Agenda packet — Safety and Communities Committee, December 12, 2022

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www.modestogov.com
AGENDA
City of Modesto

SAFETY AND COMMUNITIES COMMITTEE / COUNCIL

WORKSHOP
Held Via Teleconference
(To Access Meeting Please See Instructions Below)
Monday, December 12, 2022 at 5:00 PM
*Roll Call: Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
Alternates: Eric Alvarez, Nick Bavaro, Jeremiah Williams, David Wright * Please Note: In order to respond to COVID-19, and pursuant to AB 361, the City will hold this meeting via teleconference and Committee Members will be calling in. “Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

THIS MEETING WILL NOT BE PHYSICALLY OPEN TO THE PUBLIC
In order to minimize the spread of the COVID-19 virus, this meeting will be conducted pursuant to AB 361, which amended the Brown Act’s teleconferencing provisions and will not be physically open to the public. You may observe and participate in the meeting via teleconference as indicated below.
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PARTICIPATING IN COMMITTEE MEETINGS IN CONFORMANCE
WITH AB 361
The City of Modesto is providing alternatives to observe and participate in Committee meetings.

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

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Committee Members and placed in the record, but will not be read aloud during the meeting. Written comments must be received by 3:00 p.m. on the day of the meeting.

VIRTUAL PARTICIPATION BY ZOOM VIDEO

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

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

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

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

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

PUBLIC COMMENTS
Please refer to special public comment instructions above.

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

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

Information concerning the consent items listed below has been forwarded to each Committee member prior to this meeting for study. Unless some member of the audience or Committee member has a question concerning an item and asks that it be withdrawn from the consent list, - 3 -
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the Committee approves the items at one time. The action taken by the Committee in approving consent items is set forth in the explanation of this individual item.

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

This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

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

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

Consent

1. Consider approving a First Amendment with ZOLL Data Systems, Inc. for Hosted Server Services for both ePCR and FireRMS Records Management and Reporting Software for Salida Fire Services and future fire contract services by increasing the amount by $33,424 for a total revised amount not to exceed $272,296 and forwarding to Council for approval (Funding Source: General Fund)
 Motion approving a First Amendment with ZOLL Data Systems, Inc. for Hosted Server Services for both ePCR and FireRMS Records Management and Reporting Software for Salida Fire Services and future fire contract services by increasing the amount by $33,424 for a total revised amount not to exceed $272,296 and forwarding to Council for approval.

FIRE DEPARTMENT; Alan Ernst, 209-572-9590, [email protected] Consent

2. Consider approving a Second Amendment to the Purchasing Agreement with United Site Services, Inc. of Modesto, CA for Portable Toilet Rental Services for a revised total amount not to exceed $583,250 over the term of the Agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA; and forwarding to Council for approval. (Funding Source: Golf Fund)
 Motion approving a Second Amendment to the Purchasing Agreement with United Site Services, Inc. of Modesto, CA for Portable Toilet Rental Services - 4 -
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for a revised total amount not to exceed $583,250 over the term of the Agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA; and forwarding to Council for approval.

PRN; Laurie Smith, 209-577-5347, [email protected]
Consent

3. Consider authorizing additional payment not to exceed $151,225 to Belfor Property Restoration, Modesto, CA for Emergency Work related to the American Legion Hall Fire Remediation and forwarding to Council for approval. (Funding Source: TRRP JPA Insurance Proceeds)
 Motion authorizing additional payment not to exceed $151,225 to Belfor Property Restoration, Modesto, CA for Emergency Work related to the American Legion Hall Fire Remediation and forwarding to Council for approval.

PRN; Nathan Houx, 209-571-5526, [email protected]
Consent

4. Consider approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Neece Project for an amount of $263,257, plus $26,326 for additional services, if needed, for an Agreement total not to exceed $289,583 and forwarding to Council for approval. (Funding Source: Parks Capital Facility Fee Fund, Recreational Trails and Greenways Grant Program – Proposition 68)  Motion approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Neece Project for an amount of $263,257, plus $26,326 for additional services, if needed, for an Agreement total not to exceed $289,583 and forwarding to Council for approval.

PRN; Nathan Houx, 209-571-5526, [email protected]

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

SAFETY & COMMUNITIES

COMMITTEE AGENDA REPORT
DATE OF MEETING:

December 12, 2022
Date: November 14, 2022
TO: Safety & Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Alan Ernst, Fire Chief
SUBJECT: First Amendment to ZOLL Data Systems, Inc. Agreement CONTACT: Alan Ernst, Fire Chief, [email protected] , 209-572-9590 DESCRIPTION:

Consider approving a First Amendment with ZOLL Data Systems, Inc. for Hosted Server Services for both ePCR and FireRMS Records Management and Reporting Software for Salida Fire Services and future fire contract services by increasing the amount by $33,424 for a total revised amount not to exceed $272,296 and forwarding to Council for approval. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:

This action supports the City of Modesto 2020-2025 Strategic Plan focus on quality of life under Goal A: Improve Community Safety.

BACKGROUND:

The Modesto Fire Department (MFD) has been utilizing ZOLL’s FireRMS as the department’s records management system for more than 15 years. Prior to 2019, the servers that stored and transmitted the data were owned and hosted by the City of Modesto Information Technology (IT) Department, and then transitioned to the Stanislaus County’s IT Department (SBT). This ownership and middle layer of coordination not only created time delays that hindered the department’s ability to comply with mandated reporting requirements, but it also created expenses by both the server owner and ZOLL for time and support, specifically when technical issues arose.

On May 3, 2022, by Resolution No. 2022-205, Council approved the renewal agreement with Zoll Data Systems, Inc. for hosted server services for both ePCR and FireRMS records management and reporting software, in an annual estimated amount of $77,124, #1..
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Safety & Communities Committee, December 12, 2022
First Amendment to ZOLL Data Systems, Inc. Agreement

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with a one-time ePCR implementation fee of $7,500, for a total three-year agreement not to exceed $238,872.00.

DISCUSSION:

On September 13, 2022, by Resolution 2022-370, Council approved an agreement to provide fire protection services between the City of Modesto and the Salida Fire Protection District. With this addition of service by the Modesto Fire Department, the city now faces increased expenditures for services by Zoll Data Systems which necessitates the amendment to the agreement.

The proposed amendment will allow services to be utilized by Station 12 (Salida) for a cost of $8,424. The current agreement expires on July 18, 2025 and the term remains unchanged with the addition of Salida’s services. Additionally, based on successful fire services agreements in the recent past, the department is seeking the additional $25,000.00 as a contingency in the event the department enters into a new fire services agreement which would then require additional Zoll hosted server services. This option will provide a greater ease of service transition.

FISCAL IMPACT:

The Modesto Fire Department currently expends approximately $44,271 annually on the user agreements for both Hosted RescueNet and FireRMS Programs. Funding for this agreement increase would come from the existing line items in the department’s operating budget across those cost centers that are specific to service contract with Oakdale, Ceres, and now Salida.

The additional funds needed would be pulled from the existing budget cost center for Salida.

Funds have been identified to cover the annual cost of $2,808, for the three-year contract. The new total cost of the three-year contract will be approximately $247,296. Should we take on an additional contract for service, the contingent $25,000 will be assigned to a new cost center to be created upon approval of a contract and bring the total to $272,296.

Fund/Cost Center Description Amount Account
General Fund/Salida $8,424 0100-18217-53030
General Fund (Cost Center
Contingent)
$25,000 0100-18XXX-53030
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving a First Amendment with ZOLL Data Systems, Inc. for Hosted Server Services for both ePCR and FireRMS Records Management and Reporting Software for Salida Fire Services and future fire contract services by increasing the amount by $33,424 for a total revised amount not to exceed $272,296 and forwarding to Council for approval.

Approved by:

Alan Ernst, Fire Chief
Joseph P. Lopez, City Manager
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Safety & Communities Committee, December 12, 2022
First Amendment to ZOLL Data Systems, Inc. Agreement

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Attachments:

1. Zoll Quote 41684 For Salida Annual Service

2. Q29282 SIGNED- Modesto and Oakdale

3. Q30206 SIGNED- Ceres
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ZOLL Data Systems, Inc.
11802 Ridge Parkway, Suite 400
Broomfield, Colorado 80021
(303) 801-0000 Main
(800) 474-4489
(303) 801-1063 Fax
Federal ID#: 65-0461124

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Attn: Modesto Fire Department - Aurelia Harris
(209) 480-0150 / [email protected]
Bill To: Modesto Fire Department
PO Box 642
Modesto, CA 95353
Ship To: Modesto Fire Department
600 11th Street
Modesto, CA 95354
From: Jonathan Stewart
Data - Territory Sales Associate
[email protected]
QUOTATION:

Date:

Term:

FOB:

Expires:

Q-41684
September 27, 2022
36 Months
Shipping Point
November 26, 2022
ASP Services Term in Months: 36
Item
Lic.

Type Description Qty List Price Disc Adj. Price
Annual Fees or
One Time Charge Monthly Fees
HFPL HL Hosted RescueNet FireRMS Plus (Per Station)
Inc: NFIRS Incidents, Hydrants, EMS Reporting, Vehicles, Personnel, Equipment, Roster, Daybook, Training,
Messaging, Credentials, Reports, Occupancies, Sync Mgr, 3rd Party Monitor SDK, Security and Admin, 1 SMS
Interface.
1 $234.00 $234.00 $2,808.00 $234.00
#1..
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ZOLL Data Systems, Inc.
11802 Ridge Parkway, Suite 400
Broomfield, Colorado 80021
(303) 801-0000 Main
(800) 474-4489
(303) 801-1063 Fax
Federal ID#: 65-0461124
TO: Modesto Fire Department - Quote No: Q-41684 Continued

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SUMMARY OF FEES & COMMENTS
1MONTHLY FEES: $234.00
1ANNUAL FEES: $2,808.00
ANNUAL FEES FOR MULTI-YEAR TERM: $8,424.00

Comments:

BLANK

1. MONTHLY & ANNUAL FEES ARE SUBJECT TO ADJUSTMENT AS DEFINED IN THE ORDER.

2. APPLICABLE TAX, SHIPPING & HANDLING WILL BE ADDED AT TIME OF INVOICING.

3. ALL ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL.

4. DELIVERY OF ADDITIONAL SOFTWARE LICENSES ARE TYPICALLY MADE WITHIN 48 HOURS FOLLOWING THE RECEIPT OF A SIGNED ORDER FORM.

DELIVERY OF ROAD SAFETY ADD ON COMPONENTS ARE TYPICALLY MADE THE FRIDAY FOLLOWING THE RECEIPT OF THE ORDER.

5. FURTHER TERMS & CONDITIONS APPLY AND CAN BE FOUND AT https://www.zolldata.com/legal.

TOTAL FEES FOR INITIAL TERM: $8,424.00
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Order Order No.: Q-29282

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THIS ORDER FORM (this ''Order'') is made as of the date on which both parties have signed below (the ''Effective Date'') by and between ZOLL Data Systems, Inc., a Delaware corporation with offices at 11802 Ridge Parkway, Suite 400, Broomfield, CO 80021, [email protected] (''ZOLL'') and Modesto Fire Department (the ''Customer'').

Bill To: Modesto Fire Department
PO Box 642
Modesto, CA 95353
Email for Notices: [email protected]
Ship To: Modesto Fire Department
600 11th Street
Modesto, CA 95354
Territory Manager: Jonathan Stewart Offer Expires: 05/30/2022 ASP Services
Item
Lic.

Type Description Qty Price
Annual Fees or
One Time Charge Monthly Fees
HFPL HL Hosted RescueNet FireRMS Plus (Per Station) 15 $216.32 $38,937.60 $3,244.80 HFRMPL HL Hosted RescueNet FireRMS-Mobile Plus (Per Device) 10 $54.08 $6,489.60 $540.80 ICC19CAH TPL Hosted ICC 2019 CA - Intl. Fire Code Lic. Per Concurrent User (Per Month)
10 $15.00 $1,800.00 $150.00
ICC19CAM
H
TPL Hosted ICC 2019 CA - Intl. Fire Code Lic. Mobile Per Device (Per Month)
10 $5.00 $600.00 $50.00
*MONTHLY FEES: $3,985.60
*ANNUAL FEES: $47,827.20
ANNUAL FEES FOR INITIAL TERM: $143,481.60
Comments: Renewal effective 07/19/2022 for subscriptions:

A-S00007003
A-S00007003
A-S00004159
A-S00004158
A-S00004158
BLANK
ASP Services Payment Terms: ZOLL will invoice Customer for the sum of any One-Time Fees and the Professional Services Fees listed above for the deployment of each of the ASP Services listed above upon completion of the Professional Services for which such Professional Services Fees are payable. ZOLL separately will invoice Customer for Expenses incurred by ZOLL in providing such Professional Services.

Additionally, ZOLL will invoice Customer upon the earlier of the Deployment Date or 60 days after on the Effective Date (the ''Monthly Fees Commencement Date'') and at the beginning of each calendar month during the Term for the amount of the Monthly Fees listed above for such ASP Services (i) prorated to account for any partial month, (ii) increased or decreased as set forth in the Adjustments to Fees section below and (iii) if such Monthly Fees are based on the quantity of Concurrent Users, increased by an amount equal to $10 per month for any Registered User in excess of 200% of the Concurrent Users Cap.

Monthly Fees are payable in advance for each month of ASP Services (''Monthly Service Period''), except for the first Monthly Service Period. Accordingly, the first invoice for Monthly Fees shall be for the amount of the Monthly Fee for the first Monthly Service Period and the Monthly Fee for the second Monthly Service Period. Each subsequent invoice shall be for the amount of the Monthly Fee.

Term. Unless earlier terminated as set forth in the Agreement, (i) the initial term of this Order shall begin on the Effective Date and continue for 36 months after the Monthly Fees Commencement Date (the ''Initial Term'') and (ii) after the Initial Term, this Order automatically shall continue on a month-to-month basis until so terminated.

Early Termination Fee. Notwithstanding the Agreement, if this Order is terminated prior to the expiration of the Initial Term by ZOLL for a material default or by Customer without cause, then Customer immediately shall pay ZOLL an early termination fee equal the amount of (i) the Annual Fees for the Initial Term minus (ii) the sum of Monthly Fees paid by Customer to ZOLL prior to the date of termination for the ASP Services or Software set forth in this Order. * Adjustments to Fees: Fees are subject to adjustment based on quantity as set forth in the attached Adjustment-to-Fees Addendum, including as a result of Registered Users being in excess of the Concurrent Users Cap for Fees based on Concurrent Users:

TOTAL FEES FOR INITIAL TERM: $143,481.60
DocuSign Envelope ID: 77F7B2B5-A88B-462F-9484-D46D45B9A5CD #1..
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Order Order No.: Q-29282

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THIS ORDER IS SUBJECT TO THE TERMS AND CONDITIONS, AND APPLICABLE ADDENDA, AVAILABLE AT https://www.zolldata.com/legal, WHICH ARE INCORPORATED BY REFERENCE. BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES HAVING READ AND AGREES TO AND INTENDS TO BE BOUND BY THEM. HARD COPIES ARE AVAILABLE UPON REQUEST.

Each person signing below represents and warrants that she or he has the authority to bind the party for which he or she is signing to the terms of this Order. By signing below, the parties agree to the terms and conditions of this Order. Once signed, any reproduction of this Order made by reliable means (for example, photocopy or facsimile) is considered an original.

ZOLL Data Systems, Inc.

Authorized Signature: \ZCPQOPP_1_text\
\s2\
Name: \n2\
Title: \t2\
Date: \d2\

Modesto Fire Department
Authorized Signature: \ZCPQAcct_1\
\s1\
Name: \n1\
Title: \t1\
Date: \d1\
DocuSign Envelope ID: 77F7B2B5-A88B-462F-9484-D46D45B9A5CD 0064p00000XOlos
City Manager
5/25/2022 | 13:49 PDT
Joseph Lopez
001A000000AV6sg
Sandy King
5/25/2022 | 13:52 PDT
Director of Operational Accounting
#1..
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Adjustments-to-Fees Addendum Order No.: Q-29282

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* Adjustments to Fees: Fees in the Order Form to which this addendum is attached (the “Order”), and of which it is a part, are subject to adjustment based on quantity as specified below (“Qty”), including as a result of Registered Users being in excess of the Concurrent Users Cap for Fees based on Concurrent Users:

Product Basis for Adjustment
ZOLL AR Boost Qty of transactions (the “Transaction Volume”). Within thirty (30) days following the end of each month, ZOLL shall (i) conduct an audit of the Transaction Volume for each of the ASP Services listed above; (ii) multiply the Transaction Volume by the per-transaction price for each of the ASP Services listed above (the “Total Monthly Price”); and (iii) calculate the sum of the Total Monthly Prices for all of the ASP Services listed above (the “Total Monthly Price for All ASP Services”). If the Total Monthly Price for All ASP Services in any month is greater than the applicable Monthly Fees listed in the Order, then ZOLL shall invoice Customer for such excess per the overage charges listed in the Order. If the Total Monthly Price for All ASP Services for any month is equal to or less than the applicable Monthly Fee listed in the Order, then ZOLL shall not be obligated to refund Customer all or any part of the Monthly Fees for such month.

In no event shall Customer pay less than the applicable Monthly Fees for any month.

RescueNet® Billing Pro Qty of trips (the “Trip Volume”) listed in the line item in the Order. ZOLL may conduct an audit of Trip Volume following the 12th month after the Monthly Fees Commencement Date for Billing Pro and each anniversary of such date (a “Trip Audit”). Should actual Trip Volume, less any exclusions listed as a line item in the Order (“Exclusions”), which shall be increased or decreased prorata with actual Trip Volume (the “Actual Trip Volume”), for the preceding 12-month period (the “Trip Audit Period”) exceed 110% of the quantity of trips, less any Exclusions listed in the Order without a prorata increase or decrease, that was the basis for Monthly Fees in the Trip Audit Period multiplied by 12 (the “Estimated Trip Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-trip price listed in the Order (the “Per-Trip Price”). Should the Actual Trip Volume be less than the Estimated Trip Volume by more than 10% during the Trip Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated Trip Volume multiplied by the Per-Trip Price. Future billings of the Monthly Fee will be adjusted based on the Actual Trip Volume as determined by the Trip Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

ZOLL emsCharts
ZOLL emsCharts –
Critical Care
Qty of PCRs (the "PCR Volume") listed in the line item in the Order. ZOLL may conduct an audit of PCR Volume following the 12th month after the Monthly Fees Commencement Date for ZOLL emsCharts and each anniversary of such date (a “PCR Audit”). Should actual PCR Volume (the “Actual PCR Volume”) for the preceding 12-month period (the “PCR Audit Period”) exceed 110% of the quantity of PCRs that was the basis for Monthly Fees in the PCR Audit Period multiplied by 12 (the “Estimated PCR Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-PCR price listed in the Order (the “Per-PCR Price”). Should the Actual PCR Volume be less than the Estimated PCR Volume by more than 10% during the PCR Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated PCR Volume multiplied by the Per-PCR Price. Future billings of the Monthly Fee will be adjusted based on the Actual PCR Volume as determined by the PCR Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

ZOLL Fire Reports Qty of Fire Reports (the "Fire Report Volume") listed in the line item in the Order. ZOLL may conduct an audit of Fire Report Volume following the 12th month after the Monthly Fees Commencement Date for ZOLL Fire Reports and each anniversary of such date (a “Fire Report Audit”). Fire Report Volume (the “Actual Fire Report Volume”) for the preceding 12-month period (the “Fire Report Audit Period”) exceed 110% of the quantity of Fire Reports that was the basis for Monthly Fees in the Fire Report Audit Period multiplied by 12 (the “Estimated Fire Report Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-Fire Report price listed in the Order (the “Per-Fire Report Price”). Should the Actual Fire Report Volume be less than the Estimated Fire Report Volume by more than 10% during the Fire Report Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated Fire Report Volume multiplied by the Per-Fire Report Price. Future billings of the Monthly Fee will be adjusted based on the Actual Fire Report Volume as determined by the Fire Report Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

EMS Mobile Health Qty of the tier based on number of visits. Following six months from the Monthly Fees Commencement Date and every six months thereafter, ZOLL will conduct an audit of the number of monthly visits (the “Visit Volume”). Should the monthly Visit Volume for any six month period exceed 110% of the maximum monthly visits for the current tier, then commencing the first month after the completion of the audit, ZOLL will invoice Customer based on the new Visit Volume as determined by the audit and based on the following tiers:
(i) $750.00 for 1-150 visits per month; (ii) $1,250.00 for 151-300 visits per month; (iii) $2,000.00 for 301-600 visits per month; and (iv) as quoted by ZOLL more than 600 visits per month.

Packaged Services Qty of trips (the ''Trip Volume'') listed in the line item in the Order. ZOLL may conduct an audit of Trip Volume following the 12th month after the Monthly Fees Commencement Date for Packaged Services and each anniversary of such date (a “Trip Audit”). Should actual Trip Volume (“Actual Trip Volume”) for the preceding 12-month period (the “Trip Audit Period”) exceed 110% of the quantity of trips that was the basis for Monthly Fees in the Trip Audit Period multiplied by 12 (the “Estimated Trip Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-trip price listed in the Packaged Services– Overage line item in the Order. Should the Actual Trip Volume be less than the Estimated Trip Volume by more than 10% during the Trip Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated Trip Volume multiplied by the per-trip price listed in the Packaged Services – Overage line item in the Order. Future billings of the Monthly Fee will be adjusted based on the Actual Trip Volume as determined by the Trip Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

Packaged Services
Premium
Qty of trips (the ''Trip Volume'') listed in the line item in the Order. ZOLL may conduct an audit of Trip Volume following the 12th month after the Monthly Fees Commencement Date for Packaged Services Premium and each anniversary of such date (a “Trip Audit”).

Should actual Trip Volume (“Actual Trip Volume”) for the preceding 12-month period (the “Trip Audit Period”) exceed 110% of the quantity of trips that was the basis for Monthly Fees in the Trip Audit Period multiplied by 12 (the “Estimated Trip Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-trip price listed in the Packaged Services Premium – Overage line item in the Order. Should the Actual Trip Volume be less than the Estimated Trip Volume by more than 10% during the Trip Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated Trip Volume multiplied by the per-trip price listed in the Packaged Services Premium – Overage line item in the Order. Future billings of the Monthly Fee will be adjusted based on the Actual Trip Volume as determined by the Trip Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

RescueNet® Billing Qty of Concurrent Users.

RescueNet Dispatch Qty of Concurrent Users.

RescueNet Eligibility Qty of trips.

RescueNet FireRMS Qty of stations.

RescueNet Navigator Qty of Customer vehicles.

RescueNet @Work Qty of Customer vehicles estimated in Order, or Qty of trips if specified in the line item in the Order.

RescueNet® ePCR Qty of PCRs (the "PCR Volume") listed in the line item in the Order. ZOLL may conduct an audit of PCR Volume following the 12th month after the Monthly Fees Commencement Date for RescueNet ePCR and each anniversary of such date (a “PCR Audit”). Should actual PCR Volume (the “Actual PCR Volume”) for the preceding 12-month period (the “PCR Audit Period”) exceed 110% of the quantity of PCRs that was the basis for Monthly Fees in the PCR Audit Period multiplied by 12 (the “Estimated PCR Volume”), then DocuSign Envelope ID: 77F7B2B5-A88B-462F-9484-D46D45B9A5CD #1..
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Adjustments-to-Fees Addendum Order No.: Q-29282

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Product Basis for Adjustment
ZOLL will invoice Customer for such excess multiplied by the per-PCR price listed in the Order (the “Per-PCR Price”). Should the Actual PCR Volume be less than the Estimated PCR Volume by more than 10% during the PCR Audit Period, then ZOLL will issue a credit in the amount of 10% of the Estimated PCR Volume multiplied by the Per-PCR Price. Future billings of the Monthly Fee will be adjusted based on the Actual PCR Volume as determined by the PCR Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

Mobile Care Connect Qty of trips (the “Trip Volume”) listed in the line item above. ZOLL may conduct an audit of Trip Volume following the 12th month after the Monthly Fees Commencement Date and each anniversary of such date (a “Trip Audit”). Should actual Trip Volume (the “Actual Trip Volume”) for the preceding 12-month period (the “Trip Audit Period”) exceed 110% of the quantity of trips that was the basis for Monthly Fees in the Trip Audit Period multiplied by 12 (the “Estimated Trip Volume”), then ZOLL will invoice Customer for such excess multiplied by the per-trip price listed above, subject to increase in accordance with the Agreement (the “Per-Trip Price”); provided, that should Actual Trip Volume during any calendar month during the Trip Audit Period be (i) less than 300 trips, then the Monthly Fee attributable to such month will be the Per-Trip Price multiplied by 300 or (ii) more than 1,800 trips, then Monthly Fee attributable to such month will be the Per-Trip Price multiplied by 1,800 (the “Adjusted Trip Volume”). Future billings of the Monthly Fee will be adjusted based on the Adjusted Trip Volume.

ZOLL Billing Qty of claims (the ''Claim Volume'') listed in the line item in the Order. ZOLL may conduct an audit of Claim Volume following the 12th month after the Monthly Fees Commencement Date for ZOLL Billing and each anniversary of such date (a ''Claim Audit''). Should actual Claim Volume (the ''Actual Claim Volume'') for the preceding 12-month period (the ''Claim Audit Period'') exceed 110% of the quantity of claims that was the basis for Monthly Fees in the Claim Audit Period multiplied by 12 (the ''Estimated Claim Volume''), then ZOLL will invoice Customer for such excess multiplied by the applicable per-claim price, determined as if such excess were the final claims in Actual Claim Volume, less any discounts specified in the Order. Future billings of the Monthly Fee will be adjusted based on the Actual Claim Volume as determined by the Claim Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

ZOLL Respond Qty of trips (the ''Trip Volume'') listed in the line item in the Order. ZOLL may conduct an audit of Trip Volume following the 12th month after the Monthly Fees Commencement Date for ZOLL Respond and each anniversary of such date (a ''Trip Audit''). Should actual Trip Volume (the ''Actual Trip Volume'') for the preceding 12-month period (the ''Trip Audit Period'') exceed 110% of the quantity of trips that was the basis for Monthly Fees in the Trip Audit Period multiplied by 12 (the ''Estimated Trip Volume''), then ZOLL will invoice Customer for such excess multiplied by the applicable per-trip price, determined as if such excess were the final trips in Actual Trip Volume, less any discounts specified in the Order. Future billings of the Monthly Fee will be adjusted based on the Actual Trip Volume as determined by the Trip Audit; provided, that the Monthly Fee shall not decrease by more than 10%. Actual Trip Volume includes only trips that have entered transporting status.

ZOLL Care Exchange Qty of transports (the "Transport Volume'') listed in the line above. ZOLL may conduct an audit of Transport Volume following the 12th month after the Monthly Fees Commencement Date for ZOLL Care Exchange and each anniversary of such date (a ''Transport Audit''). Should actual Transport Volume (the ''Actual Transport Volume'') for the preceding 12-month period (the ''Transport Audit Period'') exceed 110% of the quantity of transports that was the basis for Monthly Fees in the Transport Audit Period (the ''Estimated Transport Volume''), then ZOLL will invoice Customer for such excess in accordance with the tiers set forth below (the “Tiers”) based on the Actual Transport Volume, determined as if such excess were the final claims in Actual Transport Volume, less any discounts specified in the Order. Future billings of the Monthly Fee will be adjusted based on the Actual Transport Volume as determined by the Transport Audit; provided, that the Monthly Fee shall not decrease by more than 10%.

Tiers for ZOLL Care Exchange. The following Tiers apply to ZOLL Care Exchange based on the Qty of transports per year:

Qty Annual Fee Qty Annual Fee Qty Annual Fee Qty Annual Fee Qty Annual Fee Up to 9,999 $17,500.00 20,000-29,999 $31,500.00 40,000-49,999 $45,500.00 60,000-69,999 $59,500.00 80,000-89,999 $73,500.00 10,000-19,999 $24,500.00 30,000-39,999 $38,500.00 50,000-59,999 $52,500.00 70,000-79,999 $66,500.00 90,000-99,999 $80,500.00 DocuSign Envelope ID: 77F7B2B5-A88B-462F-9484-D46D45B9A5CD #1..
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Order Order No.: Q-30206

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Type Description Qty Price Extended Price
Annual
Maintenance
RNFD --- RescueNet FireRMS Implementation Day (Excludes T&E)

0 $1,500.00 $0.00 $0.00
ASP Services
Item
Lic.

Type Description Qty Price
Annual Fees or
One Time Charge Monthly Fees
HFRMPL HL Hosted RescueNet FireRMS-Mobile Plus (Per Device) 4 $54.08 $2,595.84 $216.32 HFPL HL Hosted RescueNet FireRMS Plus (Per Station) 4 $216.32 $10,383.36 $865.28 ICC1510H TPL Hosted ICC 2015 - Intl. Fire Code Lic. 10 Concurrent Users (Per Month)
1 $37.86 $454.32 $37.86
ICC19CAH TPL Hosted ICC 2019 CA - Intl. Fire Code Lic. Per Concurrent User (Per Month)
4 $15.00 $720.00 $60.00
ICC19CAM
H
TPL Hosted ICC 2019 CA - Intl. Fire Code Lic. Mobile Per Device (Per Month)
4 $5.00 $240.00 $20.00
*MONTHLY FEES: $1,199.46
*ANNUAL FEES: $14,393.52
ANNUAL FEES FOR INITIAL TERM: $43,180.56
Comments: Renewal to start 07/01/2022
PROFESSIONAL SERVICES FEES: $0.00
BLANK
Professional Services Expenses. Customer will reimburse ZOLL for Expenses incurred by ZOLL in providing the Professional Services. Any estimated Expenses above are based on the facts that ZOLL currently knows and represent ZOLL’s good faith assessment of the time and materials required.

ASP Services Payment Terms: ZOLL will invoice Customer on the Effective Date (the ''Monthly Fees Commencement Date'') and at the beginning of each calendar month during the Term for the amount of the Monthly Fees for each of the ASP Services listed above (i) prorated to account for any partial month, (ii) increased or decreased as set forth in the Adjustments to Fees section below and (iii) if such Monthly Fees are based on the quantity of Concurrent Users, increased by an amount equal to $10 per month for any Registered User in excess of 200% of the Concurrent Users Cap. Additionally, ZOLL will invoice Customer on the Monthly Fees Commencement Date for any One-Time Fees listed above.

TOTAL FEES FOR INITIAL TERM: $43,180.56
DocuSign Envelope ID: 89A50D53-1242-40F0-9623-2C15FECDEF3E #1..
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Order Order No.: Q-30206

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ZOLL Data Systems, Inc.

Authorized Signature: \ZCPQOPP_1_text\
\s2\
Name: \n2\
Title: \t2\
Date: \d2\

Modesto Fire Department
Authorized Signature: \ZCPQAcct_1\
\s1\
Name: \n1\
Title: \t1\
Date: \d1\
DocuSign Envelope ID: 89A50D53-1242-40F0-9623-2C15FECDEF3E Joseph Lopez
5/9/2022 | 10:46 PDT
City Manager
0064p00000XOyu4 001A000000AV6sg
Director of Operational Accounting
Sandy King
5/9/2022 | 15:37 PDT
#1..
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Adjustments-to-Fees Addendum Order No.: Q-30206

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In no event shall Customer pay less than the applicable Monthly Fees for any month.

RescueNet® Billing Qty of Concurrent Users.

RescueNet Dispatch Qty of Concurrent Users.

RescueNet Eligibility Qty of trips.

RescueNet FireRMS Qty of stations.

RescueNet Navigator Qty of Customer vehicles.

RescueNet @Work Qty of Customer vehicles estimated in Order, or Qty of trips if specified in the line item in the Order.

RescueNet® ePCR Qty of PCRs (the "PCR Volume") listed in the line item in the Order. ZOLL may conduct an audit of PCR Volume following the 12th month after the Monthly Fees Commencement Date for RescueNet ePCR and each anniversary of such date (a “PCR Audit”). Should actual PCR Volume (the “Actual PCR Volume”) for the preceding 12-month period (the “PCR Audit Period”) exceed 110% of the quantity of PCRs that was the basis for Monthly Fees in the PCR Audit Period multiplied by 12 (the “Estimated PCR Volume”), then DocuSign Envelope ID: 89A50D53-1242-40F0-9623-2C15FECDEF3E #1..
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Adjustments-to-Fees Addendum Order No.: Q-30206

Page 4 of 4 ends

Tiers for ZOLL Care Exchange. The following Tiers apply to ZOLL Care Exchange based on the Qty of transports per year:

CITY OF MODESTO

SAFETY & COMMUNITIES

COMMITTEE AGENDA REPORT
DATE OF MEETING:

December 12, 2022
Date: November 16, 2022
TO: Safety and Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Second Amendment for Portable Toilet Rental Services CONTACT: Laurie A. Smith, Director, [email protected], 209-577-5347 DESCRIPTION:

Consider approving a Second Amendment to the Purchasing Agreement with United Site Services, Inc. of Modesto, CA for Portable Toilet Rental Services for a revised total amount not to exceed $583,250 over the term of the Agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA; and forwarding to Council for approval. (Funding Source:

Golf Fund)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

On April 28, 2020, by Resolution 2020-194, Council approved the award of bid for portable toilet rental services to United Site Services, Inc. of Modesto, CA as the primary supplier for daily, weekly and monthly rentals and the secondary supplier for yearly rentals and to Sun Valley Portable Restrooms, Inc., Turlock, CA, for a two-year agreement with three (3) one-year extension
options for an estimated combined annual cost of $54,888 and a total combined cost not to exceed $274,440 over five years for both.

On August 4, 2020, the Dryden Golf Park Clubhouse was heavily damaged by a fire. The City contacted its insurance provider, Alliant, to establish a claim and to identify next steps. Alliant dispatched Belfor Property Restoration (Belfor) to secure the property. #2..
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Safety & Communities Committee, December 12, 2022
Second Amendment for Portable Toilet Rental Services

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Belfor brought a portable restroom unit onsite immediately after the fire to reopen the golf course for play. Once Belfor had completed securing the property, they transferred the restroom lease to the City to continue those services until the Clubhouse was rebuilt. The portable restroom lease was under United Site Services (United). Since the City already maintained a contract with United, staff needed to add additional funding to cover the cost of the lease.

On April 13, 2021, by Resolution 2021-135, Council approved a first amendment to the agreement with United Site Services, Inc. of Modesto, CA for a Portable Americans with Disability (ADA) Restroom Trailer to increase the agreement amount by $91,210 from $274,440 to a new total amount of $365,650 over the term of the agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA.

DISCUSSION:

The Dryden Golf Clubhouse renovation is ongoing and still in its design phase. Staff is negotiating with the City insurance provider, Alliant, on the reconstruction cost of the Clubhouse.

At this time, it is estimated that construction will not begin until Fall 2023. The portable restroom unit that was brought onsite by Belfor remains in use, since August of 2020.

The First amendment increased the Portable Toilet Rental Services agreement by $91,210 for the portable ADA unit at Dryden Golf Course. The City continues to use these services and will continue to use them until the end of 2024 in anticipation that the Clubhouse will be rebuilt by that time.

As such, staff is requesting an increase to the current agreement for Portable Toilet Rental Services by an additional one-time amount of $217,600. This amount will cover the ADA unit at Dryden Clubhouse through December 2024. The current agreement for Portable Toilet Rental Services is $365,650. The addition of $217,600 will bring the agreement to a new total of $583,250.

FISCAL IMPACT:

This second amendment of the increase of $217,600 for this agreement will be funded 100% through the property insurance provider, Alliant. The chart below shows the annual breakdown of the additional funding:

Term Annual Cost ADA Unit Revised Annual Cost
1 April 2020 – April 2021 $ 54,888 $ 54,888
2 April 2021 – April 2022 $ 54,888 $ 91,210 $146,098 1
st Amendment
3 April 2022 – April 2023 $ 54,888 $ 81,600 $136,488 2
nd Amendment
4 April 2023 – April 2024 $ 54,888 $ 81,600 $136,488 2
nd Amendment
5 April 2024 – April 2025 $ 54,888 $ 54,400 $109,288 2
nd Amendment
$274,440 $308,810 $583,250
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving a Second Amendment to the Purchasing Agreement with United Site Services, Inc. of Modesto, CA for Portable Toilet Rental Services for a revised total amount not #2..
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Safety & Communities Committee, December 12, 2022
Second Amendment for Portable Toilet Rental Services

Page 3 of 3 ends

to exceed $583,250 over the term of the Agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA; and forwarding to Council for approval.

Approved by:

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

1. Agreement

2. First Amendment

3. Second Amendment
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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: 895C7C9E-022C-478D-B647-B081D61D8190 X
Valerie Fabela
04/13/2021
United Site Services, Inc. Finance
X
X
Frank S.

First Amendment for Portable Toilet Rental Services
X
75369
X
of California, Inc.

Updated to show as United Site Services of California, Inc.

DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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1 AMENDMENT TO AGREEMENT
This Amendment (“Amendment”) is made with reference to the “Agreement” entered into between the CITY OF MODESTO, a municipal corporation of the State of California (hereinafter the “City”) and UNITED SITE SERVICES (hereinafter the “Contractor”) entered into by the parties on the 28th day of April, 2020 (hereinafter referred to as “Original Agreement”). The City and Contractor shall be collectively referred to as the “Parties.” This Amendment to the Original Agreement is made with regard to the following recitals:

WHEREAS, the Modesto City Council adopted Resolution No. 2020-194 authorizing the award of proposal and contract for the furnishing of portable toilet rental services as the primary supplier for daily, weekly, and monthly rentals; and WHEREAS, the Original Agreement, Section 1, ‘SCOPE OF WORK’ provides, in part, that Contractor agrees to the PORTABLE TOLIETS RENTAL SERVICES defined for the contracted rates, not to exceed $54,888 annually; and WHEREAS, the parties now desire to evidence the change to the terms of the Original Agreement with this Amendment by modifying Section 1, “SCOPE OF WORK”.

NOW, THEREFORE, in consideration of the mutual promises, covenants, and stipulations contained herein and the mutual promises, covenants, and stipulations contained in the Original Agreement, the parties agree as follows:

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

2. Section 1f, under “SCOPE OF WORK” shall be deleted in its entirety and the parties agree to and hereby do substitute the following in its place:

DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 of California, Inc.

DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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2 “CONTRACTOR shall furnish the PORTABLE TOILET
RENTAL SERVICES defined for the following contracted rates, not to exceed $54,888 annually with a one-time addition of $91,210 for the Dryden Clubhouse temporary Americas with Disabilities Act (ADA) Restroom Trailer.

Equipment Description Daily Rental
Rate per
Unit
Weekly
Rental Rate
per Unit
Monthly
Rental Rate
per unit
Yearly
Rental
Rate per
Unit
Standard Portable Toilet $55.79 $60.79 $79.79 $957.48
Standard Portable Toilet with Urinal $55.79 $60.79 $79.79 $957.48 ADA Accessible Portable Toilet $65.79 $126.97 $176.97 $2,123.64 ADA Hand Wash Station $85.79 $153.94 $203.94 $2,447.28
Standard Portable Hand Wash Station $55.79 $60.79 $79.89 $958.68 Delivery & Set Up $53.94 $53.94 $53.94 $53.94
Environmental Fees $0 $0 $0 $0
Additional Services
Advanced Notice (24 hour placement) $53.94 $53.94 $53.94 $53.84 Short Notice (2-hour advance notice) $134.84 $134.84 $134.84 $134.84 Additional Pump Outs (in addition to standard
one (1) day per week)
$20.00 $20.00 $85.00 $1020.00
Standard Restroom w/Sink Inside $95.79 $122.37 $152.37 $1,828.35 Standard Portable Toilet Unit secured to trailer $95.79 $122.37 $152.37 $1,828.35 Weekends/Holiday Rates $215.75 $215.75 $215.75 $215.75
Emergency Service Pump Out $50.00 $50.00 $50.00 $50.00
Replacement Value of Standard Portable Toilet $700.00 $700.00 $700.00 $700.00 Replacement Value of Standard Portable Toilet
w/Urinal
$700.00 $700.00 $700.00 $700.00
Replacement Value of ADA Accessible Portable
Toilet
$995.00 $995.00 $995.00 995.00
12 ft ADA Restroom Trailer - - $6,200 -
Multiple Unit Order Discount $0% 0% 0% 0%
The parties to this contract further understand that except as modified herein, the provisions of the Original Agreement, and all exhibits attached thereto, are expressly reaffirmed and remain in full force and effect.
//////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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3 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation. has authorized the execution of this Amendment to Agreement for furnishing of portable toilet rental services, in duplicate, by its City Manager and attestation by its City Clerk, under authority of Resolution No. ______on the _____ day of _____________, 2021, and Contractor has caused this Amendment be executed in duplicate.

DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 2021-135 13 April
DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
STEPHANIE LOPEZ, 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: ____________________________
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: 895C7C9E-022C-478D-B647-B081D61D8190 Jeff Dunlop, Vice President
United Site Services of California, Inc.
200968969
4/27/2021
DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F Sean McDowell Director of Contracts
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

April 13, 2021
Date: March 30, 2021
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
Laurie Smith, Director of Parks, Recreation and Neighborhood SUBJECT: First Amendment for Portable Toilet Rental Services CONTACT: Cynthia Kline, Purchasing Manager, [email protected], (209) 577-5412 DESCRIPTION:

Consider approving a First Amendment to the Agreement with United Site Services, Inc. of Modesto, CA for a portable Americans with Disability Act (ADA) restroom trailer to increase the amount by $91,210 from $274,440 to a new total amount of $365,360 over the term of the agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA. (Funding Source: Insurance Recovery)
STRATEGIC PLAN ELEMENT:

This action supports the 2020-2025 City of Modesto Strategic Plan: Goal H. Achieve Financial Sustainability.

BACKGROUND:

The City of Modesto requires the use of portable toilet rental services on a regular basis across multiple City departments. The uses range from temporary services for construction projects, special events such as Concerts in the Park and Earth Day, to regular monthly service at the Mary Grogan Soccer Complex. The needs for these services include, but are not limited to compliance with health and safety codes for personnel, providing ADA accessible units on sites where ADA accessibility does not exist, and increasing the count of available units to meet the demand of high use facilities and locations.

On April 28, 2020, by Resolution 2020-194, Council approved the award of bid for portable toilet rental services to United Site Services, Inc. of Modesto, CA as the primary supplier for daily, weekly and monthly rentals and the secondary supplier for yearly rentals and to Sun Valley Portable Restrooms, Inc., Turlock, CA, for a two-year agreement with three one-year extension options for an estimated combined annual cost of $54,888 and a total combined cost not to exceed $274,440 over five years for both.

DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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City Council, April 13, 2021
First Amendment for Portable Toilet Rental Services

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DISCUSSION:

On August 4, 2020, the Dryden Golf Park Clubhouse was heavily damaged by a fire. The Modesto Fire Department responded to the fire, located at 920 Sunset Avenue, and was able to extinguish the blaze before the building was a complete loss.

The City contacted Alliant, the property insurance company that insured the structure on behalf of the City, to establish a claim and to identify the next steps. The insurance company dispatched Belfor Property Restoration of Modesto, CA (Belfor) to secure the property.

The property requires extensive reconstruction estimated at $1.2 million. A Capital Improvement Project was recently approved by City Council under Resolution #2020-401 on September 22, 2020 to reconstruct the building. The project is still in its early phases and requires the building design to be bid as well as the construction contract. The design RFP is almost complete, we’re negotiating with the architect now. At this time, it is estimated that construction will not begin until September 2021.

The portable restroom unit was brought onsite by Belfor immediately after the fire, in order to reopen the golf course for play. It has been in use since August of 2020, and contains a men’s, women’s and disabled restroom unit. In addition, United is the City’s primary contractor and service could continue uninterrupted.

FISCAL IMPACT:

This first amendment of the increase of $91,210 for this agreement will be funded 100% through the property insurance company, Alliant.

COMMITTEE RECOMMENDATION:

This item was considered by the Finance Committee on March 29, 2021 and recommended forwarding to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendation:

Resolution approving a First Amendment to the Agreement with United Site Services, Inc. of Modesto, CA for a portable Americans with Disability Act (ADA) restroom trailer to increase the amount by $91,210 from $274,440 to a new total amount of $365,360 over the term of the agreement for United Site Services and Sun Valley Portable Restrooms, Inc., Turlock, CA. and authorizing the City Manager, or his designee, to execute the amendment.

Approved by:

DeAnna Christensen, Director of Finance
DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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City Council, April 13, 2021
First Amendment for Portable Toilet Rental Services

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Laurie Smith, Director of Parks, Recreation and
Neighborhood
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Amendment

3. Original Agreement
DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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DocuSign Envelope ID: 895C7C9E-022C-478D-B647-B081D61D8190 DocuSign Envelope ID: 70DB75EF-DD7C-450E-B9D3-98C0C0CC035F #2..
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1 SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT to the AGREEMENT (“SECOND AMENDMENT”), made and entered into in the City of Modesto, County of Stanislaus, State of California, this ______ day of _____________, 2023, by and between the CITY OF MODESTO, a municipal corporation of the State of California (“CITY”) and UNITED SITE SERVICES OF CALIFORNIA, INC., Modesto, CA, hereinafter collectively referred to as “CONTRACTOR”.

This SECOND AMENDMENT to AGREEMENT is made with reference to the following recitals:

A. An Agreement (“AGREEMENT”) was entered into by and between CITY and CONTRACTOR on the 28th day of April 2020 for the furnishing of portable toilet rental services as the primary supplier for daily, weekly, and monthly rentals.

B. A First Amendment to Agreement was entered into by and between CITY and CONTRACTOR on the 13th day of April 2021 which increased compensation paid for the additional scope of services identified in the amendment.

C. The CITY wishes to increase the compensation paid for the agreement by $217,600 from $365,650 to a new total of $583,250 for the Dryden Clubhouse temporary Americans with Disabilities Act (ADA) Restroom Trailer.

D. CITY and CONTRACTOR desire to amend the provisions of AGREEMENT to increase compensation paid for services identified in the AGREEMENT.

E. All other provisions of the AGREEMENT shall remain in effect.

NOW, THEREFORE, the parties hereto mutually agree to the following:

1. Paragraph (f), Section 1 “SCOPE OF WORK” shall be deleted in its entirety and amended to read as follows:
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2 “1. SCOPE OF WORK
f. CONTRACTOR shall furnish the PORTABLE TOILET RENTAL SERVICES defined for the following contracted rates, not to exceed $54,888 annually with a onetime addition of $217,600 for the Dryden Clubhouse temporary ADA Restroom Trailer.

Equipment Description Daily
Rental Rate
per Unit
Weekly
Rental Rate
per Unit
Monthly
Rental Rate
per Unit
Yearly
Rental Rate
per Unit
Standard Portable Toilet $55.79 $60.79 $79.79 $957.48
Standard Portable Toilet with Urinal $55.79 $60.79 $79.79 $957.48 ADA Accessible Portable Toilet $65.79 $126.97 $176.97 $2,123.64 ADA Hand Wash Station $85.79 $153.94 $203.94 $2,447.28
Standard Portable Hand Wash Station $55.79 $60.79 $79.89 $958.68 Delivery & Set Up $53.94 $53.94 $53.94 $53.94
Environmental Fees - - - -
Additional Services
Advanced Notice (24-hour placement) $53.94 $53.94 $53.94 $53.84 Short Notice (2-hour advance notice) $134.84 $134.84 $134.84 $134.84 Additional Pump Outs (in addition to standard
one (1) day per week)
$20.00 $20.00 $85.00 $1,020.00
Standard Restroom w/Sink Inside $95.79 $122.37 $152.37 $1,828.35 Standard Portable Toilet Unit secured to trailer $95.79 $122.37 $152.37 $1,828.35 Weekends/Holiday Rates $215.75 $215.75 $215.75 $215.75
Emergency Service Pump Out $50.00 $50.00 $50.00 $50.00
Replacement Value of Standard Portable Toilet $700.00 $700.00 $700.00 $700.00 Replacement Value of Standard Portable Toilet
w/Urinal
$700.00 $700.00 $700.00 $700.00
Replacement Value of ADA Accessible Portable
Toilet
$995.00 $995.00 $995.00 $995.00
12 ft ADA Restroom Trailer - - $6,200 -
Multiple Unit Order Discount - - - -

2. Except as modified and amended by this SECOND AMENDMENT to AGREEMENT, all other provisions of the AGREEMENT shall remain unchanged and in full force and effect.”
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3 IN WITNESS WHEREOF, the CITY, a Municipal Corporation, has authorized the execution of this SECOND AMENDMENT to AGREEMENT in duplicate by its City Manager and attestation by its City Clerk (under authority of Resolution No. , adopted by the Council of the City of Modesto) on the _____ day of ___________, 2023, and CONTRACTOR, has caused this Second Amendment to Agreement to be duly executed. #2..
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CITY OF MODESTO

SAFETY & COMMUNITIES

COMMITTEE AGENDA REPORT
DATE OF MEETING:

December 12, 2022
Date: November 9, 2022
TO: Safety and Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods SUBJECT: American Legion Hall Fire Remediation Additional Emergency Work CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider authorizing additional payment not to exceed $151,225 to Belfor Property Restoration, Modesto, CA for Emergency Work related to the American Legion Hall Fire Remediation and forwarding to Council for approval. (Funding Source: TRRP JPA Insurance Proceeds)
STRATEGIC PLAN ELEMENT:

This item is consistent with the following 2020-2025 Strategic Plan Area of Focus: Quality of Life and Governance and Service Delivery.

BACKGROUND:

On July 21, 2022, the American Legion Hall was heavily damaged by a fire and the damage is significant. The City contacted Alliant, the property insurance company that insured the structure on behalf of the City, to establish a claim and to identify the next steps. The insurance company dispatched Belfor Property Restoration of Modesto, CA (Belfor) to complete emergency work at the site.

Starting on July 22, 2022, Belfor provided emergency services and mitigation to secure the property against additional damages, performed environmental testing, removed debris resulting from the fire, removed the deck and fenced the structure off to protect the public from unnecessary hazards. In addition, the City sent Allied Security to secure the property and ensure the safety of the public until Belfor was able to place fencing around the site and remove the deck. Finally, there were two large trees adjacent to the American Legion Hall that were significantly damaged and needed heavy trimming or removal.
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Safety and Communities Committee, December 12, 2022
American Legion Hall Fire Remediation Additional Emergency Work

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On September 27, 2022, by Resolution No. 2022-398, Council authorized payments not to exceed $160,000 to Belfor Property Restoration, Modesto, CA and other vendors for the abovementioned emergency related work. The above-mentioned work is complete and the total cost of that work is $147,631. At the time, the full cost of the damage to American Legion Hall had not been determined, nor had it been determined if the building could be rebuilt at this location.

DISCUSSION:

Over recent months, the insurance company has dispositioned the building as a total loss, and since it is in the floodway of the Tuolumne River, it cannot feasibly be reconstructed at this location. Therefore, the building will need to be demolished. Belfor’s cost for demolition of the building is estimated at $131,500. This cost has been reviewed and approved by the City’s insurance company as an eligible insurance-related expense.

Due to the fire damage, the building has been subject to weekly break-ins over the past few months and it is unsafe to be occupied in its current condition. Therefore, staff requests emergency approval to demolish and remove the building to protect the public from unnecessary hazards.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid.

However, exceptions to the formal bidding process are granted in MMC 8-3.204(c) “Where the Purchasing Manager, in his or her discretion, determines that calling for bids on a competitive basis as set forth in Section 8-3.203 is undesirable due to exigent circumstances.” This project meets these requirements, as the contractor has been selected directly by the insurance company and it makes the best business sense to utilize their services, given the active insurance claim and the need for this work to be completed as soon as possible to minimize the risk to the public.

FISCAL IMPACT:

The City of Modesto’s property insurance policy establishes a maximum deductible (outof-pocket cost to the City) of $100,000. Additionally, the City’s insurance adjuster has confirmed that all of the above costs are covered expenses. The insurance company will provide payment to the City to cover the emergency expenses that exceed the $100,000 deductible. Negotiations are ongoing with the insurance company to determine the Actual Cash Value of the American Legion Hall. Based on the partial proof of loss from the insurance company, the initial partial payment is anticipated to be $1,692,931.

The maximum deductible of ($100,000) is being funded by a tranfer of funds from Fund 6700, the Joint Powers Authority (JPA) – Tuolumne River Regional Park (TRRP) operating budget to a Capital Improvement Project (CIP) 101425, in Fund 6710, that has been created to house this project’s funding and expenses. The project currently has $150,000 in revenue and a budget adjustment of $1,642,931 will be considered by the Finance Committee as part of the Budget division’s monthly budget adjustment on December 14, 2022.

In order to ensure sufficient coverage of all necessary emergency expenses, staff also requests an additional contingency of $19,725 (15%). The total estimated cost of the additional emergency work, including the additional 15%, is estimated at $151,225. #3..
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Safety and Communities Committee, December 12, 2022
American Legion Hall Fire Remediation Additional Emergency Work

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Therefore, the total estimated cost of the emergency work at American Legion Hall is expected not to exceed $298,856.

Anticipated Revenues for the Emergency Work in Project 101425:

TRRP JPA Funding $ 100,000
Insurance Proceeds (estimated) $1,692,931
Total Anticipated Revenue $1,792,931
Estimated Expenses for the Emergency Work in Project 101425:

Belfor Property Restoration (initial work, actual) $ 131,890 Allied Security (security, actual) $ 3,791
West Coast Arborists (tree work, actual) $ 11,950
Belfor Property Restoration (demolition estimate) $ 131,500 15% additional expense allowance (as needed) $ 19,725
Total Estimated Expenses $ 298,856
The costs to the City/TRRP JPA will not exceed $100,000. No General Fund money is being requested for this emergency work.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion authorizing additional payment not to exceed $151,225 to Belfor Property Restoration, Modesto, CA for Emergency Work related to the American Legion Hall Fire Remediation and forwarding to Council for approval.

Approved by:

Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
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CITY OF MODESTO

SAFETY & COMMUNITIES

COMMITTEE AGENDA REPORT
DATE OF MEETING:

December 12, 2022
Date: November 15, 2022
TO: Safety and Communities Committee
Chris Ricci, Chair
Sue Zwahlen, Vice-Chair
Rosa Escutia-Braaton, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Tuolumne River Regional Park Riverwalk Trail - Gateway to Neece Design Award CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Neece Project for an amount of $263,257, plus $26,326 for additional services, if needed, for an Agreement total not to exceed $289,583 and forwarding to Council for approval. (Funding Source: Parks Capital Facility Fee Fund, Recreational Trails and Greenways Grant Program – Proposition 68)
STRATEGIC PLAN ELEMENT:

This item is consistent with the following 2020-2025 Strategic Plan Areas of Focus: Quality of Life and Governance and Service Delivery.

BACKGROUND:

The Tuolumne River Regional Park consists of 500-acres of riparian land within the City of Modesto and Stanislaus County. The park runs approximately 7-miles along the river’s edge stretching from the Mitchell Road bridge on the eastern boundary to just west of the Carpenter Road bridge on the western boundary.

In 1999, the Tuolumne River Regional Park Commission updated the original land use plan, which included preparation of a TRRP Master Plan and Master Environmental Impact Report.

The Master Plan and Master Environmental Impact Report (MEIR) were developed over a twoyear period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001. #4..
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Safety and Communities Committee, December 12, 2022
Tuolumne River Regional Park Riverwalk Gateway to Neece Award

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Construction of the Gateway Parcel development (the area on the north side of the river from the confluence of the Tuolumne River and Dry Creek to Highway 99) commenced in 2006.

Riparian habitat restoration activities have included construction of backwater channels, riparian terraces, wildlife areas, amphimeadow and river structure dam removal. Recreational construction activities have included an outdoor classroom, river observation deck, multiple Class 1 trails and a pedestrian bridge installation.

Within the Tuolumne River Regional Park the City is actively planning for the Neece Drive NonMotorized Boat Launch Facility (TRRP Golf Course Area), Bellenita Soccer Field Complex (TRRP Carpenter Road Area), Gateway River Overlook (TRRP Gateway Area), Legion Park River Pavilion (TRRP Legion Park Area) and Legion Park Learning Theater (TRRP Legion Park Area) projects. These projects will likely begin construction in 2023 and intermittently continue until 2025.

The TRRP Riverwalk Trail – Gateway to Neece Drive Project will provide a new paved trail connection between the existing trail just below Highway 99 at the Gateway Parcel to the corner of Neece Drive and Rouse Avenue. The project will extend the active recreational use of the river frontage to the future Neece Drive Boat Launch and is compatible for commuting uses between City employment centers and neighborhood destinations.

DISCUSSION:

In accordance with Administrative Directive 3.1, “Selection Procedures for Professional Consultants Who Provide Architectural & Engineering for Capital Projects”, staff initiated a Request for Qualifications and Proposals (RFQ/P) to perform Professional Design Consulting Services.

On October 6, 2021, the City’s Parks Planning and Development Division issued a Request for Proposals (RFP) # PRN-21-101164 for professional design consulting services for the Tuolumne River Regional Park (TRRP) Three Trails Connection Project. On November 10, 2021, staff received two (2) consultant proposals. A consultant selection committee was formed and met to review the proposals received. The committee decided that the project be split into three different sections (Section One – TRRP Riverwalk Trail - Gateway to Neece, Section Two – TRRP Riverwalk Trail - Gateway to Legion, and Section Three – Dry Creek Regional Park to TRRP) and determined that the prospective professional design consultant, Mark Thomas & Company, Inc., is well qualified to complete Section One – TRRP Riverwalk Trail - Gateway to Neece, of the project.

Based on the results of the RFP, staff recommends the Council approve an agreement with Mark Thomas & Company, Inc, in the amount of $263,257 to complete the TRRP Riverwalk Trail - Gateway to Neece Project.

In addition, staff recommends Council approve a 10% additional services budget in the amount of $26,326 to allow for additional services that may be required due to unforeseen conditions, delays or expenses for an agreement total not to exceed $298,583. This additional services budget does not commit the city to spend the additional funding, but allows the Department Director to approve change orders up to the additional services limit, without further council action.
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Safety and Communities Committee, December 12, 2022
Tuolumne River Regional Park Riverwalk Gateway to Neece Award

Page 3 of 3 ends

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow the formal bid procedures. Based on providing the lowest responsive and responsible bid, City staff recommends the award of bid for the construction documentation of the Tuolumne River Regional Park Riverwalk Trail - Gateway to Neece Design Award to Mark Thomas Company, Inc., Fresno, CA, which conforms to the Modesto Municipal Code, 8-3.203.

FISCAL IMPACT:

On June 9, 2020, per Council Resolution 2020-253, City Council accepted the grant award for the Recreational Trails and Greenways Grant Program in the amount of $2,968,885. The remaining amount of $150,000, will be funded by Parks Capital Facility Fee Fund. Funding is housed in Project 101164 – TRRP Riverwalk Gateway to Neece Drive.

Revenue:

Parks Capital Facility Fee Fund $ 150,000
Recreational Trails and Greenways Grant Program – Proposition 68 $2,968,885 Total Revenue $3,118,885
Anticipated Expenses:

Engineering/Design/Administration $ 400,000
Construction $2,265,741
Contingency $ 226,572
Construction Administration $ 226,572
Total Anticipated Expenses $3,118,885
CEQA/NEPA REQUIREMENTS:

No environmental review is needed for this action as it is an administrative action.

Environmental review of the project will be completed as a part of the design process for this project.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Neece Project for an amount of $263,257, plus $26,326 for additional services, if needed, for an Agreement total not to exceed $289,583 and forwarding to Council for approval.

Approved by:

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

1. Agreement – Mark Thomas & Company, Inc.
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MARK THOMAS AND COMPANY, INC AGREEMENT WITH THE CITY OF

MODESTO FOR THE TUOLUMNE RIVER REGIONAL PARK

RIVERWALK TRAIL - GATEWAY TO NEECE PROJECT
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and MARK THOMAS & COMPANY, INC, a California corporation, hereinafter referred to as "Consultant".

This Agreement is made with regard to the following recitals:

A. The City has determined that construction documentation should be prepared; Profession Design Consulting Services are needed for the Tuolumne River Regional Park Riverwalk Trail - Gateway to Neece Project.

B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).

NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:

1. SCOPE OF SERVICES.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.

2. TERM OF AGREEMENT.
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This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the Professional Design Consulting Services of the Project until the completion of items shown in Exhibit “A”.

3. COMPENSATION.

Consultant agrees to accept a sum not to exceed TWO HUNDRED SIXTY THREE THOUSAND TWO HUNDRED FIFTY SEVEN AND 00/100 DOLLARS ($263,257 maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.

The Compensation shall be paid pursuant in the manner and at the times set forth below:

City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, #4..
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and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.

No retainage will be withheld by City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE Consultants and subconsultants.

Reimbursable Expenses including all printing and reproduction, travel, vehicle mileage, delivery and horticultural soils samples expenses will be billed at cost. The total cost for all reimbursable expenses for the Project shall not exceed $4,208, and is included in the not exceed figure of $263,257. It is the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget. Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due.

Additional services may be authorized by the Department Director in an amount up to, but not to exceed 10% of the agreed maximum compensation, or TWENTY-SIX THOUSAND THREE HUNDRED TWENTY-SIX AND 00/100 DOLLARS ($26,326). In the event that additional services are deemed necessary, the Consultant shall provide a written #4..
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request to the Department Director, or designee, indicating the reason for additional work, scope and cost of such work. The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed TWO HUNDRED EIGHTY NINE THOUSAND FIVE HUNDRED EIGHTY THREE AND 00/100 DOLLARS ($289,583). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.

4. OBLIGATIONS OF CONSULTANT.

Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.

Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.

5. PERFORMANCE BY KEY EMPLOYEE.

Consultant has represented to City that Ed Noriega, Project Manager, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by #4..
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Consultant. Consultant therefore agrees that twenty percent (20%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.

6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.

Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City.

Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.

All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.

7. NEWS AND INFORMATION RELEASE.

Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this #4..
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Agreement, without first obtaining review and approval of said news releases from City through the City Manager.

8. INTEREST OF CONTRACTOR.

Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.

Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the consultant; to solicit or secure this contract; and that he/she has not paid or agreed to pay any company or person other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award, or formation of this contract. For breach or violation of this warranty, City shall have the right to annul this contract without liability, or at its discretion; to deduct from the contract price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

9. AMENDMENTS.

Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of #4..
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work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.

Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services.

10. INDEPENDENT CONTRACTOR.

All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.

Consultant has no authority or responsibility to exercise any rights or power vested in the City.

No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.

Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.

Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement. #4..
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Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.

If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.

It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.

It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.

As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.

11. ASSIGNMENT.

Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance. #4..
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12. PATENT/COPYRIGHT MATERIALS.

Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.

13. NOTICES.

Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
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FOR CONSULTANT: Name: Mark Thomas & Company
Address: 7571 North Remington Ave, Suite 102
Fresno, CA 93711
Attention: Ed Noriega, Project Manager
Phone: Office: (559) 374-3111
Mobile: (530)484-1222
Facsimile: (559) 447-8586
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Laurie A. Smith
Phone: (209) 577-5344
Email: [email protected]

14. INSURANCE REQUIREMENTS.

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

In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified #4..
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herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and $2,000,000 policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If at any time any of said policies shall be unsatisfactory to the City or State of California, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City or State of California, the Consultant shall promptly obtain a new #4..
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policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City or State of California, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City and State of California, 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 and State of California, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City or State of California. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City or State of California; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number. #4..
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For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.

15. TERMINATION OF AGREEMENT.

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

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

City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums #4..
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previously paid to the Consultant.

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

16. CERTIFIED PAYROLL REQUIREMENT.

For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.

17. INDEMNITY.

The Consultant shall hold the City and State of California, it agents , officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense, to the proportionate extent caused by any negligent or intentional wrongful act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or #4..
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during the performance of its obligations under this Agreement. Consultant’s cost of defense shall not exceed the Consultant’s proportionate percentage of fault.

Consultant's obligation to defend, indemnify, and hold the City and State of California, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.

18. 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.

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 Consultant 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 Consultant so long as any issues presented #4..
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by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant 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 Consultant.

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 Consultant 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 Consultant 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. #4..
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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.

Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’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.

19. ENTIRE AGREEMENT.

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

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

21. WAIVER.

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

22. AUDIT.

The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.

Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.

23. GOVERNING LAW.

This Agreement shall be governed according to the laws of the State of California.

24. HEADINGS NOT CONTROLLING.

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

25. COMPLIANCE WITH LAWS.
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Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.

26. CITY BUSINESS LICENSE.

Consultant will have a City of Modesto business license.

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. 2023- , adopted by the Council of the City of Modesto on the day of , 2023, and ____________ has caused this agreement to be duly executed in duplicate as of the Effective Date.
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95354
209.577.5344
EXHIBIT ‘A’

SCOPE OF WORK

PROJECT BACKGROUND
The Tuolumne River Regional Park (TRRP) Project was conceived during the 1960s to preserve and enhance approximately 7-miles of the river corridor that travels through the City of Modesto.

The park includes approximately 500 acres, is mostly on the north side of the river, and extends from Mitchell Road and the city airport on the east, to just beyond Carpenter Road on the west.

Approximately 180-acres of the park is developed to date.

In the late 1990’s, due to limitations on funding and changes in local demographics, a new Master Plan and Master Environmental Impact Report (MEIR) were developed over a two-year period for the Tuolumne River Regional Park and were approved and certified by the TRRP Joint Powers Authority, which consists of the City of Ceres, Modesto and the County of Stanislaus. Both City Councils and the County Board of Supervisors took a formal action to approve the Master Plan and MEIR in December 2001.

Subsequently, a Request for Proposal (RFP) to develop a Precise Plan for the approximate 90- acre Gateway Parcel was issued in 2003 and was completed in 2005. Included in the products developed for the Precise Plan was an Initial Study/Finding of Conformance to the TRRP MEIR and a Schematic Design Package.

Construction of the Gateway Parcel development (the area on the north side of the river from the confluence of the Tuolumne River and Dry Creek to the Seventh Street Bridge) commenced in 2006. Riparian habitat restoration activities have included construction of backwater channels, riparian terraces, wildlife areas, amphimeadow and river structure dam removal.

Recreational construction activities have included an outdoor classroom, river observation deck, multiple Class 1 trails and a pedestrian bridge installation.

PROJECT DESCRIPTION
TRRP RIVERWALK TRAIL - GATEWAY TO NEECE DRIVE:

The project includes design construction documentation for a paved Class 1 trail along the river frontage extending from west Gateway Parcel to the intersection of Neece Drive and Rouse Avenue. Additionally, provide documentation for an approximately 30 striped parking stall paved parking lot, solar area lighting, bench seating areas, concrete paved picnic pads, paved ADA accessible trail connection(s) to new amenities, community pedestrian sidewalk and ADA ramp #4..
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improvements. Encroachment permit from CalTrans will be required for the trail crossing under State Highway 99.
• In addition to the Trail Section Components listed above, construction plans and details shall include, at minimum, the following items:
o A 10’-12’ wide permeable concrete paved Class 1 trail. o Recreation trailhead, with small concrete paved plaza space, information kiosk, bench seating, waste receptacle and area lighting at Neece Drive and Rouse Avenue intersection.
o Small concrete paved plaza space, bench seating, waste receptacle and area lighting at Neece Drive Riverwalk Trail intersection.
o (3) Bench seating resting areas along trail section.
o Approximately (30) striped parking stall paved parking lot with solar powered area light poles. Parking lot to be placed adjacent to and in conjunction to the Neece Drive Non-Motorized Boat Launch Project work area. o (3) Concrete paved family picnic pads each with picnic table, waste receptacle and paved trail connection to the Riverwalk Trail, to be placed within the Neece Drive Non-Motorized Boat Launch Project work area.
o Community Access Improvements to the corners of Neece Drive & Rouse Avenue and Rouse Avenue & Sunset Avenue, in addition to sidewalk improvements on the west side of Sunset Avenue between Rouse Avenue and Jean St.

The work to be accomplished in this project consists of preparation of construction documentation and completion of permit application documentation as necessary to obtain permit acceptance. Emphasis on continuing and improving the existing conceptual and Master Plan designs, value engineering, simplicity and quality design will be essential to the success of this project.

The project will require an experienced full-service consultant (team) with the ability to evaluate the existing conditions and make recommendations in a wide range of design services including but not limited to: structural engineering, civil engineering, landscape architectural, and surveying. This project will also require the services of geotechnical specialists, archeological specialists, habitat restoration specialists and environmental consultants familiar with state and federal requirements and permit processes involving projects adjacent to or in navigable waters of the United States. Design services work shall be prepared by persons licensed by the State of California to undertake the type of design work required by the Project (engineer’s/architect’s license number to appear on construction contract design documents).

The consultant selected will need to be familiar with plans and specifications, and shall conform with the most recent version of all applicable local building codes (City of Modesto), Stanislaus County Health Department codes, the TRRP Master Plan (and any applicable Master Plan Updates), TRRP MEIR, TRRP Gateway Precise Plan, Initial Study/Finding of Conformance for the TRRP Gateway Precise Plan, City of Modesto Standards and Caltrans Specifications, Modesto Urban Area General Plan and MEIR.

The Construction Documentation will be comprehensive and will include some, if not all, the following items:
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• Rough grading and storm water pollution prevention.
• Site preparation, finish grading and drainages.
• Sensitive habitat protection plans and removal of non-native species. • Riparian habitat landscape plantings, with installation of a rigid temporary irrigation system to establish riparian habitat plantings for a period of three years, where applicable.
• Parkway landscaping and permanent irrigation system at roadway intersections and plaza spaces.
• Site Furnishings: bench(s), picnic table(s), bike rack(s), bollard(s), kiosks and comprehensive wayfinding signage.
• Street curb, gutter replacement and repair, where applicable. • 25’ light pole fixtures along trail sections. Fixtures to include hardwired and solar options.

General Project Assumptions – The project scope:
• Does not include R/W Acquisition Documents
• Does not include R/W Appraisal and Acquisition
• Assumes rights-of-entry will be provided by City.

PROFESSIONAL DESIGN CONSULTING SERVICES TO INCLUDE
Based on the above, the following scope of services to be performed in chronological order.

Listed below are tasks and conditions that the consultant is expected to perform and meet on this project. It is not intended the tasks shown are the only tasks required on this project. The City will provide electronic copies of the necessary background documentation TASK #1 – PROJECT MANAGEMENT / PERMITTING

1.1 Kick-off meeting (Meeting #1) in Modesto with City Staff to:
a. Confirm project description/schedule
b. Obtain information and data regarding the project
c. Advise the City of Modesto on the approach to be taken in preparing the Phase I/Environmental Site Assessment and Biological Assessment for this project. d. Provide utility coordination services to determine existing utilities to generate preliminary utility plans.

1.2 Conduct a detailed site visit and collect and review all pertinent documentation including but not limited to the TRRP Master Plan (and any applicable Master Plan Updates), the Initial Study/Finding of Conformance for this project and the TRRP Master Plan MEIR.

1.3 Prepare a final project description through data collection, field work, and research which will be the basis for the preparation of the permits.

1.4 Conduct and prepare an Administrative Draft Phase I/Environmental Site Assessment as required by CEQA determinations and as directed by City of Modesto Staff.

1.5 Prepare Biological Assessment Report for use in permitting with State Agencies that includes site identification of plant species; tree species, location and DBH; and potentially impacted wildlife.
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1.6 Complete Section 106 Report (Cultural Resources Inventory Report), Native American consultation, and Agency Coordination.

1.7 Provide the City with one (1) reproducible original and one (1) electronic copy of the above said documents for reproduction and distribution.

1.8 Based on comments from City staff, prepare a final Phase I/Environmental Site Assessment, Cultural Resources Inventory Report and Biological Assessment.

1.9 Coordinate and prepare all necessary permit applications and additional information if and as required by the CA Department of Fish and Wildlife, San Joaquin Valley Air Quality Control Board, Regional Water Quality Control Board, Department of Water Resources, Bureau of Reclamation and any other agency as identified in the Initial Study or as identified by the City of Modesto. Consultant shall assist City staff in ensuring the necessary permits are obtained prior to bidding the project.

1.10 Perform ongoing internal project coordination to share project information, identify critical issues, make decisions, assign project tasks, identify design criteria, and any other items critical to project delivery and perform ongoing general project coordination meetings with Caltrans.

1.11 At this time no USFWS/NFMS Consultation is anticipated but should it be necessary it would be an additional service to this contract.

1.12 Environmental Assumptions
• Surveys for elderberry shrubs will follow USFWS 2017 protocols and individual stem count measurements will not be required.
• Tree inventory will be performed for trees that are in the project features alignments and no more than 25 feet outside of the alignments.
• Anticipate no built environment or other historic-era resources will be affected in the project area and therefore no built environment field survey is included or required. • Anticipate that there are no archaeological or Tribal cultural resources in the project area. Field surveys will take one 10-hour day.
• Field surveys are based on the current project description (up 1.2 miles long). • GEI assumes that the City will make the necessary arrangements to provide access.

One GEI archaeological survey crew consisting of two archaeologists will conduct a cultural resources inventory of the APE to intensive standards. • Does not include Hydrology and Hydraulics Study. Assume SR 99 will not require H&H study.
• Does not include preconstruction surveys.
• Fee for permits shall be City’s responsibility.

TASK #2 – CONSTRUCTION DOCUMENTATION

2.1 Conduct an interdepartmental start up meeting in Modesto to begin the construction documentation process. (Meeting #2)
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2.2 Topographic survey of Section 1 to locate the existing visible improvements and visible utilities. The survey shall include existing grades, any above ground utility structures, utility lines, trees identifying size (dbh), type and condition, and all above ground structures. If the Neece Drive Boat Launch construction is completed prior to design completion, additional topographic survey would be competed to document these new elements.

2.3 Project Scope does not include geotechnical services.

2.4 Prepare preliminary 30% construction documents including:
a. Preliminary Site Plan
b. Preliminary Utility Relocation Plans
c. Preliminary Trail Civil Plans, including preliminary plans and profiles d. Preliminary Light Fixture Layout with renderings of pole/fixture/solar panel combinations and photometric analysis.

Deliver one (1) PDF sets of plans and specifications to City. City staff will require a minimum of four (4) weeks for review of 30% construction documents.

2.5 Conduct an interdepartmental review session in Modesto to review City comments on 30% plans. (Meeting #3)

2.6 Based on comments received, prepare 75% construction documents including plans, specifications, and refined cost estimates. Submittal will include status of permits, comments from outside agencies and preliminary estimate of costs associated with permitting the project. Deliver one (1) PDF and four (4) hardcopy sets of plans and specifications to City. City staff will require a minimum of six (6) weeks for review of 75% construction documents.

2.7 Conduct an interdepartmental review session in Modesto to review City comments on 75% plans and prepare a response to comments including intended resolution. (Meeting #4)

2.8 Based on comments received, prepare 100% construction documents including plans, specifications and detailed estimate. In addition, provide a status of permits and final costs associated with permitting the project. Plans will be prepared to allow for deductive and additive alternates or phased construction as necessary. Deliver one (1) PDF and four (4) hardcopy sets of plans and specifications to City. City staff may require a minimum of four (4) weeks for review of 100% construction documents.

The construction documents for the park will include, (as applicable):
• title sheet
• general notes
• project control
• typical sections
• demolition plan
• grading & drainage plan, with utility information & existing conditions (using 1’ contours)
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• erosion and sediment control plans and details
• sign and trail marking plans and details
• site construction plans and details
• planting plan and details
• irrigation plan and details
• electrical plans and details
• structural details and needed
• technical specifications (CSI format), city will provide boiler plate specifications • bid form
Provide one (1) set of final wet stamped Bond original plans and specifications for reproduction and a signed pdf of the plan set, one (1) AutoCAD (version 2019 compatible) drawings file. Use “D” size plan sheet and City of Modesto Title Block and Standards. All final plans & specifications shall be stamped & signed by a registered professional (Landscape Architect or Engineer), as appropriate.

Specifications should be CSI 6-digit provided in Microsoft Word and organized to match the format requested by the City during the design process. The Consultant must use the City of Modesto typical “front end” documents. Consultants may request additional sections be added to either division and/or recommend changes to the current “front ends”. Any changes must be requested in writing and are subject to review and approval by the City. Plans and Specifications shall meet all local, state and federal requirements as necessary. All construction shall be designed to be in accordance with current Americans with Disabilities Act and Title 24 requirements.

TASK #3 – BIDDING AND CONSTRUCTION SUPPORT

3.1 Assist City staff in bidding process as required, including answering questions from bidders.

3.2 Review and process all shop drawings and submittals required by technical specifications; with use of digital E-Builder Construction Management software. Free training will be provided by City for E-Builder Software.

3.3 Provide site visit reviews and prepare reports on construction progress and quality, with recommendations for correction of any deficiencies (approximately three-(3) Field Meetings).

3.4 Assist in determining and processing requests for information and change orders.

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PROJECT SCHEDULE
Proposed milestones for the project tasks are as follows:

MILESTONE DATE
Award Design Contract Tuesday, January 10, 2023
Design Start February 2023
Design Completion Approx. February 2024
PROPOSED COMPENSATION`
The following fees are based on the scope of work described previously in Exhibit ‘A’.

Payments will be made on a monthly basis when portions of the tasks are completed.

The monthly billing at the Hourly Rates included in Exhibit ‘B’, and verifiable documentation on any reimbursable expenses incurred.

Task #1 – Project Management / Permitting (not to exceed) $ 57,806 Task #2 – Construction Documentation (not to exceed) $ 186,243 Task #3 – Bidding and Construction Support (not to exceed) $ 15,000 Reimbursable Expenses (not to exceed) $ 4,208
Total Contract Amount $ 263,257
Additional Services (not to exceed 10%) $ 26,326
Grand Total $289,583
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95354
209.577.5344
EXHIBIT ‘B’

HOURLY RATES
The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved. In addition, monthly progress payment invoices shall include the minimum attachments: Detailed description or itemization of work completed for the time period, task billing summary, hourly rates from all consultants.

Mark Thomas
Engineering & Planning
Engineer Manager $305
Design Engineer II $135
Design Engineer I $110
Sr. Project Coordinator $138
O’Dell Engineering
Survey/Outreach/Landscape
Principal $280
Senior Civil Engineer $215
Senior Engineer 2 $200
Senior Engineer 1 $185
Engineer 2 $180
Engineer 1 $170
Assistant Engineer 2 $145
Assistant Engineer 1 $130
Senior Landscape Architect 2 $200
Senior Landscape Architect 1 $180
Landscape Architect 2 $170
Landscape Architect 1 $160
Landscape Designer 3 $155
Landscape Designer 2 $145
Landscape Designer 1 $135
Planner $175
Assistant Planner $140
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Dry Utility Project Manager 2 $170
Dry Utility Project Manager 1 $150
Utility Engineer $135
CADD Operator 2 $115
CADD Operator 1 $95
Surveyor Manager $205
Senior Land Surveyor $195
Senior Surveyor 2 $190
Senior Surveyor 1 $170
Surveyor 2 $150
Surveyor 1 $140
Assistant Surveyor 2 $130
Assistant Surveyor 1 $115
Survey Crew 2-man/1-man $320/$180
Survey Crew 2-man/1-man (Prevailing
Wage) $396/$225
Administrative $96
GEI
Environmental/Permitting
Staff Professional – Grade 1 $ 89
Staff Professional – Grade 2 $ 105
Project Professional – Grade 3 $ 118
Project Professional – Grade 4 $ 143
Senior Professional – Grade 5 $ 164
Senior Professional – Grade 6 $ 188 - $ 205
Senior Professional – Grade 7 $ 243
Senior Consultant – Grade 8 $ 274
Senior Consultant – Grade 9 $ 279
Senior Principal – Grade 10 $ 279
Senior Drafter and Designer $145
Drafter / Designer and Senior
Technician $118
Field Professional $106
Technician, Word Processor,
Administrative Staff $84
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Office Aide $83
Fehr & Peers
Electrical
Principal $240 - $375
Senior Associate $205 - $300
Associate $175 - $225
Senior Engineer/Planner $160 - $215
Engineer/Planner $130 - $175
Senior Engineering Technician $150 - $215
Senior Project Accountant $170 - $190
Senior Project Coordinator $130 - $180
Project Coordinator $120 - $170
Technician $150 - $170
Intern $95 - $140
Crawford
Geotechnical
Principal $200
Senior Project Manager $180
Project Manager $175
Senior Geologist $155
Senior Engineer $155
Project Engineer II $145
Project Engineer I $135
Staff Engineer $115
Drafter $95
Project Assistant $70
Technician (PW) $110
Technician (Non-PW) $95
#4..
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Safety and Communities CommitteeDecember 12, 2022

Safety and Communities Committee
December 12, 2022