of Escrow (the “Due Diligence Contingency Period”) to complete physical inspections of the Property and due diligence related to the purchase of the Property. Seller shall provide to Buyer copies of all reasonably available and known documents relating to the ownership and operation of the Property, including but not limited to plans, permits and reports (environmental, structural, mechanical, engineering and land surveys) that Seller has in #17..
- 813 -
- A-4 -
its possession not later than five (5) business days following the execution and delivery of this Agreement. The Parties acknowledge and agree that Buyer has current possession of the Property and may conduct any physical inspections at its discretion in accordance with the provisions of the Lease.
(b) Buyer and Seller have agreed upon the terms and conditions of the Maintenance Agreement and Reciprocal Access Easement. (c) Seller has performed all obligations to be performed by Seller pursuant to this Agreement.
(d) Seller's representations and warranties herein are true and correct in all material respects as of the Closing Date. (e) The Title Company is irrevocably committed to issue a CLTA Title Policy to Buyer, effective as of the Closing Date, insuring title to Buyer in the full amount of the Purchase Price subject only to the Permitted Exceptions.

5.3 Seller’s Conditions to Closing. The Close of Escrow and Seller's obligation to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions or Seller's written waiver (in Seller’s sole discretion) of such conditions on or before the Closing Date:
(a) Buyer has performed all obligations to be performed by Buyer pursuant to this Agreement before Closing Date.
(b) Buyer's representations and warranties set forth herein are true and correct in all material respects as of the Closing Date. (c) Buyer and Seller have reached an agreement to modify the Lease based on that portion of the Land not containing the Property.

5.4 Conveyance of Title. Seller will deliver marketable fee simple title to Buyer at the Closing, subject only to the Permitted Exceptions. The Property will be conveyed by Seller to Buyer in an “as is” condition, with no warranty, express or implied, by Seller as to the physical condition including, but not limited to, the soil, its geology, or the presence of known or unknown faults or hazardous materials or hazardous waste (as defined by state and federal law); provided, however, that the foregoing shall not relieve Seller from disclosure of any such conditions of which Seller has actual knowledge. #17..
- 814 -
- A-5 -

5.5 Deliveries at Closing.
(a) Deliveries by Seller. Seller shall deposit into the Escrow for delivery to Buyer at Closing the following, duly executed and notarized as appropriate:
(i) a grant deed;
(ii) the Maintenance Agreement;
(iii) the Reciprocal Access Easement;
(iv) an affidavit or qualifying statement which satisfies the requirements of paragraph 1445 of the Internal Revenue
Code of 1986, as amended, any regulations thereunder (the “Non-Foreign Affidavit”);
(v) a California Franchise Tax Board form 590 to satisfy the requirements of California Revenue and Taxation Code
Section 18805(b) and 26131;
(vi) such resolutions, authorizations, or other documents or agreements relating to Seller as shall be reasonably required by Title Company; and
(vii) all other documents required by this Agreement to complete the Closing.
(b) Deliveries by Buyer. Buyer shall deposit into the Escrow following, duly executed and notarized as appropriate:
(i) the Purchase Price as adjusted by any prorations between the Parties;
(ii) Buyer’s share of the escrow fees and recording fees; and (iii) the cost of the Title Policy;
(iv) the Maintenance Agreement;
(v) the Reciprocal Access Easement;
(vi) such resolutions, authorizations, or other documents or agreements relating to Buyer as shall be reasonably required by Title Company; and
(vii) all other documents required by this Agreement to complete the Closing.
(c) Closing. Upon Closing, Escrow Holder shall: (i) record the grant deed; (ii) record the Reciprocal Access Easement; (iii) disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and expenses; (iv) deliver to Buyer the Non-Foreign Affidavit, the California Certificate and the original recorded grant deed; and (v) distribute to itself the payment of escrow fees and expenses required hereunder.
(d) Closing Costs. Buyer and Seller will equally split all escrow fees (including the costs of preparing documents and instruments), title report costs, and recording fees. Buyer will pay title insurance and Seller will pay any applicable transfer tax. Buyer is a public agency and is exempt from the payment of transfer taxes. All other costs and fees shall be paid in accordance with custom and practice in Stanislaus County. #17..
- 815 -
- A-6 -
(e) Pro-Rations. At the close of escrow, the Escrow Agent shall make the following prorations: (i) Buyer is a public agency exempt from the payment of property taxes and shall not be responsible for the payment of any portion of property taxes assessed on the Property; and (ii) any bond or assessment that constitutes a lien on the Property at the Close of Escrow will be assumed by Buyer.

6. REPRESENTATIONS, WARRANTIES AND COVENANTS.

6.1 Seller’s Representations, Warranties and Covenants. In addition to the representations, warranties and covenants of Seller contained in other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section 6.1 are each true and correct as of the Closing Date:
(a) Authority. Seller is a limited liability company, lawfully formed, in existence and in good standing under the laws of the State of California. Seller has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. The Seller explicitly represents and warrants that it has the full right to sell or otherwise dispose the Property to Buyer. This Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a valid and binding agreement of Seller.
(b) Encumbrances. Seller has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor entered into any Agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Property, except as disclosed in the Preliminary Report and the Lease. Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is in force.
(c) There are no agreements affecting the Property except those which have been disclosed by Seller and the Lease. There are no agreements which will be binding on the Buyer or the Property after the Close of Escrow, which cannot be terminated on thirty (30) days prior written notice.

The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Seller contained in this Agreement are conditions precedent to Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and warranties shall survive the expiration, termination, or close of escrow of this Agreement and shall not be deemed merged into the deed upon closing.

6.2 Buyer’s Representations and Warranties. In addition to the representations, warranties and covenants of Buyer contained in other sections of this #17..
- 816 -
- A-7 -
Agreement, Buyer hereby represents, warrants and covenants to Seller that the statements below in this Section 6.2 are each true as of the Closing Date:
(a) Buyer is a California municipal corporation. Buyer has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement.

This Agreement has been duly executed by Buyer, and upon delivery to and execution by Seller shall be a valid and binding agreement of Buyer.

The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Buyer contained in this Agreement are conditions precedent to Seller’s obligation to proceed with the Closing hereunder.

7. REMEDIES In the event of a breach or default under this Agreement by Seller, if such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek specific performance from Seller or (b) to do any of the following: (i) to waive the breach or default and proceed to close as provided herein; (ii) to extend the time for performance and the Closing Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice to Seller, whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed into the Escrow by Buyer, and except for the rights and obligations expressly provided to survive termination of this Agreement, neither party shall have any further obligations or liabilities hereunder. In the event of a breach or default hereunder by Buyer and the closing does not occur due to such default, the Lease shall remain in full force and effect, and Buyer shall be responsible for any fees owed to the Title Company and Escrow Officer. The Parties agree that Seller shall have no other remedies. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO

LOST PROFITS OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE OTHER PARTY’S BREACH OF THIS AGREEMENT.

8. BROKERS. Each party represents that no real estate broker has been retained by the Party in the sale of the Property or the negotiation of this Agreement.

Buyer shall indemnify, hold harmless and defend the Seller from any and all claims, actions and liability for any breach of the preceding sentence, and any commission, finder’s fee, or similar charges arising out of Buyer’s conduct.

9. ASSIGNMENT. Neither Seller nor Buyer may assign its rights or delegate its duties under this Agreement without the express written consent of the other, which consent may be withheld for any reason.

10. MISCELLANEOUS.

10.1 Attorneys’ Fees. If any party employs counsel to enforce or interpret this Agreement, including the commencement of any legal proceeding whatsoever (including insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs (including the service of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and the costs of any bonds, whether taxable #17..
- 817 -
- A-8 -
or not) and shall include the right to recover such fees and costs incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in addition to any other remedy it may obtain or be awarded. Any judgment or final order issued in any legal proceeding shall include reimbursement for all such attorneys’ fees and costs. In any legal proceeding, the “prevailing party” shall mean the party determined by the court to most nearly prevail and not necessarily the party in whose favor a judgment is rendered.

10.2 Interpretation. This Agreement has been negotiated at arm’s length and each party has been represented by independent legal counsel in this transaction and this Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each party hereby waives any benefit under any rule of law (including Section 1654 of the California Civil Code) or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party.

10.3 Survival. All indemnities, covenants, representations and warranties contained in this Agreement shall survive Close of Escrow.

10.4 Successors. Except as provided to the contrary in this Agreement, this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns.

10.5 Governing Law & Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. Venue for any dispute arising out of this Agreement shall be the state or federal courts in Stanislaus County, California.

10.6 Integrated Agreement; Modifications. This Agreement contains all the agreements of the Parties concerning the subject hereof any cannot be amended or modified except by a written instrument executed and delivered by the parties. There are no representations, agreements, arrangements or understandings, either oral or written, between or among the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein.

10.7 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such provisions or part thereof shall be stricken from this Agreement, any such provision shall not be affected by the legality, enforceability, or validity of the remainder of this Agreement.

10.8 Notices. Any delivery of this Agreement, notice, modification of this Agreement, consent, approval, waiver, or other communication that either party desires or is required to give to the other party or any other person shall be in writing. Any such communication may be served personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested to the party’s address as set forth below:
#17..
- 818 -
- A-9 -
To Buyer City of Modesto
1010 10th Street
P.O. Box 642
Modesto, CA 95354
Attn: Laurie Smith, Director of Parks, Recreation &
Neighborhoods
To Seller: Thousand Oaks Executive Center, LLC
1120 Scenic Avenue
Modesto, CA 95350
Attn: Duke Leffler
To Escrow Holder: Cypress Title
1156 Scenic Drive, Ste, 100
Modesto, CA 95350
Attn: Diane O’Brien
Any such communication shall be deemed effective upon personal deliver or on the date of first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable.

10.9 Time. Time is of the essence to the performance of each and every obligation under this Agreement.

10.10 Days of Week. If any date for exercise of any right, giving of any notice, or performance of any provision of this Agreement falls on a Saturday, Sunday or holiday, the time for performance will be extended to 5:00 p.m. on the next business day of the City of Atwater.

10.11 Waivers. Any waiver by any party shall be in writing. No waiver will be implied from any delay or failure to take action on account of any default by any party. Consent by any party to any act or omission by another party shall not be construed to be a consent to any other subsequent act or omission.

10.12 Signatures/Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any one of such completely executed counterparts shall be sufficient proof of this Agreement.

10.13 Date and Delivery of Agreement. Notwithstanding anything to the contrary contained in this Agreement, the parties intend that this Agreement shall be deemed effective, and delivered for all purposes under this Agreement, and for the calculation of any statutory time periods based on the date an agreement between parties is effective, executed, or delivered, as of the Effective Date. #17..
- 819 -
- A-10 -

10.14 Representation on Authority of Parties. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement
#17..
- 820 -
- A-11 -
IN WITNESS WHEREOF, the CITY has authorized the execution of this PURCHASE AND SALE AGREEMENT in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. _________, adopted by the City Council of the City of Modesto on the _____ day of ___________, 2022, and THOUSAND OAKS EXECUTIVE CENTER, LLC has caused this PURCHASE AND SALE AGREEMENT to be duly executed.

SIGNATURES ON FOLLOWING PAGE
#17..
- 821 -
- A-1 -

EXHIBIT A

LEGAL DESCRIPTION
The following described real property in the City of Modesto, County of Stanislaus, State of California:

Parcel 8 as shown on that certain Parcel Map for “Scenic Road Properties”, filed for record April 22, 2003 in Book 52 of Parcel Maps, at Page 15, Stanislaus County Records.

APN: 034-018-014
5202045.1
#17..
- 822 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 6, 2022
Date: November 7, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: Agreement with HDR Engineering, Inc. to conduct a feasibility study for the City’s Compost Facility
CONTACT: Rosene Salmo, Integrated Waste Program Manager [email protected] 209-577-5453
DESCRIPTION:

Consider approving an Agreement with HDR Engineering, Inc. to conduct a Feasibility Study for the City’s Compost Facility at 7001 Jennings Road, for a total amount not to exceed $97,055. (Funding Source: Compost Facility Improvement Fund)
STRATEGIC PLAN ELEMENT:

The recommended action is consistent with the Council’s Strategic Plan Area (2020-2025) - Quality of Life: “Engage partners across the community to ensure the safety, resilience, and attractiveness of Modesto;” Goal D: “Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.” BACKGROUND:

The City of Modesto Compost Facility was created and began operation in January 1997 to comply with Assembly Bill (AB) 939’s fifty percent (50%) waste diversion requirement. In September 2016, Governor Brown signed the Short-Lived Climate Pollution Reduction Act Senate Bill (SB 1383)1 into law, establishing emission reduction targets statewide to reduce organic waste to landfill by seventy-five percent (75%) and recovering twenty percent (20%) of edible food waste for human consumption by 2025.

The Compost Facility’s primary and state mandated purpose is to process the City’s diverted yard waste, paper waste and food waste materials into a reusable soil amendment product (compost), thus keeping these materials from entering the landfill and lowering the City’s disposal rate. A secondary purpose of the facility is to then market and sell the finished compost to farmers, landscapers, and backyard gardeners, which in turn helps keep the facility 1 https://www.calrecycle.ca.gov/organics/slcp
#18..
- 823 -
City Council, December 6, 2022
Agreement with HDR Engineering, Inc. to conduct a feasibility study for the City’s Compost Facility

Page 2 of 3 ends

Modesto City CouncilDecember 6, 2022

Modesto City Council
December 6, 2022