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MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, February 14, 2023 at 5:30 PM
*Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
* Some Councilmembers may be participating in the meeting remotely via teleconferencing or other electronic means consistent with the AB 361.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.
THIS MEETING WILL BE PHYSICALLY OPEN TO THE PUBLIC AND BY ZOOM
VIDEO CONFERENCING AND TELEPHONE
In order to minimize the spread of the COVID-19 virus, this meeting will be conducted pursuant to AB 361, which amended the Brown Act’s teleconferencing provisions.
You may observe a livestream of the meeting at http://media.modestogov.com. You may also participate in the meeting as indicated below.
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PARTICIPATING IN CITY COUNCIL MEETINGS IN CONFORMANCE WITH AB 361
The City of Modesto is providing alternatives to view Council meetings and provide public comments. If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:
SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Councilmembers and placed in the record, but will not be read aloud during the meeting. Written comments must be received by 3:00 p.m. on the day of the meeting.
VIRTUAL PARTICIPATION BY ZOOM VIDEO
CONFERENCING AND TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view and participate in Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.
Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can participate by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326
Providing Public Comment on Zoom and by Telephone
The Mayor will request public comment during the Public Comment periods on the meeting agendas and during each Public Hearing and Regular Calendar Item on the Council Agenda.
Once the Mayor has announced the public comment period, please do one of the following.
USING A COMPUTER OR SMART PHONE APP:
Click on the “Raise Hand” feature in the webinar controls. This will notify City staff that you have raised your hand.
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City staff will unmute your microphone when it is your turn to provide public comment.
A prompt will appear to confirm you would like to be unmuted and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again.
USING A REGULAR PHONE (not using a computer or smart phone APP):
Dial *9 (star 9), this will notify City staff that you have “raised your hand” for public comment.
City staff will unmute your microphone when it is your turn to provide public comment.
You will hear “you are unmuted” and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again. If your phone is unmuted, and you are unable to be heard, the host may ask that you Dial *6 to toggle mute on/off in Zoom.
Additional Zoom resources/support
Please visit Zoom’s website support page on helpful tips to prepare for the meeting:
https://support.zoom.us/hc/en-us/categories/201146643
Pledge of Allegiance to the Flag
Invocation: Carlos Gonzalez, Stanislaus Equity Partners City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session
MISCELLANEOUS
Legislation, Appointments, Other
1. Consider accepting the resignation of Janice Keating from the City of Modesto Citizens’ Transportation Sales Tax Commission. (Funding Source: Not Applicable) Staff Recommendation:
Resolution accepting the resignation of Janice Keating from the City of Modesto’s Citizens’ Transportation Sales Tax Commission.
CED; Toby Wells, 209-571-5442, [email protected]
PUBLIC COMMENT PERIOD
Please refer to the special comment instructions above.
Three-minute time limit per speaker
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Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.
Any and all of the following agenda items are subject to action by the Modesto City Council.
This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.
In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA 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 Councilmember.
Consent
2. Consider approving the minutes from the January 24, 2023 Council Meeting. (Funding Source: Not Applicable)
Staff Recommendation:
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Motion approving the minutes from the January 24, 2023 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent
3. Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361 (Funding Source: Not Applicable) Staff Recommendation:
Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
4. Consider approving a First Amendment to the Legal Services Agreement with Castillo, Moriarty, Tran & Robinson in the amount of $200,000, for a total Agreement amount not to exceed $245,000 for continued representation in Police Related Matters and a Fourth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. to adjust rates for continued representation in Water Related Matters. (Funding Source: General Liability Insurance Fund and Water Funds) Staff Recommendation:
Resolution approving a First Amendment to the Legal Services Agreement with Castillo, Moriarty, Tran & Robinson in the amount of $200,000, for a total Agreement amount not to exceed $245,000, for continued representation in Police Litigation Matters and authorizing the City Manager or his designee, to execute the Amendment.
Resolution approving a Fourth Amendment to the Legal Services Agreement for Bartkiewicz, Kronick & Shanahan P.C. to adjust hourly rates for continued representation and authorizing the City Manager or his designee, to execute the Agreement.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
5. Consider approving the recommended Budget adjustments to Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets. (Funding Source:
Various Funds)
Staff Recommendation:
Resolution amending Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.
BUDGET; Steve Christensen, 209-577-5390, [email protected] Consent
6. Consider rejecting all proposals for Request for Proposal (RFP) No. 2122-44 for the Stanislaus Regional Transit Oriented Development Plan. (Funding Source: LEAP Grant)
Staff Recommendation:
Resolution rejecting all proposals for RFP No. 2122-44 for the Stanislaus - 5 -
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Regional Transit Oriented Development Plan.
CED; Jessica Hill, 209-577-5321, [email protected]
Consent
7. Consider approving a First Amendment to an Agreement with Management Advisory Services for Planning Consultation and Support, increasing the Agreement to a new total not to exceed $109,500. (Funding Source: General Fund) Staff Recommendation:
Resolution approving the First Amendment to an Agreement with Management Advisory Services for Planning Consultation and Support, increasing the Agreement amount by $60,000 from $49,500 to a new total not to exceed $109,500 and authorizing the City Manager, or his designee, to execute the Amendment.
CED; Jessica Hill, 209-577-5321, [email protected]
Consent
8. Consider approving a Resolution authorizing the execution of escrow documents to transfer fee title to approximately 2.61 acres of real property (APN 007-037-012) currently owned by the City (“City-Owned Remnant”) to Hans Wagner III 2015 Trust consistent with a previously authorized settlement of an eminent domain action to acquire property for the State Route 132 West Freeway/Expressway – Phase I Project. (Funding Source: Streets Capital Facilities Fee and Regional Measure L funds) Staff Recommendation:
Resolution authorizing the execution of escrow documents to transfer fee title to approximately 2.61 acres of real property (APN 007-037-012) currently owned by the City (“City-Owned Remnant”) to Hans Wagner III 2015 Trust consistent with a previously authorized settlement of an eminent domain action to acquire property for the State Route 132 West Freeway/Expressway – Phase I Project.
CED; Jessica Hill, 209-577-5321, [email protected]
Consent
9. Consider approving the First Amendment increasing the Agreement amount with Ready to Work, for Litter Abatement Services by $872,500 from $450,000 to a revised total amount of $1,322,500 over a five year extension option. (Funding Source: Solid Waste Fund and CalTrans Delegated Maintenance Agreement) Staff Recommendation:
Resolution approving the First Amendment with Ready to Work for Litter Abatement Services to extend for two years, with three one-year extension options; for an annual estimated cost $174,500 and increasing the overall agreement amount by $872,500 from $450,000 to a new revised total amount of $1,322,500; and authorizing the City Manager, or his designee to execute the Amendment.
CED; Edgar Garcia, 209-571-5101, [email protected] - 6 -
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Consent
10. Consider approving a Third Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, for a total amount not to exceed $13,140,236. (Funding Source: Streets Capital Facility Fees)
Staff Recommendation:
Resolution approving a Third Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, increasing the Agreement amount by $629,311 plus $62,931 additional services, if needed, from $12,447,994 for a total amount not to exceed $13,140,236, and authorizing the City Manager, or his designee to execute the Third Amendment.
CED; Toby Wells, 209-577-5542, [email protected]
Consent
11. Consider approving a Will Serve Letter and an Outside Service Agreement for Sewer connection for the property located at 4601 Yosemite Blvd. in unincorporated Stanislaus County just outside of the city limits of Modesto (APN: 133-001-019). (Funding Source: Sewer Fund, General Fund)
Staff Recommendation:
Resolution approving a Will Serve letter and an Outside Service Agreement between the City of Modesto and CVE Properties, LLC. A California Limited Liability Company, to connect to the City of Modesto’s existing sewer system for the property located at 4601 Yosemite Blvd. (APN:133-001-019), and authorizing the City Manager, or his designee, to sign the Will Serve Letter and execute the Outside Service Agreement.
CED; Toby Wells, 209-571-5542, [email protected]
Consent
12. Consider approving Freeway Maintenance Agreement STA-132, PM-R11.3/R14.7 with the State of California, for the State Route 132 West Freeway/Expressway - Phase 1 Project. (Funding Source: Not Applicable)
Staff Recommendation:
Resolution approving Freeway Maintenance Agreement STA-132, PMR11.3/R14.7 with the State of California, for the State Route 132 West Freeway/Expressway - Phase 1 Project, and authorizing the City Manager, or his designee to execute the Freeway Maintenance Agreement.
CED; Toby Wells, 209-571-5542, [email protected]
Consent
13. Consider accepting an informational report for the December 2022 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable) Staff Recommendation:
Motion accepting an informational report for the December 2022 Accounts Payable Payment Register and Void Report.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
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[email protected]
Consent
14. Consider accepting an Informational Report on the September and October 2022 Grant Applications and Awards and forwarding to Council for approval. (Funding Source:
Not Applicable)
Staff Recommendation:
Motion accepting an Informational Report for the September and October 2022 Grant Applications and Awards.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
Consent
15. Consider accepting an informational update on the Transient Occupancy Tax Audit. (Funding Source: General Fund)
Staff Recommendation:
Motion accepting the informational update on the Transient Occupancy Tax Audit.
FINANCE DEPARTMENT; Gina Brown, 209-577-5381, [email protected] Consent
16. Consider approving the purchase for one Fleet Replacement in the amount not to exceed $53,148; and approving updated pricing for three bid events for Fleet Replacement Vehicles by $110,217. (Funding Source: Fleet Replacement Fund) Staff Recommendation:
Resolution approving the purchase with Towne Ford Sales, Redwood City, CA for one Ford Mustang for an amount not to exceed $53,148; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order. Resolution approving an increase to the amount for the purchase of One LowProfile Dump Truck to Towne Ford Sales, Redwood City, CA by $16,552, increasing the Purchase Order from $99,797 to a new total amount not to exceed $116,349, and authorizing the Purchasing Manager, or her designee, to update the Purchase Order.
Resolution approving an increase to the amount for the purchase of Seven OneTon Stake Side Dump Trucks to Towne Ford Sales, Redwood City, CA by $64,194, increasing the Purchase Order from $602,868 to a new total amount not to exceed $667,062, and authorizing the Purchasing Manager, or her designee, to update the Purchase Order.
Resolution approving an increase to the amount for the purchase of six OneTon Trucks to Towne Ford Sales, Redwood City by $29,471, increasing the Purchase Order from $536,924 to a new total amount not to exceed $566,395, and authorizing the Purchasing Manager, or her designee, to update the Purchase Order.
FINANCE DEPARTMENT; Dianne Love, 209-571-5614, [email protected] - 8 -
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Consent
17. Consider accepting the Monthly Investment Report for November 2022. (Funding Source: Various Funds)
Staff Recommendation:
Motion accepting the Monthly Investment Report for November 2022.
FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected],
Consent
18. Consider approving the purchase of the 2019 Chevrolet Tahoe SUV to Salida Fire Protection District (SFPD), Salida, CA, for a total amount not to exceed $60,000 (Funding Source: General Fund)
Staff Recommendation:
Resolution approving the purchase of a 2019 Chevrolet Tahoe SUV from Salida Fire Protection District, Salida, CA, for a total amount not to exceed $60,000 and authorizing the Purchasing Manager, or her designee to issue the Purchase Order.
FIRE DEPARTMENT; Alan Ernst, 209-572-9590, [email protected] Consent
19. Consider approving the revisions and additions to the Modesto Police Department’s Hiring and Recruiting Incentive Program, increasing the estimated annual allocated amount by $365,000 to a new estimated annual total of $415,000; and rescinding Resolution Nos. 2014-467 and 2016-378. (Funding Source: General Fund) Staff Recommendation:
Resolution approving the revisions and additions to the Modesto Police Department’s Hiring and Recruitment Incentive Program and increasing the estimated annual allocated amount by $365,000 to a new estimated annual total of $415,000; and rescinding Resolution Nos. 2014-467 and 2016-378.
POLICE DEPARTMENT; Chris Adams, 209-572-9500, [email protected] Consent
20. Consider approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Dry Creek Regional Park to Tuolumne River Regional Park (TRRP) Trail Connection Project for a total amount not to exceed $511,424. (Funding Source: Parks & Air Quality Capital Facility Fee Fund) Staff Recommendation:
Resolution approving an Agreement with Mark Thomas & Company, Inc. to prepare construction documentation for the Dry Creek Regional Park to Tuolumne River Regional Park (TRRP) Trail Connection Project for an amount of $464,931, plus $46,493 for additional services, if needed, for an Agreement total not to exceed $511,424, and authorizing the City Manager, or his designee, to execute the Agreement.
PRN; Nathan Houx, 209-571-5526, [email protected]
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Consent
21. Consider an Ordinance amending Section 3-2.1401.1 of Article 14, Chapter 2, Title 3 of the Modesto Municipal Code relating to speed limits to determine and designate speed limit changes. (Funding Source: Surface Transportation Fund (Gas Tax)) Staff Recommendation:
Motion introducing and waiving the first reading of an Ordinance amending Section 3-2.1401.1 of Article 14, Chapter 2, Title 3 of the Modesto Municipal Code relating to speed limits.
PUBLIC WORKS; Mark Murphy, 209-577-5431, [email protected] Consent
22. Consider authorizing the submittal of application(s) to the Department of Transportation Clean California Local Grant Program. (Funding Source: Not Applicable)
Staff Recommendation:
Resolution authorizing the submittal of application(s) to the Department of Transportation Clean California Local Grant Program, and authorizing the City Manager, or his designee, to sign Grant Applications and related forms.
PUBLIC WORKS; Rosene Salmo, 209-577-5453, [email protected] Consent
23. Consider approving a Right-of-Way Dedication by the City of Modesto on behalf of the public for the future Aria Way extension for Public Use and Right of Way. (Funding Source: Not Applicable)
Staff Recommendation:
Resolution approving a Right-of-Way Dedication by the City of Modesto on behalf of the public for the future Aria Way (APN 083-004-084) extension for Public Use and Right-of-Way.
UTILITIES; Robert Davalos, 209-571-5869, [email protected] Consent
24. Consider approving the submission of a Grant Application to the California Department of Water Resources for the 2022 Urban Community Drought Relief Grant Program. (Funding Source: Water Fund and American Rescue Plan Act Fund) Staff Recommendation:
A Resolution of the Modesto City Council authorizing the submittal of a Grant Application for the 2022 Urban Community Drought Relief program that authorizes the City Manager, or his designee as the City representative authorizing the Grant Application, acceptance, and execution of a Grant Agreement to fund the Empire Local Water Main Improvements Project, Empire Water Main Crossings Project, Modesto City Parks Turf Replacement Project, and Modesto Turf Replacement Customer Rebate Program.
UTILITIES; Juan Ochoa, 209-577-5423, [email protected]
COUNCIL COMMENTS & REPORTS
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CITY MANAGER COMMENTS & REPORTS
UNFINISHED BUSINESS
25. Consider approving the Fourth Amendment to the Purchasing Agreement with Grover Landscape Services, Inc. of Modesto, CA for Landscape Maintenance Services to extend the term period for an additional three years and six months and increasing the amount of the Agreement by an amount not to exceed $10,745,509 for the extension period. (Funding Source: General Fund – Parks Operations, Community Facilities District Funds, Joint Powers Authority Tuolumne River Regional Park Fund, Various City and Enterprise Funds)
Resolution approving the Fourth Amendment to the Purchasing Agreement with Grover Landscape Services, Inc. of Modesto, CA for Landscaping Maintenance Services to extend the term period for an additional three years and six months and increasing the amount of the Agreement by an amount not to exceed $10,745,509 for the extension period; and authorizing the City Manager or his designee to execute the Amendment.
PRN; Kelly Gallagher, 209-342-2270, [email protected]
NEW BUSINESS
26. Consider approving an initial spending plan related to Measure H for Fiscal Year 2022- 23 to address quality of life issues in the community; and authorizing the City Manager to carry out the necessary steps to implement the initial spending plan related to Measure H. (Funding Source: Measure H General Fund)
Staff Recommendation:
Resolution approving an initial spending plan related to Measure H for Fiscal Year 2022-23 to address quality of life issues in the community; and authorizing the City Manager to carry out the necessary steps to implement the initial spending plan related to Measure H.
Resolution amending the Position Allocation for Fiscal Year 2022-23 as Adopted in the Operating Budget.
Resolution amending the classification plan for the City of Modesto to create the classification of the Senior Outreach Specialist, create the classification of the Police Civilian Investigator, and to amend the title for Homeless Outreach Specialist to Outreach Specialist.
BUDGET; Steve Christensen, 209-577-5390, [email protected]
27. Consider adopting the Comprehensive Housing Plan that provides strategies and recommendations for increasing the supply and choice of housing in Modesto. (Funding Source: SB2 Planning Grant)
Staff Recommendation:
Resolution adopting the Housing Plan that provides strategies and recommendations for increasing the supply of housing in Modesto. - 11 -
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CED; Jessica Hill, 209-577-5321, [email protected]
28. Consider authorizing the services of Steve Mitchell on a part-time basis for a limited duration of up to six months for the purposes of providing work on special Planning projects to ensure high priority projects continue to completion. (Funding Source:
General Fund)
Staff Recommendation:
Resolution authorizing the services of Steve Mitchell on a part-time basis for a limited duration of up to six months for the purposes of providing work on special projects to ensure high priority projects continue to completion; and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of the action.
HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected]
MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.
ADJOURNMENT
CLOSED SESSION
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on TUESDAY, FEBRUARY 14, 2023 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Kelly Mikolich v. City of Modesto
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California Workers Compensation Appeals Board
Nos. ADJ15250443, ADJ15250474
Steve Fischio v. City of Modesto
California Workers Compensation Appeals Board
Nos. Unassigned and ADJ12517812
PUBLIC EMPLOYEE APPOINTMENT
(Pursuant to Section 54957 Government Code)
Title: City Auditor
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCEA Negotiator: Christina Alger
Employee Organization: Modesto City Employees Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCMA Negotiator: Christina Alger
Employee Organization: Modesto Confidential & Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPOA Negotiator: Christina Alger
Employee Organization: Modesto Police Officers’ Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPNSA Negotiator: Christina Alger
Employee Organization: Modesto Police Non-Sworn Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) –MPMA Negotiator: Christina Alger
Employee Organization: Modesto Police Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCFFA Negotiator: Christina Alger
Employee Organization: Modesto City Firefighters Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Negotiator: Christina Alger
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Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: January 12, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community & Economic Development SUBJECT: Accept Resignation of Janice Keating from the City of Modesto Citizens’ Transportation Sales Tax Commission
CONTACT: Toby Wells, P.E., City Engineer, [email protected], 209-571-5442 DESCRIPTION:
Consider accepting the resignation of Janice Keating from the City of Modesto Citizens’ Transportation Sales Tax Commission. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:
This item is consistent with the City Council’s 2020-2025 Strategic Plan, Goal I Promote Trust and Engagement by ensuring a transparent process for public involvement in various boards and commissions to guide City work.
BACKGROUND:
Section 8-10.102 of the City of Modesto Municipal Code authorizes the City Council to appoint members to the Citizens’ Transportation Sales Tax Commission. The Citizens’ Citizens’ Transportation Sales Tax Commission was established to provide oversight of the collection and spending of tax revenue from any local transportation sales tax.
DISCUSSION:
On August 3, 2017, by Resolution No. 2017-291, Janice Keating was appointed to the City of Modesto’s Citizens’ Transportation Sales Tax Commission. On December 1, 2022, via email, Ms. Keating notified the City that she is no longer able to serve on the Commission.
FISCAL IMPACT:
There is no fiscal impact related to this action.
COMMITTEE RECOMMENDATION:
This item was not presented to a committee.
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City Council, February 14, 2023
Resignation of Janice Keating from the City of Modesto Citizens’ Transportation Sales Tax Commission
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution accepting the resignation of Janice Keating from the City of Modesto’s Citizens’ Transportation Sales Tax Commission
Approved by:
Jessica Hill, Interim Director of Community &
Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
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02/14/2023/CEDD/T.Wells 1 2023-?
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?
RESOLUTION ACCEPTING THE RESIGNATION OF JANICE KEATING
FROM THE CITY OF MODESTO CITIZENS’ TRANSPORTATION SALES
TAX COMMISSION
WHEREAS, The Citizens’ Transportation Sales Tax Commission was established to provide oversight of the collection and spending of tax revenue from any local transportation sales tax; and
WHEREAS, August 3, 2017, by Resolution No. 2017-291, Janice Keating was appointed to the City of Modesto Citizens’ Transportation Sales Tax Commission; and WHEREAS, for personal reasons, Janice Keating is no longer able to serve on the Commission.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto it hereby accepts the resignation of Janice Keating from the City of Modesto Citizens’ Transportation Sales Tax Commission.
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02/14/2023/CEDD/T.Wells 2 2023-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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MODESTO CITY COUNCIL
www.modestogov.com
MINUTES
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, January 24, 2023 at 5:30 PM
Roll Call - Present: Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
Absent: None
Pledge of Allegiance to the Flag
Invocation: Anthony Bargas, The Center Church
City Clerk’s Announcements: None
Declaration of Conflicts of Interest: None
Reports from Closed Session: City Attorney Sanchez reported that no reportable action was taken on the Closed Session item.
ACKNOWLEDGEMENTS AND PRESENTATIONS
1. Proclamation declaring February as National Black History Month. (Funding Source:
Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-559,
[email protected]
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ACTION: Mayor Zwahlen presented the Proclamation declaring February as National Black History Month to: Rose Mitchell, NAACP Executive Committee Member; John Ervin, lll, Sankofa Theatre Co.; Ruby Kennedy, King-Kennedy Senior’s Group; , Sterling Fountain, Board of Directors King Kennedy Center; Fallon, Ferris and Akia Walker, Stanislaus Youth Empowerment Program; Margie Lee, The Woman’s Auxiliary Ron DeLoach, Chairman West Modesto People of Action Coalition; and Pastor Darius Crosby, Modesto Police Clergy Council.
2. Proclamation declaring February as National Cancer Prevention Month (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]
ACTION: Mayor Zwahlen read the Proclamation declaring February as National Cancer Prevention Month into the record.
3. Presentation from the Municipal Information Systems Association of California (MISAC) to the City of Modesto for the MISAC Excellence Award for Best Practices in Information Technology. (Funding Source: Not Applicable) IT; Scott Conn, 209-577-5229, [email protected]
ACTION: Gaurav Garg, CIO for the City of Santa Clara and member of the State Board for the Municipal Information Systems Association of California presented the award to the City.
4. Presentation by StanCOG for Annual Unmet Transit Needs Process. (Funding Source:
Not Applicable)
CITY MANAGER; Joseph Lopez, 209-577-5223, [email protected] ACTION: Clarissa Hernlund, Senior Transit Planner at StanCOG presented the Annual Unmet Transit Needs Process.
MISCELLANEOUS
5. Consider reappointing Rhoda Yare and Sandra Wilson to the Housing Rehabilitation Loan Committee for a second term with a term expiration of December 31, 2026 (Funding Source: Not Applicable)
Staff Recommendation:
Resolution reappointing Rhoda Yare and Sandra Wilson to the Housing Rehabilitation Loan Committee for a second term with a term expiration of December 31, 2026.
CED; Jessica Hill, 209-577-5321, [email protected]
ACTION: (Wright/Williams; 7/0) Resolution 2023-025 reappointing Rhoda Yare and Sandra Wilson to the Housing Rehabilitation Loan Committee for a second term with a term expiration of December 31, 2026.
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6. Consider appointing Esparza Vargas, Paul Adams, and Julie Betts-Albert to the Modesto Downtown Improvement District Advisory Board for a four-year term from January 1, 2023 to December 31, 2026. (Funding Source: Not Applicable) Staff Recommendation:
Resolution appointing Esparza Vargas, Paul Adams, and Julie Betts-Albert to the Modesto Downtown Improvement District Advisory Board for a four-year term from January 1, 2023 to December 31, 2026.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Wright/Zwahlen; 7/0) Resolution 2023-026 appointing Esparza Vargas, Paul Adams, and Julie Betts-Albert to the Modesto Downtown Improvement District Advisory Board for a four-year term from January 1, 2023 to December 31, 2026.
7. Consider approving the appointments of Elena Martinez and Katherine Zagone to fill two Modesto Resident vacancies on the Culture Commission for a four-year term from January 1, 2023 through December 31, 2026. (Funding Source: Not Applicable) Staff Recommendation:
Resolution approving the appointments of Elena Martinez and Katherine Zagone to fill two Modesto Resident vacancies on the Culture Commission for a four-year term from January 1, 2023 through December 31, 2026.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Ricci/Williams; 7/0) Resolution 2023-027 approving the appointments of Elena Martinez and Katherine Zagone to fill two Modesto Resident vacancies on the Culture Commission for a four-year term from January 1, 2023 through December 31, 2026.
8. Consider approving the reappointment of Ricardo Semeria of the Modesto Golf Club and the appointments of Arnold Fidalgo of the SIRS Golf Club, and Jeffrey Lambaren, Member-At-Large, to the Golf Courses Advisory Committee for a four-year term from January 1, 2023 through December 31, 2026. (Funding Source: Not Applicable) Staff Recommendation:
Resolution approving the reappointment of Ricardo Semeria of the Modesto Golf Club and the appointments of Arnold Fidalgo of the SIRS Golf Club, and Jeffrey Lambaren, Member-At-Large, to the Golf Courses Advisory Committee for a four-year term from January 1, 2023 through December 31, 2026.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Williams/Alvarez; 7/0) Resolution 2023-028 approving the reappointment of Ricardo Semeria of the Modesto Golf Club and the appointments of Arnold Fidalgo of the SIRS Golf Club, and Jeffrey Lambaren, Member-At-Large, to the Golf Courses Advisory Committee for a four-year term from January 1, 2023 through December 31, 2026.
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PUBLIC COMMENT PERIOD
Jeana Woods stated she is a Marine Corps Veteran with a disabled son. She owns her home and is having an issue with a carport recently installed. It was professionally installed, and she was cited for it and is going through the appeal process. Jimmy Sharp spoke about City Municipal Code Section 10-4.106 Front and Streetside Setback. He commented that he is allowed to build a fence right on the property line. It’s next to the sidewalk and the carport is in his driveway, in line with the fence. He is now being told he must tear it down.
Alissa Hagar wished a happy Martin Luther King, Jr. week to everyone and thanked all of the fighters for freedom. She commented about the technology award the City received and also commented on the Modesto Police Department and the shooting of Paul Chavez, Jr and Trevor Seever.
Kim Millerdree spoke about the disability rights of Sebastian Jones. Ramon Rodriguez spoke about the Modesto Police Department and Officer Espinoza. Sharon Froba, Housing Chair for the NAACP spoke about housing needed and using the 54 acres on the municipal golf course for housing.
Latricia, a representative of Faith in the Valley spoke about the needs for housing and the use of the municipal golf course for housing. She asked Council consider a local housing committee, that would be comprised of renters and private housing, public housing, manufactured housing, and subsidized housing representatives who are in the community to work with city planners for affordable housing.
Sebastian Jones stated that he was the first minority on the Commission on Aging. He commented that he felt disrespected at a recent Martin Luther King, Jr. Event and that his disability rights were violated.
Theresa Clutter spoke about a city tree on her property. She has been calling about the tree since 2020 and it is hanging. She also spoke about the shooting of Paul Chavez, Jr. Karla Davies stated she is a resident and a proud daughter of undocumented Mexican farm workers, who are the real heroes in our community. She is here in the capacity as an activist in this community and also as a bridge between the monolingual non-Englishspeaking immigrant communities, and people of color living in the community, in the most poverty, stricken Modesto neighborhoods, which is the Airport neighborhood and South Modesto. She asked Council to address the inequalities in those neighborhoods. Johnathan Williams mentioned the names of Paul Chavez’s three sons, Paul III, Abraham and Josiah. He commented on the shooting of Paul Chavez, Jr. #2..
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David Jameson, La Loma resident and business owner stated that he is a member of Councilmember Bavaro’s citizen's advisory committee. He provided a report on the primary issues of the committee. Those issues are public safety, homelessness, crimes, city infrastructure issues and quality of life. One immediate serious issue is the homeless issue.
Steven Allen spoke about public comment and the time allotted. He asked why it is not extended to five minutes. He also spoke in support of Sebastian Jones. Liz Garcia stated that she has known Sebastian Jones over 30 years. He helped with the Monterey Park Tract water issue. She spoke in support of Mr. Jones and thanked Councilmember Alvarez for standing up for Mr. Jones.
Sarah Johnson stated she is here on behalf of Sebastian Jones. He is her caregiver and has known him over 30 years. He's a giving person with a good heart. Kimberly Edward stated that she is here in support of Mr. Jones and all he has done for the community. She asked why he was treated unfairly.
Leslie West spoke about Sebastian Jones and what he has done for the community. Bob Holloway spoke in support of lifting the ban on cruising. He thanked the community leaders that spoke in support of lifting the ban. He and the Modesto Cruiser Council do not condone some actions and comments made at the last meeting by some members of the public. In addition, he wanted to personally thank Chief Gillespie who has helped them and given guidance.
Emerson Drake, commented on Sebastian Jones and a time Mr. Jones wanted to serve on a city committee. He also stated that he wanted to thank City staff who worked on cutting down his City tree and removing the stumps and roots. The staff also repaired his cracked driveway. Mr. Drake further asked to remove items 9, 10, 13 and 17 from consent and asked about the status of safe parking.
Patrick Thomas spoke about a recent encounter with the Modesto Police Department. He also spoke about the shooting of Paul Chavez, Jr.
Recessed: 7:29 pm
Reconvened: 7:37 pm
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 11-12, 14-16, 18-22 (Wright/Bavaro; 7/0) #2..
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CONSENT
Removed from Consent
Consent
9. Consider approving the minutes from the January 10, 2023 Council Meeting. (Funding Source: Not Applicable)
Motion approving the minutes from the January 10, 2023 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Bavaro/Wright; 7/0) Motion approving the minutes from the January 10, 2023 Council Meeting.
Removed from Consent
Consent
10. Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] ACTION: (Ricci/Alvarez; 7/0) Resolution 2023-029 continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
Consent
11. Consider approving the 2023-2024 State and Federal Legislative Priorities. (Funding Source: Not Applicable)
Resolution approving the City of Modesto 2023-2024 State and Federal Legislative Priorities.
CITY MANAGER; Andrew Gonzales, 209-571-5809, [email protected] ACTION: (Wright/Bavaro; 7/0) Resolution 2023-030 approving the City of Modesto 2023-2024 State and Federal Legislative Priorities.
Consent
12. Consider approving the First Amendment increasing the Agreement amount with Townsend Public Affairs, for State Advocacy Services to a new total amount of $215,000, and Van Scoyoc Associates for Federal Advocacy Services to $322,500 and extending the term of the Agreements from April 27, 2023, to November 28, 2023. (Funding Source: General Fund, Water Fund, and Surface Transportation Funds) Resolution approving the First Amendment increasing the Agreement amount with Townsend Public Affairs, for State Advocacy Services by $35,000 from $180,000 to a new total amount of $215,000, and extending the term of the Agreements from April 27, 2023, to November 28, 2023 and authorizing the City Manager, or his designee to execute the Amendment. Resolution to approve the First Amendment increasing the Agreement amount with Van Scoyoc Associates for Federal Advocacy Services by $52,500 from $270,000 to $322,500 and extending the term of the Agreements from April 27, #2..
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2023, to November 28, 2023 and authorizing the City Manager, or his designee to execute the Amendment.
CITY MANAGER; Andrew Gonzales, 209-571-5809, [email protected] ACTION: (Wright/Bavaro; 7/0) Resolution 2023-031 approving the First Amendment increasing the Agreement amount with Townsend Public Affairs, for State Advocacy Services by $35,000 from $180,000 to a new total amount of $215,000, and extending the term of the Agreements from April 27, 2023, to November 28, 2023, and authorizing the City Manager, or his designee to execute the Amendment.
ACTION: (Wright/Bavaro; 7/0) Resolution 2023-032 to approve the First Amendment increasing the Agreement amount with Van Scoyoc Associates for Federal Advocacy Services by $52,500 from $270,000 to $322,500 and extending the term of the Agreements from April 27, 2023, to November 28, 2023 and authorizing the City Manager, or his designee to execute the Amendment.
Removed from Consent
Consent
13. Consider accepting an Informational Report for the November 2022 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable) Motion accepting an Informational Report for the November 2022 Accounts Payable Payment Register and Void Report.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249, [email protected] ACTION: (Wright/Alvarez; 7/0) Motion accepting an Informational Report for the November 2022 Accounts Payable Payment Register and Void Report.
Consent
14. Consider accepting the Monthly Investment Report for October 2022. (Funding Source:
Various Funds)
Motion accepting the Monthly Investment Report for October 2022.
FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
ACTION: (Wright/Bavaro; 7/0) Motion accepting the Monthly Investment Report for October 2022.
Consent
15. Consider accepting a report on Fiscal Year 2022-23 Vehicle Replacements and Additions planned for bidding or use of Cooperative Agreements to comply with bidding requirements. (Funding Source: Various Funds)
Motion accepting a report on Fiscal Year 2022-23 Vehicle Replacements and Additions planned for bidding or use of Cooperative Agreements to comply with bidding requirements.
FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] #2..
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ACTION: (Wright/Bavaro; 7/0) Motion accepting a report on Fiscal Year 2022-23 Vehicle Replacements and Additions planned for bidding or use of Cooperative Agreements to comply with bidding requirements.
Consent
16. Consider approving the sale of 5.01 Acres of real property at 1500 Robertson Road jointly owned by the City of Modesto, the City of Ceres and Stanislaus County as part of the Tuolumne River Regional Park for $191,000 and approving the purchase of such property by the City of Modesto to be used for the Sutter Primary Treatment Facility Parking Lot/Security Project. (Funding Source: Wastewater Fund) Resolution approving the sale of 5.01 Acres of real property at 1500 Robertson Road jointly owned by the City of Modesto, the City of Ceres and Stanislaus County as part of the Tuolumne River Regional Park for $191,000, and approving the purchase of such property by the City of Modesto to be used for the Sutter Primary Treatment Facility Parking Lot/Security Project, and authorizing the City Manager, or his designee, to execute the Purchase and Sale Agreement, and all related documents required to complete the transaction and close of escrow.
PRN; Nathan Houx, 209-571-5526, [email protected]
ACTION: (Wright/Bavaro; 7/0) Resolution 2023-033 approving the sale of 5.01 Acres of real property at 1500 Robertson Road jointly owned by the City of Modesto, the City of Ceres and Stanislaus County as part of the Tuolumne River Regional Park for $191,000, and approving the purchase of such property by the City of Modesto to be used for the Sutter Primary Treatment Facility Parking Lot/Security Project, and authorizing the City Manager, or his designee, to execute the Purchase and Sale Agreement, and all related documents required to complete the transaction and close of escrow.
Removed from Consent
Consent
17. Consider approving a Land Exchange Agreement with E. J. Gallo Winery and Gallo Glass Company to acquire certain real property located along the Tuolumne River (a portion of APNs 035-016-010, 035-018-009, 035-018-013 and 035-024-007), in exchange for a portion of Beard Brook Park (APN 106-034-001); approving a Transfer Agreement with the State of California Department of Parks and Recreation. (Funding Source: Non-Motorized Local Transportation Fund and Parks & Air Quality Capital Facility Fees Fund)
Resolution approving a Land Exchange Agreement with E. J. Gallo Winery and Gallo Glass Company to acquire certain real property located along the Tuolumne River (a portion of APNs 035-016-010, 035-018-009, 035-018-013 and 035-024-007), in exchange for a portion of Beard Brook Park (APN 106- 034-001); approving a Transfer Agreement with the State of California Department of Parks and Recreation and authorizing the City Manager, or his designee, to execute the Agreements.
PRN; Nathan Houx, 209-571-5526, [email protected]
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ACTION: (Wright/Ricci; 7/0) Resolution 2023-034 approving a Land Exchange Agreement with E. J. Gallo Winery and Gallo Glass Company to acquire certain real property located along the Tuolumne River (a portion of APNs 035-016-010, 035-018- 009, 035-018-013 and 035-024-007), in exchange for a portion of Beard Brook Park (APN 106-034-001); approving a Transfer Agreement with the State of California Department of Parks and Recreation and authorizing the City Manager, or his designee, to execute the Agreements.
Consent
18. Consider approving the Plans and Specifications for the Sutter Neighborhood Strengthen & Replace Water Mains Project; accepting the Bid and Awarding a Construction Contract to West Valley Construction Inc., of San Jose, CA, for a total amount not to exceed $2,149,680 and approving a First Amendment increasing the Agreement amount with Black Water Consulting Engineers, Inc., Modesto, CA, for Engineering Design Services by $72,696 from $126,430, plus $12,643 in Additional Services (if needed) to a new total amount of $211,769. (Funding Source: Water Fund) Resolution approving Plans and Specifications for the Sutter Neighborhood Strengthen & Replace Water Mains Project, accepting the Bid, and approving a Construction Contract with West Valley Inc., of San Jose, CA, in the amount of $2,149,680, plus $214,968 in contingency (if needed), for a total amount not to exceed $2,364,648 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution authorizing an increase in the Director’s Authority to issue Change Orders for the Sutter Neighborhood Strengthen & Replace Water Mains Project from 8% ($171,974) to 10% ($214,968) of the Construction Contract amount of $2,149,680 with West Valley Construction Inc., of San Jose, CA. Resolution approving the First Amendment increasing the Agreement amount with Black Water Consulting Engineers, Inc., Modesto, CA, for Engineering Design Services for the Sutter Neighborhood Strengthen & Replace Water Mains Project by $72,696 from $126,430, plus $12,643 in Additional Services (if needed) to a new total amount of $211,769; and authorizing the City Manager, or his designee to execute the Amendment.
Resolution amending the Fiscal Year 2022-23 Capital Improvement Program Budget in the amount of $1,850,500 to be transferred into the Project from Water Fund Reserves in order to fund the Construction Phase of the Sutter Neighborhood Strengthen & Replace Water Mains Project.
UTILITIES; Robert Davalos, 209-571-5869, [email protected] ACTION: (Wright/Bavaro; 7/0) Resolution 2023-035 approving Plans and Specifications for the Sutter Neighborhood Strengthen & Replace Water Mains Project, accepting the Bid, and approving a Construction Contract with West Valley Inc., of San Jose, CA, in the amount of $2,149,680, plus $214,968 in contingency (if needed), for a total amount not to exceed $2,364,648 and authorizing the City Manager, or his designee, to execute the Agreement.
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ACTION: (Wright/Bavaro; 7/0) Resolution 2023-036 authorizing an increase in the Director’s Authority to issue Change Orders for the Sutter Neighborhood Strengthen & Replace Water Mains Project from 8% ($171,974) to 10% ($214,968) of the Construction Contract amount of $2,149,680 with West Valley Construction Inc., of San Jose, CA.
ACTION: (Wright/Bavaro; 7/0) Resolution 2023-037 approving the First Amendment increasing the Agreement amount with Black Water Consulting Engineers, Inc., Modesto, CA, for Engineering Design Services for the Sutter Neighborhood Strengthen & Replace Water Mains Project by $72,696 from $126,430, plus $12,643 in Additional Services (if needed) to a new total amount of $211,769; and authorizing the City Manager, or his designee to execute the Amendment.
ACTION: (Wright/Bavaro; 7/0) Resolution 2023-038 amending the Fiscal Year 2022-23 Capital Improvement Program Budget in the amount of $1,850,500 to be transferred into the Project from Water Fund Reserves in order to fund the Construction Phase of the Sutter Neighborhood Strengthen & Replace Water Mains Project.
Consent
19. Consider accepting the Crows Landing Road Pavement Rehabilitation, STPLCML5059(208) project as complete, authorizing all necessary steps to file with the County Recorder, release securities, and release payments totaling $2,308,516 to United Pavement Maintenance, Inc. of Hughson, CA. (Funding Source: Federal RSTP, CMAQ, and Streets Capital Facility Fees)
Resolution accepting the Crows Landing Road Pavement Rehabilitation, STPLCML-5059(208) project as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $2,308,516 to United Pavement Maintenance, Inc., Hughson, CA.
UTILITIES; Pete Kambel, 209-577-5444, [email protected] ACTION: (Wright/Bavaro; 7/0) Resolution 2023-039 accepting the Crows Landing Road Pavement Rehabilitation, STPLCML-5059(208) project as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $2,308,516 to United Pavement Maintenance, Inc., Hughson, CA.
Consent
20. Consider accepting the Fleet Maintenance Facility Heavy Bay Addition and Bus Maintenance Facility – Parts Storage Room project as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $5,634,840 to Harris Builders, Inc., of Hilmar, CA (Funding Source:
Fleet Fund 5400, Capital Grants – CIP Projects 3140)
Resolution accepting the Fleet Maintenance Facility Heavy Bay Addition and Bus Maintenance Facility Parts Storage Room project as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $5,634,840 to Harris Builders Inc., Hilmar, CA. #2..
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UTILITIES; Pete Kambel, 209-577-5444, [email protected] ACTION: (Wright/Bavaro; 7/0) Resolution 2023-040 accepting the Fleet Maintenance Facility Heavy Bay Addition and Bus Maintenance Facility Parts Storage Room project as complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $5,634,840 to Harris Builders Inc., Hilmar, CA.
COUNCIL COMMENTS & REPORTS
Councilmember Bavaro reported that on Friday, January 13th he held his first district advisory committee meeting with Chief Gillespie as their luncheon speaker. The advisory committee consists of 12 members representing neighborhoods in his District. He detailed the purpose and priorities of the committee. One of the priorities being addressing homelessness, and neighborhood parks.
Councilmember Escutia-Braaton reported that she, along with other Councilmembers attended a Frito Lay business event. Frito Lay has one of the largest manufacturing plants in Modesto.
They celebrated their $30 million investment into electrifying their fleet of trucks. It was a highly attended event. She also had the honor of advocating and promoting the beauty and the needs of Modesto with State Assembly Members and State Senators, as well as Congressional Representatives. She is bringing back to Modesto, a myriad of data and points that she will be following up with staff and fellow councilmembers.
Councilmember Ricci reported that he is looking forward to budget season and making a noticeable difference in homelessness. There is a need for safe camping, more temporary shelters, and workforce housing. He also commented on the American Legion Hall that burned down. He had discussions with community members about the option of replacing and/or rebuilding Legion Hall and almost everyone he has spoken to want it rebuilt. He further commented about how is pleased that staff is bringing to the Council the new multi-item unit bulky item pick-up program. He thinks it’s going to reduce dumping and make a big difference in Modesto. He further commented on Measure H funds to support programs that are really making a difference.
Councilmember Williams reported on the Martin Luther King Day luncheon that he, along with other Councilmembers, attended at the King Kennedy Center and it was a special event. He also reported on attending the Martin Luther King Day service at Christian Love, Baptist Church.
Fellow Councilmembers and the Police Chief, as well as other dignitaries attended. He also reported on attending the Martin Luther King Day march, along with Councilmembers Alvarez, Bavaro and Ricci. He further reported on attending the League of California Cities New Council Members three day workshop.
Mayor Zwahlen reported traveling to Washington, DC last week to attend the US Conference of Mayors. On January 16, Martin Luther King's actual birthday, she walked to the White House and passed St John’s Church. This is a church that many Presidents attend the morning of the inauguration. Outside the church there was a sign that said “love thy neighbor.” At the #2..
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conference, she attended sessions on water, jobs, rail, mental illness, and many other topics.
Hundreds of other mayors attended from all over the country. She was able to hear from many of the President's cabinet members and heard from the Surgeon General. In addition, she was in the White House with President Biden and interestingly he had this quote that he said, Lyndon Johnson one time said “When the burdens of the presidency seem unusually heavy, I always remind myself it could be worse. I could be a mayor.”
CITY MANAGER COMMENTS & REPORTS
None
HEARINGS
Published in the Modesto Bee on January 13, 2023.
21. Public Hearing to consider approving the final adoption of Ordinances 3754-C.S., 3755-C.S., 3756-C.S., 3757-C.S., 3758-C.S., adopting Building, Plumbing, Electrical, and Mechanical Ordinances by reference of the 2022 California Building Codes and amending various sections of Chapters 1, 2, 3, 7, and 11 of Title 9 of the Modesto Municipal Code. (Funding Source: General Fund/Building Permit Fees) Motion adopting Ordinance 3754-C.S. amending Articles 1, 2, and 16 of Chapter 1 of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 2, Volumes 1 & 2.
Motion adopting Ordinance 3755-C.S. amending Chapter 3, Electrical Code of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 3 “Electrical Code”. Motion adopting Ordinance 3756-C.S. adopting by reference, the Existing Building Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 11 of Title 9 of the Modesto Municipal Code.
Motion adopting Ordinance 3757-C.S. amending Chapter 7, “Mechanical Code” of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24, Part 4 “Mechanical Code”.
Motion adopting Ordinance 3758-C.S. adopting by reference the Plumbing Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 2 of Title 9 of the Modesto Municipal Code.
CED; Oscar Diaz, 209-571-5885, [email protected]
ACTION: (Williams/Wright; 7/0) Motion adopting Ordinance 3754-C.S. amending Articles 1, 2, and 16 of Chapter 1 of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 2, Volumes 1 & 2.
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ACTION: (Ricci/Alvarez; 6/1; Wright No) Motion adopting Ordinance 3755-C.S. amending Chapter 3, Electrical Code of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 3 “Electrical Code”.
ACTION: (Zwahlen/Ricci; 6/1; Wright No) Motion adopting Ordinance 3756-C.S. adopting by reference, the Existing Building Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 11 of Title 9 of the Modesto Municipal Code.
ACTION: (Ricci/Williams; 6/1; Wright No) Motion adopting Ordinance 3757-C.S. amending Chapter 7, “Mechanical Code” of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24, Part 4 “Mechanical Code”.
ACTION: (Alvarez/Ricci; 6/1; Wright No) Motion adopting Ordinance 3758-C.S. adopting by reference the Plumbing Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 2 of Title 9 of the Modesto Municipal Code.
Published in the Modesto Bee on January 13, 2023.
22. Hearing to consider accepting the Public Health Goals Report (PHG) on the City of Modesto’s Water System, in compliance with Title 22 of the California Health and Safety Code (Funding Source: Not Applicable)
Resolution accepting the 2022 Public Health Goals Report in compliance with Title 22 of the California Health and Safety Code.
UTILITIES; William Wong, 209-571-5801, [email protected] ACTION: (Wright/Alvarez; 7/0) Resolution 2023-041 accepting the 2022 Public Health Goals Report in compliance with Title 22 of the California Health and Safety Code.
NEW BUSINESS
23. Consider approving the Multifamily Dwelling Bulky Item Pickup Program as a pilot for a term of one year. (Funding Source: America Rescue Plan Act) Resolution approving the Multifamily Dwelling Bulky Item Pickup Program as a pilot for a term of one year.
PUBLIC WORKS; Rosene Salmo, 209-577-5453, [email protected] ACTION: (Ricci/Escutia-Braaton) Resolution 2023-042 approving the Multifamily Dwelling Bulky Item Pickup Program as a pilot for a term of one year.
MATTERS TOO LATE FOR THE AGENDA
None
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ADJOURNMENT
This meeting adjourned at 8:51 p.m.
All Closed Session matters heard prior to meeting.
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Jesse Montelongo, et al., v. City of Modesto, et al.
United States District Court, Eastern District of California Case No.: 1:15-CV-01605—BAM
PUBLIC EMPLOYEE APPOINTMENT
(Pursuant to Section 54957 Government Code)
Title: City Auditor
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCEA Negotiator: Christina Alger
Employee Organization: Modesto City Employees Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCMA Negotiator: Christina Alger
Employee Organization: Modesto Confidential & Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPOA Negotiator: Christina Alger
Employee Organization: Modesto Police Officers’ Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPNSA Negotiator: Christina Alger
Employee Organization: Modesto Police Non-Sworn Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) –MPMA Negotiator: Christina Alger
Employee Organization: Modesto Police Management Association #2..
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1/24/2023 5:30:00 PM
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCFFA Negotiator: Christina Alger
Employee Organization: Modesto City Firefighters Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Negotiator: Christina Alger
Employee Organization: Unrepresented Management and Confidential Employees Attest: ____________________________
Diane Nayares-Perez, City Clerk
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: February 3, 2023
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
SUBJECT: Assembly Bill 361-Continued Remote Teleconference Meetings CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:
This item is related to the 2020-2025 Strategic Plan goal of promoting trust and engagement.
BACKGROUND:
On March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of the novel coronavirus disease 2019 (“COVID-19”). On March 19, 2020, the City Council adopted Resolution Number 2020-140, ratifying the proclamation of a local emergency by the Director of Emergency Services due to COVID-19.
All meetings of the City Council and the City’s other legislative bodies are open and public, as required by the Ralph M. Brown Act, Government Code section 54950 et seq., so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business. On March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means in order to slow the spread of COVID-19. As a result of Executive Order N-29-20, staff set up virtual meetings for all City Council meetings and other City legislative bodies. On June 11, 2021, Governor Newsom issued Executive Order N-08-21, which, effective September 30, 2021, ended the provisions of Executive Order N-29-20 that allowed local legislative bodies to conduct meetings telephonically or by other means.
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City Council, February 14, 2023
Assembly Bill 361-Continued Remote Teleconference Meetings
DISCUSSION:
On September 16, 2021, the Governor signed Assembly Bill (AB) 3611 (2021) which allows for local legislative bodies to continue to conduct meetings via teleconferencing under specified conditions and includes a requirement that the City Council make specified findings. AB 361 took effect immediately. In addition to other circumstances, the City and its legislative bodies will be allowed to continue to meet remotely during a declared state of emergency when state or local health officials have imposed or recommended measures to promote social distancing, or when the Council finds that meeting in person would present imminent risks to the health or safety of attendees.
On Tuesday, September 28, 2021, the City Council adopted Resolution No. 2021-370, finding that a state of emergency exists and that the County of Stanislaus Health Officer had imposed and recommended social distancing measures for residents within the City. On Tuesday, October 5, 2021, the City Council held their first meeting in accordance with the requirements of Government Code section 54953(e).
In order to continue to hold remote meetings, the City Council must reconsider the state of emergency and declare every 30 days that either (i) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) State or local officials continue to impose or recommend measures to promote social distancing.
The City has reconsidered the state of emergency, as declared by the Governor, which continues in existence. In addition, health officials continue to recommend measures to slow the spread of COVID-19. State of California health officials recommend community members to wear a mask when they might be around unvaccinated people, especially in any indoor public place; along with other recommendations that promote social distancing in indoor spaces. These measures can be found here: https://covid19.ca.gov/holidays/.
The proposed resolution includes the necessary findings in order for the City Council and the other legislative bodies of the City to continue holding remote teleconference meetings pursuant to AB 361. The state of emergency related to COVID-19 is set to expire in California at the end of this month, February 28, 2023. This Resolution will be in effect only until such time as the California state of emergency is still in effect.
FISCAL IMPACT:
There is no cost associated with this item.
COMMITTEE RECOMMENDATION:
This agenda item was not presented to a Council Committee.
RECOMMENDED COUNCIL ACTION:
1 Assembly Bill No. 361 - An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB361 #3..
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City Council, February 14, 2023
Assembly Bill 361-Continued Remote Teleconference Meetings
Staff Recommendations:
Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
Approved by:
Jose M. Sanchez, City Attorney
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Assembly Bill 361
5296450.1
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2/14/2023/CAO/JSanchez/Item 1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION CONTINUING TO AUTHORIZE REMOTE
TELECONFERENCE MEETINGS OF THE CITY OF MODESTO PURSUANT TO ASSEMBLY BILL 361
WHEREAS, the City of Modesto (the “City”) is committed to preserving and promoting public access and participation in meetings of the legislative bodies; and WHEREAS, all meetings of the City are open and public, as required by the Ralph M.
Brown Act (Cal. Gov. Code 54950 – 54963), so that any member of the public may attend, participate, and watch the City conduct their business; and WHEREAS, on March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of the novel coronavirus disease 2019 (“COVID-19”); and WHEREAS, on March 19, 2020, the City Council adopted Resolution Number 2020-140, ratifying the proclamation of a local emergency by the Director of Emergency Services due to COVID-19; and
WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08- 21, which, effective September 30, 2021, repealed the provisions of Executive Order N29-20 that allowed local legislative bodies to conduct meetings telephonically or by other means; and
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2/14/2023/CAO/JSanchez/Item 2 2023-
WHEREAS, on September 16, 2021, Governor Newsom signed Assembly Bill 361 (2021) (“AB 361”), which allows for remote teleconferencing participation in meetings by members of a legislative body without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and WHEREAS, a required condition of AB 361 is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, AB 361 further requires that state or local officials have imposed or recommended measures to promote social distancing, or, that the legislative body meeting in person would present imminent risks to the health and safety of attendees; and WHEREAS, on September 28, 2021, the City Council adopted Resolution No. 2021-370 authorizing remote teleconference meetings pursuant to AB361 (Government Code section 54953(e)); and
WHEREAS, the City is required to make certain findings every thirty (30) days to continue teleconferencing under Government Code section 54953(e)(3), including reconsideration of the state of emergency declared by the Governor pursuant to Government Code section 8625, and whether State or local officials continue to impose or recommend measures to promote social distancing; and WHEREAS, the City Council has considered the circumstances of the Governor’s state of emergency proclamation pursuant to Government Code section 8625, which remains active; and
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2/14/2023/CAO/JSanchez/Item 3 2023-
WHEREAS, on March 8, 2022, the County of Stanislaus Board of Supervisors terminated the Declaration of a Local Health Emergency that was issued on March 11, 2020; and
WHEREAS, State of California health officials recommend masks to be worn when individuals might be around unvaccinated people, especially while indoors; and WHEREAS, the City Council, acting for itself and for the benefit of all of the City’s commissions, committees, and other bodies (collectively referred to as the “Legislative Bodies”), does hereby find that the Legislative Bodies shall continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that the Legislative Bodies shall continue to comply with the requirements to provide the public with access to the meetings as prescribed in Government Code section 54953(e)(2) as a consequence of the ongoing state of emergency and the continued social distancing measures required by local officials.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MODESTO DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Section 2. Consideration of State of Emergency. The City Council has considered the conditions of the state of emergency declared pursuant to Government Code section 8625, and determined that such emergency conditions continue to be present in the City. #3..
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2/14/2023/CAO/JSanchez/Item 4 2023-
Section 3. Continued Social Distancing Measures by State and Local Officials.
The City Council finds that the State of California Health Officer’s recommended measures to promote social distancing remain in effect.
Section 4. Remote Teleconference Meetings. The City Council finds that the conditions continue to exist pursuant to Government Code section 54953(e)(3) to allow Legislative Bodies to use teleconferencing to hold public meetings in accordance with Government Code section 54953(e)(2) to ensure members of the public have continued access to safely observe and participate in local government meetings.
Section 5. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective until the earlier of (i) March 16, 2023, (ii) such time the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the legislative bodies of City may continue to teleconference without compliance with paragraph (3) of subdivision (b) of section 54953, or (iii) until such time that the state of emergency is no longer in effect.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember____, who moved its adoption, which motion being duly seconded by______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
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2/14/2023/CAO/JSanchez/Item 5 2023-
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
5296455.1
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Assembly Bill No. 361
CHAPTER 165
An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately.
[Approved by Governor September 16, 2021. Filed with
Secretary of State September 16, 2021.]
legislative counsel’s digest
AB 361, Robert Rivas. Open meetings: state and local agencies:
teleconferences.
(1) Existing law, the Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act contains specified provisions regarding the timelines for posting an agenda and providing for the ability of the public to directly address the legislative body on any item of interest to the public.
The act generally requires all regular and special meetings of the legislative body be held within the boundaries of the territory over which the local agency exercises jurisdiction, subject to certain exceptions. The act allows for meetings to occur via teleconferencing subject to certain requirements, particularly that the legislative body notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, that members of the public be allowed to address the legislative body at each teleconference location, that the legislative body post an agenda at each teleconference location, and that at least a quorum of the legislative body participate from locations within the boundaries of the local agency’s jurisdiction. The act provides an exemption to the jurisdictional requirement for health authorities, as defined. The act authorizes the district attorney or any interested person, subject to certain provisions, to commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that specified actions taken by a legislative body are null and void.
Existing law, the California Emergency Services Act, authorizes the Governor, or the Director of Emergency Services when the governor is inaccessible, to proclaim a state of emergency under specified circumstances.
Executive Order No. N-29-20 suspends the Ralph M. Brown Act’s requirements for teleconferencing during the COVID-19 pandemic provided that notice and accessibility requirements are met, the public members are allowed to observe and address the legislative body at the meeting, and that a legislative body of a local agency has a procedure for receiving and swiftly
92 #3..
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resolving requests for reasonable accommodation for individuals with disabilities, as specified.
This bill, until January 1, 2024, would authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees, as provided.
This bill would require legislative bodies that hold teleconferenced meetings under these abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body. The bill would require the legislative body to take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored. The bill would specify that actions taken during the disruption are subject to challenge proceedings, as specified.
This bill would prohibit the legislative body from requiring public comments to be submitted in advance of the meeting and would specify that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time. The bill would prohibit the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified. When there is a continuing state of emergency, or when state or local officials have imposed or recommended measures to promote social distancing, the bill would require a legislative body to make specified findings not later than 30 days after the first teleconferenced meeting pursuant to these provisions, and to make those findings every 30 days thereafter, in order to continue to meet under these abbreviated teleconferencing procedures.
Existing law prohibits a legislative body from requiring, as a condition to attend a meeting, a person to register the person’s name, or to provide other information, or to fulfill any condition precedent to the person’s attendance.
92 Ch. 165 — 2 —
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This bill would exclude from that prohibition, a registration requirement imposed by a third-party internet website or other online platform not under the control of the legislative body.
(2) Existing law, the Bagley-Keene Open Meeting Act, requires, with specified exceptions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body. The act requires at least one member of the state body to be physically present at the location specified in the notice of the meeting.
The Governor’s Executive Order No. N-29-20 suspends the requirements of the Bagley-Keene Open Meeting Act for teleconferencing during the COVID-19 pandemic, provided that notice and accessibility requirements are met, the public members are allowed to observe and address the state body at the meeting, and that a state body has a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, as specified.
This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a state body to hold public meetings through teleconferencing and to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body. With respect to a state body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the state body at each teleconference location. Under the bill, a state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the state body allow members of the public to attend the meeting and offer public comment. The bill would require that each state body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge state bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(3) Existing law establishes the various campuses of the California State University under the administration of the Trustees of the California State University, and authorizes the establishment of student body organizations in connection with the operations of California State University campuses.
The Gloria Romero Open Meetings Act of 2000 generally requires a legislative body, as defined, of a student body organization to conduct its business in a meeting that is open and public. The act authorizes the legislative body to use teleconferencing, as defined, for the benefit of the public and the legislative body in connection with any meeting or proceeding authorized by law.
This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a legislative body, as defined for purposes of the act, to hold public meetings through teleconferencing and 92 — 3 — Ch. 165
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to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body. With respect to a legislative body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the legislative body at each teleconference location.
Under the bill, a legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. The bill would require that each legislative body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge legislative bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(4) This bill would declare the Legislature’s intent, consistent with the Governor’s Executive Order No. N-29-20, to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future emergencies by allowing broader access through teleconferencing options.
(5) This bill would incorporate additional changes to Section 54953 of the Government Code proposed by AB 339 to be operative only if this bill and AB 339 are enacted and this bill is enacted last.
(6) The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect. (7) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect. (8) This bill would declare that it is to take effect immediately as an urgency statute.
The people of the State of California do enact as follows:
SECTION 1. Section 89305.6 is added to the Education Code, to read:
89305.6. (a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a legislative body may hold public meetings through teleconferencing 92 Ch. 165 — 4 —
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and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body.
(b) (1) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the legislative body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B) Each teleconference location be accessible to the public. (C) Members of the public may address the legislative body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the legislative body be physically present at the location specified in the notice of the meeting.
(c) A legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. A legislative body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d) If a legislative body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the legislative body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each legislative body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
92 — 5 — Ch. 165
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(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a legislative body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the legislative body’s internet website.
(f) All legislative bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to legislative body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.
SEC. 2. Section 11133 is added to the Government Code, to read:
11133. (a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a state body may hold public meetings through teleconferencing and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body.
(b) (1) For a state body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the state body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a state body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B) Each teleconference location be accessible to the public. (C) Members of the public may address the state body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the state body be physically present at the location specified in the notice of the meeting.
(c) A state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically 92 Ch. 165 — 6 —
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or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the state body allow members of the public to attend the meeting and offer public comment. A state body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d) If a state body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the state body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each state body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a state body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the state body’s internet website.
(f) All state bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to state body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.
SEC. 3. Section 54953 of the Government Code is amended to read:
92 — 7 — Ch. 165
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54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
92 Ch. 165 — 8 —
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(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. 92 — 9 — Ch. 165
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In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time.
This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. 92 Ch. 165 — 10 —
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(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
SEC. 3.1. Section 54953 of the Government Code is amended to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency in person, except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body 92 — 11 — Ch. 165
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shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 92 Ch. 165 — 12 —
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2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3.
In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for 92 — 13 — Ch. 165
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the public to address the legislative body and offer comment in real time.
This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. (3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
SEC. 4. Section 54953 is added to the Government Code, to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting 92 Ch. 165 — 14 —
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of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, 92 — 15 — Ch. 165
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members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.
SEC. 4.1. Section 54953 is added to the Government Code, to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, in person except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the 92 Ch. 165 — 16 —
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legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint 92 — 17 — Ch. 165
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powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.
SEC. 5. Sections 3.1 and 4.1 of this bill incorporate amendments to Section 54953 of the Government Code proposed by both this bill and Assembly Bill 339. Those sections of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2022, but this bill becomes operative first, (2) each bill amends Section 54953 of the Government Code, and (3) this bill is enacted after Assembly Bill 339, in which case Section 54953 of the Government Code, as amended by Sections 3 and 4 of this bill, shall remain operative only until the operative date of Assembly Bill 339, at which time Sections 3.1 and 4.1 of this bill shall become operative.
SEC. 6. It is the intent of the Legislature in enacting this act to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future applicable emergencies, by allowing broader access through teleconferencing options consistent with the Governor’s Executive Order No. N-29-20 dated March 17, 2020, permitting expanded use of teleconferencing during the COVID-19 pandemic.
SEC. 7. The Legislature finds and declares that Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, further, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
This act is necessary to ensure minimum standards for public participation and notice requirements allowing for greater public participation in teleconference meetings during applicable emergencies.
SEC. 8. (a) The Legislature finds and declares that during the COVID-19 public health emergency, certain requirements of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) were suspended by Executive Order N-29-20. Audio and video teleconference were widely used to conduct public meetings in lieu of physical location meetings, and public meetings conducted by teleconference during the COVID-19 public health emergency have been productive, have increased public participation by all members of the public regardless of their location in the state and ability to travel to physical meeting locations, have protected the health and safety of civil servants and the public, and have reduced travel costs incurred by members of state bodies and reduced work hours spent traveling to and from meetings.
92 Ch. 165 — 18 —
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(b) The Legislature finds and declares that Section 1 of this act, which adds and repeals Section 89305.6 of the Education Code, Section 2 of this act, which adds and repeals Section 11133 of the Government Code, and Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, all increase and potentially limit the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
(1) By removing the requirement that public meetings be conducted at a primary physical location with a quorum of members present, this act protects the health and safety of civil servants and the public and does not preference the experience of members of the public who might be able to attend a meeting in a physical location over members of the public who cannot travel or attend that meeting in a physical location. (2) By removing the requirement for agendas to be placed at the location of each public official participating in a public meeting remotely, including from the member’s private home or hotel room, this act protects the personal, private information of public officials and their families while preserving the public’s right to access information concerning the conduct of the people’s business.
SEC. 9. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect.
The facts constituting the necessity are:
In order to ensure that state and local agencies can continue holding public meetings while providing essential services like water, power, and fire protection to their constituents during public health, wildfire, or other states of emergencies, it is necessary that this act take effect immediately.
O
92 — 19 — Ch. 165
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: January 17, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
Christina Alger, Director of Human Resources
Will Wong, Director of Utilities
SUBJECT: Amendments to Legal Services Agreements for continued representation CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a First Amendment to the Legal Services Agreement with Castillo, Moriarty, Tran & Robinson in the amount of $200,000, for a total Agreement amount not to exceed $245,000 for continued representation in Police Related Matters and a Fourth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. to adjust rates for continued representation in Water Related Matters. (Funding Source: General Liability Insurance Fund and Water Funds)
STRATEGIC PLAN ELEMENT:
This item supports the City’s 2020-2025 Strategic Plan Goals to build a high-performance organization and improve community safety.
BACKGROUND:
In 2014, in order to improve the transparency and delivery of legal services, the City Attorney’s office prepared, and Council approved, a standard legal services contract. The City has since used that agreement to enter into legal services. The City Attorney’s Office tracks the assigned budget and requests that Council amend the agreements when necessary.
DISCUSSION:
Castillo, Moriarty, Tran & Robinson
On September 22, 2022, the City entered into a Legal Services Agreement with Castillo, Moriarty, Tran & Robinson to represent the City in police litigation matters for an amount not the exceed $45,000. The City decided to enter into an agreement with this law firm after the attorneys representing the City in several law enforcement matters left the firm of Allen, Glaessner, Hazelwood & Werth, LLP to start this new firm. Entering into an agreement with Castillo, Moriarty, Tran & Robinson ensured the continuation of services by the same key attorneys. An increase to the agreement budget is needed in the amount of $200,000 to #4..
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City Council, February 14, 2023
Amendments to Legal Services Agreements for continued representation
support continued services, for a total agreement amount not to exceed $245,000. The previous agreement and amendments with the law firm of Allen, Glaessner, Hazelwood & Werth, LLP totaled an amount to not exceed $645,000 over a three-year, seven-month timeperiod.
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, this agreement is for professional services and, therefore, exempt from the bidding requirement. The approval of this amendment conforms to Modesto Municipal Code 8-
3.204, subsection (a) as they are providing professional legal services.
Bartkiewicz, Kronick & Shanahan, P.C
On December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300. On July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS in the amount of $35,000 for a not to exceed amount of $92,300.
On August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment increasing the contract amount by $50,000 for a total agreement amount not to exceed $142,300 and on May 3, 2022, by Resolution 2022- 202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation. The City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan. This is the suit challenging the State Water Board’s approval of regulatory changes that require that about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”. The City relies on Tuolumne River supplies from Modesto Irrigation District to help meet the demands of City customers, and the City filed this suit to protect its interests in that water.
BKS has maintained their original rates for the past five and a half years. The regional economy has experienced significant inflation and BKS is requesting an increase to their rates. The City mainly receives services from principal attorneys at BKS. For the principal attorneys assigned to the City’s matter, the rate adjustment will reflect as an increase from $310 to $325 an hour for Principal I and $280 to $295 an hour for Principal II. This amendment to will not increase the not to exceed amount; it will only increase the hourly rates.
Attached are the amendments for Council approval.
FISCAL IMPACT:
Costs for Castillo, Moriarty, Tran & Robinson will be absorbed within the General Liability Insurance Fund with a not to exceed amount of $245,000. Costs associated with the BKS Legal Services Agreement will be paid from the Water Funds. BKS has a remaining balance of $38,166.59 on their agreement. This amendment to will not increase the not to exceed amount; it will only increase the hourly rates.
The overall budget for the City Attorney’s Office will be set by Council as part of the budget process and the City Attorney will manage the office and services pursuant to that budget.
COMMITTEE RECOMMENDATION:
This item was not presented to a Council Committee.
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City Council, February 14, 2023
Amendments to Legal Services Agreements for continued representation
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a First Amendment to the Legal Services Agreement with Castillo, Moriarty, Tran & Robinson in the amount of $200,000, for a total Agreement amount not to exceed $245,000, for continued representation in Police Litigation Matters and authorizing the City Manager or his designee, to execute the Amendment.
Resolution approving a Fourth Amendment to the Legal Services Agreement for Bartkiewicz, Kronick & Shanahan P.C. to adjust hourly rates for continued representation and authorizing the City Manager or his designee, to execute the Agreement.
Approved by: _____
Jose M. Sanchez, City Attorney
_____
Christina Alger, Director of Human Resources
__________________________________
Will Wong, Director of Utilities
_____
Joseph P. Lopez, City Manager
Attachments:
1. Resolution – CMTR
2. Resolution -BKS
3. First Amendment to Legal Services Agreement-CMTR
4. Fourth Amendment to Legal Services Agreement- BKS
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A FIRST AMENDMENT TO THE LEGAL
SERVICES AGREEMENT WITH CASTILLO, MORIARTY, TRAN &
ROBINSON IN THE AMOUNT OF $200,000, FOR A TOTAL AGREEMENT AMOUNT NOT TO EXCEED $245,000, FOR CONTINUED REPRESENTATION
IN POLICE LITIGATION MATTERS AND AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE, TO EXECUTE THE AMENDMENT
WHEREAS, on September 22, 2022, the City entered into a Legal Services Agreement with Castillo, Moriarty, Tran & Robinson to represent the City in police litigation matters for an amount not the exceed $45,000; and WHEREAS, the City decided to enter into an agreement with this law firm after the attorneys representing the City in several law enforcement matters left the firm of Allen, Glaessner, Hazelwood & Werth, LLP to start this new firm; and WHEREAS, entering into an agreement with Castillo, Moriarty, Tran & Robinson ensured the continuation of services by the same key attorneys; and WHEREAS, our office is requesting an increase to the agreement budget in the amount of $200,000 to support continued services, for a total agreement amount not to exceed $245,000; and
WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, this agreement is for professional services and, therefore, exempt from the bidding requirement. The approval of this amendment conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional legal services; and
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WHEREAS, the City Attorney’s office has drafted a First Amendment to the Legal Services agreement with Castillo, Moriarty, Tran & Robinson for continued services.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a First Amendment to the Legal Services Agreement with Castillo, Moriarty, Tran & Robinson in the amount of $200,000, for a total agreement amount not to exceed $245,000 for continued representation in police litigation matters as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.
BE IT FURTHER RESOLVED, that the City Manager or his designee, are hereby authorized to execute the amendment, in a form approved by the City Attorney.
The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 14th day of February 2023, by Councilmember ________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
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BY: _________________________________
JOSE M. SANCHEZ, City Attorney
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A FOURTH AMENDMENT TO THE LEGAL
SERVICES AGREEMENT FOR BARTKIEWICZ, KRONICK & SHANAHAN
P.C. TO ADJUST HOURLY RATES FOR CONTINUED REPRESENTATION
AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE, TO
EXECUTE THE AGREEMENT
WHEREAS, on December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300; and
WHEREAS, on July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS for continued services in an amount not to exceed $92,300; and
WHEREAS, on August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment for continued services for a total agreement amount not to exceed $142,300; and
WHEREAS, on May 3, 2022, by Resolution 2022- 202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation; and
WHEREAS, the City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan; and WHEREAS, this is the suit challenging the State Water Board’s approval of regulatory changes that require that about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”; and #4..
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WHEREAS, BKS has maintained their original rates for the past five and a half years and the regional economy has experienced significant inflation and BKS is requesting an increase to their rates; and
WHEREAS, the City mainly receives services from principal attorneys at BKS and for the principal attorneys assigned to the City’s matter, the rate adjustment will reflect as an increase from $310 to $325 an hour for Principal I and $280 to $295 an hour for Principal II; and
WHEREAS, this amendment to will not increase the not to exceed amount; it will only increase the hourly rates.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Fourth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan, P.C., to adjust hourly rates for continued representation, as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.
BE IT FURTHER RESOLVED that the City Manager or his designee, are hereby authorized to execute the amendment, in a form approved by the City Attorney.
The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 14th day of February 2023, by Councilmember ________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
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NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ______________________________
DIANE NAYARES-PEREZ, CMC City
Clerk
APPROVED AS TO FORM:
BY: _______________________________________
JOSE M. SANCHEZ, City Attorney
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FIRST AMENDMENT TO LEGAL SERVICES AGREEMENT
This First Amendment to the Legal Services (this “First Amendment”), is made and entered into on 14th day of February 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“City”), and CASTILLO, MORIARTY, TRAN & ROBINSON (“Attorney”), located at 75 Southgate Ave., Daly City, California 94015. City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as “Party”.
RECITALS
WHEREAS, City and Attorney entered into a Legal Services Agreement (“Agreement”) to provide litigation, trial counsel, legal advice, representation and assistance to City in relation to police matters including use of force and the discharge of a weapon; and WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by the Agreement; and
WHEREAS, City and Attorney desire to amend the Agreement for further service by increasing the previously approved amount of fees from $45,000 to $245,000.
NOW, THEREFORE, it is hereby agreed that the Legal Services Agreement between the City of Modesto and Castillo, Moriarty, Tran & Robinson dated September 22, 2022, is amended as follows:
1. Section 2(a) of Paragraph 2, “Fees and Costs,” is amended to state as follows:
“The total of all fees paid to Attorney for the performance of all services set forth in Section 1 (thereafter the “Service”), and for all authorized Reimbursable Expenses (as defined hereafter), shall not exceed a total sum of two hundred, forty five thousand dollars ($245,000).”
2. Entire Agreement. The parties to this First Amendment understand and agree that except as stated herein all terms and conditions of the original Agreement, dated September 22, 2022, remain in full force and effect to the extent they are not in conflict with this First Amendment. This document, including all exhibits, contain the entire amendment to the Agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this First Amendment. No alteration to the terms of this First Amendment shall be valid unless approved in writing by Attorney and by City, in accordance with applicable provision of the Modesto City Code.
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3. Authority. The person signing this First Amendment for Attorney hereby represents and warrants that he/she is fully authorized to sign this First Amendment on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the dates stated below.
CITY OF MODESTO,
A Municipal Corporation
By:
Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, City Clerk
________________________________
Joe Rodriguez, Risk Manager
[Signatures Continued on Next Page.]
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ATTORNEY:
CASTILLO, MORIARTY, TRAN & ROBINSON
_____________________________________
88-3503648
Federal I.D. No.
202022214002
State I.D. No.
_____N/A_________________________________
City of Modesto Business Op. Tax Cert. No.
TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
_____ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
____Partner_____________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
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FOURTH AMENDMENT TO LEGAL SERVICES AGREEMENT
This Fourth Amendment to the Legal Services (this “Fourth Amendment”), is made and entered into on this 14th day of February 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“City”), and BARTKIEWICZ, KRONICK & SHANAHAN, P.C. (“Attorney”), located at 1011 22nd Street, Sacramento, California 95816.
City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as “Party”.
RECITALS
WHEREAS, City and Attorney entered into a Legal Services Agreement (“Agreement”) to provide legal services for the State Water Resources Control Board Substitute Environmental Document; and
WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by the Agreement; and
WHEREAS, Attorney has not increased their rates or received any cost of living adjustments since 2016. City and Attorney desire to amend the Agreement for further service by increasing the hourly rates.
NOW, THEREFORE, it is hereby agreed that the Legal Services Agreement between the City of Modesto and Bartkiewicz, Kronick & Shanahan, P.C. dated December 6, 2016, and amended by Resolutions No. 2017-282, 2019-367 and 2022-202 is amended as follows:
1. Exhibit A, “Proposal for Legal Services Regarding Preparation of City’s Comments on State Water Board’s Draft Substitute Environmental Document for Phase 1 of Bay/Delta Water Quality Control Plan Update Proceedings” to the Agreement is amended to replace the rates listed in Exhibit A, Section “Proposed Budget” with the following rates:
Principal I $325/hour
Principal II $295/hour
Associate I $285/hour
Associate II $270/hour
Of Counsel $325/hour
Paralegal $195/hour
2. Entire Agreement. The parties to this Fourth Amendment understand and agree that except as stated herein all terms and conditions of the original Agreement, dated December 6, 2016, remain in full force and effect to the extent they are not in conflict with this Fourth Amendment. This document, including all exhibits, contain the entire amendment to the #4..
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Agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Fourth Amendment. No alteration to the terms of this Fourth Amendment shall be valid unless approved in writing by Attorney and by City, in accordance with applicable provision of the Modesto City Code.
3. Authority. The person signing this Fourth Amendment for Attorney hereby represents and warrants that he/she is fully authorized to sign this Fourth Amendment on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment as of the dates stated below.
CITY OF MODESTO,
A Municipal Corporation
By:
Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, CMC City Clerk
________________________________
Joe Rodriguez, Risk Manager
[Signatures Continued on Next Page.]
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ATTORNEY:
BARTKIEWICZ, KRONICK & SHANAHAN, P.C.
______________________________________
______________________________________
Federal I.D. No.
______________________________________
State I.D. No.
______________________________________
City of Modesto Business Op. Tax Cert. No.
TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
_____ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
______________________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: January 24, 2023
TO: Mayor and City Council
FROM: Joseph P. Lopez, City Manager
SUBJECT: Monthly Budget Adjustment Report – January 2023 CONTACT: Steve Christensen, Budget Manager, [email protected] 209-577-5390
DESCRIPTION:
Consider approving the recommended Budget adjustments to Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets. (Funding Source: Various Funds)
STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto 2020-2025 Strategic Plan focus on Governance and Service Delivery under Goal H: Achieve Financial Sustainability.
BACKGROUND:
Each month City staff presents a variety of budget adjustments requiring the approval of Council. These changes are submitted to the Finance Committee for review prior to submission to Council and include an explanation and justification for each transaction.
This report includes a number of adjustments that have been identified by monitoring department budgets. Due to the number of adjustments, they have been included as an attachment to this report (Exhibit A). As in past reports, adjustments are separated by fund and department as appropriate. The adjustments are reflected in a more summarized version and supporting documentation is available for review upon request.
Also included in this report as an attachment (Exhibit B) is a summary of the budget adjustments approved by the City Manager and/or Budget Manager consistent with the change in authority levels that was approved by Council with the passing of the Fiscal Year 2019-20 Operating Budget via Resolution No. 2019-305.
DISCUSSION:
The monthly budget adjustments attached as Exhibit A in this item include adjustments across various departments. These adjustments are explained in further detail within Exhibit A. #5..
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City Council, February 14, 2023
Monthly Budget Adjustment Report – January 2023
FISCAL IMPACT:
The fiscal impact of each item is noted in the attachments to this report. The adjustments are for Fiscal Year 2022-23.
COMMITTEE RECOMMENDATION:
This item was presented to the Finance Committee on January 23, 2023 and was recommended to be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution amending Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.
Approved by:
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Exhibit A – Budget Adjustments Requiring Council Approval
3. Exhibit B - Staff Approved Budget Adjustments
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2022-23 ANNUAL
OPERATING AND CAPITAL IMPROVEMENT FUND BUDGETS AND
AUTHORIZING THE CITY MANAGER, TO TAKE THE NECESSARY
STEPS TO IMPLEMENT THE PROVISIONS OF THIS RESOLUTION
WHEREAS, a financial analysis has been completed and it has been determined that a budget adjustment is required to the Annual and Capital Improvement Budgets of the City of Modesto for Fiscal Year 2022-23.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves amending the Fiscal Year 2022-23 Annual Operating and Capital Improvement budget as shown in Exhibit A, which is attached hereto and incorporated by reference herein.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to take the necessary steps to implement the provisions of this resolution.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February 2023, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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City Council, February 14, 2023
Monthly Budget Adjustment Report
EXHIBIT A
FISCAL YEAR 2022-23
COMMUNITY AND ECONOMIC DEVELOPMENT
A budget adjustment is necessary to re-allocate $2,470,000 from Project 101214 – Granger Neighborhood Pavement Rehabilitation to Project 101169 – Scenic Drive Pavement Rehabilitation Phase 2. Both of the projects are funded with Measure L – Local Streets and Roads funds. Additionally, a budget adjustment in the amount of $465,580 is needed to allocate higher than anticipated Measure L – Local Streets and Roads revenue to Project 101169. The adjustment will increase the transfer out from Fund 1410 – Measure L Local Road tax to the project and increase the projects discretionary expense accounts. Both requests were presented to the Measure L Sales Tax Commission at the December 1, 2022 and were approved. A budget adjustment in the amount of $350,000 is necessary in Fund 3170 Capital Grants – HUD CIP Projects and Fund 1130 – Community Development Block Grants (CDBG), to budget the transfers for capital projects that are funded by CDBG funding.
This amount varies each year based on the number of projects. These transfers being budgeted are primarily for Project 100866 – Senior Playground and Project 101293 – Boys and Girls First Tee.
FIRE DEPARTMENT
A budget adjustment is necessary in the amount of $276,842 to recognize additional revenue on Project 100960 – AMR/General EMS for the American Medical Response Contract. The revenue will be recognized and allocated to the project discretionary expenditure budget for anticipated expenses in the fiscal year. Due to the urgent need to pay for invoices in the project, a budget adjustment in the amount of $50,000 was completed on the City Manager’s authority. The adjustment will increase the budget by an additional $226,842 for a total of $276,842.
INFORMATION TECHNOLOGY
A budget adjustment in the amount of $90,544 is needed in the Information Technology (IT) Fund 5230 for the first year of service for the Grant Management Software Subscription with Carahsoft Technology Corporation (eCivis). The agreement was approved by Council on January 10, 2023 per resolution 2023-14 and this adjustment will account for expenditures in the first year.
PARKS, RECREATION AND NEIGHBORHOODS
A budget adjustment in the amount of $200,000 is needed to increase the transfer out from the Parks & Air Quality Capital Facility Fee Fund 3432 to Project 101233 – Dry Creek to TRRP Trail Connection project within the Capital Grants – CIP Projects Fund 3140. The additional budget will be allocated to the project discretionary expenditure task to pay for expenses related to the preparation of the construction document. #5..
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City Council, February 14, 2023
Monthly Budget Adjustment Report
A budget adjustment in the amount of $324,938 is necessary in the Golf Fund – (4600) to recognize the revenue related to the Clubhouse at the Muni Golf Course insurance claim and increase expenses in Project 101464 – Muni Clubhouse Remediation to pay for outstanding expenses. As additional projects are identified, a portion of the revenue will be moved to those projects.
POLICE DEPARTMENT
A budget adjustment is the amount of $130,542 is needed to create a new non-capital project budget for the 2022 Byrne Justice Assistance Grant (BJAG) awarded to the Modesto Police Department in the amount of $134,579. The amount budgeted in the project subtracts out the 3% administration fee that is paid to the Stanislaus County Sheriff’s Department as the fiduciary of the grant ($4,037). This adjustment will budget the revenues and the expenditures as approved per the grant program categories.
PUBLIC WORKS
A budget adjustment in the amount of $237,371 is needed to reduce the budget in the Non-Capital Public Works (Non-Grant) Fund (1381), Cost Center PW – City Services for StanRTA – Citywide Agreement and Temp Staff (51019) to $0. The cost center was originally created by two staff members prior to the transition to StanRTA. The cost center is no longer being used for Fiscal Year 2022-2023 and the budget needs to be reduced to $0.
UTILITIES
A budget adjustment in the amount of $100,000 is necessary in the Water Fund (4100) to increase the expense budget for the Water – Grant Research & Writing Project (101452) to cover expenses associated with staff time and consultant services. A budget adjustment in the amount of $100,000 is necessary in the Wastewater Fund (4210) to increase the expense budget for the Wastewater – Grant Research & Writing Project (101453) to cover expenses associated with staff time and consultant services. A budget adjustment in the amount of $100,000 is necessary in the Storm Drain Fund (4480) to increase the expense budget for the Storm Drain – Grant Research & Writing Project (101454) to cover expenses associated with staff time and consultant services. A budget adjustment in the amount of $927,500 is necessary in the Water Fund (4180) to establish the expense budget for the Empire Yosemite Water Main Crossings Strengthen & Replace Project 101458 to cover expenses associated with staff time and consultant services.
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Acco
unt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-080 DD 0100 General Fund FIN - Purchasing Budget Only - Salary Adjustment - Decrease Exp $ - (4,970) $ $ (4,970)
AT-080 DD 0100 General Fund FIN - Purchasing Budget Only - Benefit Adjustment - Decrease Exp $ - (1,030) $ $ (1,030)
AT-080 DD 0100 General Fund FIN - Purchasing Professional Services Exp $ 9,035 6,000 $ $ 15,035 AT-083 BM 0100 General Fund City Auditor Budget Only - Salary Adjustment - Decrease Exp $ (51,245) (49,000) $ $ (100,245)
AT-083 BM 0100 General Fund City Auditor Budget Only - Benefit Adjustment - Decrease Exp $ (34,164) (21,000) $ $ (55,164) AT-083 BM 0100 General Fund City Auditor Professional Services Exp $ 50,985 $ 70,000 $ 120,985 Total Changes for Fund 0100 $ (25,389) $ - $ (25,389)
AT-098 BM 0180 Fire Dept Unrestricted Non-Cap 100960 - AMR/General EMS CS - PS - American Medical Response Contract Rev $ 1,202,165 50,000 $ $ 1,252,165
AT-098 BM 0180 Fire Dept Unrestricted Non-Cap 100960 - AMR/General EMS Emergency Med Services & Equipment Exp $ 452,387 50,000 $ $ 502,387
Total Changes for Fund 0180 $ 1,654,552 $ 100,000 $ 1,754,552 AT-088 CM 1120 Permanent Local Housing
Assistance Prgm
101411 - 1208 9th St CHS
Youth Housing
Homekey Operating Subsidies
AUC Exp $ 705,600 (231,416) $ $ 474,184
AT-088 CM 1120 Permanent Local Housing
Assistance Prgm
101411 - 1208 9th St CHS
Youth Housing
Homekey Property Acquisition
Rehab AUC Exp $ 3,090,000 231,416 $ $ 3,321,416
Total Changes for Fund 1120 $ 3,795,600 $ - $ 3,795,600 AT-076 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Task CDBG Cares CV-2 Exp $ 509,557 (203) $ $ 509,354 AT-076 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act 1455 AD CCC Safe Hs AUC Exp $ 2,105 $ 73 $ 2,178 AT-076 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act 1456 AD USF Dailey Brd AUC Exp $ 1,493 130 $ $ 1,623 AT-077 CM 1130 CDBG Direct Program Grants 14015 - CED CDBG Direct Program
Federal Revenue - Activity
01449 Rev $ - 49,000 $ $ 49,000
AT-077 CM 1130 CDBG Direct Program Grants 14015 - CED CDBG Direct Program Direct Grants - Activity 01449 Exp $ - 49,000 $ $ 49,000 AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Task CDBG Cares CV-2 Exp $ 509,557 (475,428) $ $ 34,129 AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Svcs City Forces - Interfund Exp $ - 25,000 $ $ 25,000 AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Direct Grants Exp $ - 450,428 $ $ 450,428 AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Federal Revenue Rev $ 429,060 (429,060) $ $ - AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Federal Revenue - Activity 01363 Rev $ 477,153 (46,368) $ $ 430,785
AT-093 BM 1130 CDBG Direct Program Grants 101257 - CDBG CARES Act Federal Revenue - Activity 01484 Rev $ - 475,428 $ $ 475,428
AT-096 BM 1130 CDBG Direct Program Grants 14015 - Direct Grants Federal Revenue - Activity 01483 Rev $ - 10,000 $ $ 10,000
AT-096 BM 1130 CDBG Direct Program Grants 14015 - Direct Grants Svcs City Forces - Interfund - Activity 01483 Exp $ - 10,000 $ $ 10,000
A budget adjustment in the amount of $475,428 between tasks is necessary to meet contract obligations. There is no impact to the General Fund. There is no change to the overall project budget.
A budget adjustment is needed to establish the budget for the activity in the operating budget. This will be fully funded by CDBG Federal Grant. There is no impact to the General Fund.
A budget adjustment is necessary to recognize additional revenue from the American Medical Response (AMR) Contract. A subsequent adjustment will be going to Finance Committee on 1/23/2023 on the monthly budget adjustment item to recognize the actual revenue to date and allocate the funds to the project discretionary expenditure task.
A budget adjustment in the amount of $203 is necessary to meet contract obligations as approved on Resolution 2022-061. There is no impact to the general fund and no impact to the overall project budget.
A budget adjustment in the amount of $49,000 is necessary to meet public service contract obligations for Downtown Streets Team. This was budgeted as part of the FY21/22 budget, and was not encumbered to FY23. A budget will need to be created to pay current invoices. There is no impact to the General Fund.
A budget adjustment of $6,000 is necessary to cover the Public Bidding subscription agreement with Planet Bids, which had a 62% increase triggered from adding additional license users (4 to 7) due to the buyers needed to manage the process.
Additionally, Planet Bids has not imposed any increases over the last 13 years. The rate increase increased from $8,211 to 13k. This increase will be funded from APPR Unit A savings.
A budget adjustment of $70,000 is necessary to move salary savings to the Professional Services account within cost center 06010. Internal auditing services are currently being provided by Sjoberg Evashenk Consulting, Inc.
A budget adjustment is needed to realign the HomeKey 2.0 grant budget with the amount that was received. Originally budget a portion of the property acquisition budget as operating subsidies. There is no change to the project budget. #5..
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Acco
unt Current Budget
Increase
(Decrease)
Revised
Budget Description
Total Changes for Fund 1130 $ 1,928,925 $ 118,000 $ 2,046,925 AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1385 Outreach CHS AUC Exp $ 56,893 (7,322) $ $ 49,571
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR HVEN AD Appr Unit C Exp $ 10,000 (3,640) $ $ 6,360
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR CHS AD AUC Exp $ 5,000 (3,819) $ $ 1,181 AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1385 Appr Unit D Exp $ 500,000 (37,487) $ $ 462,513 AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1385 AD Outreach CHS AUC Exp $ 3,211 217 $ $ 3,428
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1386 HP CHHS AD Appr Unit Exp $ 10,000 908 $ $ 10,908
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1386 HP From AD AUC Exp $ 6,565 310 $ $ 6,875 AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR SA Ber AD AUC Exp $ 34,242 116 $ $ 34,358
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR SA BER Rhb AUC Exp $ 595 $ 59 $ 654
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR SA Aces AD AUC Exp $ 30,537 113 $ $ 30,650
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR STANCO AUC Exp $ 120,000 31,256 $ $ 151,256
AT-079 BM 1180 Emergency Shelter Grants 101258 - CARES Act Funding Activity 1388 STR DTS Jobs AUC Exp $ 732,232 19,290 $ $ 751,522
Total Changes for Fund 1180 $ 1,509,275 $ 1 $ 1,509,276 AT-075 CM 1341 Grants - Operation Grants
Reimbursed PW-Non-Capital Projects Intergov Rev $ - 30,014 $ $ 30,014 AT-075 CM 1341 Grants - Operation Grants
Reimbursed
101449 - PW-Tire Clean Up
Grant 19
Appr Unit C - Services City
Forces - Interfund Exp $ - 19,701 $ $ 19,701
AT-075 CM 1341 Grants - Operation Grants
Reimbursed
101449 - PW-Tire Clean Up
Grant 19
Appr Unit C - Professional
Services Exp $ - 10,313 $ $ 10,313
Total Changes for Fund 1341 $ - $ 60,028 $ 60,028
AT-091 BM 3160 Capital Grants - Streets CIP
Projects
101243 - Travel Time Bluetooth
Devices AUC-Construction Exp $ 150,000 (4,900) $ $ 145,100 AT-091 BM 3160 Capital Grants - Streets CIP
Projects
101243 - Travel Time Bluetooth
Devices AUC-Eng/Design/Admin Exp $ - 4,900 $ $ 4,900
AT-094 BM 3160 Capital Grants - Streets CIP
Projects 101119 - SR 132 Construction Construction Administration - CFF Exp $ 7,293,778 (692,242) $ $ 6,601,536 AT-094 BM 3160 Capital Grants - Streets CIP
Projects 101119 - SR 132 Construction Construction Administration - WSPCFF Exp $ 2,577,108 692,242 $ $ 3,269,350 Total Changes for Fund 3160 $ 10,020,886 $ - $ 10,020,886 AT-089 BM 3170 Capital Grants HUD CIP
Projects
100866 - Senor Playground
2014 Construction Administration Exp $ 123,710 (5,000) $ $ 118,710 AT-089 BM 3170 Capital Grants HUD CIP
Projects
100866 - Senor Playground
2014 Contingency - CIP Exp $ 56,800 5,000 $ $ 61,800
Total Changes for Fund 3170 $ 180,510 $ - $ 180,510
A budget adjustment is necessary to move budget from the CA-CFF task to the CAWSPCFF task to account for the third amendment to WSP USA Inc. The amendment is for $629,311 plus $62,931 for additional services. There is no additional funding being added to the project. This adjustment is only reallocating funds between tasks for tracking purposes.
The City received grant funding from CalRecycle for tire clean up. This grant will provide funding for staff time collecting tires in the public right of way and disposal of tires through a licensed recycler.
A budget adjustment is needed to move $5,000 from the Construction Administration task to the Contingency - CIP task to cover change order #5 on the project.
A budget adjustment is needed to reallocate funds from the Construction task to the Eng/Design/Admin task to account for staff time on the project. The overall project budget is not changing.
A budget adjustment is necessary to meet contract obligations as approved on Resolution 2022-061. There is no impact to the general fund and no impact to the overall project budget.
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Acco
unt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-095 BM 3410 Streets Capital Facility Fee 100614 - SR 132 W.
Expressway Land Acquisition - DEMO Exp $ 4,071,857 (200,000) $ $ 3,871,857 AT-095 BM 3410 Streets Capital Facility Fee 100614 - SR 132 W.
Expressway
Land Acquisition - CFFNossaman Exp $ 1,450,000 200,000 $ $ 1,650,000 Total Changes for Fund 3410 $ 5,521,857 $ - $ 5,521,857 AT-087 CM 4100 Water Fund 101452 - Water Grant
Research/Writing AUC -Eng/Design/Admin Exp $ - 50,000 $ $ 50,000 A budget adjustment is necessary to establish the initial budget for the project.
Council resolutions 2022-418-420 authorized $150,000 annually for Grant Research and Writing, however did not include a budget adjustment. The remaining $100,000 will be taking to the January Finance Committee meeting.
AT-090 BM 4100 Water Fund 101452 - Water Grant
Research/Writing AUC -Eng/Design/Admin Exp $ 50,000 (40,000) $ $ 10,000 AT-090 BM 4100 Water Fund 101452 - Water Grant
Research/Writing
AUC -Eng/Design/Admin 2022
Urban Community Drought
Relief
Exp $ - 40,000 $ $ 40,000
Total Changes for Fund 4100 $ 50,000 $ 50,000 $ 100,000 AT-092 BM 4180 Water Fund - CIP Projects 101084 - Replacement Well 226 Surface Eng/Design/Admin Exp $ 635,420 (15,000) $ $ 620,420 AT-092 BM 4180 Water Fund - CIP Projects 101084 - Replacement Well 226 Surface Construction Admin Exp $ 237,996 15,000 $ $ 252,996 Total Changes for Fund 4180 $ 873,416 $ - $ 873,416
AT-081 BM 4210 Sewer Operations Fund 101399 - River Trunk Inspection AUC-Construction Exp $ 163,000 (163,000) $ $ - AT-081 BM 4210 Sewer Operations Fund 101399 - River Trunk Inspection AUC-Contingency-CIP Exp $ 16,300 (16,300) $ $ - AT-081 BM 4210 Sewer Operations Fund 101399 - River Trunk Inspection AUC-Eng/Design/Admin Exp $ 10,000 179,300 $ $ 189,300 AT-085 CM 4210 Wastewater Fund 101453 - WW Grant
Research/Writing AUC -Eng/Design/Admin Exp $ - 50,000 $ $ 50,000 A budget adjustment is necessary to establish the initial budget for the project.
Council resolutions 2022-418-420 authorized $150,000 annually for Grant Research and Writing, however did not include a budget adjustment. The remaining $100,000 will be taking to the January Finance Committee meeting.
AT-099 BM 4210 Wastewater Fund 100847 - East Morris Sewer Replacement CA - Construction Admin Exp $ 220,800 (120,800) $ $ 100,000 AT-099 BM 4210 Wastewater Fund 100847 - East Morris Sewer Replacement CON - Construction Exp $ 2,760,000 (1,760,000) $ $ 1,000,000 AT-099 BM 4210 Wastewater Fund 100847 - East Morris Sewer Replacement CTGY - Contingency Exp $ 220,800 (120,800) $ $ 100,000 AT-099 BM 4210 Wastewater Fund 100847 - East Morris Sewer Replacement
Engineering/Design/Administrati
on Exp $ 352,800 2,001,600 $ $ 2,354,400
Total Changes for Fund 4210 $ 3,743,700 $ 50,000 $ 3,793,700 AT-086 CM 4480 Storm Drainage Fund 101454 - SB Grant
Research/Writing AUC -Eng/Design/Admin Exp $ - 50,000 $ $ 50,000 A budget adjustment is necessary to establish the initial budget for the project.
Council resolutions 2022-418-420 authorized $150,000 annually for Grant Research and Writing, however did not include a budget adjustment. The remaining $100,000 will be taking to the January Finance Committee meeting.
Total Changes for Fund 4480 $ - $ 50,000 $ 50,000
A budget adjustment is necessary to re-allocate funds from the LA-DEMO task to the LA-CFF-Nossaman task to account for the additional expenses for Nossaman in relation to land acquisition. The funding source is not changing and will come from the Streets CFF fund.
The purpose of this budget adjustment is to redistribute funds between task lines in the project.
A budget adjustment is necessary to reallocate funds from Eng/Design/Admin to Construction Admin to complete the project and close out the tasks.
A budget adjustment is necessary to reallocate the funds between task lines within project 101399 to cover expenses associated with a consultant agreement.
A budget adjustment is needed to reallocate funds to a new task within Project 101452 to track expenses related with the 2022 Urban Community Drought Relief grant program.
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Acco
unt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-084 CM 4600 Golf Fund 101294 - Dryden Golf
Clubhouse Rehab Legal Settlements Rev $ 700,000 50,000 $ $ 750,000 AT-084 CM 4600 Golf Fund 101294 - Dryden Golf
Clubhouse Rehab Other Cost - CIP Exp $ 536,500 50,000 $ $ 586,500 Total Changes for Fund 4600 $ 1,236,500 $ 100,000 $ 1,336,500 A budget adjustment in the amount of $50,000 is necessary to appropriate a portion of the revenue received from the insurance provider related to the claim for the fire at Dryden Course Clubhouse. These revenues will cover expenditures related to renovations being completed at the clubhouse.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: January 17, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Rejecting all Proposals for RFP of Transit Oriented Development Plan CONTACT: Jessica Hill, Interim Director of Community & Economic Development [email protected] , 209-577-5321
DESCRIPTION:
Consider rejecting all proposals for Request for Proposal (RFP) No. 2122-44 for the Stanislaus Regional Transit Oriented Development Plan. (Funding Source: LEAP Grant).
STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto 2020-2025 Strategic Plan Focus of Governance and Service Delivery under goal H: Achieve Financial Sustainability.
BACKGROUND:
In the 2019-20 Budget Act, Governor Gavin Newsom allocated $250 million for all regions, cities, and counties to do their part by prioritizing planning activities that accelerate housing production to meet identified needs of every community. With this allocation, California Department of Housing and Community Development1 (HCD) established the Local Early Action Planning Grant Program (LEAP) with $119 million for cities and counties. LEAP2 provides onetime grant funding to cities and counties to update their planning documents and implement process improvements that will facilitate the acceleration of housing production and help local govts. prepare for their 6th cycle Regional Housing Needs Allocation3 (RHNA) much like the SB2 Planning Grants4.
The purpose of the Multi-Modal Transit Center Concept Development (TOD) Plan is to establish a more refined vision for the future of Downtown Modesto, on and around the transit center site, 1 California Department of Housing and Community Development - https://www.hcd.ca.gov/ 2 Local Early Action Planning (LEAP) Grants - https://www.hcd.ca.gov/grants-and-funding/programsactive/local-early-action-planning 3 Regional Housing Needs Allocation - https://abag.ca.gov/our-work/housing/rhna-regional-housingneeds-allocation 4 SB2 Planning Grants - https://www.hcd.ca.gov/grants-and-funding/programs-active/sb-2-planning-grants #6..
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City Council, February 14, 2023
Rejecting all Proposals for RFP of Transit Oriented Development Plan
consistent with the Downtown Master Plan5 that was adopted by Council in 2020. Residential development will be a primary consideration and urban, vertical mixed-use development will also be a priority in terms of the desired goals and outcomes to be realized.
DISCUSSION:
The Project was advertised on Planet Bids on April 11, 2022. Bids were publicly opened on May 24, 2022, pursuant to City Charter Section 1307.
51 prospective bidders downloaded the proposal.
Purchasing received two bids for the Transit Oriented Development Plan RFP No. 2122-44.
The LEAP grant was funding both the Transit Oriented Development Plan and the City of Modesto 6th Cycle Housing Element. The Housing Element costs were approximately $100,000 higher than what staff had anticipated. Staff utilized the additional LEAP funding allocated to this project to support the 6th Cycle Housing Element. Therefore, due to funding issues, staff recommends rejecting all bids and not moving forward with this project.
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Formal Bid Procedures, the Council shall have the authority to accept or reject any or all bids. The rejection of all bids for the Transit Oriented Design Plan conforms to Modesto Municipal Code 8-3.204, subsection (e).
FISCAL IMPACT:
There is no impact to the General Fund.
COMMITTEE RECOMMENDATION:
This item was brought directly to Council, per City of Modesto Municipal Code Sec. 8-3.204(a).
RECOMMENDED COUNCIL ACTION:
Resolution rejecting all proposals for RFP No. 2122-44 for the Stanislaus Regional Transit Oriented Development Plan.
5 City of Modesto Downtown Master Plan - https://www.modestogov.com/2404/Downtown-Master-Plan #6..
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Approved by:
Jessica Hill,
Interim Director of CEDD
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
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02.14.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION REJECTING ALL PROPOSALS FOR RFP. NO. 2122-44 FOR THE
STANISLAUS REGIONAL TRANSIT ORIENTED DEVELOPMENT PLAN
WHEREAS, the City solicited proposals from qualified consultants to prepare a MultiModal Transit Center Concept Development (TOD) Plan to establish a more refined vision for the future of Downtown Modesto, on and around the transit center site, consistent with the Downtown Master Plan that was adopted by Council in 2020; and WHEREAS, on May 24, 2022, the Purchasing Division issued Request for Proposal (RFP) No. 2122-44 for the preparation of a Transit Oriented Development Plan; and WHEREAS, in the 2019-20 Budget Act, Governor Gavin Newsom allocated $250 million for all regions, cities, and counties to do their part by prioritizing planning activities that accelerate housing production to meet identified needs of every community; and WHEREAS, with this allocation, HCD established the Local Early Action Planning Grant Program (LEAP) with $119 million for cities and counties; and WHEREAS, LEAP provides one-time grant funding to cities and counties to update their planning documents and implement process improvements that will facilitate the acceleration of housing production and help local govts. prepare for their 6th cycle RHNA much like the SB2 Planning Grants; and
WHEREAS, the purpose of the Multi-Modal Transit Center Concept Development (TOD) Plan is to establish a more refined vision for the future of Downtown Modesto, on and around the transit center site, consistent with the Downtown Master Plan that was adopted by Council in 2020; and
WHEREAS, residential development will be a primary consideration and urban, vertical #6..
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02.14.2023/CEDD/JHill/Item # 2 2023-xxx
mixed-use development will also be a priority in terms of the desired goals and outcomes to be realized; and
WHEREAS, purchasing received two bids for the Transit Oriented Development Plan RFP No. 2122-44; and
WHEREAS, the Housing Element costs came back approximately $100,000 higher than what staff had anticipated; and
WHEREAS, staff utilized the additional LEAP funding allocated to this project to support the 6th Cycle Housing Element; and
WHEREAS, therefore, due to funding issues, staff is recommending to reject all bids and not move forward with this project; and
WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.204(a) Formal Bid Procedures, the Council shall have the authority to accept or reject any or all bids.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby rejects all proposals for Request for Bid RFP No. 2122-44 for the Stanislaus Regional Transit Oriented Development Plan.
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02.14.2023/CEDD/JHill/Item # 3 2023-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: __________________________________________
JOSE M. SANCHEZ, City Attorney
#6..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: December 20, 2022
TO: Mayor and Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill,
Interim Director of Community and Economic Development
SUBJECT: First Amendment with Management Advisory Services for Planning Consultation and Support
CONTACT: Jessica Hill, Interim Director of Community and Economic Development , [email protected], 209-577-5321
DESCRIPTION:
Consider approving a First Amendment to an Agreement with Management Advisory Services for Planning Consultation and Support, increasing the Agreement to a new total not to exceed $109,500. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto’s 2020-2025 Strategic Plan, Goal D: Provide Safe, Efficient, and Reliable Infrastructure through proactive community investment, maintenance and sustainability efforts.
BACKGROUND:
In 2022, the Planning Division experienced significant staff turnover, and ongoing vacancies.
To prevent interruptions in development services provided to the public, and to ensure the continuity of major planning efforts including the General Plan Update, the Housing Element and several other community plans, the City determined that consulting services were needed.
DISCUSSION:
The Planning Division continues to be impacted by unanticipated staffing shortages as the recruitment process continues for several positions. To continue providing uninterrupted planning services an amendment to the Management Advisory Services (MAS) contract is required.
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City Council, February 14, 2023
First Amendment with Management Advisory Services for Planning Consultation and Support
In August 2022, and under the City Manager’s authority, the City entered into an agreement with Management Advisory Services (MAS) on November 15, 2022, to provide contract staffing services for the Planning Division, for an amount not to exceed $49,500. City staff is looking to amend the original contract for additional funding by $60,000 from $49,500, to a new total not to exceed $109,500, in order to maintain the quality of service.
In accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203. The approval for the contract staffing services to Management Advisory Services (MAS) conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional services for on-call consultant support services, including the review of development applications, assistance with the General Plan Update and Housing Element, as well as additional staff resources and training, as well as recommendations of Municipal Code updates.
FISCAL IMPACT:
A First Amendment to the agreement increasing the agreement amount by $60,000 from $49,500 to a new total not to exceed $109,500. This funding will be provided from the General Fund through salary savings as a direct result of prolonged positional vacancies within the Planning Division.
COMMITTEE RECOMMENDATION:
Due to time constraints, this item has not been reviewed by Committee, and was taken directly to Council.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the First Amendment to an Agreement with Management Advisory Services for Planning Consultation and Support, increasing the Agreement amount by $60,000 from $49,500 to a new total not to exceed $109,500 and authorizing the City Manager, or his designee, to execute the Amendment.
Approved by:
Jaylen French, Director of Community and
Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. First Amendment to Agreement with Management Advisory Services #7..
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City Council, February 14, 2023
First Amendment with Management Advisory Services for Planning Consultation and Support
3. 2023-01-10 Management Advisory Services Bid Waiver
4. Consultant Agreement – Paul Richardson
5. Standard Agreement Signature Page
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02.14.2023/CEDD/JHill/Item # 1 2023-xx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION APPROVING THE FIRST AMENDMENT TO AN AGREEMENT
WITH MANAGEMENT ADVISORY SERVICES FOR PLANNING
CONSULTATION AND SUPPORT, INCREASING THE AGREEMENT AMOUNT BY $60,000 FROM $49,500 TO A NEW TOTAL NOT TO EXCEED $109,500 AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE AMENDMENT
WHEREAS, the City of Modesto determined that, due to unanticipated reductions in planning Division staffing levels, contract staffing services should be arranged in order to maintain an acceptable level of services provision to internal and external customers; and
WHEREAS, Planning staff reached out to various consultants in August 2022, and under the City Manager’s authority, the City entered into an agreement with Management Advisory Services on November 15, 2022, for a not to exceed amount of $49,500; and
WHEREAS, the Planning Division continues to be impacted by unanticipated staffing shortages as the recruitment process continues for several positions. In order to continue providing uninterrupted planning services an amendment to the Management Advisory Services contract will be required; and
WHEREAS, Management Advisory Services will assist with on-call consultant of development applications, General Plan Update, Housing Element, staff resources and training, as well as recommendation of municipal code updates; and WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203. The #7..
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02.14.2023/CEDD/JHill/Item # 2 2023-xx
approval for the contract staffing services to Management Advisory Services (MAS) conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional services for on-call consultant support services NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a First Amendment to an Agreement with Management Advisory Services for Planning Consultation and Support, increasing the agreement amount by $60,000 from $49,500 to a new total of not to exceed $109,500.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the amendment, in a form approved by the City Attorney. #7..
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02.14.2023/CEDD/JHill/Item # 3 2023-xx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: __________________________________________
JOSE M. SANCHEZ, City Attorney
#7..
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-1
FIRST AMENDMENT
TO STANDARD AGREEMENT
FOR CONSULTANT SERVICES
THIS FIRST AMENDMENT, made and entered into in the City of Modesto, State of California, this 1 4 t h _ day of February , 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and Management Advisory Services, a California corporation, hereinafter referred to as "Consultant".
This First Amendment is made with regard to the following recitals:
A. The City and Consultant entered into a standard agreement for consultant services dated September 14, 2022, to contract staffing services in order to maintain a minimum level of planning support services provided to internal and external customers (the “AGREEMENT”).
B. The City desires to expand the scope of services of the AGREEMENT to continue to provide contract staffing services for the planning division of the City.
C. Consultant represents that it is qualified, willing, and able to provide the services.
NOW, THEREFORE, in consideration of this FIRST AMENDMENT, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
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-2
1. COMPENSATION.
Section 3, “Compensation”, of the AGREEMENT is amended to increase the total compensation for Consultant by $60,000 for a total amount of not to exceed $109,500.
2. EFFECT OF AMENDMENT.
Except as modified and amended by this FIRST AMENDMENT to the AGREEMENT, all other provisions of the AGREEMENT shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Amendment for Consultant Services 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 14th day of __February___, 2023, and Management Advisory Services has caused this Agreement to be duly executed in duplicate as of the Effective Date.
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#7..
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This will still require Council approval prior to adding to already existing agreement - DL
1/10/2023
#7..
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-1- City of Modesto
STANDARD AGREEMENT
FOR CONSULTANT SERVICES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of September, 2022 (“Effective Date”), by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and Management Advisory Services, a California corporation, hereinafter referred to as "Consultant."
This Agreement is made with regard to the following recitals:
A. The City has determined that it requires on-call consulting planning support services as directed for City projects.
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.
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 DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 14 #7..
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-2-
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 services as set forth in the scope of work as set forth and described in Exhibit "A" and made a part of hereof.
City hereby gives Consultant notice to proceed with the services described in Exhibit “A”, as of the Effective Date of this agreement. Consultant shall diligently proceed with the said services and agrees to complete said preparation within the time period set forth in Exhibit "A" and any applicable Task Order.
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed $49,500 as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit "A" and for performance by Consultant of all of its duties and obligations under this Agreement.
The Compensation shall be paid pursuant to monthly invoices for hours of service, at an hourly rate set forth in Exhibit A, and paid within 30 days of receipt of invoice. Unless otherwise approved by the City, the hourly rate shown in Exhibit A shall remain in effect for the term of the Agreement.
Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed in connection with work performed on this Project.
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 DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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-3- City of Modesto
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 best 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 Paul Richardson will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that one hundred percent (100%) 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 Agreement without the express prior written consent of City.
Title to Data
If, as a part of this Agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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-4-
flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under this Agreement.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
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 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 Agreement if so required at the option of City.
9. AMENDMENTS.
DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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-5- City of Modesto
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 work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original Agreement 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.
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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. 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.
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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.
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.
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (a) upon actual delivery, if delivery is by hand; or (b) five (5) days after delivery into the United States mail if delivery is by postage paid registered or certified (return receipt requested) mail. Each such notice shall be sent to the parties at the address respectively indicated below or to any other address as the respective parties may designate from time to time.
FOR Consultant: Name: Management Advisory Services
Address: P.O. Box 4882____________
Auburn, CA 95604_________
Attention: Tom Sinclair____________
Phone: (530)613-0354______________
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FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Phone: (209) 571-5566
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.
(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 $1,000,000 for property damage or $1,000,000 combined single limit. 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 per-occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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and operations; broad form contractual; independent consultants and subcontractors; products and completed operations.
(c)Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and $1,000,000 property damage or $1,000,000 combined single limit. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability (Errors and Omissions) Insurance with limits not less than $2,000,000 per claim, $4,000,000 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, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided.
Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, 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, 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. CONSULTANT shall provide CITY with separate endorsements evidencing DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager.
The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time this Agreement is signed.
All endorsements referenced above must include the applicable policy number.
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.
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Termination by City for Convenience
TheCitymay also terminate theConsultant's performance underthis Agreement, eitherin whole orin part, at its own discretion, or when conditions encountered duringtheProject make it impossible orimpracticable to proceed, or when theCityis prevented fromproceedingwith this Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Projectfor any reason. TheCityshall provide no lessthan ten (10) calendar days written notice of its intent to terminate this Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Termination by City for Lack of Budgeted Funds
The City may terminate this Agreement effective July 1 of any given year upon the City's determination to not appropriate sufficient funds for this Agreement for the ensuing fiscal year. In such event City shall give Consultant not less than 30 days written notice of termination.
Termination by City for Change of Consultant's Tax Status If City determines that Consultant does not meet the requirements of federal and state tax laws for independent contractor status, City may terminate this Agreement by giving written notice to Consultant. The termination date shall be the effective date of the notice.
Post-Termination Procedures
If this Agreement is terminated pursuant to this Section, Consultant shall:
a. Cease its work as directed in the notice of termination as of DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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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 Project not
completed or undertaken, including materials not
delivered;
d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates,summaries and such other information and material as mayhave been
accumulated by the Consultant in performing the Project whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City;
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been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Project and/or property related to the Project;
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. If this Agreement is terminated pursuant to the subparagraph entitled Termination by City for Default of Consultant, 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. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under this Agreement at time of termination, including the following:
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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
Project properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
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, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any act or omission of Consultant whether or not the act or omission arises from the sole negligence or other liability of City, or its agents, officers, and employees or volunteers relating to or during the performance of its obligations under this Agreement.
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Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for 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 by the claim are arbitrable. Claims rejected DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 #7..
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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 arbitratorshall 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.
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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.
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20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
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.
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Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant shall have a City of Modesto business license.
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk on the day of , 2022, and MANAGEMENT ADVISORY SERVICES. has caused this agreement to be duly executed in duplicate as of the Effective Date.
5193208.1
DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 14 September
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:
BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:
BY: ____________________________
JOE F. RODRIGUEZ, Risk Manager
Federal ID # ___________
DocuSign Envelope ID: 16EB7571-7451-4CBC-9AC1-6EBBB8510AE4 Management Advisory
Services
Tom Sinclair President
83-2938856
9/19/2022
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61319839.v2
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: February 3, 2023
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Authorization to Execute Escrow Documents to Transfer City-Owned Remnant Consistent with Settlement Authorized on November 6, 2018 for Acquisition of Property for SR 132 Project
CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a Resolution authorizing the execution of escrow documents to transfer fee title to approximately 2.61 acres of real property (APN 007-037-012) currently owned by the City (“City-Owned Remnant”) to Hans Wagner III 2015 Trust consistent with a previously authorized settlement of an eminent domain action to acquire property for the State Route 132 West Freeway/Expressway – Phase I Project. (Funding Source: Streets Capital Facilities Fee and Regional Measure L funds)
STRATEGIC PLAN ELEMENT:
This item is related to the 2020-2025 Strategic Plan Goal D, Ensure Safe, Reliable, Efficient Infrastructure.
BACKGROUND:
The purpose of the State Route 132 West Freeway/Expressway – Phase 1 Project is to improve regional and interregional circulation, relieve traffic congestion along existing State Route 132, and enhance safety and operations for the existing and proposed transportation network.
On February 27, 2018, by Resolution No. 2018-85, the Council authorized Staff to engage in real property negotiations and to proceed with acquisitions not to exceed $3.45 Million dollars to support the construction of the State Route 132 West Freeway/Expressway Phase 1 Project.
Settlement of the eminent domain action, City of Modesto v. Nita Wagner, Trustee, et al., Case No. CV-18-003095, which included transfer of the City-owned Remnant, was authorized by the City Council on November 6, 2018.
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Purchase of Temporary Construction Easement for SR 132 Project
61319839.v2
DISCUSSION:
In order to facilitate construction of a portion of the State Route 132 West Freeway/Expressway Phase 1 Project (“Project”), the City filed an eminent domain action in Stanislaus Superior Court entitled City of Modesto v. Nita Wagner, Trustee, et al., Case No. CV-18-003095 to acquire property owned in trust by members of the Wagner family (“Subject Property”). The parties reached an agreement as to the compensation/consideration to be paid for the Subject Property and also agreed to complete the acquisition through escrow. The Council authorized the settlement on November 6, 2018. The consideration included the transfer of the City-Owned Remnant, an uneconomic remnant that is approximately 2.61 acres in area and identified as APN 007-037-012. The remnant is landlocked property, without access to water, which is adjacent to the Wagner properties.
Transfer of the remnant property qualifies as “Exempt Surplus Land’ pursuant to Government Code section 54221(f)(1)(C) because the City is exchanging the remnant property for another property (the Subject Property) necessary for the City’s use. Accordingly, the City is exempt from compliance with the requirements of the Surplus Land Act.
Adoption of the proposed Resolution will authorize the execution of escrow documents to transfer the City-owned Remnant to close escrow consistent with the previously approved settlement.
FISCAL IMPACT:
Funds for the settlement including this transfer were previously approved. There is no expenditure of new funds related to the transfer of the City-owned Remnant.
COMMITTEE RECOMMENDATION:
This agenda item was not presented to a Council Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution authorizing the execution of escrow documents to transfer fee title to approximately
2.61 acres of real property (APN 007-037-012) currently owned by the City (“City-Owned Remnant”) to Hans Wagner III 2015 Trust consistent with a previously authorized settlement of an eminent domain action to acquire property for the State Route 132 West Freeway/Expressway – Phase I Project.
Approved by:
Jose M. Sanchez, City Attorney
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Wagner Settlement Agreement
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AUTHORIZING EXECUTION OF ESCROW DOCUMENTS TO TRANSFER FEE TITLE TO 2.61 ACRES OF REAL PROPERTY (APN 007-037- 012) CURRENTLY OWNED BY THE CITY TO HANS WAGNER III 2015
TRUST CONSISTENT WITH A PREVIOUSLY AUTHORIZED SETTLEMENT
OF AN EMINENT DOMAIN ACTION TO ACQUIRE PROPERTY FOR THE STATE ROUTE 132 WEST FREEWAY/EXPRESSWAY – PHASE I PROJECT WHEREAS, the purpose of the State Route 132 West Freeway/Expressway – Phase 1 Project is to improve regional and interregional circulation, relieve traffic congestion along existing State Route 132, and enhance safety and operations for the existing and proposed transportation network, and
WHEREAS, on February 27, 2018, by Resolution No. 2018-85, the Council authorized Staff to engage in real property negotiations and to proceed with acquisitions not to exceed $3.45 Million dollars to support the construction of the State Route 132 West Freeway/Expressway Phase 1 Project (the “Project”), and WHEREAS, in order to facilitate construction of a portion of the Project, the City filed and ultimately settled an eminent domain case in Stanislaus Superior Court, City of Modesto v. Nina Wagner, et al., Case No. CV-18-003095 to acquire property owned in trust by members of the Wagner family (“Subject Property”)., which included as part of the settlement the transfer of a City-owned, landlocked, remnant parcel consisting of approximately 2.61 acres of land, and identified as APN 007-037-012 (“Remnant Property”) from City to Hans J. Wagner III 2015 Trust; and WHEREAS, the City authorized the settlement that included transfer of the Remnant Property on November 6, 2018 and agreed to complete the settlement through escrow; and
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WHEREAS, to close escrow consistent with the settlement, City is to execute a deed or other similar document to transfer the Property to Hans J. Wagner III 2015 Trust; and
WHEREAS, exchange of Remnant Property qualifies as “Exempt Surplus Land’ pursuant to Government Code section 54221(f)(1)(C) because the City is exchanging the Remnant Property for the Subject Property which was necessary for the Project.
Accordingly, the City is exempt from compliance with the requirements of the Surplus Land Act.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby authorizes the execution of all documents necessary to transfer fee title to approximately 2.61 acres of real property (APN 007-037-012) from City to the Hans J.
Wagner III 2015 Trust.
BE IT FURTHER RESOLVED by the Council of the City of Modesto that it authorizes the City Manager to execute all documents necessary to carry out the purpose and intent of this Resolution, in such form as approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember____, who moved its adoption, which motion being duly seconded by______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
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ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: Thursday, February 9, 2023
TO: Mayor and Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Community and Economic Development Director SUBJECT: First Amendment to Agreement with Ready to Work CONTACT: Edgar R. Garcia, Housing and Urban Development Supervisor, 209-571-5101, [email protected]
DESCRIPTION:
Consider approving the First Amendment increasing the Agreement amount with Ready to Work, for Litter Abatement Services by $872,500 from $450,000 to a revised total amount of $1,322,500 over a five year extension option. (Funding Source: Solid Waste Fund and CalTrans Delegated Maintenance Agreement)
STRATEGIC PLAN ELEMENT:
This item supports the City’s 2020-2025 Strategic Plan Commitment for Quality of Life, Goal B:
Invest in Beautification Efforts; and Goal C: In partnership with public agencies and other key stakeholders, develop and implement a comprehensive housing and homelessness action plan.
BACKGROUND:
The City of Modesto launched the Camp2Home program in 2020 as an innovative approach to address homelessness through five key fronts: (1) outreach, (2) shelter, (3) job training, (4) permanent employment, and (5) permanent housing. Since the launch of the Camp2Home program, in partnership with several local nonprofit organizations, the City has helped 84 individuals who were previously experiencing homelessness obtain housing and permanent employment.
A core element of the success of the Camp2Home program includes the partnership that the City has with the California Department of Transportation (CalTrans) for litter abatement services on State right-of-ways via a Delegated Maintenance Agreement (DMA). The City entered into a DMA with CalTrans on November 26, 2019, under Resolution 2019-512, which authorizes the delegation of litter abatement responsibilities on designated State properties to the City and reimburses the City for work performed on State Highways 99, 132, and 219 (Highway 99, Maze Boulevard, and Kiernan Avenue, respectively). #9..
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City Council, February 14, 2023
First Amendment to Agreement with Ready to Work
To fulfill the responsibilities of the Delegated Maintenance Agreement, the City entered into a subsequent agreement with Ready to Work (RTW), a nonprofit organization providing no-to-low barrier employment for individuals experiencing homelessness to perform the litter abatement.
The City released a Request for Proposals (RFP) in June, 2019 and did not receive any submissions. Following a discussion with CalTrans and several partner organizations, the City released the RFP a second time and proposals were formally opened on October 15, 2019 and received two proposals, one of which was from a local vendor. Following the evaluation of the proposals staff identified Ready to Work, a nonprofit organization, who is also fulfilling identical responsibilities on State right of ways in Stockton, was selected as the preferred contractor for the City of Modesto.1 The City of Modesto entered into an agreement on February 4, 2020, with Ready to Work (RTW) to perform litter abatement on State properties and within City limits by Council Resolutions 2020-057 for a 3-year term for an annual cost of $150,000 and a not to exceed amount of $450,000.
DISCUSSION:
Based on the proven success of the program, and the limited availability and capacity of programs with the ability to focus on State Right-of-Ways the State of California has authorized additional funding to the existing DMA increasing the annual allocation from $100,000 to $126,500 with additional locations listed in Exhibit A to the First Amendment of the RTW agreement. As such, the City wishes to extend the term of the RTW agreement for an annual allocation of $48,000, in addition to the allocation from the State, for litter abatement services along key corridors in the City for an additional two (2) years, with three (3) one-year extension options. The City has opted to extend the existing agreement rather than release a Request for Proposals due to the contractor’s good standing with the City and the limited number of contractors that perform this type of work and support individuals experiencing homelessness.
Additionally, a procurement process for this scope of work would have created a lapse in services provided to the community and would create a lapse in employment for the individuals experiencing homelessness that are served by the contractor.
A summary of the scope of services is provided below:
1. Employment Support: RTW shall aim to ensure 75% of all allocated hours for this program are directed to individuals from Modesto; shall make an employment plan with each employee; assist them with application processes, resumes, interview preparation, and other associated material to help secure permanent employment and graduation from the program.
2. Litter Abatement on State Right-of-Ways: Manually gather litter and debris from locations identified by CalTrans in Exhibit A, as assigned by City staff, and place in secure bags.
3. Litter Abatement on City Right-of-Ways: Manually gather litter and debris from locations identified by the City and place in secure bags in areas across the City as assigned by City staff.
4. Reporting Requirements: RTW shall provide all daily work completed through field sheets, identify locations of waste left for collection, and notify the City for changes to scheduled work or locations. Monthly reports should include: employee demographic information; duration of employment; extent of received employment support; amount of litter collected in bags; before and after pictures of sites where litter was collected; and, 1 Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow formal bid procedures. #9..
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First Amendment to Agreement with Ready to Work
data on the number of individuals who have secured full-time employment and/or permanent housing.
The terms of the Delegated Maintenance Agreement between the City and CalTrans allows the State to add locations and additional funding for litter abatement activity with written consent from the City and does not require a formal amendment to the DMA.
FISCAL IMPACT:
The total reimbursable amount from CalTrans via the DMA is $126,500 annually, and this is an increase of $26,500 from the original annual contract total of $100,000. These funds will be utilized exclusively for litter abatement on State right-of-ways running through Modesto which are designated as safe for litter abatement activity by CalTrans. Additionally, the City’s Solid Waste Fund will provide $48,000 annually from the Commercial Litter Abatement Fee collected from the City’s commercial solid waste rate. These funds will be utilized for litter abatement and disposal costs on City right-of-ways. The combined cost of this program on State and City rightof-ways is $174,500 annually, and a total not to exceed amount of $872,500 throughout the additional 5-year term – as shown at the table below.
Funding Source: Annual Amount: 5 Year Total
CalTrans DMA $126,500 $632,500
Solid Waste Fund $48,000 $240,000
Total: $174,500 $872,500
RECOMMENDED COMMITTEE ACTION:
Staff Recommendations:
Resolution approving the First Amendment with Ready to Work for Litter Abatement Services to extend for two (2) years, with three (3) one-year extension options; for an annual estimated cost $174,500 and increasing the overall agreement amount by $872,500 from $450,000 to a new revised total amount of $1,322,500; and authorizing the City Manager, or his designee to execute the Amendment.
Approved by:
Jessica Hill, Interim Community and Economic
Development Director
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Original Agreement
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First Amendment to Agreement with Ready to Work
3. Original Delegated Maintenance Agreement
4. Draft - First Amendment to the Agreement
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2-14-2023/CED.JHill 1 2023-?
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE FIRST AMENDMENT WITH READY TO
WORK FOR LITTER ABATEMENT SERVICES TO EXTEND FOR TWO (2) YEARS, WITH THREE (3) ONE-YEAR EXTENSION OPTIONS; FOR AN ANNUAL ESTIMATED COST $174,500 AND INCREASING THE OVERALL AGREEMENT AMOUNT BY $872,500 FROM $450,000 TO A NEW REVISED TOTAL AMOUNT OF $1,322,500; AND AUTHORIZING THE CITY MANAGER,
OR HIS DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, the City of Modesto launched the Camp2Home program in 2020 as an innovative approach to address homelessness through five key fronts: (1) outreach, (2) shelter, (3) job training, (4) permanent employment, and (5) permanent housing.; and WHEREAS, a core element of the success of the Camp2Home program includes the partnership that it has with the California Department of Transportation (CalTrans) for litter abatement services on State rights-of-way via a Delegated Maintenance Agreement (DMA); and
WHEREAS, the City entered into a DMA with CalTrans on November 26, 2019, under Resolution 2019-512, which authorizes the delegation of litter abatement responsibilities on designated State properties, and reimburses the City for work performed on State Highways 99, 132, and 219 (Highway 99, Maze Boulevard, and Kiernan Avenue, respectively); and
WHEREAS, to fulfill the responsibilities of the Delegated Maintenance Agreement, the City entered into a subsequent agreement with Ready to Work (RTW) on February 4, 2020, with Ready to Work (RTW) to perform litter abatement on State properties and within City limits by Council Resolutions 2020-057 for a 3-year term that expired on February 3, 2023; and
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2-14-2023/CED.JHill 2 2023-?
WHEREAS, based on the proven success of the program, and the limited availability and capacity of programs with the ability to focus on State Right-of-Ways the State of California has authorized additional funding to the existing DMA increasing the annual allocation from $100,000 to $126,500 with additional locations listed in Exhibit A to the First Amendment of the RTW agreement; and
WHEREAS, as such, the City wishes to extend the term of the RTW agreement for a continued annual allocation of $48,000, in addition to the allocation from the State, for litter abatement services along key corridors in the City for an additional two (2) years, with three (3) one-year extension options for the updated scope of services; and WHERARS, the terms of the Delegated Maintenance Agreement between the City and CalTrans allows the State to add locations and additional funding for litter abatement activity with written consent from the City, and does not require a formal amendment to the DMA; and
WHEREAS, the total reimbursable amount from CalTrans for work performed is $126,500 annually, and these funds will be utilized exclusively for litter abatement on State right-of-ways that run through Modesto and that are designated as safe for litter abatement activity by CalTrans; and
WHEREAS, the total reimbursable amount from CalTrans via the DMA for work performed is $126,500 annually, and this is an increase of $26,500 from the original contract total of $100,000 which will be utilized exclusively for litter abatement on State right-of-ways that run through Modesto; and
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2-14-2023/CED.JHill 3 2023-?
WHEREAS, the City’s Solid Waste Fund will continue to provide $48,000 annually from the Commercial Litter Abatement Fee collected from the City’s commercial solid waste rate; and
WHEREAS, these funds will be utilized for litter abatement and disposal costs on City right-of-ways; and
WHEREAS, the combined cost of this program on State and City right-of-ways is $174,500 annually, and a total not to exceed amount of $872,500 throughout the additional 5-year term.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a First Amendment increasing the Agreement amount with Ready to Work, for litter abatement services by $872,500 from $450,000 to a new total amount of $1,322,500 with an annual cost not to exceed $174,500 and extending the term of the Agreement from February 4, 2023 to February 3, 2028 for two (2) years, with three (3) one-year extension options.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the Agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
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2-14-2023/CED.JHill 4 2023-?
ATTEST:
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
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1 FIRST AMENDMENT TO AGREEMENT
WITH READY TO WORK FOR LITTER ABATEMENT SERVICES
This First Amendment to the Agreement for Litter Abatement Services (“Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California (hereinafter the “City”) and READY TO WORK, a California 501c3 non-profit corporation (hereinafter “Contractor”) as of __________, 2023.
RECITALS
This First Amendment to Agreement for litter abatement services is made with regard to the following recitals:
WHEREAS, CITY and CONTRACTOR previously entered into an Agreement for Litter Abatement Services on the 4th day of February, 2020 (the “Original Agreement”).
WHEREAS, CITY and CONTRACTOR desire to amend the Original Agreement to extend the term, and
WHEREAS, CITY and CONTRACTOR desire to increase compensation provided to CONTRACTOR.
NOW, THEREFORE, in consideration of this Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement and this Amendment, the parties agree as follows:
1. TERM OF AGREEMENT, Section 2, paragraph 1, of the Original Agreement shall be replaced in its entirety with the following:
The term of this agreement shall be for a period of two (2) years, with three (3) one-year extension options for a total of up to five (5) years.
Year 1: February 4, 2023 to February 3, 2024
Year 2: February 4, 2024 to February 3, 2025
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2 Year 3: February 4, 2025 to February 3, 2026
Year 4: February 4, 2026 to February 3, 2027
Year 5: February 4, 2027 to February 3, 2028
2. COMPENSATION, Section 3, of the Original Agreement shall be replaced in its entirety with the following:
Contractor agrees to accept a sum not to exceed $174,500 annually or $872,500 throughout the extended term of two (2) years, with three (3) one-year extension options for a total of up to five (5) years, which increases the revised cumulative amount to $1,322,500 over the term of the agreement as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit A and for performance by Contractor of all of its duties and obligation under this agreement;
3. INSURANCE REQUIREMENTS, Section 15, shall be replaced in its entirety with the following:
The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
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3 The City may be agreeable to providing assistance with insurance premiums.
In order for the City to make an informed decision, insurance pricing should be clarified and detailed on the proponent’s pricing schedule.
A. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
B. General Liability - insurance with a minimum limit of liability per occurrence of $5,000,000 for bodily injury and property damage.
The insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations as applicable. This requirement may be satisfied through a combination of primary and excess insurance policies which provide coverage as broad as “follow form” over the underlying primary policies.
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.
In addition to the requirements listed above, CONTRACTOR shall name the State of California, its officers, agents, and employees as an additional insured on the aforementioned Commercial General Liability policy/policies, and #9..
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4 provide CITY annually and upon request with a certificate of insurance evidencing the coverage in a form satisfactory to CITY.
4. Exhibit B of the Original Agreement will be replaced in its entirety with the revised attached Exhibit B; and
5. City will pay disposal costs estimated at $2,000 per year, directly to the disposal company.
6. Except as modified and amended by this Amendment, all other provisions of the Original Agreement, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Amendment to Agreement for Consultant Services by its City Manager and attestation by its City Clerk on the ________ day of ___________, 2023, and Ready to Work has caused this Agreement to be duly executed in duplicate as of the Effective Date. #9..
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5 EXHIBIT A
SCOPE OF WORK
The City of Modesto requires that Contractor perform litter abatement activities along State highways as authorized in Section 130 of the California Streets and Highways Code and on City right of ways, as directed by the City. Contractor will perform such work on the identified highway routes, as described in Section D, Exhibit A and locations in the City as directed by City staff. It is the goal of the City that within 3 months, 50% of the client-employee hours of the Contractor’s Modesto program be allocated to individuals residing in Modesto. Contractor provide at least 75% of employee hours to residents of Modesto. Contractor shall aim to maintain the percentage of employee hours allocated to residents of Modesto at no less than 75% throughout the duration of the contract. Contractor’s failure to meet the intended goals specified in this section, shall require that the Contractor meet with City to discuss strategies to meet this goal.
A. Administrative Expectations
1. Provide a wage subsidy to participants through Contractor’s payroll. Employees shall be paid at least a minimum wage rate, as determined by the State of California.
2. Ensure participants sign an approved Release and Waiver of Liability forms approved by the City. Signed waivers shall be kept on file with the Contractor and shall be available for inspection.
3. Contractor shall participate in community, operational, and status meetings as scheduled by City.
4. Contractor will provide transportation, portable toilets, as necessary to perform the work, in accordance with CalTrans safety instructions.
5. Contractor agrees to notify City before 8:00 AM on the days that Contractor’s employees are unable to work due to inoperable equipment, illness, or any other reason.
B. Litter Abatement Activities on State Right of Ways
1. Contractor shall, using its own labor force, manually gather debris from along designated highways, bag and pile litter in areas identified as safe by CalTrans in Section D, below.
2. CalTrans will provide the necessary safety instructions and training to Contractor. At a minimum, Contractor’s working supervisor must be trained in Caltrans freeway litter safety instruction, and provide that training to all incoming crewmembers. It is the responsibility of the Contractor to document and retain records of all trainings provided to employees participating in the program.
3. Contractor agrees to utilize one (1) or more crews of five (5) workers and one (1) working supervisor. The Contractor agrees to a work week not to exceed 32 hours per week 34 weeks per year. This funding will allow a complete freeway system clean up every month.
4. Contractor’s employees will clean to a level of cleanliness as determined by City.
Contractor will close and secure all bags of litter, and place them in a safe location for pick-up by CalTrans.
5. CalTrans will provide all personal protective equipment (PPE) to include hard hats, #9..
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6 vests, gloves, safety glasses, and safety signs.
6. CalTrans will provide bags for the containment of litter for the Contractor to perform the litter abatement on State right of ways.
7. In addition, other duties of a similar nature may be assigned as needed by the City.
C. Litter Abatement Activities on City Right of Ways
1. City will provide safety instructions, safety warning signs, and a shadow vehicle when City deems necessary
2. Contractor shall, using its own labor force, manually gather debris from along designated City right of ways, as directed by the City of Modesto.
3. Contractor’s employees will clean to a level of cleanliness as determined by City.
4. Contractor will provide bags for the containment of litter and additional equipment for projects on City right of ways.
5. In addition, other duties of a similar nature may be assigned as needed by the City.
D. Service Locations
1. The Delegation of Maintenance, includes all eligible locations for litter abatement activity, as identified by CalTrans and those in the table below in an amount not to exceed $126,500:
Loc.
Route
No.
Dir. Of
Travel
Length
in Miles Description of Routing
1 Stan-099 N 1
Right shoulder from Briggsmore onramp halfway to
Standiford off ramp.
2 Stan-099 N 1
Right shoulder halfway point from Briggsmore to
Standiford onramp.
3 Stan-099 N 1
Right shoulder from Standiford onramp to Pelandale off
ramp.
4 Stan-099 N 1
Right shoulder from Pelandale off ramp to the 219
onramp.
5 Stan-099 S 1
Left shoulder Pelandale off/on ramps to Broadway
Ave/junction 219 off ramp.
6 Stan-099 S 1
Left shoulder from Beckwith/Standiford Ave off ramp to
Pelandale off/on ramps.
7 Stan-099 S 1
Left shoulder, halfway point from Carpenter
Rd/Briggsmore Ave to Beckwith Rf on/off ramps.
8 Stan-099 S 1
Left shoulder from Carpenter Rd/Briggsmore Ave off
ramp, halfway point to Beckwith Rd.
9 Stan-132 W 1
Left shoulder West of SR-132 from S. Jefferson to Meadow Lane.
10 Stan-132 E 1
Right shoulder East of SR-132 from Meadow Lane from
Meadow Lane to Jefferson Street.
11 Stan-132 E 2
Right shoulder East of SR-132 from Perry Avenue to
Garner Road Right.
12 Stan-132 W 0.2 Vacant lot West of Auto Zone, litter State Right of Way #9..
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7 only.
13 Stan-132 W 0.3 Right Shoulder West of Lincoln St. to N. Riverside Drive 14 Stan-219 E 1 Right Shoulder from Quinturn Lane to American Ave. 15 Stan-219 W 1 Left Shoulder from Quinturn Lane to American Ave. 16 Stan-219 W/E 1
Center Median from American Ave to Quinturn Lane. Only
if Caltrans can support with a Barrier Vehicle.
17 Stan-132 On-ramp at 6th Street
18 Stan-132 Off-ramp at 5th Street
19 Stan-132 Off ramp at Dakota
20 Stan-132 On ramp at Dakota
2. For the City right of ways, City will provide the Contractor with a monthly litter removal schedule, in advance, and no less than 3 working days notice prior to the 1st of each month, to address the priority locations, and the locations are subject to change.
Location changes will be issued to the Contractor in writing a minimum of 24 hours in advance. Contractor will be responsible for transportation to assigned sites, and shall be responsible for the provision of a portable restroom. The eligible locations include the shaded areas below, in an amount not to exceed $48,000:
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8 E. Reports and Information
1. Contractor shall furnish statements, records, data, and information that the City, or CalTrans may request pertaining to matters covered by this contract. Unless authorized by the City, the Contractor will not release any information concerning any work product including any reports or other documents prepared pursuant to the Contract until the final product is submitted to the City.
2. For Year 1, Contractor shall provide monthly progress reports detailing the Contractor’s progress with employing individuals who are experiencing homelessness in Modesto.
3. The Contractor will provide to the City monthly performance reports covering the services provided under this contract that shall include:
i. Employee demographic information, current residence, duration of employment, and extent of employment support provided to each individual, and data on the amount of individuals that have secured permanent employment or housing, Number of hours worked on a weekly and monthly basis on State and City right of ways, amount of litter collected by site, before and after pictures of sites and additional information as needed
4. Reports are due no later than 15 days after the end of the reporting month, and shall be in accordance with the City’s reporting instructions.
5. Contractor will cooperate with any City, State, or Federal program data collection and evaluation efforts by providing data and information requested. Failure to provide this information may result in the suspension and/or termination of this Agreement.
F. Compensation
1. Upon submission of appropriate documentation, City will reimburse the Contractor for the actual cost of all routine litter abatement work performed by the Contractor on a monthly basis. These costs may include reasonable administrative overhead costs such as cost of vehicle maintenance, vehicle fuel, rental of portable restroom, and other costs subject to approval by the City of Modesto.
2. For City right of ways, during any fiscal year, the cost of the work performed shall not exceed $48,000.
3. For State right of ways, during any fiscal year, the maximum expenditure on any route shall not exceed the amount mutually agreed upon by City and Contractor, unless such expenditure is revised by a written amended Agreement between Contractor and City. The expenditures per route for routine work may be increased, decreased, redistributed between routes, or additional expenditures for specific projects may be made by the City. However, such adjustments will be authorized in writing by the City Manager or their representative and accepted in writing by the Contractor.
Additional expenditures or an adjustment of expenditures, once authorized, shall apply only for the fiscal year (July 1 – June 30) designated therein and shall not be deemed to permanently modify or change the basic maximum expenditure per route.
An adjustment of any said maximum must be agreed upon in writing by the City and Contractor. Contractor shall track and record all expenditures related to the various locations, as identified in Section D, in an amount not to exceed $126,500, and as directed by the City and shall make these records available to City within 5 business days of the City’s written request.
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9 G. Special Provisions
1. Site additions, site removals, extra services, or service changes may be added or deleted as required at the sole discretion of the City.
2. The availability of funds for the activities covered by the Scope of Work outlined herein and for the performance of this Agreement, depends solely on the provision of the funds made available to the City by CalTrans
EXHIBIT B
ANNUAL PRICING SCHEDULE
Sample Expenditure Category
Hourly
Rate Monthly Costs Annual Costs
Personnel Costs
Crew Salaries and Wages $ 21.92 $ 9,535.20 $ 114,422.40 Crew Supervisor(s) and Wages $ 37.04 $ 3,222.48 $ 38,669.76 Total Personnel Costs $ 12,757.68 $ 153,092.16
Operational Costs
Equipment Lease/Purchase $ 215.00 $ 2,580.00
Equipment/Vehicle Maintenance $ 300.00 $ 3,600.00
Transportation (fuel) $ 1,026.78 $ 10,321.36
Insurance $ 406.00 $ 4,872.00
Total Operating Costs $ 1,947.78 $ 21,373.36
Total Monthly Project Expenses $ 14,705.46
Total 52-week Project Expenses $ 174,465.52
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10 #9..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
February 14, 2023
Date: January 12, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Third Amendment to Construction Management Services Agreement for the State Route 132 West Freeway/Expressway - Phase 1 Project
CONTACT: Toby Wells, P.E., City Engineer, [email protected], 209-577-5542 DESCRIPTION:
Consider approving a Third Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, for a total amount not to exceed $13,140,236. (Funding Source: Streets Capital Facility Fees) STRATEGIC PLAN ELEMENT:
This action for the SR-132 West Freeway/Expressway Project is consistent with the Council’s 2020-2025 Strategic Plan Goal D, Ensure Safe, Efficient and Reliable Infrastructure.
Specifically, this item supports the SR132 West Freeway/Expressway Project and the City’s goal to expand alternative modes of travel, improve transportation flow, and drive economic vitality.
BACKGROUND:
The purpose of the State Route 132 West Freeway/Expressway - Phase 1 Project (Project) is to improve regional and interregional circulation, relieve traffic congestion along existing State Route 132, and enhance safety and operations for the existing and proposed transportation network.
On June 25, 2019, by Resolution No. 2019-295, City Council approved an Agreement with WSP USA Inc. for Construction Management Services in the amount of $8,973,533, plus $897,353 in additional services, for a total amount of $9,870,886.
On September 28, 2021, by Resolution 2021-372, City Council approved the First Amendment to the Agreement with WSP USA Inc. for Construction Management Services in the amount of $1,721,080, plus $172,108 in additional services, for a total amount of $1,893,188. #10..
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City Council, February 14, 2023
Third Amendment to Construction Management Services Agreement
On August 23, 2022, by Resolution 2022-348, City Council approved the Second Amendment to the Agreement with WSP USA Inc. for Construction Management Services in the amount of $621,745, plus $62,175 in additional services, for a total amount of $683,920.
DISCUSSION:
Due to several crucial changes related to the Modesto Irrigation District (MID) Access Road, Carpenter Road Reconfiguration, and repairs of Kansas Avenue between N. Carpenter Road and N. Dakota Avenue, the Project is estimated to extend beyond the current contract completion date of June 30, 2022 to March 31, 2023, with Project Closeout being completed in June 2023.
On December 7, 2022, WSP submitted a Third Amendment Request to the Construction Management Services Agreement in the amount of $629,311. To ensure continuous operations with the existing agreement, Section 3.1(G) has been revised to reflect continuity between the Second and this proposed Third Amendment. Staff recommends approving the Third Amendment to the Agreement with WSP USA Inc. to complete the scope of Construction Management Services for the Project.
FISCAL IMPACT:
The Project is supported by a complex matrix of funding sources; each having a variety of requirements and constraints. The Construction Management Service Agreement with WSP is funded through Regional Measure L Funds, which allows up to $9,870,886 in reimbursement.
This Third Amendment increases the original agreement amount by $629,311, plus $62,931 additional services, if needed, for a total not to exceed amount of $13,140,236, and will be funded with Streets Capital Facility Fees (CFF).
There are sufficient funds in the Streets CFF to support the amendment. Staff has reviewed other funding sources for the amendment, however, they are restricted to the construction contract for the project. Staff will continue to review and seek other funding sources for this amendment if they become available.
WSP CONSTRUCTION MANAGEMENT SERVICES AGREEMENT
Original Agreement, 6/25/2019 $8,973,533
First Additional Services Request $125,803
Second Additional Services Request $771,550
Contract w/Additional Services (Measure L) $9,870,886
First Amendment, 9/28/2021 $1,721,080
Additional Services $172,108
Amendment w/Additional Services (CFF) $1,893,188
Second Amendment, 8/23/2022 $621,745
Additional Services $62,175
Amendment w/Additional Services (CFF) $683,920
Proposed Third Amendment $629,311
Additional Services, If Needed $62,931
Amendment w/Additional Services (CFF) $692,242
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City Council, February 14, 2023
Third Amendment to Construction Management Services Agreement
REVISED TOTAL AGREEMENT $13,140,236
COMMITTEE RECOMMENDATION:
This item was reviewed by the Economic Development Committee on January 11, 2023 and approved to move forward to Council.
CEQA/NEPA REQUIREMENTS:
Caltrans has completed California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) review of the Project with approval of the document as part of the PA&ED Phase on March 9, 2018.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a Third Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, increasing the Agreement amount by $629,311 plus $62,931 additional services, if needed, from $12,447,994 for a total amount not to exceed $13,140,236, and authorizing the City Manager, or his designee to execute the Third Amendment.
Approved by:
Jessica Hill, Interim Director of CEDD
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. WSP Third Amendment to Agreement for Construction Management Services
3. WSP Amendment Request with Exhibits “C-3” and “D-3”
4. WSP Original Agreement for Construction Management Services
5. WSP First Amendment to Agreement for Construction Management Services
6. WSP Second Amendment to Agreement for Construction Management Services #10..
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02/14/2023/CEDD/J. Rawles 1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING A THIRD AMENDMENT TO THE
CONSTRUCTION MANAGEMENT SERVICES AGREEMENT WITH WSP USA INC. FOR THE STATE ROUTE 132 WEST FREEWAY/EXPRESSWAY - PHASE 1 PROJECT, INCREASING THE AGREEMENT AMOUNT BY $629,311 PLUS $62,931 ADDITIONAL SERVICES, IF NEEDED, FROM $12,447,994 FOR A TOTAL AMOUNT NOT TO EXCEED $13,140,236, AND AUTHORIZING THE
CITY MANAGER, OR HIS DESIGNEE TO EXECUTE THE THIRD
AMENDMENT
WHEREAS, the purpose of the State Route 132 West Freeway/Expressway - Phase 1 Project (Project) is to improve regional and interregional circulation, relieve traffic congestion along existing State Route 132, and enhance safety and operations for the existing and proposed transportation network; and
WHEREAS, on June 25, 2019, by Resolution No. 2019-295, City Council approved an Agreement with WSP USA Inc. for Construction Management Services in the amount of $8,973,533, plus $897,353 in additional services, for a total amount of $9,870,886; and
WHEREAS, on September 28, 2021, by Resolution 2021-372, City Council approved the First Amendment to the Agreement with WSP USA Inc. for Construction Management Services in the amount of $1,721,080, plus $172,108 in additional services, for a total amount of $1,893,188; and
WHEREAS, on August 23, 2022, by Resolution 2022-348, City Council approved the Second Amendment to the Agreement with WSP USA Inc. for Construction Management Services in the amount of $621,745, plus $62,175 in additional services, for a total amount of $683,920; and
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02/14/2023/CEDD/J. Rawles 2 2023-
WHEREAS, due to several crucial changes related to the Modesto Irrigation District (MID) Access Road, Carpenter Road Reconfiguration, and repairs of Kansas Avenue between N. Carpenter Road and N. Dakota Avenue, the Project is estimated to extend beyond the current contract completion date of June 30, 2022 to March 31, 2023, with Project Closeout being completed in June 2023; and WHEREAS, on December 7, 2022, WSP submitted a Third Amendment Request to the Construction Management Services Agreement in the amount of $629,311; and WHEREAS, Staff recommends approving the Third Amendment to the Agreement with WSP USA Inc. to complete the scope of Construction Management Services for the Project.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Third Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, increasing the agreement amount by $629,311 plus $62,931 additional services, if needed, from $12,447,994 for a total not to exceed amount of $13,140,236.
BE IT FURTHER RESOLVED, that the City Manager or his designee is hereby authorized to execute the Third Amendment in a form approved by the City Attorney. #10..
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02/14/2023/CEDD/J. Rawles 3 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of February, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: _________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________
JOSE M. SANCHEZ, City Attorney
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-1- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project
THIRD AMENDMENT TO AGREEMENT
FOR CONSTRUCTION MANAGEMENT SERVICES
FOR STATE ROUTE 132 WEST FREEWAY/EXPRESSWAY - PHASE 1 PROJECT This Third Amendment to Agreement for Construction Management Services is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and WSP USA INC., a New York corporation (“Consultant”), entered into by the parties on the 25th day of June, 2019, hereinafter referred to as “Original Agreement”.
This Third Amendment to the Original Agreement for Construction Management Services is made with regard to the following recitals:
A. Section 3.0 “COMPENSATION AND BILLING” of the Original Agreement authorized and specified a not to exceed amount of $9,870,886, inclusive of additional services, to Consultant for performing all services and furnishing all staffing and materials called for in Exhibit “A” under this Agreement.
B. On or about September 28, 2021, the parties entered into a First Amendment to the Original Agreement, revising the scope of services and increasing the compensation amount by $1,721,080, and attaching corresponding Exhibit “C-1 - Revised Project Schedule” and “Exhibit D-1 - Revised Fee Schedule”.
C. On or about August 23, 2022, the parties entered into a Second Amendment to the Original Agreement, revising the scope of services and increasing the compensation amount by $621,745, and attaching corresponding Exhibit “C-2 - Revised Project Schedule” and “Exhibit D-2 - Revised Fee Schedule”.
D. On or about December 7, 2022, at the City’s request, Consultant submitted to City a budget augmentation for additional construction management services to increase the amount of the Original Agreement, as amended, by an additional $629,311. The budget #10..
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-2- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project augmentation is attached hereto as Exhibit “C-3 - Revised Project Schedule” and the further revised fee schedule is attached hereto as Exhibit “D-3 – Revised Fee Schedule.” NOW, THEREFORE, in consideration of this Third Amendment to Agreement, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Construction Management Services and this Third Amendment to Agreement, the parties agree as follows:
1. The parties agree that each of the recitals set out above is factually true and correct.
2. Section 2.0 “CONTRACT DOCUMENTS” of the Original Agreement shall be deleted and parties agree to and hereby do substitute the following in its place:
“2.0 CONTRACT DOCUMENTS
Contract documents consist of the following documents, including all changes, addenda, and modifications thereto:
1. Agreement and all attachments
a. Exhibit A – Scope of Services
b. Exhibit B – Insurance Requirements
c. Exhibit C – Project Schedule
d. Exhibit C-1 – Revised Project Schedule
e. Exhibit C-2 – Revised Project Schedule
f. Exhibit C-3 – Revised Project Schedule
g. Exhibit D – Fee Schedule
h. Exhibit D-1 – Revised Fee Schedule
i. Exhibit D-2 – Revised Fee Schedule
j. Exhibit D-3 – Revised Fee Schedule
2. City’s Request for Proposal
3. Consultant’s Response”
3. Section 3.1 “Compensation” of the Original Agreement between the parties shall be deleted and the parties agree to and hereby do substitute the following in its place:
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-3- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project “3.1 Compensation: It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made. Consultant and City agree that this Agreement is valid and enforceable only if sufficient funds are made available to the City and funding is approved by the governing body of the City.
Consultant shall be paid in accordance with the schedule set forth in Exhibit “D” (Fee Schedule), Exhibit “D-1 – Revised Fee Schedule”, and Exhibit “D-2 – Revised Fee Schedule”, attached hereto and made a part of this Agreement. In addition, Consultant shall be paid in accordance with the schedule set forth in Exhibit “D-3 – Revised Fee Schedule”.
Fee Schedule rates shall include all work and deliverables, including travel and equipment described in Exhibit “D”, Exhibit “D-1”, Exhibit “D-2”, and Exhibit “D-3,” including direct salary costs, employee benefits, and overhead. The City may retain five percent of all periodic or progress payments made to the Consultant until completion and acceptance of all work tasks and City shall have right to withhold payment from Consultant for any unsatisfactory service until such time service is performed satisfactorily.
A. The method of payment for this contract will be based on actual cost plus fixed fee, unless otherwise indicated on Exhibit “D”, “D-1”, “D-2”, or “D-3” of this Agreement. City will reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the work.
Consultant will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant’s Cost Proposal and Revised Cost
Proposal, unless additional reimbursement is provided for by Agreement amendment. In no event, will Consultant be
reimbursed for overhead costs at a rate that exceeds City’s approved overhead rate set forth in the Cost Proposal and Revised Cost Proposal.
In the event, that City determines that a change to the work from that specified in the Cost Proposal and Agreement is required, the Agreement time or actual costs reimbursable by the City shall be adjusted by Agreement amendment to
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-4- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by Agreement amendment.
B. The indirect cost rate established for this Agreement is extended through the duration of this specific Agreement.
Consultant agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or Agreement award.
C. In addition to the allowable incurred costs, the City will pay Consultant a fixed fee of $1,133,417.40. The fixed fee is nonadjustable for the term of the Agreement, except in the event of a significant change in the scope of work and such adjustment is made by Agreement amendment.
D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal and Revised Cost Proposal.
E. When milestone cost estimates are included in the approved Cost Proposal and Revised Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of Consultant’s fixed fee will be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in Exhibit A, Article 3 Statement of Work, the City shall have the right to delay payment or terminate this Agreement.
G. Payment for all Construction Management Services within this agreement will be made for all services incurred starting January 2023 through June 2023
H. Consultant will be reimbursed promptly according to
California Regulations upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and Revised Cost Proposal and shall reference this Agreement number and
project title. Final invoice must contain the final cost and all credits due the City including any equipment purchased. The final invoice should be submitted within sixty (60) calendar days after completion of Consultant’s work. Invoices shall be mailed to the City’s Contract Administrator at the following address:
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-5- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project Mr. John Rawles
c/o Community & Economic Development Department
P.O. Box 642
Modesto, CA 95353
I. The total amount payable by the City of Modesto including the fixed fee shall not exceed THIRTEEN MILLION,
SEVENTY-SEVEN THOUSAND, THREE HUNDRED
FIVE AND 00/100 DOLLARS ($13,077,305.00)
J. Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and Revised Cost Proposal and is approved by the City’s Contract Administrator.
K. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
3.3 Additional Services: Consultant shall not receive compensation for any services provided outside the scope of services specified in Exhibit “A” unless the City Manager, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed SIXTY-TWO THOUSAND,
NINE HUNDRED THIRTY-ONE AND 00/100 DOLLARS
($62,931.00).
In the event that additional costs are deemed necessary, Consultant shall provide a written request to the City Manager indicating the reason for the additional work, scope and cost of said work. City Manager shall provide a response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be negotiated as indicated elsewhere within this agreement. In that event, the new total compensation shall not exceed THIRTEEN MILLION, ONE
HUNDRED FORTY THOUSAND, TWO HUNDRED
THIRTY-SIX AND 00/100 DOLLARS ($13,140,236.00).
If additional services in excess of this amount are deemed necessary, a fourth amendment to the Original Agreement will be required and must be approved by the City Council prior to commencing the work.
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-6- City of Modesto
WSP USA Inc. Third Amendment State Route 132 West Freeway/Expressway - Phase 1 Project
5. Except as herein amended or modified, the provisions of the Original Agreement are expressly reaffirmed and remain in full force and effect.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Third Amendment to Agreement for Construction Management Services 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 14th day of February, 2023, and Consultant has caused this Third Amendment to Agreement to be duly executed in duplicate as of the Effective Date.
(Signatures on next page)
Approved 1/31/2023 PH
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EXHIBIT C-3
REVISED PROJECT SCHEDULE (AMENDMENT NO. 3)
REVISED PROJECT SCHEDULE (Amendment No. 3)
SR132 WEST FREEWAY/EXPRESSWAY-PHASE 1 PROJECT
TASKS
Completion Date
AMENDMENT NO. 2 REVISED
Select Construction Management Consultant NOVEMBER 2018 COMPLETED CITY Approval JUNE 2019 COMPLETED
RTL JUNE 2019 COMPLETED
Advertise Project for Construction JULY 2019 COMPLETED
Award Construction Contract SEPTEMBER 2019 COMPLETED
Start Construction OCTOBER 2019 COMPLETED
Complete Construction-Civil SEPTEMBER 2022 MARCH 2023
COMPLETE CCO WORK-MID Access Road, Carpenter
Road Realignment & Kansas Avenue HMA Overlay N/A MARCH 2023 COMPLETE PROJECT CLOSEOUT DECEMBER 2022 JUNE 2023
WSP COMPLETE PLANT ESTABLISHMENT JUNE 2025 JUNE 2025
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Basis For Estimate
1)
2)
3) Annual labor escalations of 2.9% to be effective in January are included 4)
5)
COST ESTIMATE
December 7, 2022
To:
Bart Littell
WSP USA INC.
FOR
CONSTRUCTION MANAGEMENT SERVICES
From:
FOR
STATE ROUTE 132 WEST FREEWAY/EXPRESSWAY - PHASE 1 PROJECT
CITY OF MODESTO
EXHIBIT D-3
DIR Determination NC-63-3-9-2018-2.
Staff performing inspection services are subject to DIR regulations including prevailing wage rates, fringes, shift differentials and overtime premiums. Bill rates will be adjusted to comply.
Justification for requesting an extension to provide Construction Management Services: City Requested Changes/Modifications projected to extend Construction to March 31, 2023 with Project Closeout completing by June 30, 2023 and Plant Establishment to June of 2025.
This Estimate extends Construction Management Services June of 2025 per the Revised Staffing Schedule.
AMENDMENT NO. 3
Approved: ______________________
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CITY OF MODESTO SR-132 FREEWAY/EXPRESSWAY
WSP USA INC.
TASK 1 - PRECONSTRUCTION COMPLETE
WSP BURDENED LABOR COSTS
LABOR $ -
SUBTOTAL $ -
SUBCONSULTANT(S):
Materials Testing Kleinfelder, Inc. $ -
Public Information AIM Consulting, Inc. (DBE) $ -
Document Control VSCE, Inc. (DBE) $ -
QA Survey Transamerican Engineers & Associates, Inc. (DBE) $ - Environmental LSA Associates, Inc. $ -
Paleontological Services Cogstone Resource Management (DBE) $ - SUBTOTAL $ -
EXPENSES: $ -
SUBTOTAL $ -
TOTAL PHASE 1 $ -
TASK 2 - CONSTRUCTION/POST-CONSTRUCTION
WSP BURDENED LABOR COSTS
LABOR $ 505,611
OVERTIME
(Estimated at 10% of Inspection Hours) $ -
SECOND SHIFT PREMIUM $ 3,921
(Estimated at 15% of Inspection Hours)
SUBTOTAL $ 509,531
SUBCONSULTANT(S):
Materials Testing Kleinfelder, Inc. $ 22,500
Public Information AIM Consulting, Inc. (DBE) $ -
Document Control VSCE, Inc. (DBE) $ 71,120
QA Survey Transamerican Engineers & Associates, Inc. (DBE) $ - Environmental LSA Associates, Inc. $ -
Paleontological Services Cogstone Resource Management (DBE) $ - SUBTOTAL $ 93,620
EXPENSES: $ 26,160
SUBTOTAL $ 26,160
TOTAL PHASE 2 $ 629,311
$ 629,311
COST TO COMPLETE BASED ON REVISED STAFFING SCHEDULE
TOTAL
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Revised Staffing Schedule: Amendment No. 3
YEAR: 2022 2023 2024 2025
PLANT
ESTABLISHMENT
START YEAR 1
PLANT
ESTABLISHMENT
YEAR 1-2
PLANT
ESTABLISHMENT
YEAR 2-3
PLANT
ESTABLISHMENT
END YEAR 3
MONTH: M J J A S O N D J F M A M J J-D J-D J-D J-M
POSITION NAME FIRM 1 2 3 4 5 6 7 8 9 10 11 15 16 17 18
Construction Manager/Project Controls Eng. Scott Frenette, JD, CCM, QSD WSP 24 24 24 8 8 8 4 4 4 4 112 Resident Engineer Rick Deml, PE, QSD WSP 160 160 160 160 80 80 8 8 8 8 832 Closeout RE John Adams, PE, QSD WSP 120 120
Structure Representative/ARE/SMR Bill Howe, PE, QSD WSP Document Control Chad Baker, EIT WSP
Office Engineer Juan Becerra VSCE 160 160 160 160 80 80 800 Project Accountant Marianne Beltram WSP-GSO 8 8 8 8 8 8 4 4 4 4 64 Roadway Inspector Grp 2 Josh Byrum WSP
Roadway Inspector Grp 2 Khalid Vospaul WSP
Structures Inspector Grp 2 Brian Harrington WSP
Utility Inspector Grp 2 Dave McCullough WSP
Electrical-Roadway Inspector Grp 2 Roy Robbert WSP 160 160 Peak Structures Inspector Grp 2 (As-Needed) Brice Ehoff WSP 160 160 160 160 80 40 120 120 120 120 1,240 Overtime Hours
Roadway Inspector Grp 2 Josh Byrum WSP
Roadway Inspector Grp 2 Khalid Vospaul WSP
Structures Inspector Grp 2 TBD WSP
Utility Inspector Grp 2 Dave McCullough WSP
Electrical-Roadway Inspector Grp 2 Roy Robbert WSP
Peak Structures Inspector Grp 2 (As-Needed) Brice Ehoff WSP WSP
Rain Days Not Included
Staff performing inspection services are subject to prevailing wage rates 3,328 TOTAL
HOURS
2022 2023
TASK 2 POST
CONSTRUCTION
TASK 2 CONSTRUCTION
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CITY OF MODESTO SR-132 FREEWAY/EXPRESSWAY
BILL BILL BILL BILL BILL TOTAL TOTAL
POSITION NAME FIRM HRS RATE TOTAL HRS RATE TOTAL HRS RATE TOTAL HRS RATE TOTAL HRS RATE TOTAL HOURS COST Construction Manager/Project Controls Eng. Scott Frenette, JD, CCM, QSDWSP 0 202.30 $0.00 4 208.18 $832.72 100 214.22 $21,422.00 4 220.43 $881.72 4 226.82 $907.28 112 $24,044 Resident Engineer Rick Deml, PE, QSD WSP 0 230.99 $0.00 8 237.69 $1,901.52 808 244.58 $197,620.64 8 251.67 $2,013.36 8 258.97 $2,071.76 832 $203,607 Closeout RE John Adams, PE, QSD WSP 0 194.00 $0.00 0 196.84 $0.00 120 202.55 $24,306.00 0 208.42 $0.00 0 214.46 $0.00 120 $24,306 Structure Representative/ARE/SMR Bill Howe, PE, QSD WSP 0 205.33 $0.00 0 211.28 $0.00 0 217.41 $0.00 0 223.71 $0.00 0 230.20 $0.00 0 $0 Office Engineer Chad Baker, EIT WSP 0 86.36 $0.00 0 88.87 $0.00 0 91.45 $0.00 0 94.10 $0.00 0 96.83 $0.00 0 $0 Office Engineer Juan Becerra VSCE 0 83.96 $0.00 0 86.39 $0.00 800 88.90 $71,120.00 0 91.48 $0.00 0 94.13 $0.00 800 $71,120 Roadway Inspector Grp 2 Marianne Beltram WSP-GSO 0 113.84 $0.00 4 117.14 $468.56 52 120.54 $6,268.08 4 124.04 $496.16 4 127.64 $510.56 64 $7,743 Roadway Inspector Grp 2 Josh Byrum WSP 0 163.62 $0.00 0 168.36 $0.00 0 173.24 $0.00 0 178.26 $0.00 0 183.43 $0.00 0 $0 Structures Inspector Grp 2 Khalid Vospaul WSP 0 156.10 $0.00 0 160.63 $0.00 0 165.29 $0.00 0 170.08 $0.00 0 175.01 $0.00 0 $0 Utility Inspector Grp 2 TBD WSP 0 158.95 $0.00 0 163.56 $0.00 0 168.30 $0.00 0 173.18 $0.00 0 178.20 $0.00 0 $0 Electrical-Roadway Inspector Grp 2 Dave McCullough WSP 0 166.46 $0.00 0 171.29 $0.00 0 176.26 $0.00 0 181.37 $0.00 0 186.63 $0.00 0 $0 Peak Structures Inspector Grp 2 (As-Needed) Roy Robbert WSP 0 151.85 $0.00 0 156.25 $0.00 160 160.78 $25,724.80 0 165.44 $0.00 0 170.24 $0.00 160 $25,725 Brice Ehoff WSP 0 166.74 $0.00 120 171.57 $20,588.40 880 176.55 $155,364.00 120 181.67 $21,800.40 120 186.94 $22,432.80 1,240 $220,186 Staff performing inspection services are
subject to prevailing wage rates
RFP Date 10/15/18, 2018-02 Determination
0 $0.00 136 $23,791.20 2,920 $501,825.52 136 $25,191.64 136 $25,922.40 3,328 576,731 $ REVISED STRAIGHT TIME LABOR COSTS (AMENDMENT NO. 3)
CONSTRUCTION
Jan 1, 2021- Dec 31, 2021 Jan 1, 2022- Dec 31, 2022 Jan 1, 2023- Dec 31, 2023 Jan 1, 2024- Dec 31, 2024 Jan 1, 2025- Dec 31, 2025 #10..
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CITY OF MODESTO SR-132 FREEWAY/EXPRESSWAY
WSP USA INC.
UNIT
UNIT QTY COST ($) SUBTOTAL ($)
TOTAL ($)
THIS
ESTIMATE
A) OFFICE
B) OFFICE SUPPLIES
Initial Supply Allowance 0 2,000 $ - Billed at Cost
Office Supplies Months 6 300 1,800.00 $ Monthly Lump Sum Shipping Months 0 100 $ - Monthly Lump Sum
$ 1,800.00
C) OTHER DIRECT EXPENSES Allowance 0 5,000 -$ $ - Billed at Cost
D) VEHICLES, VEHICLE O&M
Scott Frenette, JD, CCM, QSD WSP Monthly 3 600.00 1,800.00 $ Rick Deml, PE, QSD WSP Monthly 6 1,000.00 6,000.00 $
John Adams, PE, QSD WSP Monthly 1 1,000.00 1,000.00 $
Bill Howe, PE, QSD WSP Monthly 0 600.00 $ -
Josh Byrum WSP Monthly 0 1,000.00 $ -
Khalid Vospaul WSP Monthly 0 1,000.00 $ -
TBD WSP Monthly 0 1,000.00 $ -
Dave McCullough WSP Monthly 0 1,000.00 $ -
Roy Robbert WSP Monthly 1 1,000.00 1,000.00 $
Brice Ehoff WSP Monthly 10 1,000.00 10,000.00 $
$ 19,800.00
E) COMPUTER/IT/SERVICE, SURVEY EQUIPMENT, FIELD EQUIPMENT, SAFETY EQUIPMENT Computers/IT/Printers/Service Monthly 21 160.00 3,360.00 $ Billed at Cost Survey Monthly 3 400.00 1,200.00 $ Billed at Cost
$ 4,560.00
Field Costs $ 4,560.00
TOTAL EXPENSES $ 26,160.00
REVISED EXPENSES
Per contract documents field office will be provided by the contractor.
Note: Rate based upon $1,000 per month for each vehicle employed on the project Full Time. Vehicles not employed Full Time on the project will be prorated. For purposes of the prorating less than Full Time vehicle rates, one (1) month equals 20 shifts or 1 Full Time Equivalent (FTE). The rate for vehicles not employed on the project Full Time will be $50 for each shift employed on the project for an amount not to exceed $1,000 per month. Vehicles employed Full Time on the project will not be prorated. #10..
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-1- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project
FIRST AMENDMENT TO AGREEMENT
FOR CONSTRUCTION MANAGEMENT SERVICES
FOR STATE ROUTE 132 WEST FREEWAY/EXPRESSWAY - PHASE 1 PROJECT This First Amendment to Agreement for Construction Management Services is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and WSP USA INC., a New York corporation (“Consultant”), entered into by the parties on the 25th day of June, 2019, hereinafter referred to as “Original Agreement”.
This First Amendment to the Original Agreement for Construction Management Services is made with regard to the following recitals:
A. Section 3.0 “COMPENSATION AND BILLING” of the Original Agreement authorized and specified a not to exceed amount of $9,870,886, inclusive of additional services, to Consultant for performing all services and furnishing all staffing and materials called for in Exhibit “A” under this Agreement.
B. On or about August 4, 2021, at the City’s request, Consultant submitted to City a budget augmentation for additional construction management services in excess of the $9,870,886 authorized in the Original Agreement, attached to the Original Agreement and referred to therein as Exhibit “A”.
C. The aforementioned additional construction management services increase the amount of the Original Agreement by $1,721,080.
D. The Original Agreement states that the Agreement shall end on December 31, 2021, unless extended by agreement of the parties. Since Consultant’s work under this contract will extend beyond the December 31, 2021 end date, the parties desire to extend that end date to completion of construction contract closeout with Caltrans or December 31, 2025.
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 384 -
-2- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project NOW, THEREFORE, in consideration of this First Amendment to Agreement, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Construction Management Services and this First Amendment to Agreement, the parties agree as follows:
1. The parties agree that each of the recitals set out above is factually true and correct.
2. Section 2.0 “CONTRACT DOCUMENTS” of the Original Agreement shall be deleted and parties agree to and hereby do substitute the following in its place:
“2.0 CONTRACT DOCUMENTS
Contract documents consist of the following documents, including all changes, addenda, and modifications thereto:
1. Agreement and all attachments
a. Exhibit A – Scope of Services
b. Exhibit B – Insurance Requirements
c. Exhibit C – Project Schedule
d. Exhibit C-1 – Revised Project Schedule
e. Exhibit D – Fee Schedule
f. Exhibit D-1 – Revised Fee Schedule
2. City’s Request for Proposal
3. Consultant’s Response”
3. Section 3.1 “Compensation” of the Original Agreement between the parties shall be deleted and the parties agree to and hereby do substitute the following in its place:
“3.1 Compensation: It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made. Consultant and City agree that this Agreement is valid and enforceable only if sufficient funds are made available to the City and funding is approved by the governing body of the City.
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 385 -
-3- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project Consultant shall be paid in accordance with the schedule set forth in Exhibit “D” (Fee Schedule), attached hereto and made a part of this Agreement. In addition, Consultant shall be paid in accordance with the schedule set forth in Exhibit “D-1 – Revised Fee Schedule”.
Fee Schedule rates shall include all work and deliverables, including travel and equipment described in Exhibit “D” and Exhibit “D-1,” including direct salary costs, employee benefits, and overhead. The City may retain five percent of all periodic or progress payments made to the Consultant until completion and acceptance of all work tasks and City shall have right to withhold payment from Consultant for any unsatisfactory service until such time service is performed satisfactorily.
A. The method of payment for this contract will be based on actual cost plus fixed fee, unless otherwise indicated on Exhibit “D” or “D-1” of this Agreement. City will
reimburse Consultant for actual costs (including labor
costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the work.
Consultant will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant’sCost
Proposal and Revised Cost Proposal, unless additional
reimbursement is provided for by Agreement
amendment. In no event, will Consultant be reimbursed
for overhead costs at a rate that exceeds City’s approved overhead rate set forth in the Cost Proposal and Revised Cost Proposal.
In the event, that City determines that a change to the work from that specified in the Cost Proposal and
Agreement is required, the Agreement time or actual
costs reimbursable by the City shall be adjusted by
Agreement amendment to accommodate the changed
work. The maximum total cost as specified in Paragraph
“I” of this Article shall not be exceeded, unless
authorized by Agreementamendment.
B. The indirect cost rate established for this Agreement is extended through the duration of this specific
Agreement. Consultant agreement to the extension of the 1-year applicable period shall not be a condition or
qualification to be considered for the work or Agreement award.
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 386 -
-4- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project C. In addition to the allowable incurred costs, the City will pay Consultant a fixed fee of $1,016,944.68. The fixed fee is nonadjustable for the term of the Agreement, except in the event of a significant change in the scope of work and such adjustment is made by Agreement amendment.
D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal and Revised Cost Proposal.
E. When milestone cost estimates are included in the approved Cost Proposal and Revised Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of Consultant’s fixed fee will beincluded in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in Exhibit A, Article 3 Statement of Work, the City shall have the right to delay payment or terminate this Agreement.
G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement.
H. Consultant will be reimbursed promptly according to
California Regulations upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is
billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and Revised Cost Proposal and shall reference this
Agreement number and project title. Final invoice must
contain the final cost and all credits due the City including any equipment purchased. The final invoice should be
submitted within sixty (60) calendar days after completion of Consultant’s work. Invoices shall be mailed to the City’s Contract Administrator at the following address:
Mr. John Rawles
c/o Community & Economic Development Department
P.O. Box 642
Modesto, CA 95353
I. The total amount payable by the City of Modesto including the fixed fee shall not exceed ELEVEN MILLION, FIVE
HUNDRED NINETY-ONE THOUSAND, NINE
HUNDRED SIXTY-SIX and 00/100 DOLLARS
($11,591,966.00).
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 387 -
-5- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project J. Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and Revised Cost Proposal and is approved by the City’s Contract Administrator.
K. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
3.3 Additional Services: Consultant shall not receive compensation for any services provided outside the scope of services specified in Exhibit “A” unless the City Manager, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed ONE HUNDRED SEVENTYTWO THOUSAND, ONE HUNDRED EIGHT AND 00/100 DOLLARS ($172,108.00).
In the event that additional costs are deemed necessary, Consultant shall provide a written request to the City Manager indicating the reason for the additional work, scope and cost of said work. City Manager shall provide a response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be negotiated as indicated elsewhere within this agreement. In that event, the new total compensation shall not exceed ELEVEN MILLION, SEVEN
HUNDRED SIXTY-FOUR THOUSAND, SEVENTY-FOUR
AND 00/100 DOLLARS ($11,764,074.00).
If additional services in excess of this amount are deemed necessary, a second amendment to the Original Agreement will be required and must be approved by the City Council prior to commencing the work.
4. The end date in the Original Agreement between the parties shall be deleted and the parties agree to and hereby do substitute the following in its place:
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 388 -
-6- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project “This Agreement shall be extended to completion of construction contract closeout with Caltrans or December 31, 2025, unless extended by agreement of both parties.”
5. Except as herein amended or modified, the provisions of the Original Agreement are expressly reaffirmed and remain in full force and effect.
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 #10..
- 389 -
-7- City of Modesto
WSP USA Inc. First Amendment State Route 132 West Freeway/Expressway - Phase 1 Project IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Agreement for Construction Management Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2021-________, adopted by the Council of the City of Modesto on the 28th day of September, 2021, and Consultant has caused this First Amendment to Agreement to be duly executed in duplicate as of the Effective Date.
(Signatures on next page)
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14 372
#10..
- 390 -
CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
DANA SANCHEZ, Interim City Clerk
CONSULTANT,
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:
BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:
BY: ____________________________
CHRISTINA D. ALGER
Director of Human Resources (Risk)
Consultant’s Federal ID # ___________
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal.
Partnership - signature of a partner required Sole
Proprietorship - signature of proprietor
required
DocuSign Envelope ID: 678C3681-BA8C-4E73-8501-84D729806C14
WSP USA, INC
Hillary Jassey
11-1531569
Secretary
Bart Littell Vice President
10/18/2021
#10..
- 391 -
August 4, 2021
John Rawles, P.E./Project Manager
City of Modesto
P.O. Box 642
Modesto, CA 95353
RE: State Route 132 West Freeway/ Expressway-Phase 1 Project, Amendment No. 1 Dear Mr. Rawles,
The purpose of this letter is to request an Amendment to the existing State Route 132 West Freeway/Expressway Phase 1 Project Construction Management Services Agreement between the City of Modesto and WSP USA INC. executed on June 25, 2019.
The original WSP contract (Agreement) was procured approximately 6-months prior to start of project construction. At that time staff was unsure if there would be enough funding to complete the entire construction project as originally contemplated. To ensure financial support of the construction project, a bid alternate strategy was developed. This bid alternate work was to support construction of an Intelligent Transportation System (ITS) requested by Caltrans and to support a fully developed landscape plan as originally intended. The result of this added work was to extend the construction completion date from October 2021 to June 2022 and provide for 3-year Plant Establishment Period.
The WSP Agreement was tendered to support the base bid contract excluding the added alternatives and Plant Establishment Period. When the construction contract bids were received, the City was able to fund the project as originally intended. The inclusion of the bid alternates added approximately 6-months to the base bid construction schedule in addition to a 3-year Plant Establishment Period. This extension of the project schedule carried with it the need to extend the WSP Agreement to perform the Scope of Services for an additional extended term.
The Scope of Services for purposes of this Amendment (Amendment No. 1) remains unchanged from that which was provided in the Agreement. This Amendment extends WSP’s obligations to perform the Scope of Services listed in Exhibit “A” of the Agreement for the term of the Amendment.
Please extend the agreement duration noted on page 1 of the Construction Management Services Agreement, which indicates this Agreement shall end on December 31, 2021, unless extended by agreement of the parties. It is suggested the Agreement be extended to completion of construction contract closeout with Caltrans or December 31, 2025. #10..
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RE: State Route 132 West Freeway/ Expressway-Phase 1 Project, Amendment No. 1