Agenda packet, first session — Modesto City Council, March 7, 2023 (part 2 of 3)

FISCAL IMPACT:

No fiscal impact is anticipated.

COMMITTEE RECOMMENDATION:

This item was presented to Safety and Communities Committee on February 13, 2023, and was recommended to forward to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Motion introducing and waiving the first reading of an Ordinance repealing and replacing Chapter 1 of Title 3 of the Modesto Municipal Code amending the City’s Fire Code to adopt the 2022 California Fire Code.

Approved by:

Alan Ernst, Fire Chief
Joseph P. Lopez, City Manager
Attachments:

1. Ordinance Adopting the 2022 California Fire Code

2. Redline Changes to Chapter 1 of Title 3 of the Modesto Municipal Code #8..
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ORDINANCE NO. -C.S.

AN ORDINANCE REPEALING AND REPLACING CHAPTER 1 OF TITLE 3 OF THE MODESTO MUNICIPAL CODE AMENDING THE CITY’S FIRE CODE TO ADOPT THE 2022 CALIFORNIA FIRE CODE
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings and changes have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #8..
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WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof.

NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:

SECTION 1. REPEAL AND REPLACEMENT OF CODE. Chapter 1 of Title 3 of the Modesto Municipal Code is hereby repealed in its entirety and replaced with the following.

Chapter 1. - Adoption of the California Fire Code, 2022 Edition ARTICLE 1. FIRE CODE
3-1.101 Findings for Adoption of the California Fire Code, 2022 Edition.

The City Council of the City of Modesto hereby finds and determines: That the International Code Council is a private organization which has been in existence for at least three (3) years. That the California Fire Code, 2022 Edition, published by said organization, is a nationally recognized compilation of proposed rules, regulations, and standards of said organization. That said California Fire Code, 2022 Edition has been printed and published as a code in book form within the meaning of Section 50022.2 et seq. of the Government Code. That one (1) copy of the California Fire Code, 2022 Edition, certified by the City Clerk of the City of Modesto to be a true copy, has been filed for use and examination by the public in the office of the City Clerk of the City of Modesto. Sections of the California Fire Code, 2022 Edition may be referred to by the number used in said published compilation, preceded by the words "California Fire Code Section" or "Fire Code Section", and may also be referred to by additional reference to the Modesto Municipal Code and sections therein pertaining to said California Fire Code, 2022 Edition.

The additional requirements and standards established herein are needed to properly protect the health, safety, and welfare of the existing and future residents and workers of the City of Modesto. Said requirements and standards are reasonably necessary because of local climatic, geological, and topographical conditions, and comply with existing state laws and regulations.

Amendment of the California Fire Code, 2022 Edition, is necessary so as to provide more stringent standards for fire extinguishing systems; fire hazard and hazardous materials controls are necessary to serve the public interest by reducing the risk to life and property of the citizens of Modesto because of the following climatic and topographical local conditions:
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(a) Summer weather conditions are very dry, hot and windy causing ordinary combustibles to be easily ignited and fires to be fast spreading;
(b) Very dense fog conditions occur in winter. Reduced visibility causes delays in fire response;
(c) Fire response is delayed by railroad tracks which:
(1) Divide the City from northeast between Tully Road and McHenry Avenue to the west side of Ninth Street;
(2) Run parallel to Highway 99 through the City, restricting response at locations where overpasses are not provided;
(3) Run parallel to Yosemite Boulevard restricting access to the airport, Tuolumne Regional Park, and adjacent areas; and
(4) Restrict access at intersections and streets in the areas of Ninth, Tenth, D, and E Streets.
(d) Modesto Irrigation Canal #3 restricts access to the neighborhoods and developments to the north and east of Briggsmore Avenue from Oakdale Road to Claus Road; (e) Fire response is delayed by rivers and creeks which:
(1) Divide the southwest area of the City and City contract areas and restrict access to these areas; and
(2) Divide the City from east to southwest along Scenic Drive.

THEREFORE, for the above reasons taken individually and cumulatively and in accordance with the authority granted in Sections 17958.5 and 17958.7 of the California Health and Safety Code, the Council of the City of Modesto expressly finds there are local climatic and topographical conditions that make the increased fire protection requirements set forth in this chapter reasonably necessary.
3-1.102 Adoption by Reference of the California Fire Code, 2022 Edition. (a) That certain document, one (1) copy of which is on file in the office of the City Clerk of the City of Modesto, being marked and designated as the California Fire Code, 2022 Edition, California Code of Regulations Title 24, Part 9, including Appendix Chapter 4, and Appendix B, BB,C CC,D, F, G, I, K, , N, O and Division 1 California Administration and Division II Scope and Administration as published by the International Code Council, regulating and governing the safeguarding of life and property from fire and explosion hazards arising from the storage, handling, and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the occupancy of buildings and premises as herein provided; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said California Fire Code, 2022 Edition, on file in the office of the City Clerk of the City of Modesto is hereby referred to, adopted, and made a part in accordance with, as if fully set out in this ordinance, with the additions, insertions, deletions and changes, if any, prescribed in this chapter and is hereby adopted as the Fire Code of the City of Modesto.
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(b) These regulations shall be known as the Fire Code of the City of Modesto and may be cited as such or may be cited as the "California Fire Code, 2022 Edition," the "2022 California Fire Code", "the Fire Code", or "this Code."
3-1.103 Repeal of Conflicting Ordinances.

All former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance or with the 2022 California Fire Code as adopted and amended are hereby repealed.

ARTICLE 2. AMENDMENTS, ADDITIONS AND DELETIONS TO THE 2022

CALIFORNIA FIRE CODE
3-1.201 Combustible Waste Material.

Section 304.1.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Vegetation. When the Fire Code Official determines that total removal of growth is impractical due to the size or environmental factors, approved fuel breaks shall be established. Designated areas shall be cleared of combustible vegetation to establish the fuel breaks.

The Fire Department may recover, from a property owner, those costs associated with the suppression costs incurred in fighting a fire and for providing rescue or emergency medical services should a fire occur on said property after the owner has been notified to abate such public nuisance and has failed to do so.
3-1.202 Vehicle Impact Protection.

Section 312.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Posts. Guard posts or other approved means shall be provided to protect storage tanks and connected piping, valves and fittings; dispensing areas; and use areas subject to vehicular damage. When guard posts are installed, the posts shall be:

1. Constructed of steel not less than six (6) inches in diameter and concrete filled,

2. Spaced not more than four (4) feet between posts on center,

3. Set not less than three (3) feet deep in a concrete footing of not less than a fifteen (15) inch diameter,

4. Set with the top of the posts not less than three (3) feet above ground, and

5. Located not less than five (5) feet from the tank.
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3-1.203 Fire Protection and Water Supplies.

Section 507.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Required Water Supply.
(a) An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, building or portions of buildings are hereafter constructed or moved into or within the jurisdiction. See Appendix-B of the 2022 California Fire Code.
(b) Fire hydrants shall be located on the supply side of the fire suppression system check valve.
(c) Fire hydrants shall be accessible to the Fire Department apparatus by roads meeting the requirements of Section 503.1 of the 2022 California Fire Code. 3-1.204 Where Required.

Section 507 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Where required. Where a portion of a facility or building hereafter constructed or moved into or within the jurisdiction is more than 200 feet from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official.
3-1.205 Incinerators.

Section 605.8 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Incinerators. The use of incinerators is prohibited inside the City limits of Modesto.

EXCEPTION: Incinerators used by state licensed facilities for the cremation of human or pet remains.
3-1.206 Open burning, recreational fires, and portable outdoor fireplaces Section 307.1 of the 2022 California Fire Code is hereby adopted by reference:

A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in accordance with sections 307.1.1 through 307.5
3-1.207 Automatic Sprinkler Systems.

Section 903 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
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New Construction.
(a) An approved automatic fire sprinkler system is required in all new buildings and structures constructed on or after the effective date of this ordinance, notwithstanding the use and occupancy thereof, when any fire area, as defined in the California Fire Code exceeds five thousand (5,000) square feet.
(b) When automatic sprinkler systems are required by the Modesto Municipal Code or the 2022 California Fire Code for certain uses and/or occupancies, the requirements of Section 903.2 of the 2022 California Fire Code shall also apply. (c) An approved automatic residential fire sprinkler system shall be installed in all one and two-family dwellings and townhouses in accordance with NFPA 13D or Section R313.3 of the 2019 California Residential Code.

EXCEPTION:.

1. U Occupancies and gas station canopies

2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.

Existing Buildings and Structures.

An approved automatic fire sprinkler system shall be installed in all existing buildings and structures when either of the following conditions are met:
(a) The value of additions, alterations or repairs that exceed fifty (50) percent of the current county assessed valuation for improvements only in the existing building or structure that exceeds five thousand (5,000) square feet. (b) Following any catastrophic event such as fire, flood, or natural disaster.

EXCEPTION:

1. U Occupancies and gas station canopies

2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.
3-1.208 Monitoring.

Section 903.4.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Alarm, supervisory and trouble signals shall be distinctly different and shall be automatically transmitted to a UL LISTED supervising station as defined in NFPA 72 or, when approved by the Fire Code Official, shall sound an audible signal at a constantly attended location.
3-1.209 Portable Fire Extinguishers.

Section 906.9.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
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Extinguishers Weighing 40 Pounds or Less. Portable fire extinguishers having a gross weight not exceeding forty (40) lbs. (18 kg) shall be installed so that their tops are not more than four (4) feet above the floor.

Existing Installations. Portable fire extinguishers shall only be required to be lowered during tenant improvements.
3-1.210 Fire Alarm and Detection Systems.

Section 907. 2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Where required - New Buildings and Structures. An approved fire alarm system installed in accordance with the provisions of this code and NPFP 72 shall be provided in new buildings and structures in accordance with Sections 907.2.1 through 907.2.23 of the California Fire (2022 Edition) and provide occupant notification in accordance with Section 907.5, unless other requirements are provided by another section of this code. a. All fire alarm and detection systems shall require Central Station Services monitoring as defined by and in accordance with the 2016 Edition of NFPA 72, Chapter 26. A (UL) Underwriters Laboratories Certificate of (FM) Factory Mutual Placard, in accordance with the 2016 Edition of NFPA 72, Chapter 26, shall be issued by the UL listed or FM approved prime contractor for all newly installed fire alarm systems that are newly installed in commercial occupancies for which permits are required by the Modesto Fire Department, Division of Fire Prevention, on or after 1/1/2020. b. Any existing fire alarm system in a commercial occupancy wherein the fire alarm control panel and alarm system components require replacement, shall be considered newly installed for the purposes of this section and shall require Central Station Service in accordance with the 2016 Edition of NFPA 72 Chapter 26. c. Central Station Service in full compliance with the 2016 Edition of NFPA Chapter 26, shall be maintained at the protected property, so long as the requirement for the fire alarm system exist.

Exception. Supervisory service is not required for:
i) Automatic sprinkler systems in one and two-family dwellings. 3-1.211. False Fire Alarms.

Section 907 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

False Fire Alarms. False fire alarms shall not be given, signaled or transmitted or caused or permitted to be given, signaled or transmitted. The City Council may adopt by resolution reasonable fees to recover the costs associated with responses to buildings or structures that have excessive false fire alarms.
3-1.212 Hazardous Materials Occupancies.
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Section 5001 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Key Box. When required by the Fire Code Official, an approved key box, sized to contain emergency information, (HMMP, HMIS and Safety Data Sheets) shall be provided. 3-1.213 Deposits of Hazardous Materials; Cleanup, Abatement, or Mitigation Required; Liability for Costs.

Section 5003.3.1.4 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Responsibility for Cleanup. The person, firm or corporation responsible for an unauthorized discharge shall initiate and complete all actions necessary to remedy the effects of such unauthorized discharge, whether sudden or gradual, at no cost to the jurisdiction. When deemed necessary by the Fire Code Official, cleanup may be initiated by the Fire Department or by an authorized individual or firm. Costs associated with such cleanup shall be borne by the owner, operator or other person responsible for the unauthorized discharge. The remedy provided by this section shall be in addition to any other remedies provided by law.

For purposes of this section, costs incurred by the City shall include, but shall not necessarily be limited to, the following: actual labor costs of City personnel, including worker's compensation benefits, administrative overhead; cost of equipment operation; cost of materials obtained directly by the City; and cost of any contract labor and materials. The authority to recover costs under this section shall not include actual fire suppression services that are normally or usually provided by the Fire Department. 3-1.214 Stationary Containers.

Section 5504.3.1.1.3 of the 2022 California Fire Code is adopted by reference, in addition to the following:

Location. Storage of flammable cryogenic fluids in stationary containers outside of buildings is prohibited within the limits established by law. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code. 3-1.215 Possession, Manufacture, Sale, Use or Discharge of Dangerous Fireworks.

Section 5604 of the 2022 California Fire Code is hereby adopted by reference in addition to the following:

Dangerous Fireworks (a) For purposes of this section, dangerous fireworks are those fireworks specified as such in the State Fireworks Law, Section 12505 of the California Health and Safety Code, and such other fireworks as may be determined to be dangerous by the State Fire Marshal.
(b) It shall be unlawful for any person to possess, manufacture, sell, use or discharge dangerous fireworks, or a dangerous firework kit, unless a permit authorizing such possession, sale, manufacture, use or discharge has been issued by the Fire Code #8..
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Official to the person or responsible party, as is defined in Section 3-1.304 of the Modesto Municipal Code, using, selling, manufacturing, discharging or found in possession of said fireworks or kits, and unless such person is in possession of a valid pyrotechnic operator's license issued by the Office of the State Fire Marshal. The Fire Code Official may establish reasonable rules and regulations for governing issuance of a firework permit and may issue the same subject to payment of a fee as established by the City Council from time to time.
(c) The Fire Code Official, or designee, shall seize, take, remove or cause to be removed, at the expense of the owner, all stocks of dangerous fireworks offered or exposed for sale, stored, or held in violation of this chapter.
3-1.216 Explosive Materials Prohibited and Limited Acts.

Section 5605.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Manufacturing. Explosive materials shall not be manufactured within the city limits of Modesto.

Limits Established by Law. The storage of explosives and blasting agents is restricted to those areas of the City zoned as Heavy Industrial Zone (M-2). 3-1.217 Manufacturing of Fireworks.

Section 5605 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Manufacturing. The manufacturing of fireworks is prohibited within the city limits of Modesto.
3-1.218 Sales of Fireworks.

Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Sales. It shall be unlawful to engage in the sale of "Safe and Sane" fireworks in the City of Modesto without first having secured a permit to do so. (1) Effective 2005, the total number of sales permits issued in any given year shall be limited to seventy (70).
(2) Sales permits for the sale of "Safe and Sane" fireworks in the City of Modesto shall be issued only to local nonprofit organizations and existing local for-profit organizations as defined herein.
(A) A "nonprofit organization" shall mean any nonprofit association, club, or corporation organized for veteran, patriotic, welfare, religious, civic betterment, youth or charitable purposes, as defined by Section 501(c) of the Internal Revenue Code of the United States, or affiliated with a public school located within the city limits of Modesto. Each new organization shall provide the City with a copy of #8..
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their "Letters of Incorporation" as proof of their nonprofit status. Existing organizations shall submit verification of current corporation status from the State of California Secretary of State's Office. Those organizations that are an integral part of a recognized national organization having tax exempt status must provide IRS written verification of such status. All applications will be subject to additional verification with the State of California and IRS if nonprofit status comes into question.
(B) Public school organizations shall provide current written verification of affiliation from the school each year.
(C) A "local nonprofit organization" must have its principal and permanent meeting place in the City of Modesto or within the City of Modesto sphere of influence.

The organization must have obtained nonprofit status and have been organized and established in the City of Modesto for a minimum of one (1) continuous year preceding the filing of the application for permit. The organization must also have a bona fide membership. Applications shall be signed by two (2) bona fide officers of the eligible organization, wherein the officer, on behalf of the organization and its agents, agrees to abide by State laws, administrative regulations, and all stipulations of this Code and the permit if permission to operate a fireworks stand is granted to the organization. (D) An "existing local for-profit organization" must have a permitted fixed business location in the City of Modesto, have been issued a fireworks sales permit the previous year, have remained under the same management and/or ownership continuously since 1999, and have paid all business license and mill tax fees due the City of Modesto by the close of the application period. In the event mill taxes and business license fees are not current the organization's application will be denied.
(E) If any of the above items fail to be met at the time of application, the organization's application shall be denied.
(3) Sales permits for retail sales of "Safe and Sane" fireworks in the City of Modesto issued pursuant to provision of this Code are not transferable by the holder of the permit. The sales permits may be used only by the organization to which they are issued. Violations will result in the immediate loss of the organization's sales permit. (4) All applications for sales permits shall be in writing to the Fire Code Official on forms supplied by the City. Applications may only be filed during normal business hours from April 1st of each year up to and including April 30th of the same year, at which time the filing period for that year will close. A separate sales permit shall be required for each proposed location of a fireworks stand.

1.22(3). Other items required at the time of application will be the organization's verification of eligibility as stated in 2(A) above, list of bona fide members, and current written permission signed by the property owner of record (with respect to lessee permission, approval shall be in the sole discretion of the Fire Code Official to sell fireworks at that location. Organizations representing public schools, as stated in 2(B) above, require written verification from the school of their affiliation. (8) Every application shall be accompanied by a nonrefundable application fee as established by resolution of the City Council from time to time. This application fee shall be in addition to any fees or taxes imposed by Title 6 of the Modesto Municipal Code.
(9) Any local nonprofit organization as defined herein may make application for a sale permit but pre-approved (continuously permitted since 1999) organizations will have first option for a permit.
(A) When additional sales permits are authorized and all current pre-approved organizations have applied for such permits, a lottery will be held to fill any vacancies.
(B) This lottery will be held fourteen (14) days after the last day of the filing period specified in paragraph 4 and will include the names of all new local nonprofit organizations that have filed a complete application within the said filing period.

If the fourteenth (14th) day falls on a weekend the lottery will be held on the next business day.
(C) One organization will be drawn for each available vacancy. If the organization whose name is drawn declines the permit, another name will be drawn until each vacancy is filled.
(D) Any organization having an approved application that fails to open their stand for that sales year will automatically forfeit their permit and a new organization will be chosen the following year provided a permit is available. (10) A nonprofit organization may apply for a sales permit with regard to a stand located in an area annexed by the City of Modesto under the following conditions:
(A) Two (2) consecutive years prior to annexation, the applicant was issued a sales permit, by the City or County in which the property was formerly located, and applicant presents proof of the issuance of said permits; (B) The applicant has received a valid City of Modesto business license; and (C) The organization must either:
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(1) Meet the criteria of set forth in Section 33-1.223(2) (A) or (2) Present documentary evidence establishing its primary meeting for a minimum of two (2) years preceding application to City of Modesto was at the location for which the sales permit is currently sought. (D) Annexed property that was previously used for a temporary booth by an organization whose current primary meeting place is outside the city limits of Modesto is not eligible to make application for a sales permit.

Permits issued to these organizations will be issued without the necessity of being selected by lottery, even though such issuance may increase the number of permits to more than allowed herein. The addition of these organizations does not change the original intent to issue a total of seventy (70) sales permits per year.
3-1.219 Sales, Storage, Use, and Handling of Fireworks.

Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

General. Sales, storage, use, and handling of fireworks shall be in accordance with this chapter.

Fireworks may be sold or offered for sale from 12:00 noon to 10:00 p.m. on June 28, 9:00 a.m. to 10:00 p.m. on June 29 through July 5, and 9:00 a.m. to 12:00 noon on July

6. The storage of fireworks within the City of Modesto is limited to State of California Fire Marshal-approved and labeled "Safe and Sane" fireworks by State of California licensed wholesalers and retailers.
(A) Wholesale Storage. Wholesalers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 1 through July 31 of each year.

Storage facilities shall comply with H3 occupancy classification requirements as defined by the 2022 California Building Code.
(B) Retailers Storage. Retailers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 22 through July 15 of each year. "Safe and Sane" fireworks that are not being sold or displayed with the intent to sell, shall be stored solely in the following manner:
(1) Within the permitted fireworks stand with a responsible adult on the premises at all times.
(2) In a completely enclosed and locked utility type trailer constructed of onefourth (1/4) inch plywood or other approved noncombustible material. (3) In a completely detached garage on residential property with a minimum ten (10) feet clearance from other structures or property lines. There shall be no #8..
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open-flame or spark producing equipment, or Class 1 flammable liquids stored or used within the garage.
(4) Fireworks shall not be stored within forty (40) feet of any building classified or used as a public or private school, day care facility, residential care facility, hospital, place of detention, public oil/gas station, or public garage, or any place of public assembly that can accommodate fifty (50) or more persons.
(5) In an approved and permitted fireworks warehouse.

2. Operator Safety. Each year, one (1) or more representatives from each organization, that is granted a permit to sell fireworks, shall attend a stand operator safety seminar conducted by the City of Modesto Fire Department and the fireworks industry. Failure to attend the seminar shall result in the revocation of the organization's permit to sale fireworks for that calendar year.

3. Temporary Fireworks Stands.
(1) All retail sales of "Safe and Sane" fireworks shall be permitted only from within a temporary fireworks stand and sales from any other building or structure is hereby prohibited.
(2) City Business License, Fire Department Permit and State License shall be displayed in the fireworks stand during hours of operation. (3) Temporary fireworks stand shall not be set up before application for permit has been approved no earlier than June 14.
(4) The fireworks stands shall be located at least twenty (20) feet from other structures.
(5) Zoning of property, in which the fireworks stand will be located, shall be in accordance with Section 10-2.2330 of the Modesto Municipal Code. (6) Fireworks shall not be stored, sold, offered for sale, or discharged within one hundred (100) feet of a location where gasoline, LPG, other class 1 flammable liquids or flammable gasses are stored or dispensed.
(7) All unsold stock and accompanying litter shall be removed from the location by 5:00 p.m. on the 6th day of July.
(8) The fireworks stand shall be removed from the temporary location by 12:00 noon on the 12th day of July, and all accompanying litter shall be cleared from said location by said time and date.
(9) A penalty of one hundred dollars ($100.00) per day will be assessed to the permittee of any fireworks stand not removed by 12:00 noon on the 12th day of July.

4. Safety Precautions.
(1) No person under the age of eighteen (18) shall sell, or handle for sale, any classification of fireworks.
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(2) No person under the age of eighteen (18) shall purchase or be allowed to purchase any classification of fireworks.
(3) Smoking, open-flame, and spark-producing equipment shall be prohibited for a distance of twenty (20) feet around any fireworks stand. (4) Dry grass, weeds, trash, and other combustible material shall be removed for a distance of twenty (20) feet around any fireworks stand. (5) Fireworks shall not be discharged within fifty (50) feet of a fireworks stand.

5. Stand Construction.
(1) Merchandise may be displayed in approved glass enclosed counters or showcases, or
(2) Merchandise may be displayed in stands constructed in the following manner:
(A) Walls and roof shall be of plywood at least one-fourth (1/4) inches thick or of an approved noncombustible material.
(B) The stand shall be provided with a roof.
(C) Walls shall extend to a minimum height of six (6) feet eight (8) inches, on at least three (3) sides. These three (3) sides shall be without openings, except for an exit door.
(D) An exit door with a minimum size of twenty-four (24) inches in width and six (6) feet in height shall be provided in each stand. Exits shall be maintained clear and unobstructed at all times.
(E) The front wall of the stand shall provide a physical barrier not less than eighteen (18) inches in height between the public and the merchandise on display.
(F) Approved "NO SMOKING" signs shall be prominently displayed in and on the stand.
(G) Approved "NO SALES TO PERSONS UNDER THE AGE OF 18" signs shall be prominently displayed in the stand.
(H) An approved fire extinguisher having a minimum classification of 2A10BC shall be located in the stand, near the exit and readily accessible. (I) Sellers of fireworks shall comply with all rules and regulations of Title 19 of the California Code of Regulations and with the rules and regulations of the Fire Code Official.
(J) Stands will be limited to twenty-four (24) feet by eight (8) feet or one hundred ninety-two (192) square feet in size. Pre-existing stands as identified by the fireworks suppliers shall retain the right to operate their oversized stands, without change, until said stand or organization forfeits or loses their operating permit. A copy of said list shall remain on file with the Fire Code Official.

6. Operation of Fireworks Stand Only by Permittee.
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(1) It is unlawful for the permittee organization to allow any person or entity other than the permittee organization to operate the fireworks stand for which the permit is issued, whether by agreement, assignment or otherwise, or to otherwise participate in the profits of the operation of such fireworks stand. Violations will result in the immediate loss of the organization's permit. (2) It is unlawful for a non-profit organization to allow any person other than the individuals who are members of the permittee organization, their spouses or adult children, or volunteers to whom no compensation is paid, to sell or otherwise participate in the sale of fireworks at such fireworks stand. (3) It is unlawful for a non-profit organization to pay any consideration to any person for selling or otherwise participating in the sale of fireworks at such fireworks stand, except the hiring of a night watchman or security officer. 3-1.220 Revocation of Permit and Seizure of Fireworks.

Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Revocation of Fireworks Sales Permit. The Fire Code Official, or his/her designee, may revoke, immediately and without notice or hearing, the "Safe and Sane" fireworks sales permit of any location or organization when any of the provisions of Sections 3-1.220, 3-

1.221, or 3-1.223 are violated. The Fire Code Official shall inform the permittee that permittee may seek review of the Fire Code Official's decision, by the City Manager, on the next business day. At the earliest opportunity on the next business day after revocation, the Fire Code Official shall provide the City Manager with written notice that a fireworks sales permit has been revoked, including the name of the permittee and a brief statement of the grounds for revocation. If requested by the permittee, the City Manager, or his/her designee, shall meet with the permittee and the Fire Code Official, or his/her designee, that day to review the Fire Code Official's decision. The decision of the City Manager shall be final.

Revocation of any sales permit will be effective for that calendar year. 3-1.221 Fireworks Displays Insurance Required.

Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Insurance.

1. The permittee shall furnish a certificate of insurance for each policy required, executed by the company issuing such policy, and approved as to form by the Risk Manager.

Such policies shall contain a provision which holds the City as an additional insured and declaring said insurance to be primary and that no other insurance carried by an insured party shall be called upon for contribution. Notwithstanding any other provision of this section, the failure of the permittee to carry such insurance during the time covered by such permit shall automatically revoke the permit as of the date of expiration of such insurance policy or policies. A payment of one hundred and two dollars ($102.00) shall be made to the City before any such revoked permit may be reinstated.
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2. The permittee/licensee 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 five hundred thousand dollars ($500,000).
(b) General Liability insurance with a minimum limit of liability per occurrence of five million dollars ($5,000,000) for bodily injury and five hundred thousand ($500,000) for property damage. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent permittee/licensees and subcontractors; products and completed operations; and professional liability.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of one million dollars ($1,000,000) for bodily injury and one hundred thousand ($100,000) for property damage or one million ($1,000,000) combined single limit. This insurance shall cover any automobile for bodily injury and property damage. 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 permittee/licensee 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 permittee/licensee to furnish, deliver or maintain such insurance and certificates as above provided, the permit/license is automatically revoked. Failure of the permittee/licensee to obtain and/or maintain any required insurance shall not relieve the permittee/licensee from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the permittee/licensee concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers. The permittee/licensee'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 permittee/licensee must deliver certificates evidencing existence of the insurance listed above to the Finance Director at the time the permit is granted.

Permittee/licensee shall provide City with separate endorsements evidencing proof of the City's additional insured status as to both the general liability and automobile liability insurance policies. In addition, permittee/licensee shall provide City with a Worker's Compensation #8..
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subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

For any claims related to a permit, the permittee/licensees insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the permittee/licensee's insurance and shall not contribute with it.

3. The permittee/licensee shall agree to hold the City of Modesto, its agents, officers, employees, and volunteers harmless from and save, defend, and indemnify them against any and all claims, losses, liabilities, and from every cause, including but not limited to injury to person or property or wrongful death, with the indemnity to include reasonable attorney fees and all costs and expenses arising directly or indirectly out of any act or omission of permittee arising out of any activity authorized by the permit.

4. The permittee/licensee shall provide at its own expense and maintain at all times the specified insurance policies with insurance companies approved by 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 Finance Director of the City by registered mail, return receipt requested.
3-1.222 Storage of Flammable and Combustible Liquids in Tanks.

Section 5704 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Location Where above Ground Tanks are Prohibited. Storage of Class I and II Liquids in aboveground tanks outside of buildings is prohibited, with the exception of protected tanks designed, installed and maintained in accordance with Chapter 57 of the 2022 California Fire Code. In addition, all above ground tanks shall be UL 2085 listed. The provisions of this section shall not apply to facilities for the production, generation, or transmission of electric energy that provide power to entities furnishing retail electrical services to the general public within the city of Modesto.
3-1.223 Storage of Flammable and Combustible Liquids.

Section 5706 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:

Locations Where Above-Ground Tanks are Prohibited. The storage of Class I and II liquids in above-ground tanks is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code.
3-1.224 Bulk Plants Storage of Flammable and Combustible Liquids. #8..
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Section 5706.4 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Bulk Plants. Portions of properties where flammable and combustible liquids are received by tank vessels, pipelines, tank cars or tank vehicles and are stored or blended in bulk for the purpose of distributing such liquids by tank vessels, pipelines, tank cars, tank vehicles or containers shall be in accordance with Section 5706.4.1 through 5706.4.10.4 of the 2022 California Fire Code.

The construction of new bulk plants for storage of flammable or combustible liquids is restricted to areas of the city of Modesto zoned Heavy Industrial Zones (M-2). All existing nonconforming bulk plants for storage of flammable or combustible liquids which substantially comply with the requirements of this Code may be continued in use if a permit therefore shall be granted by the Fire Code Official.
3-1.225 Bulk Transfer and Process Transfer Operations.

Section 5706.5 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Bulk Transfer and Process Transfer Operations. Bulk transfer and process transfer operations shall be in approved locations. Tank cars shall be unloaded only on private sidings or railroad siding facilities equipped for transferring flammable or combustible liquids. Tank vehicle and tank car transfer facilities shall be separated from buildings, aboveground tanks, combustible materials, property lines, streets, alleys or public ways by a distance of twenty (25) feet (7620 mm) for Class I liquids and fifteen (15) feet (4572 mm) for Class II and III liquids measured from the nearest position of any loading or unloading valve.

Tank vehicles and tank cars shall be unloaded as soon as possible after arrival at point of delivery and shall not be used as storage tanks. Unless otherwise approved, a tank car shall not be allowed to remain on a siding at the point of delivery for more than twenty-four (24) hours while connected for transfer operations.
3-1.226 Permits for Liquified Petroleum Gases.

Section 6101.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:

Permit(s) shall be required as set forth in Sections 105.5 and 105.6.

EXCEPTION:

1. Residential occupancies. Containers shall not exceed ten (10) gallons water capacity with an aggregate total of twenty (20) gallons.

2. Approved containers not exceeding sixteen and four-tenths (16.4) ounces when displayed for sale in mercantile occupancies.

3. Factory installed containers for recreational vehicles not exceeding ten (10) gallon water capacity.

4. Factory installed tanks that are permanently attached to recreational vehicles. #8..
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Distributors shall not fill an LP-gas container for which a permit is required unless a permit for installation has been issued for that location by the Fire Code Official.

ARTICLE 3. ADMINISTRATION
3-1.301 Fees and Related Fees.
(a) Permit Fee. The Council of the City of Modesto may, by resolution adopted from time to time, fix a fee for any permit issued pursuant to the Fire Code. (b) Plan Check Fee. When the valuation of proposed construction exceeds one thousand dollars ($1,000.00), or a plan is required to be submitted, a plan checking fee shall be paid at the time of submitting plans and specifications for checking.

Where plans are incomplete or changed so as to require an additional plan check, an additional plan check fee shall be charged. The Council of the City of Modesto may, by resolution adopted from time to time, fix a fee for plan checking.

Sections 107.1 and 107.5 of the 2022 California Fire Code is hereby added:
107.1 Fees: A permit shall not be issued until the fees have been paid, nor shall an amendment to the permit be released until the additional fee, if any, has been paid. 107.5 Related fees: The payment of the fee for the construction, alteration, removal, or demolition of work done in connection to or concurrently with the work or activity authorized by a permit shall not relieve the applicant or holder of the permit from the payment of the other fees that are prescribed by law. 3-1.302 Appeals.

Applicant may appeal the decision of the Fire Code Official to the City Council within thirty (30) days from the date of the decision being appealed whenever the Fire Code Official:

1. Disapproves an application for use of alternate materials, methods and/or types of construction,

2. Disapproves an application for permit or refuses to grant a permit applied for,

3. When it is claimed that the provisions of the code do not apply, or

4. When it is claimed that the true intent and meaning of the code have been misconstrued or wrongly interpreted.
3-1.303 Administrative Penalties and Remedies.

Effective:___________, 2023
(a) For violations of Section 3-1.215 possession, manufacture, sale, use or discharge of dangerous fireworks, the administrative penalty shall be one thousand dollars ($1,000.00) for each specific act found to be in violation of that section. (b) For all violations of this chapter, other than Section 3-1.215 possession, manufacture, sale, use or discharge of dangerous fireworks, the amount of the administrative penalty shall be two hundred fifty dollars ($250.00) for the first violation, five hundred dollars ($500.00) for a second violation within any twelve (12) month period, and seven hundred fifty dollars ($750.00) for any subsequent violations within any twelve (12) month period.
(c) For the purposes of this chapter, the term "responsible party" means any person or persons with the right of possession of the residence or other private property at which dangerous fireworks are possessed, manufactured, sold, used or discharged, including but not limited to:
(1) Any owner of the residence or other private property who occupies the residence or private property (hereinafter "owner-occupant"), meaning the record owner of real property as listed in the most current equalized assessment roll as maintained by the Stanislaus County Assessor at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks; (2) Any owner-occupant, lessee, licensee, or other person having control over a property, structure or parcel of land at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks; (3) Any person(s) who organizes, supervises, officiates, conducts or controls the gathering or any other person(s) accepting responsibility for such a gathering where dangerous fireworks are possessed, manufactured, sold, used or discharged; (d) Responsibility for Proper Property Management. Every owner, occupant, lessee, tenant, or holder of any possessory interest of a residence or other private property within the City is required to maintain, manage and supervise property and all persons thereon in a manner so as not to violate the provisions of this chapter. A responsible party need not be present at the time dangerous fireworks are possessed, manufactured, sold, used or discharged in order for the City to issue an administrative citation under this section.
(e) Nothing in this section shall be intended to limit any of the penalties provided for under the California Health and Safety Code or Penal Code.

SECTION 2. FINDINGS AND DECLARATION. As required by the 2022 California Fire Code, Section 101.1 the Council of the City of Modesto finds and declares that the foregoing additions, modifications and changes to the regulations adopted pursuant to the 2022 California Fire Code are reasonably necessary because of local climate and geographic conditions. The ordinance also prescribes local procedures to be #8..
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Ordinance No. XXXX-C.S.

Effective:___________, 2023
used in the administration and enforcement of this Code; provides for local interpretations of this Code and makes other changes in this Code consistent with local custom and practices as reflected in the prior local Fire Code.

SECTION 3. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 4. SAVINGS. The provisions of this ordinance shall not affect any proceedings, suit or prosecution heretofore or hereafter commenced under the provisions of the Municipal Code as they existed prior to the effective date of this ordinance. No offense committed and no liability, penalty or forfeiture, either civilly or criminally incurred under the provisions of the Municipal Code as they existed prior to the effective date of this ordinance shall be discharged or affected by the adoption of this ordinance; but prosecutions and suits for such offenses, liabilities, penalties or forfeitures shall be instituted or proceeded with in all respects as if this ordinance had not been adopted.

SECTION 5. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.

SECTION 6. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The
City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA #8..
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Ordinance No. XXXX-C.S.

Effective:___________, 2023
applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).

SECTION 7. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.

The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of March, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:

By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
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Ordinance No. XXXX-C.S.

Effective:___________, 2023
By: _______________________________
JOSE M SANCHEZ, City Attorney

FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______,2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
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Ordinance No. XXXX-C.S.

Effective:___________, 2023
AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:

By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
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CHAPTER 1. ADOPTION OF THE CALIFORNIA FIRE CODE, 20192022 EDITION (Ord. 826 N.S., Ord. 160-C.S., Ord. 417-C.S., Ord. 1086-C.S., Ord. 1219-C.S., Ord. 1299-C.S., Ord. 1699-C.S., Ord. 2035-C.S., Ord. 2110-C.S., Ord. 2158-C.S., Ord. 2273-C.S., Ord. 2687-C.S., Ord. 2724-C.S., Ord. 2789-C.S., repealed and reenacted by Ord. 2828-C.S., as amended by Ord. 2905-C.S., Ord. 2950-C.S., Ord. 2976-C.S., Ord. 3003-C.S., Ord. 3055-C.S., Ord. 3143-C.S., § 1, Ord. 3145-C.S., Ord. 3187-C.S., § 1, Ord. 3277-C.S., § 1, Ord. 3378-C.S., § 1, Ord. 3416-C.S., § 1, Ord. 3439-C.S., § 1, effective 6-7-07; Ord. 3466-C.S., § 1, effective 1-3-08; Ord. 3515-C.S., § 1, effective 6-12-09; amended in its entirety by Ord. 3545-C.S., § 1, effective 1-13-11; amended in its entirety by Ord. 3663-C.S., § 1, effective 1-6-17; repealed and replaced by Ord. No. 3712-C.S., §§1, 2, effective 1-2-2020.

ARTICLE 1. FIRE CODE
3-1.101 Findings for Adoption of the California Fire Code, 20192022 Edition.

The City Council of the City of Modesto hereby finds and determines: That the International Code Council is a private organization which has been in existence for at least three (3) years. That the California Fire Code, 20192022 Edition, published by said organization, is a nationally recognized compilation of proposed rules, regulations, and standards of said organization. That said California Fire Code, 20192022 Edition has been printed and published as a code in book form within the meaning of Section 50022.2 et seq. of the Government Code. That one (1) copy of the California Fire Code, 20192022 Edition, certified by the City Clerk of the City of Modesto to be a true copy, has been filed for use and examination by the public in the office of the City Clerk of the City of Modesto. Sections of the California Fire Code, 20192022 Edition may be referred to by the number used in said published compilation, preceded by the words "California Fire Code Section" or "Fire Code Section", and may also be referred to by additional reference to the Modesto Municipal Code and sections therein pertaining to said California Fire Code, 20192022 Edition.

Amendment of the California Fire Code, 20192022 Edition, is necessary so as to provide more stringent standards for fire extinguishing systems; fire hazard and hazardous materials controls is necessary to serve the public interest by reducing the risk to life and property of the citizens of Modesto because of the following climatic and topographical local conditions:
(a) Summer weather conditions are very dry, hot and windy causing ordinary combustibles to be easily ignited and fires to be fast spreading;
(b) Very dense fog conditions occur in winter. Reduced visibility causes delays in fire response; (c) Fire response is delayed by railroad tracks which:
(1) Divide the City from northeast between Tully Road and McHenry Avenue to the west side of Ninth Street;
(2) Run parallel to Highway 99 through the City, restricting response at locations where overpasses are not provided;
(3) Run parallel to Yosemite Boulevard restricting access to the airport, Tuolumne Regional Park, and adjacent areas; and
(4) Restrict access at intersections and streets in the areas of Ninth, Tenth, D, and E Streets. #8..
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(d) Modesto Irrigation Canal #3 restricts access to the neighborhoods and developments to the north and east of Briggsmore Avenue from Oakdale Road to Claus Road; (e) Fire response is delayed by rivers and creeks which:
(1) Divide the southwest area of the City and City contract areas and restrict access to these areas; and (2) Divide the City from east to southwest along Scenic Drive.

THEREFORE, for the above reasons taken individually and cumulatively and in accordance with the authority granted in Sections 17958.5 and 17958.7 of the California Health and Safety Code, the Council of the City of Modesto expressly finds there are local climatic and topographical conditions that make the increased fire protection requirements set forth in this chapter reasonably necessary. 3-1.102 Adoption by Reference of the California Fire Code, 20192022 Edition. (a) That certain document, one (1) copy of which is on file in the office of the City Clerk of the City of Modesto, being marked and designated as the California Fire Code, 20192022 Edition, California Code of Regulations Title 24, Part 9, including Appendix Chapter 4, and Appendix B, BB,C CC,D , E, F, G, I, K, , N, O and Division 1 California Administration and Division II Scope and Administration as published by the International Code Council, regulating and governing the safeguarding of life and property from fire and explosion hazards arising from the storage, handling, and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the occupancy of buildings and premises as herein provided; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said California Fire Code, 20192022 Edition, on file in the office of the City Clerk of the City of Modesto is hereby referred to, adopted, and made a part hereofin accordance with, as if fully set out in this ordinance, with the additions, insertions, deletions and changes, if any, prescribed in this chapter be and is hereby adopted as the Fire Code of the City of Modesto.
(b) These regulations shall be known as the Fire Code of the City of Modesto and may be cited as such or may be cited as the "California Fire Code, 20192022 Edition," the "20192022 California Fire Code", "the Fire Code", or "this Code."
3-1.103 Repeal of Conflicting Ordinances.

All former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance or with the 20192022 California Fire Code as adopted and amended are hereby repealed.

ARTICLE 2. AMENDMENTS, ADDITIONS AND DELETIONS TO THE 20192022 CALIFORNIA FIRE CODE 3-1.201 Combustible Waste Material.

Section 304.1.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the amended by adding the following:
304.1.2. Vegetation. When the Fire Code Official determines that total removal of growth is impractical due to the size or environmental factors, approved fuel breaks shall be established. Designated areas shall be cleared of combustible vegetation to establish the fuel breaks.

Abatement of a public nuisance shall be in accordance with Article 6 of Chapter 6 of Title 1 of the Modesto Municipal Code. The Fire Department may impose a nuisance abatement lien pursuant to Section 1-6.702 of the Modesto Municipal Code.
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The Fire Department may recover, from a property owner, those costs associated with the suppression costs incurred in fighting a fire and for providing rescue or emergency medical services should a fire occur on said property after the owner has been notified to abate such public nuisance and has failed to do so. 3-1.202 Vehicle Impact Protection.

Section 312.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to theamended to read as followings:
312.2. Posts. Guard posts or other approved means shall be provided to protect storage tanks and connected piping, valves and fittings; dispensing areas; and use areas subject to vehicular damage. When guard posts are installed, the posts shall be:

1. Constructed of steel not less than six (6) inches in diameter and concrete filled,

2. Spaced not more than four (4) feet between posts on center,

3. Set not less than three (3) feet deep in a concrete footing of not less than a fifteen (15) inch diameter,

4. Set with the top of the posts not less than three (3) feet above ground, and

5. Located not less than five (5) feet from the tank.
3-1.203 Fire Protection and Water Supplies.

Section 507.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:
507.1. Required Water Supply.
(a) An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, building or portions of buildings are hereafter constructed or moved into or within the jurisdiction. See Appendix-B of the 20192022 California Fire Code. (b) Fire hydrants shall be located on the supply side of the fire suppression system check valve. (c) Fire hydrants shall be accessible to the Fire Department apparatus by roads meeting the requirements of Section 503.1 of the 20192022 California Fire Code.
3-1.204 Where Required.

Section 507 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:

Section 507.5.1 Where required. Where a portion of a facility or building hereafter constructed or moved into or within the jurisdiction is more than 200 feet from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official. 3-1.205. Fuel Fired Appliances.

Section 603.4 of the 2019 California Fire Code is hereby amended to read as follows:
603.4. Portable Unvented Heaters. The use of listed portable unvented fuel-fired heating equipment is limited to supplemental heating in Group S-2, and U occupancies. #8..
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3-1.2056 Incinerators.

Section 605.83.8 of the 20192022 California Fire Code is hereby amended to read as followsadopted by reference, in addition to the following:
603.8. Incinerators. The use of incinerators is prohibited inside the City limits of Modesto.

EXCEPTION: Incinerators used by state licensed facilities for the cremation of human or pet remains.

Subsections 603.8.1, 603.8.2, 603.8.3, and 603.8.4 are deleted. 3-1.206 Open burning, recreational fires, and portable outdoor fireplaces Section 307.1ofthe 2022 California Fire Code is hereby added to read as followsadopted by reference:
307.1 GeneralOpen burning, recreational fires, and portable outdoor fireplaces. A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in accordance with sections 307.1.1 through 307.5 3-1.207 Automatic Sprinkler Systems.

Section 903.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:

New Construction.
(a) An approved automatic fire sprinkler system is required in all new buildings and structures constructed on or after the effective date of this ordinance, notwithstanding the use and occupancy thereof, when the total floor area under one roof any fire area, as defined in the California Fire Code exceeds five thousand (5,000) square feet. Fire area separation walls shall not be used for the purpose of eliminating automatic fire sprinkler systems required by this section. (b) When automatic sprinkler systems are required by the Modesto Municipal Code or the 20192022 California Fire Code for certain uses and/or occupancies, the requirements of Section 903.2 of the 20192022 California Fire Code shall also apply.
(c) An approved automatic residential fire sprinkler system shall be installed in all one and two-family dwellings and townhouses in accordance with NFPA 13D or Section R313.3 of the 2019 California Residential Code.

EXCEPTION: Carports, sheds, tanks, towers and agricultural buildings.

1. U Occupnacies and gas station canopies

2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.

Existing Buildings and Structures.

An approved automatic fire sprinkler system shall be installed in all existing buildings and structures when either of the following conditions are met:
(a) The value of additions, alterations or repairs are made within any twelve-month period that exceed fifty (50) percent of the current county assessed valuation for improvements only in the existing building or structure that exceeds five thousand (5,000) square feet or additions result in said building or structure exceeding five thousand (5,000) square feet. (b) Following any catastrophic event such as fire, flood, or natural disaster. #8..
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EXCEPTION:

1. U Occupnacies and gas station canopies

2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.

Carports, sheds, tanks, towers and agricultural buildings.

2. Each portion of an existing building or structure separated by one or more fire walls, constructed in accordance with the current adopted edition of the Building Code, when each portion does not exceed five thousand (5,000) square feet.
3-1.208 Monitoring.

Section 903.4.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to amended by adding the following:

Section 906.9.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
906.9.1 Extinguishers Weighing 40 Pounds or Less. Portable fire extinguishers having a gross weight not exceeding forty (40) lbs. (18 kg) shall be installed so that their tops are not more than four (4) feet above the floor.

Existing Installations. Portable fire extinguishers shall only be required to be lowered during tenant improvements.
3-1.210 Fire Alarm and Detection Systems.

Section 907. 2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following section:

Where required - New Buildings and Structures. An approved fire alarm system installed in accordance with the provisions of this code and NPFP 72 shall be provided in new buildings and structures in accordance with Sections 907.2.1 through 907.2.23 of the California Fire (20192022 Edition) and provide occupant notification in accordance with Section 907.5, unless other requirements are provided by another section of this code. a. All fire alarm and detection systems shall require Central Station Services monitoring as defined by and in accordance with the 2016 Edition of NFPA 72, Chapter 26. A (UL) Underwriters Laboratories Certificate of (FM) Factory Mutual Placard, in accordance with the 2016 Edition of NFPA 72, Chapter 26, shall be issued by the UL listed or FM approved prime contractor for all newly installed fire alarm systems that are newly installed in commercial occupancies for which permits are required by the Modesto Fire Department, Division of Fire Prevention, on or after 1/1/2020. b. Any existing fire alarm system in a commercial occupancy wherein the fire alarm control panel and alarm system components require replacement, shall be considered newly installed for the purposes of this section and shall require Central Station Service in accordance with the 2016 Edition of NFPA 72 Chapter 26.
c. Central Station Service in full compliance with the 2016 Edition of NFPA Chapter 26, shall be maintained at the protected property, so long as the requirement for the fire alarm system exist. #8..
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Exception. Supervisory service is not required for:
i) Single and multiple-station smoke alarms required by Section 907.2.10 ii) Smoke detectors in Group I-3 occupancies.
iii) Automatic sprinkler systems in one and two-family dwellings. 3-1.211. False Fire Alarms.

Section 907 of the 20192022 California Fire Code is hereby amended by adding the following sectionadopted by reference, in addition to the following:
907.11 False Fire Alarms. False fire alarms shall not be given, signaled or transmitted or caused or permitted to be given, signaled or transmitted. The City Council may adopt by resolution reasonable fees to recover the costs associated with responses to buildings or structures that have excessive false fire alarms. 3-1.212 Hazardous Materials OccupanciesInventory Statement.

Section 5001.5.32 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:

10. Key Box. When required by the Fire Code Official, an approved key box, sized to contain emergency information, (HMMP, HMIS and Material Safety Data Sheets) shall be provided. 3-1.213 Deposits of Hazardous Materials; Cleanup, Abatement, or Mitigation Required; Liability for Costs.

Section 5003.3.1.4 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:

The remedy provided by this section shall be in addition to any other remedies provided by law.

For purposes of this section, costs incurred by the City shall include, but shall not necessarily be limited to, the following: actual labor costs of City personnel, including worker's compensation benefits, fringe benefits, administrative overhead; cost of equipment operation; cost of materials obtained directly by the City; and cost of any contract labor and materials. The authority to recover costs under this section shall not include actual fire suppression services that are normally or usually provided by the Fire Department. 3-1.214 Stationary Containers.

Section 5504.3.1.1.3 of the 20192022 California Fire Code is adopted by reference, in addition to the following amended by adding the following:

Location. Storage of flammable cryogenic fluids in stationary containers outside of buildings is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code. 3-1.215 Permits Required for Explosives.

Section 5601 of the 2019 California Fire Code is hereby amended by adding the following:
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5601.2 Permits Required. When permits are required to be issued by the Fire Code Official, the Fire Code Official may grant the authority to the agency having enforcement jurisdiction. A Permit shall be obtained:

1. To possess, store, sell, display or otherwise dispose of explosive materials at any location.

2. To transport explosive materials.

3. To use explosive materials.

4. To operate a terminal for handling explosive materials. 3-1.2156 Possession, Manufacture, Sale, Use or Discharge of Dangerous Fireworks.

Section 5604 of the 20192022 California Fire Code is hereby adopted by reference in addition to the amended by adding the following:
5604.1.2 Dangerous Fireworks
(a) For purposes of this section, dangerous fireworks are those fireworks specified as such in the State Fireworks Law, Section 12505 of the California Health and Safety Code, and such other fireworks as may be determined to be dangerous by the State Fire Marshal.
(b) It shall be unlawful for any person to possess, manufacture, sell, use or discharge dangerous fireworks, or a dangerous firework kit, unless a permit authorizing such possession, sale, manufacture, use or discharge has been issued by the Fire Code Official to the person or responsible party, as is defined in Section 3-1.304 of the Modesto Municipal Code, using, selling, manufacturing, discharging or found in possession of said fireworks or kits, and unless such person is in possession of a valid pyrotechnic operator's license issued by the Office of the State Fire Marshal. The Fire Code Official may establish reasonable rules and regulations for governing issuance of a firework permit and may issue the same subject to payment of a fee as established by the City Council from time to time. (c) The Fire Code Official, or designee, shall seize, take, remove or cause to be removed, at the expense of the owner, all stocks of dangerous fireworks offered or exposed for sale, stored, or held in violation of this chapter.
3-1.2167 Explosive Materials Prohibited and Limited Acts.

Section 5605.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingmended as follows by adding:
5605.1 General. The manufacture, assembly and testing of explosives, ammunition, blasting agents and fireworks shall comply with the requirements of this section and NFPA 495 or NFPA 1124. 5605.1.1 Manufacturing. Explosive materials shall not be manufactured within the city limits of Modesto. 5605.1.2 Limits Established by Law. The storage of explosives and blasting agents is restricted to those areas of the City zoned as Heavy Industrial Zone (M-2).

EXCEPTION:

1. Temporary storage for use in connection with approved blasting operations conducted in accordance with all applicable provisions of this article.

2. Wholesale and retail storage and display of ammunition and gunpowder shall be in accordance with Title 19 California Code of Regulations, Division I, Chapter 10. #8..
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3-1.2178 Manufacturing of Fireworks.

Section 5605 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following:
5605.1.3 Manufacturing. The manufacturing of fireworks is prohibited within the city limits of Modesto. 3-1.219 Permits: Displays of Fireworks and Appeal Process.

Section 5608 of the 2019 California Fire Code is hereby amended by adding the following:
5608.2 Permits. The Fire Code Official may grant a permit for the display of fireworks, including proximate audience displays and pyrotechnic special effects in theatrical and group entertainment as applied for, or with conditions thereto, unless s/he finds that to do so would be contrary to the public health, safety, or welfare. The decision of the Fire Code Official shall be in writing and shall be mailed, postage prepaid, to the applicant.
5608.3 Appeal. The decision of the Fire Code Official, in acting on an application for permission to conduct a public display in accordance with the provisions of this section may be appealed to the City Manager. Notice of an appeal of the Fire Code Official's decision shall be filed by the applicant with the City Clerk within ten (10) days after the date of the decision. Upon failure to file such notice within the ten (10) day period, the action of the Fire Code Official shall be final and conclusive. The applicant may appeal the decision of the City Manager to the City Council by filing a notice of appeal to the City Clerk within ten (10) days after the date of the City Manager's decision. Upon failure to file such notice within the ten (10) day period, the action of the City Manager, or his/her designee, shall be final and conclusive. 5608.4 Fee. A nonrefundable fee as established by resolution of the City Council, from time to time, shall accompany every application for permission to conduct a public display of fireworks. This fee shall be in addition to any other fee or tax imposed by Title 6 of the Modesto Municipal Code. 3-1.21820 Sales of Fireworks.

Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following:
5608.5 Sales. It shall be unlawful to engage in the sale of "Safe and Sane" fireworks in the City of Modesto without first having secured a permit to do so.
(1) Effective 2005, the total number of sales permits issued in any given year shall be limited to seventy (70).
(2) Sales permits for the sale of "Safe and Sane" fireworks in the City of Modesto shall be issued only to local nonprofit organizations and existing local for-profit organizations as defined herein. (A) A "nonprofit organization" shall mean any nonprofit association, club, or corporation organized for veteran, patriotic, welfare, religious, civic betterment, youth or charitable purposes, as defined by Section 501(c) of the Internal Revenue Code of the United States, or affiliated with a public school located within the city limits of Modesto. Each new organization shall provide the City with a copy of their "Letters of Incorporation" as proof of their nonprofit status. Existing organizations shall submit verification of current corporation status from the State of California Secretary of State's Office. Those organizations that are an integral part of a recognized national organization having tax exempt status must provide IRS written verification of such status. All applications will be subject to additional verification with the State of California and IRS if nonprofit status comes into question.
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(B) Public school organizations shall provide current written verification of affiliation from the school each year.
(C) A "local nonprofit organization" must have its principal and permanent meeting place in the City of Modesto or within the City of Modesto sphere of influence. The organization must have obtained nonprofit status and have been organized and established in the City of Modesto for a minimum of one (1) continuous year preceding the filing of the application for permit. The organization must also have a bona fide membership of at least ten (10) members who reside in the City of Modesto, which will be verified each year. Applications shall be signed by two (2) bona fide officers of the eligible organization, wherein the officer, on behalf of the organization and its agents, agrees to abide by State laws, administrative regulations, and all stipulations of this Code and the permit if permission to operate a fireworks stand is granted to the organization. (D) An "existing local for-profit organization" must have a permitted fixed business location in the City of Modesto, have been issued a fireworks sales permit the previous year, have remained under the same management and/or ownership continuously since 1999, and have paid all business license and mill tax fees due the City of Modesto by the close of the application period. In the event mill taxes and business license fees are not current the organization's application will be denied.
(E) If any of the above items fail to be met at the time of application, the organization's application shall be denied.
(3) Sales permits for retail sales of "Safe and Sane" fireworks in the City of Modesto issued pursuant to provision of this Code are not transferable by the holder of the permit. The sales permits may be used only by the organization to which they are issued. Violations will result in the immediate loss of the organization's sales permit.
(4) All applications for sales permits shall be in writing to the Fire Code Official on forms supplied by the City. Applications may only be filed during normal business hours from April 1st of each year up to and including April 30th of the same year, at which time the filing period for that year will close. A separate sales permit shall be required for each proposed location of a fireworks stand.

Each organization may file an application for one (1) sales permit for which there is only one tax ID number. (5) Applications shall set forth the proposed location of the fireworks stand including the nine (9) digit parcel number (APN) of the Stanislaus County Assessor, a site map, and other information as may be required by the Fire Code Official.
(6) Applicants for sales permits shall be notified by June 15th of each year by the Fire Code Official of approval or disapproval of such application. Sales permits will be issued after final inspection of the stand reveals compliance with all state and local regulations. Organizations shall not open for sales prior to the final inspection of their stand. If an organization's stand fails to pass inspection there will be a re-inspection fee charged for the third (3rd) inspection, and each inspection thereafter until final inspection is approved, as established by Resolution No. 03-446. (7) Every application shall be accompanied by proof of insurance as specified in Section 3-1.22 3. Other items required at the time of application will be the organization's verification of eligibility as stated in 2(A) above, list of bona fide members, and current written permission signed by the property owner of record (with respect to lessee permission, approval shall be in the sole discretion of the Fire Code Official to sell fireworks at that location. Organizations representing public schools, as stated in 2(B) above, require written verification from the school of their affiliation. (8) Every application shall be accompanied by a nonrefundable application fee as established by resolution of the City Council from time to time. This application fee shall be in addition to any fees or taxes imposed by Title 6 of the Modesto Municipal Code.
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(9) Any local nonprofit organization as defined herein may make application for a sale permit but preapproved (continuously permitted since 1999) organizations will have first option for a permit. (A) When additional sales permits are authorized and all current pre-approved organizations have applied for such permits, a lottery will be held to fill any vacancies. (B) This lottery will be held fourteen (14) days after the last day of the filing period specified in paragraph 4 and will include the names of all new local nonprofit organizations that have filed a complete application within the said filing period. If the fourteenth (14th) day falls on a weekend the lottery will be held on the next business day.
(C) One organization will be drawn for each available vacancy. If the organization whose name is drawn declines the permit, another name will be drawn until each vacancy is filled. (D) Any organization having an approved application that fails to open their stand for that sales year will automatically forfeit their permit and a new organization will be chosen the following year provided a permit is available.
(10) A nonprofit organization may apply for a sales permit with regard to a stand located in an area annexed by the City of Modesto under the following conditions:
(A) Two (2) consecutive years prior to annexation, the applicant was issued a sales permit, by the City or County in which the property was formerly located, and applicant presents proof of the issuance of said permits;
(B) The applicant has received a valid City of Modesto business license; and (C) The organization must either:
(1) Meet the criteria of set forth in Section 33-1.223(2) (A) or (2) Present documentary evidence establishing its primary meeting for a minimum of two (2) years preceding application to City of Modesto was at the location for which the sales permit is currently sought.
(D) Annexed property that was previously used for a temporary booth by an organization whose current primary meeting place is outside the city limits of Modesto is not eligible to make application for a sales permit.

Permits issued to these organizations will be issued without the necessity of being selected by lottery, even though such issuance may increase the number of permits to more than allowed herein. The addition of these organizations does not change the original intent to issue a total of seventy (70) sales permits per year. 3-1.21921 Sales, Storage, Use, and Handling of Fireworks.

Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.6 General. Sales, storage, use, and handling of fireworks shall be in accordance with this chapter.

1. Sales. Retail sale or display with the intent to sell fireworks is limited to State of California Fire Marshal approved and labeled "Safe and Sane" fireworks within the City of Modesto, by State of California licensed retailers, provided a permit to sell those fireworks has been approved and obtained from the Fire Code Official. Fireworks may be sold or offered for sale from 12:00 noon to 10:00 p.m. on June 28, 9:00 a.m. to 10:00 p.m. on June 29 through July 5, and 9:00 a.m. to 12:00 noon on July 6.

The storage of fireworks within the City of Modesto is limited to State of California Fire Marshal-approved and labeled "Safe and Sane" fireworks by State of California licensed wholesalers and retailers. (A) Wholesale Storage. Wholesalers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 1 through July 31 of each year. Storage facilities shall comply #8..
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with H3 occupancy classification requirements as defined by the 20192022 California Building Code.
(B) Retailers Storage. Retailers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 22 through July 15 of each year. "Safe and Sane" fireworks that are not being sold or displayed with the intent to sell, shall be stored solely in the following manner:
(1) Within the permitted fireworks stand with a responsible adult on the premises at all times. (2) In a completely enclosed and locked utility type trailer constructed of one-fourth (1/4) inch plywood or other approved noncombustible material.
(3) In a completely detached garage on residential property with a minimum ten (10) feet clearance from other structures or property lines. There shall be no open-flame or spark producing equipment, or Class 1 flammable liquids stored or used within the garage. (4) Fireworks shall not be stored within forty (40) feet of any building classified or used as a public or private school, day care facility, residential care facility, hospital, place of detention, public oil/gas station, or public garage, or any place of public assembly that can accommodate fifty (50) or more persons.
(5) In an approved and permitted fireworks warehouse.

3. Temporary Fireworks Stands.
(1) All retail sales of "Safe and Sane" fireworks shall be permitted only from within a temporary fireworks stand and sales from any other building or structure is hereby prohibited. (2) City Business License, Fire Department Permit and State License shall be displayed in the fireworks stand during hours of operation.
(3) Temporary fireworks stand shall not be set up before application for permit has been approved no earlier than June 14.
(4) The fireworks stands shall be located at least twenty (20) feet from other structures. (5) Zoning of property, in which the fireworks stand will be located, shall be in accordance with Section 10-2.2330 of the Modesto Municipal Code.
(6) Fireworks shall not be stored, sold, offered for sale, or discharged within one hundred (100) feet of a location where gasoline, LPG, other class 1 flammable liquids or flammable gasses are stored or dispensed.
(7) All unsold stock and accompanying litter shall be removed from the location by 5:00 p.m. on the 6th day of July.
(8) The fireworks stand shall be removed from the temporary location by 12:00 noon on the 12th day of July, and all accompanying litter shall be cleared from said location by said time and date. (9) A penalty of one hundred dollars ($100.00) per day will be assessed to the permittee of any fireworks stand not removed by 12:00 noon on the 12th day of July.

4. Safety Precautions.
(1) No person under the age of eighteen (18) shall sell, or handle for sale, any classification of fireworks.
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(2) No person under the age of eighteen (18) shall purchase or be allowed to purchase any classification of fireworks.
(3) Smoking, open-flame, and spark-producing equipment shall be prohibited for a distance of twenty (20) feet around any fireworks stand.
(4) Dry grass, weeds, trash, and other combustible material shall be removed for a distance of twenty (20) feet around any fireworks stand.
(5) Fireworks shall not be discharged within fifty (50) feet of a fireworks stand.

5. Stand Construction.
(1) Merchandise may be displayed in approved glass enclosed counters or showcases, or (2) Merchandise may be displayed in stands constructed in the following manner:
(A) Walls and roof shall be of plywood at least one-fourth (1/4) inches thick or of an approved noncombustible material.
(B) The stand shall be provided with a roof.
(C) Walls shall extend to a minimum height of six (6) feet eight (8) inches, on at least three (3) sides. These three (3) sides shall be without openings, except for an exit door. (D) An exit door with a minimum size of twenty-four (24) inches in width and six (6) feet in height shall be provided in each stand. Exits shall be maintained clear and unobstructed at all times.
(E) The front wall of the stand shall provide a physical barrier not less than eighteen (18) inches in height between the public and the merchandise on display. (F) Approved "NO SMOKING" signs shall be prominently displayed in and on the stand. (G) Approved "NO SALES TO PERSONS UNDER THE AGE OF 18" signs shall be prominently displayed in the stand.
(H) An approved fire extinguisher having a minimum classification of 2A10BC shall be located in the stand, near the exit and readily accessible.
(I) Sellers of fireworks shall comply with all rules and regulations of Title 19 of the California Code of Regulations and with the rules and regulations of the Fire Code Official. (J) Stands will be limited to twenty-four (24) feet by eight (8) feet or one hundred ninety-two (192) square feet in size. Pre-existing stands as identified by the fireworks suppliers shall retain the right to operate their oversized stands, without change, until said stand or organization forfeits or loses their operating permit. A copy of said list shall remain on file with the Fire Code Official.

6. Operation of Fireworks Stand Only by Permittee.
(1) It is unlawful for the permittee organization to allow any person or entity other than the permittee organization to operate the fireworks stand for which the permit is issued, whether by agreement, assignment or otherwise, or to otherwise participate in the profits of the operation of such fireworks stand. Violations will result in the immediate loss of the organization's permit. (2) It is unlawful for a non-profit organization to allow any person other than the individuals who are members of the permittee organization, their spouses or adult children, or volunteers to whom no compensation is paid, to sell or otherwise participate in the sale of fireworks at such fireworks stand.
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(3) It is unlawful for a non-profit organization to pay any consideration to any person for selling or otherwise participating in the sale of fireworks at such fireworks stand, except the hiring of a night watchman or security officer.
3-1.2202 Revocation of Permit and Seizure of Fireworks.

Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.7 Revocation of Fireworks Sales Permit. The Fire Code Official, or his/her designee, may revoke, immediately and without notice or hearing, the "Safe and Sane" fireworks sales permit of any location or organization when any of the provisions of Sections 3-1.220, 3-1.221, or 3-1.223 are violated. The Fire Code Official shall inform the permittee that permittee may seek review of the Fire Code Official's decision, by the City Manager, on the next business day. At the earliest opportunity on the next business day after revocation, the Fire Code Official shall provide the City Manager with written notice that a fireworks sales permit has been revoked, including the name of the permittee and a brief statement of the grounds for revocation. If requested by the permittee, the City Manager, or his/her designee, shall meet with the permittee and the Fire Code Official, or his/her designee, that day to review the Fire Code Official's decision.

The decision of the City Manager shall be final.
5608.7.1 Revocation of any sales permit will be effective for that calendar year. 3-1.2213 Fireworks Displays Insurance Required.

Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.8 Insurance.

1. The permittee shall furnish a certificate of insurance for each policy required, executed by the company issuing such policy, and approved as to form by the Risk Manager. Such policies shall contain a provision which holds the City as an additional insured and declaring said insurance to be primary and that no other insurance carried by an insured party shall be called upon for contribution.

Notwithstanding any other provision of this section, the failure of the permittee to carry such insurance during the time covered by such permit shall automatically revoke the permit as of the date of expiration of such insurance policy or policies. A payment of one hundred and two dollars ($102.00) shall be made to the City before any such revoked permit may be reinstated.

2. The permittee/licensee 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 five hundred thousand dollars ($500,000). (b) General Liability insurance with a minimum limit of liability per occurrence of five million dollars ($5,000,000) for bodily injury and five hundred thousand ($500,000) for property damage. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent permittee/licensees and subcontractors; products and completed operations; and professional liability.
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(c) Automobile Liability insurance with a minimum limit of liability per occurrence of one million dollars ($1,000,000) for bodily injury and one hundred thousand ($100,000) for property damage or one million ($1,000,000) combined single limit. This insurance shall cover any automobile for bodily injury and property damage. 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 permittee/licensee 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 permittee/licensee to furnish, deliver or maintain such insurance and certificates as above provided, the permit/license is automatically revoked. Failure of the permittee/licensee to obtain and/or maintain any required insurance shall not relieve the permittee/licensee from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the permittee/licensee concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers. The permittee/licensee'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 permittee/licensee must deliver certificates evidencing existence of the insurance listed above to the Finance Director at the time the permit is granted.

Permittee/licensee shall provide City with separate endorsements evidencing proof of the City's additional insured status as to both the general liability and automobile liability insurance policies. In addition, permittee/licensee shall provide City with a Worker's Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

4. The permittee/licensee shall provide at its own expense and maintain at all times the specified insurance policies with insurance companies approved by 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 Finance Director of the City by registered mail, return receipt requested.
3-1.2224 Storage of Flammable and Combustible Liquids in Tanks.

Section 5704 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5704.2.9.6.1 Location Where above Ground Tanks are Prohibited. Storage of Class I and II Liquids in aboveground tanks outside of buildings is prohibited, with the exception of protected tanks designed, installed and maintained in accordance with Chapter 57 of the 20192022 California Fire Code. In addition, all above ground tanks shall be UL 2085 listed. The provisions of this section shall not apply to facilities for the #8..
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production, generation, or transmission of electric energy that provide power to entities furnishing retail electrical services to the general public within the city of Modesto. 3-1.225 Operating Heating, Lighting and Cooking Appliances Prohibited.

Section 5705 of the 2019 California Fire Code is hereby amended to read as follows:
5705.3.3. Heating, Lighting and Cooking Appliances. Heating, lighting, and cooking appliances which utilize flammable or combustible liquids shall not be operated within a building or structure.

EXCEPTION:

1. Operation in single-family dwellings.

2. Groups S-2 and U occupancies.
(Ord. No. 3712-C.S., §§1, 2, effective 1-2-2020)
3-1.226 Storage and Dispensing of Flammable and Combustible Liquids on Farms and Construction Sites.

Section 5706 of the 2019 California Fire Code is hereby amended to read as follows:
5706.1. General. The capacity of temporary aboveground tanks containing Class I and Class II Liquids shall not exceed one thousand one hundred (1,100) gallons (4163.9 L). The capacity of permanent aboveground tanks containing Class I and II Liquids shall not exceed ten thousand (10,000) gallons (37,854 L). Temporary tanks of single-compartment design shall be constructed in accordance with Section 5706; permanent tanks shall be constructed in accordance with Chapter 57 of the 2019 California Fire Code. )
3-1.2237 Storage of Flammable and Combustible Liquids.

Section 5706 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5706.2.4.4. Locations Where Above-Ground Tanks are Prohibited. The storage of Class I and II liquids in above-ground tanks is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code.
3-1.2248 Bulk Plants Storage of Flammable and Combustible Liquids.

Section 5706.4 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5706.4. Bulk Plants. Portions of properties where flammable and combustible liquids are received by tank vessels, pipelines, tank cars or tank vehicles and are stored or blended in bulk for the purpose of distributing such liquids by tank vessels, pipelines, tank cars, tank vehicles or containers shall be in accordance with Section 5706.4.1 through 5706.4.10.4 of the 20192022 California Fire Code.

The construction of new bulk plants for storage of flammable or combustible liquids is restricted to areas of the city of Modesto zoned Heavy Industrial Zones (M-2). All existing nonconforming bulk plants for storage of flammable or combustible liquids which substantially comply with the requirements of this Code may be continued in use if a permit therefore shall be granted by the Fire Code Official. #8..
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3-1.2259 Bulk Transfer and Process Transfer Operations.

Section 5706.5 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:
5706.5. Bulk Transfer and Process Transfer Operations. Bulk transfer and process transfer operations shall be in approved locations. Tank cars shall be unloaded only on private sidings or railroad siding facilities equipped for transferring flammable or combustible liquids. Tank vehicle and tank car transfer facilities shall be separated from buildings, aboveground tanks, combustible materials, property lines, streets, alleys or public ways by a distance of twenty (25) feet (7620 mm) for Class I liquids and fifteen (15) feet (4572 mm) for Class II and III liquids measured from the nearest position of any loading or unloading valve.

Section 6101.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:
6101.2. Permits. Permit(s) shall be required as set forth in Sections 105.56 and 105.67.

EXCEPTION:

1. Residential occupancies. Containers shall not exceed ten (10) gallons water capacity with an aggregate total of twenty (20) gallons.

2. Approved containers not exceeding sixteen and four-tenths (16.4) ounces when displayed for sale in mercantile occupancies.

3. Factory installed containers for recreational vehicles not exceeding ten (10) gallon water capacity.

4. Factory installed tanks that are permanently attached to recreational vehicles.

Distributors shall not fill an LP-gas container for which a permit is required unless a permit for installation has been issued for that location by the Fire Code Official. 3-1.231 Use of Liquified Petroleum Gas Containers in Buildings.

Section 6103.2.1 of the 2019 California Fire Code is hereby amended to read as follows:
6103.2.1 Portable Containers. Portable LP-gas containers, as defined in NFPA 58 shall not be used in buildings except as specified in this section.

1. Areas undergoing construction.

A. Portable containers, not exceeding five (5) gallon water capacity, may be allowed in buildings or areas undergoing construction, when permitted by the Fire Code Official.

B. LP-gas containers shall not be used in a basement, pit, or similar location where heavier-than-air gas might collect. LP-gas containers not exceeding sixteen and four tenths (16.4) ounces may be used in an above-grade under floor space or basement only when such space is provided with an approved means of ventilation.

2. In educational, business, and institutional occupancies when used for research and experimentation provided the individual capacity of any one container does not exceed sixteen and four-tenths (16.4) #8..
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ounces and the aggregate capacity of all containers does not exceed two and one-half (2-1/2) gallons water capacity. When more than one such container is present in the same room, each container shall be separated by a distance of not less than ten (10) feet.

3. At demonstrations and public exhibitions for temporary use provided the individual capacity of any one container does not exceed sixteen and four-tenths (16.4) ounces and when more than one such container is present in the same room, each container shall be separated by a distance of not less than ten (10) feet.

4. With self-contained torch assemblies and similar appliances provided that the individual capacity does not exceed sixteen and four-tenths (16.4) ounces.

Such containers shall not be used for commercial or residential food preparation. 3-1.232 Maximum Capacity of LPG Containers.

Section 6104.2 of the 2019 California Fire Code is hereby amended to read as follows:
6104.2 Maximum capacity within established limits
The outside storage and use of liquefied petroleum gas (LP-gas) shall conform to the provisions of City of Modesto zoning ordinances. The outside storage and use of liquefied petroleum gases is restricted as specified in this section.

The aggregate capacity of any one installation shall not exceed two thousand (2,000) gallons, except that in particular installations this capacity limit may be altered by the Fire Code Official, after consideration of special features such as topographical conditions, nature of occupancy, proximity of buildings, capacity of proposed tanks, degree of private fire protection to be provided, and facilities of the local Fire Department.

1. Storage and dispensing of LP-gas for resale purposes, into approved containers and vehicles, is restricted to those areas of the City zoned as Light Industrial (M-1), Heavy Industrial (M-2), and, in addition thereto, to other commercially zoned properties used as automotive service stations. Dispensing shall be performed only by qualified persons.

2. Dispensing of LP-gas for private use is restricted to those zones identified in subsection 1, and when approved by the Fire Code Official, may be permitted in those areas of the City zoned General Commercial (C-2). Dispensing shall be performed only by qualified persons.

3. For cooking, lighting, or heating in a building, only on a property that does not have natural gas service existing on a boundary line of said property or when prohibition of such storage would cause undue hardship.

4. For temporary use on construction sites, when authorized by the Fire Code Official.

5. For use as an alternative fuel supply for an emergency standby generator, when authorized by the Fire Code Official.

6. For use with certain mobile vending and certain commercial barbecue equipment and other specific uses when authorized by the Fire Code Official.

7. For use by artisans in pursuit of their trade, when authorized by the Fire Code Official.

8. Storage of portable containers awaiting exchange may be permitted in commercial zoned areas of the City, including those zoned Neighborhood Commercial (C-1), when approved by the Fire Code Official and stored in accordance with Section 6109. Such storage shall be located a minimum of twenty (20) feet from any fuel dispenser.

EXCEPTION:
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1. Storage of LP-gas in accordance with Subsections 3, 4 and 5 shall be limited to one container not to exceed two hundred fifty (250) gallons water capacity.

2. The aggregate capacity of containers in storage and use in accordance with subsections 6 and 7 shall not exceed fifteen (15) gallons. Individual containers shall not exceed five (5) gallons water capacity, unless authorized by the Fire Code Official, and shall not be mani-folded. 3-1.233 Storage of Portable LP-Gas Containers Awaiting Use, Resale, or Exchange.

Section 6109.12 of the 2019 California Fire Code is hereby amended to read as follows:
6109.12 Separation from exits. Containers stored inside or outside buildings accessible to the public shall be located not less than ten (10) feet from any exit door or building opening, when only one (1) exit is provided from the building or area, and not less than five (5) feet from any exit door or building opening, when two (2) or more exits are provided from the building or area.

Table 6109.12 of the 2019 California Fire Code is hereby amended to read as follows: Quantity of LP-Gas Stored
Quality of LP-Gas Stored
(Pounds)
Distances to a Building or Group
of Buildings, Public Way, or Line of
Property that can be Built Upon (feet)
720 or less 0
721 to 2,500 10
2,501 to 6,000 15
6,001 to 10,000 20
Over 10,000 25
3-1.234 Administrative Provisions.

Sections 103.2, 103.4, 103.4.1 and 108 of the 2016 California Fire Code are hereby deleted. (Ord. No. 3712-C.S., §§1, 2, effective 1-2-2020)
3-1.235 Permit Amounts For Compressed Gases.

Chapter 1, Table 105.6.9 of the 2019 California Fire Code is amended to read as follows:
105.6.9 Compressed Gases. An operational permit is required for the storage, use or handling at normal temperature and pressure (NTP) of compressed gases in excess of the amounts listed in Chapter 1, table 105.6.9.

EXCEPTION: Vehicles equipped for and using compressed gas as a fuel for propelling the vehicle.

Table 105.6.9-Permit Amounts for Compressed Gases1
Type of Gas Amount x 0.0283 for m3
Corrosive Any Amount
Flammable (except cryogenic fluids and liquefied
petroleum gases)
200 cubic feet
Highly toxic Any Amount
Inert and simple asphyxiant 200 cubic feet
Irritant 200 cubic feet
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Created: 2022-07-27 10:51:52 [EST]
(Supp. No. 61)

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Other Health Hazards 200 cubic feet
Oxidizing (including oxygen) 200 cubic feet
Pyrophoric Any Amount
Radioactive Any Amount
Sensitizer 200 cubic feet
Toxic Any Amount
Unstable (reactive) Any Amount
Acutely hazardous (as listed in 40-CFR-355) Threshold Planning Quantity or more. 3-1.236 Permit Amounts for Cryogens.

Chapter 1, Table 105.6.11 of the 2019 California Fire Code is amended to read as follows:
105.6.11 Cryogenic Fluids. An operational permit is required to produce, store, transport on site, use, handle or dispense cryogenic fluids in excess of the amounts listed in Chapter 1, Table 105.6.11.

EXCEPTION: Permits are not required for vehicles equipped for and using cryogenic fluids as a fuel for propelling the vehicle or for refrigerating the lading.

Table 105.6.11—Permit Amounts for Cryogens'1
Type of Cryogenic Fluid Inside Building Outside Building Corrosive Over 1 gallon Over 1 gallon
Flammable Over 1 gallon 55 gallons
Highly Toxic Over 1 gallon Over 1 gallon
Nonflammable 55 gallons 55 gallons
Oxidizer (including oxygen) 50 gallons 50 gallons
ARTICLE 3. ADMINISTRATION
3-1.301 Fees and Related Fees.
(a) Permit Fee. The Council of the City of Modesto may, by resolution adopted from time to time, fix a fee for any permit issued pursuant to the Fire Code.
(b) Plan Check Fee. When the valuation of proposed construction exceeds one thousand dollars ($1,000.00), or a plan is required to be submitted, a plan checking fee shall be paid at the time of submitting plans and specifications for checking.

Page 20 of 21 ends

107.5 Related fees: The payment of the fee for the construction, alteration, removal, or demolition of work done in connection to or concurrently with the work or activity authorized by a permit shall not relieve the applicant or holder of the permit from the payment of the other fees that are prescribed by law.
3-1.302 Appeals.

Applicant may appeal the decision of the Fire Code Official to the City Council within thirty (30) days from the date of the decision being appealed whenever the Fire Code Official:

1. Disapproves an application for use of alternate materials, methods and/or types of construction,

2. Disapproves an application for permit or refuses to grant a permit applied for,

3. When it is claimed that the provisions of the code do not apply, or

4. When it is claimed that the true intent and meaning of the code have been misconstrued or wrongly interpreted.
3-1.3034 Administrative Penalties and Remedies.

In addition to any other remedies set forth in this chapter, administrative penalties may be imposed against any person, as defined in Section 1-6.207 of the Modesto Municipal Code, or any responsible party as defined herein for violating any of the requirements set forth in this chapter. Any administrative penalties assessed shall be as follows:
(a) For violations of Section 3-1.216,5 possession, manufacture, sale, use or discharge of dangerous fireworks, the administrative penalty shall be one thousand dollars ($1,000.00) for each specific act found to be in violation of that section.
(b) For all violations of this chapter, other than Section 3-1.216,5 possession, manufacture, sale, use or discharge of dangerous fireworks, the amount of the administrative penalty shall be two hundred fifty dollars ($250.00) for the first violation, five hundred dollars ($500.00) for a second violation within any twelve (12) month period, and seven hundred fifty dollars ($750.00) for any subsequent violations within any twelve (12) month period.
(c) For the purposes of this chapter, the term "responsible party" means any person or persons with the right of possession of the residence or other private property at which dangerous fireworks are possessed, manufactured, sold, used or discharged, including but not limited to:
(1) Any owner of the residence or other private property who occupies the residence or private property (hereinafter "owner-occupant"), meaning the record owner of real property as listed in the most current equalized assessment roll as maintained by the Stanislaus County Assessor at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks; (2) Any owner-occupant, lessee, licensee, or other person having control over a property, structure or parcel of land at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks;
(3) Any person(s) who organizes, supervises, officiates, conducts or controls the gathering or any other person(s) accepting responsibility for such a gathering where dangerous fireworks are possessed, manufactured, sold, used or discharged;
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(d) Responsibility for Proper Property Management. Every owner, occupant, lessee, tenant, or holder of any possessory interest of a residence or other private property within the City is required to maintain, manage and supervise property and all persons thereon in a manner so as not to violate the provisions of this chapter. A responsible party need not be present at the time dangerous fireworks are possessed, manufactured, sold, used or discharged in order for the City to issue an administrative citation under this section.
(e) Nothing in this section shall be intended to limit any of the penalties provided for under the California Health and Safety Code or Penal Code.
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 7, 2023
Date: February 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Award of Bid for Golf Carts Lease for Dryden and Creekside Golf Courses CONTACT: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods, [email protected], 209- 577-5437
DESCRIPTION:

Consider approving a Lease Agreement for Golf Carts to E-Z-Go a Division of Textron Inc., Mira Loma, CA, for a total amount not to exceed $661,634 over four years. (Funding Source: Golf Fund)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

Golf Carts are maintained at the City’s two municipal 18-hole golf courses – Dryden Golf Course and Creekside Golf Course. Golf Cart rentals are a critical source of revenue for the courses annually yielding over $500,000 in revenue.

In 2019, by Resolution 2019-283, Council approved a Master Agreement with Textron Specialized Vehicles, Inc., a Delaware Corporation, for Golf Carts and a Service Vehicle for a four-year lease for a total amount not to exceed $226,455.

In 2020, by Resolution 2020-296, Council approved the First Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $298,399 and extending the term of the Agreement from June 30, 2023, to August 30, 2023. The Agreement was extended to August 2023 to align with the signed lease agreements and extend the Dryden lease by one year.

In 2021, by Resolution 2021-408, Council approved the Second Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $377,623 to extend the Dryden Golf Cart Lease from September 1, 2021, #9..
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City Council, March 7, 2023
Award of Bid for Golf Carts Lease for Dryden and Creekside Golf Courses

Page 2 of 3 ends

to August 31, 2023. The Agreement was amended to extend the Dryden lease of carts for an additional two years to align with the termination of carts at Creekside on August 31, 2023.

DISCUSSION:

The current agreement for Golf Carts expires August 31, 2023. In anticipation of increased lead times for cart delivery to the Golf Courses, staff began the process to issue an Invitation for Bids (IFB) in July 2022.

The City Manager authorized the Purchasing Manager to issue a formal IFB for Golf Carts and Services. The Purchasing division issued IFB 2122-62 on October 31, 2022. Four vendors downloaded the document.

Bids were formally due to the City Clerk’s office on November 22, 2022, by 11:00 a.m. One bid was received from E-Z-Go a Division of Textron Inc. Purchasing staff and Parks and Recreation staff evaluated the bid. Staff found the bid responsive and responsible, and recommended the award of bid be forwarded to City Council for approval to E-Z-Go a Division of Textron Inc.

In comparison to the current Agreement, there is a 62% increase for a total of $254,281. This cost increase can be associated to the additional 11 vehicles being requested, and the increased quality by requesting all new vehicles. The increased number of carts is due to the increased use of Dryden Golf Course since the closure of MUNI Golf Course. Staff also requested all new carts to save on cart maintenance that would be covered by warranty. The increased cost can also be attributed to the increase in Consumer Price Index (CPI) since the original agreement was approved in 2019; 2019 to 2022, CPI has grown 15%.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 the formal bid procedures. An Award of Bid and Lease Agreement for Golf Carts for Parks, Recreation and Neighborhoods’ use to E-Z-Go a Division of Textron Inc., Mira Loma, California, conforms to the Modesto Municipal Code, because the City complied with the formal bid procedures and E-Z-Go a Division of Textron Inc. was the lowest responsive and responsible bidder.

FISCAL IMPACT:

The following summarizes the proposed compensation for the new agreement.

ANTICIPATED AGREEMENT EXPENDITURES
Item Monthly Total Annual Total 4-Yr Total
Electric Powered Golf Carts – 100 qty $ 12,209 $ 146,508 $ 586,032 Electric Powered Range Picker – 2 qty $ 450 $ 5,403 $ 21,611 Estimated Taxes $ 1,125 $ 13,498 $ 53,991
GRAND TOTAL $ 13,784 $ 165,409 $ 661,634
There is a significant increase from the current lease agreement for Golf Carts. However, the Director of Parks, Recreation and Neighborhoods is authorized to increase cart rental fees, as necessary, to ensure the revenue covers the increased lease costs. The table below highlights the cart rental revenue for the past four years and golf cart expenses. 1 U.S. Bureau of Labor Statistics. 2023. Consumer Price Index Overview Table – West. United States Department of Labor. January 25, 2023. <https://www.bls.gov/regions/west/data/xg-tables/ro9xg01.htm> #9..
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City Council, March 7, 2023
Award of Bid for Golf Carts Lease for Dryden and Creekside Golf Courses

Page 3 of 3 ends

FY 2019 FY 2020 FY 2021 FY 2022 TOTAL
Revenue
Creekside GC $ 232,728 $ 210,823 $ 343,610 $ 362,824 $1,149,985 Dryden GC $ 168,140 $ 146,543 $ 252,651 $ 295,446 $862,780 $ 400,868 $ 357,366 $ 596,261 $ 658,270 $2,012,765
Expenses
Cart Lease $ 111,970 $ 102,370 $ 91,878 $ 106,826 $413,044 Cart Repairs $ 14,928 $ 7,809 $ 5,192 $ 16,046 $43,975
$ 126,898 $ 110,179 $ 97,070 $ 122,872 $457,019
NET $ 273,970 $ 247,187 $ 499,191 $ 535,398 $1,555,746
The golf carts will be billed as soon as they are delivered to the Golf Courses. At this time, it is expected that the golf carts will be delivered at the beginning of next fiscal year. Staff will increase the expense and revenue budget for next fiscal year to correspond with the increased cost. No additional funding is being requested.

COMMITTEE RECOMMENDATION:

This item was approved by the Safety and Communities Committee February 13, 2023, where the Committee recommended forwarding to Council for approval. At the time of approval, the vendor’s name was incorrectly noted as Textron Specialized Vehicles, Inc. (dba E-Z-Go); it has since been corrected to E-Z-Go a Division of Textron Inc.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Award of Bid and Agreement for Rental of Golf Carts to E-Z-Go a Division of Textron Inc., Mira Loma, CA, for four (4) years, for an annual estimated amount of $165,408 and a total amount not to exceed $661,634 over four years; and authorizing the City Manager or his designee to execute the Agreement.

Approved by:

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

1. Resolution

2. Agreement

3. Bid Submittal – E-Z-Go a Division of Textron Inc.

4. IFB 2122-62 Golf Carts Lease for Dryden and Creekside Golf Course

5. Pricing Schedule

6. Financial Interest Disclosure

7. Bid Waiver
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03/07/2023/PRND/SMITH 1 2023-?

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT FOR RENTAL OF GOLF CARTS TO E-Z-GO A DIVISION OF TEXTRON INC., MIRA LOMA, CA, FOR FOUR (4) YEARS, FOR AN ANNUAL ESIMATED AMOUNT OF $165,408 AND A TOTAL NOT TO EXCEED $661,634 OVER FOUR YEARS;

AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE

THE AGREEMENT
WHEREAS, in 2019, by Resolution No. 2019-283, Council approved a Master Agreement with Textron Specialized Vehicles, Inc., a Delaware Corporation, for Golf Carts and a Service Vehicle for a four-year lease for a total amount not to exceed $226,455; and
WHEREAS, in 2020, by Resolution No. 2020-296, Council approved the First Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $298,399 and extending the term of the Agreement from June 30, 2023, to August 30, 2023; and WHEREAS, in 2021, by Resolution 2021-408, Council approved the Second Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $377,623 to extend the Dryden Golf Cart Lease from September 1, 2021, to August 31, 2023; and WHEREAS, the current golf cart lease is set to expire August 31, 2023; and WHEREAS, staff began the process of issuing an Invitation for Bids in July 2022 in anticipation of increased lead times for cart delivery to the Golf Courses; and WHEREAS, on October 31, 2022, the City Manager authorized the Purchasing Manager to issue a formal Invitation for Bids on PlanetBids; and WHEREAS, E-Z-Go a Division of Textron Inc. was the sole bidder and staff found the bid to be responsive and responsible; and
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03/07/2023/PRND/SMITH 2 2023-?
WHEREAS, the new Lease Agreement for Golf Carts is for (100) new Golf Carts and (2) service vehicles for a term of four years; and
WHEREAS, the cost to lease said vehicles shall not exceed $165,409 annually and $661,634 over the four-year lease period; and
WHEREAS, the Director of Parks, Recreation and Neighborhoods is authorized to increase the cost of cart rental fees, as necessary, to cover the cost of the carts; and WHEREAS, staff recommends the award of bid to E-Z-Go a Division of Textron Inc.; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow formal bid procedures; an award of bid and Lease Agreement for Golf Carts for Parks, Recreation & Neighborhoods department use to E-Z-Go a Division of Textron Inc., Mira Loma, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and E-Z-Go a Division of Textron Inc. was the lowest responsive and responsible bidder.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the award of bid and Agreement for Rental of Golf Carts to E-ZGo a Division of Textron Inc., Mira Loma, CA, for four (4) years, for an annual estimated amount of $165,408 and a total not to exceed $661,634 over four years.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Agreement in a form approved by the City Attorney. #9..
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03/07/2023/PRND/SMITH 3 2023-?
BE IT FURTHER RESOLVED that the Director of Parks, Recreation and Neighborhoods is authorized to increase the cart rental fees, as necessary, to cover the cost of the carts.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of March, 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 AGREEMENT – SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and E-ZGO a Division of Textron Inc., hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-_______ authorizing the Award of Bid and agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE as described in IFB 2122-62, attached hereto as Exhibit “C”, and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:

1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. #9..
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2 c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount of One Hundred and Sixty-Five Thousand, Four Hundred and Eight Dollars, $165,408. The total amount paid by CITY to CONTRACTOR and shall not exceed $661,634 over the four (4) year term of the agreement. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Attachment 1.

2. CITY REPRESENTATIVE:

Laurie A. Smith
Director of Parks, Recreation and Neighborhoods
P.O Box 642, Modesto, CA 95353
(209) 577-5347
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

3. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of up to four (4) years, extension options at the sole discretion of CITY.

Year 1: 2023 through 2024
Year 2: 2024 through 2025
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3 Year 3: 2025 through 2026
Year 4: 2026 through 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first year of the AGREEMENT. Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the City of Modesto West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

4. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies. a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
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4 b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
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5 The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the CITY’s Risk Manager.

For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.

5. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR “Net 45 Days via manual check”. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
 This AGREEMENT NUMBER - 240195
 CITY department/division name and address
 Billing period
 Service hours worked day and week
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6  Unit price, extended price, sales tax and total

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT.

CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

7. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.

8. ATTORNEYS’ FEES:

If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party #9..
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7 shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

9. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as immediately after receipt of the Notice to Proceed for this AGREEMENT. The Notice to Proceed shall not be issued until the agreement administrator receives and has on file:

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No.2122-62;
d. Contractor’s City of Modesto business license

10. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the nonbreaching party, or such other time as may be identified in the notice. Failure to correct any nonperformance shall allow the non-breaching party to terminate this AGREEMENT for cause.

Termination by City for Convenience: The City may also terminate this AGREEMENT, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure:
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8 Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property #9..
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9 related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials;
b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
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10 11. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

12. FAILURE TO PERFORM SATISFACTORY WORK:

It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors, b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the
CONTRACTOR and the City of Modesto.

Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence. Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.

13. ASSIGNMENT OF RIGHTS:

The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or #9..
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11 under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).

14. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.

15. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.

16. NOTICES:

Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR: Maryellen Williams
Contracts Administrator
1-401-457-2327
[email protected]
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12 CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

17. SIGNATORY(IES) FOR CONTRACTOR:

Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.

18. QUANTITIES:

No minimum or maximum is guaranteed or implied.

19. FUNDING:

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

20. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

21. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, #9..
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13 medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full.
b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
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14 e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

22. CONTRACTOR LICENSES & PERMITS:

CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.

23. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY.

CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

24. FACILITIES AND EQUIPMENT:

Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment #9..
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15 listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.

25. INDEPENDENT CONTRACTOR; NOT AGENT:

At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent.

CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.

26. DRUG FREE WORKPLACE:

CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

27. ASSIGNMENT:

Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.

28. 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.
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16 29. HEADINGS NOT CONTROLLING:

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

30. MISCELLANEOUS:

Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.

31. ENTIRE AGREEMENT:

All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement.

No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

32. 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. #9..
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17 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and _____________________has caused this Agreement to be duly executed. #9..
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1 INVITATION FOR BIDS (“IFB”) NO. 2122-62
FOR

GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
BID OPENING: November 22, 2022, at 11:00 A.M.

CITY OF MODESTO CONTACT: Kathy Crandall, Buyer
E-MAIL ADDRESS: [email protected]
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2 TABLE OF CONTENTS
Page
. Notice to Bidders................................................................................................................ 3 . City Contacts...................................................................................................................... 5 . Calendar of Events............................................................................................................. 5 . Virtual Bid Opening........................................................................................................... 5

GENERAL REQUIREMENTS
. Bid Submittal...................................................................................................................... 7 . Acceptance/Rejection of Irregular Bids............................................................................. 7 . Complete Bid Document.................................................................................................... 7 . Compliance/Non-Compliance............................................................................................ 8 . Pricing Format.................................................................................................................... 8 . Award of Bid...................................................................................................................... 8 . Protest and Appeal Procedures......................................................................................... 10 . Bid Submittal Checklist ................................................................................................... 15 . Payment............................................................................................................................ 17 REQUIRED BID SUBMISSION DOCUMENTS (Sign Wherever Indicated) . Bid Form A – IFB Acknowledgement............................................................................. 16 . Bid Form B – Bidder Company Information................................................................... 19 . Bid Form C - Pricing Schedule........................................................................................ 21 . Bid Form D – Bidder Exceptions, Clarifications, Amendments..................................... 24 . Bid Form E – Bidder Customer References.................................................................... 25 . Bid Form F - Financial Interest Disclosure...................................................................... 27 . Bid Form G – Local Business Preference Declaration.................................................... 29 . Bid Form H – Bidder Company History Statement ....................................................... 30 . Bid Form I - Addenda Acknowledgement....................................................................... 31 . Bid Form J – Bidder Warranty Statements...................................................................... 32 . Bid Form K – Bidder Experience and Certifications....................................................... 33 . Bid Form L - Subcontractors List .................................................................................... 34

TECHNICAL REQUIREMENTS
. Scope of Work.................................................................................................................. 35 . Required Licenses............................................................................................................ 37 .

ATTACHMENTS
. Sample Annual Agreement ............................................................................................. 39 #9..
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids from qualified Bidders for the (Leasing of Golf Carts for Dryden and Creekside Golf Courses) equipment, materials, supplies and/or related services (for the City of Modesto, Parks Recreation & Neighborhood Department).

All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Bidder, included in the Services pricing herein, and not separately charged to the City).

Bidders are highly recommended to download all IFB documents from the City’s Purchasing Division website at http://www.modestogov.com/???/Contracting-Bid-Opportunities; such IFB documents shall include all specifications necessary for Bidders to submit a responsive Bid.

Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to (Tuesday, November 22, 2022) at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.

Bids will be received only at the address shown above, and prior to the time indicated. Any Bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the Bidder unopened.

All Bids, whether delivered by an employee of the Bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated.

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #9..
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GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2122-62.

BID OPENING DATE: NOVEMBER 22, 2022, AT 11:00 A.M”.

Bidder must deliver your Bid by a preferred method to the appropriate location below:

MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK

CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET,
SUITE 6600, MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.

No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #9..
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GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
5 CALENDAR OF EVENTS
Event Date
IFB Issued October 31, 2022
Written Questions Due via Email November 4, 2022
Addendum Issued (if required) November 14, 2022 (approximate date) Bid Due Date & Time BEFORE 11:00 A.M. on Tuesday, November 22, 2022.

Contract Award Approximately February 2023.

CITY CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted in writing via email to the City’s Purchasing Division contact named on the cover page of this IFB (“City Contact”) by the date listed in the CALENDAR OF EVENTS above. The City will respond to pertinent questions through issuance of an Addendum to be available to all Bidders. All contact between Bidder and the City regarding the Bid process shall be through the City Contact. Attempts by the Bidder to contact other City personnel regarding this IFB and associated process may result in disqualification of the Bidder. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.

BIDDER FAMILIARITY WITH SERVICE CONDITIONS
It is the responsibility of each Bidder to become familiar with all of the specifications, terms and conditions and the site condition (if applicable). The Bidder agrees to and acknowledges all IFB specifications, terms, and conditions and indicates the ability to perform by submission of a Bid. By the submission of a Bid, the Bidder certifies that if awarded a contract it will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void.

VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, November 22, 2022. The City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.

The public Bid opening for this Invitation for Bids will be available using the URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the abovestated IFB you acknowledge, understand, and agree to this modified Bid opening procedure. #9..
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6 Join on your computer or mobile app
• Click here to join the meeting
•
• Or call in (audio only)
• +1 469-998-7409,,961656049# United States, Dallas
•
• Phone Conference ID: 961 656 049#
•
• https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40th read.v2/0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976- 189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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AND CREEKSIDE GOLF COURSE
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two (2) “inked” (preferably blue ink) signed original Bid documents, plus one (1) copy of the signed original Bid document, and one (1) electronic copy submitted via USB. The original Bid documents shall be clearly marked.

Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN
DISQUALIFICATION.

B. CONFIDENTIAL BIDDER INFORMATION: It is the responsibility of the Bidders to identify information in their Bid submission that they may consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.

C. BIDDER COSTS INCURRED IN RESPONDING TO IFB: All costs associated with the preparation and submission of a Bid shall be borne by the Bidder.

D. BIDDER EXCEPTIONS: All exceptions taken to this IFB and associated specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form.

Failure to comply with this provision may deem the Bid as non-responsive. Please review the Sample Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes. Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or provision of Services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or provision of Services with exceptions.

E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS: An agreement shall be awarded to the Bidder whose Bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.

F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed):
• Bid Form A - IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
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GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
8 • Bid Form F - Financial Interest Disclosure
• Bid Form G – Local Business Preference Declaration
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L - Subcontractor List – N/A for this project Failure to furnish any of these documents may result in disqualification.

G. NON-COMPLIANCE: If Bidder cannot comply with a specification requirement in this IFB, note on the Exception, Clarifications, Amendments form of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Bidder is not in compliance with the specification, the Bid may be rejected.

H. PROPOSED PRICING FORMAT:
• The cost of labor, equipment, fuel, licenses, bonds, permits, and insurance necessary to perform the required provision of Services shall be included in Bid pricing, along with Bidder’s profit margin and any other cost factors.
• Unless otherwise stated, the Bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
• The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pick up materials.
• Bidder shall use the pricing schedule provided in this IFB to present Bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations may be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the Exception, Clarification, Amendments Form.

I. AWARD OF BID:
• The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. #9..
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9 • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-

3.203(f). Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.

J. SUPPORT OF LOCAL VENDORS: Should the Bidder that submits the lowest responsive Bid or and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-

3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within 5% of the lowest Bid, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid or quote of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager. To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

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

L. BIDDER REPRESENTATION: Bidder represents that:
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10 • Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work. • Bidder will complete the proposed provision of Services for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Services and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Services in accordance with the terms of any resultant agreement within the time specified therein.

M. BID PROTEST AND APPEAL PROCEDURES: Bidders wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.

Definitions
For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that a Bidder may lodge a protest.

Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. #9..
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11 • A Bidder may not rely on the bid protest submitted by another bidder but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor.
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date.
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based. d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.

All protests to the Director of Finance shall either be delivered to:

City Clerk’s Office
Attn: Purchasing Manager
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12 1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Director of Finance
PO Box 642
Modesto CA 95353
b. Appeal to Deputy City Manager: At the protestor’s discretion, the decision of the Director of Finance may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.

Further protest appeals shall either be delivered to:

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

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for #9..
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13 Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.

All protest appeals to the City Council shall either be delivered to:

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

City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
e. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager a protestor may request that the protest be heard and decided at an administrative hearing.

A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.

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

The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing #9..
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14 officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.

The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #9..
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15 BID SUBMITTAL CHECKLIST

BID SUBMITTAL CHECKLIST
The Bidder shall provide a complete Bid in a sealed envelope by the required deadline on the Bid Opening Date. Failure to provide all the required documents may cause the Bid to be considered nonresponsive.

Bidder’s Bid must contain the following applicable elements completed and signed as described morefully herein. The following checklist is provided solely for Bidder’s use in reviewing the completeness of your submission:

COMPLETE BID ELEMENTS 
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C - Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F - Financial Interest Disclosure
Bid Form G – Local Business Preference Declaration
Bid Form H – Bidder Company History Statement
Bid Form I - Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K – Bidder Experience and Certifications
Bid Form L - Subcontractor List

Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #9..
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16 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each “bidder”) to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).

This Bid Acknowledgement must be completed, signed by an authorized responsible officer or employee, dated and submitted with the Bid response. Obligations assumed by such signature will include the following:

1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the Bid. (b) Quote price as specified in Bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.

2. Failure to Submit Bid: If you are not submitting a Bid but want to remain on the mailing list and receive future Bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.

3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the IFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the Bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the City; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the City are exempt from certain Federal excise taxes. The City will furnish an exemption certificate.

4. Award: (a) Unless otherwise specified by the Bidder or the IFB gives notice of an all-or-none award, the City may accept any item or group of items of any Bid. (b) Bids are subject to acceptance by the City at any time within 45 days of opening, unless otherwise specified in the IFB. A Bidder shall not change its bid if accepted within such time. (c) A valid, contract based on the sample agreement attached to the IFB and the submitted bid shall be mailed, or otherwise furnished, to the successful Bidder within the time for acceptance specified, and such contract shall be a binding agreement without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.

5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un- #9..
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17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.

6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.

7. Rights and Remedies of City for Default: (a) In the event any item furnished by the Bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the Bidder with its Bid, the City may reject the same, and it shall thereupon become the duty of the Bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Bidder fail, neglect or refuse to do so, the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. City may deduct from any moneys due or that may there after coming due to Bidder, or send an invoice to the Bidder which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the Bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. (c) The rights and remedies of the City provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.

8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
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18 ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder.

Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this IFB.
(b) Option B – Manual Check: On Net 45 Day timing, the City will mail a hardcopy check to Bidder. The payment will be deemed to have been made when the check envelope is mailed via US Postal Service First Class Mail. The timing of the mailing will be at the end of the Net 45 Day period. Additional time should be estimated by the Bidder for the check to be in transit, and to await deposit and clearance by Bidder staff.

9. California Government Code Section 4552: In submitting a Bid to the City, the Bidder offers and agrees that if the Bid is accepted, it will assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Services, materials, or services by the Bidder for sale to the purchasing body pursuant to the Bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Bidder.

10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded under a contract or purchase order resulting from this Bid.

11. Two “Inked” Signed Original Bids Document Required: Failure to furnish two (2) “inked” signed original Bid documents may result in disqualification. These must be accompanied by one (1) copy and one electronic document recorded onto a USB storage device.

12. Minor Irregularities. The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Bid.

The undersigned acknowledges receipt of the referenced IFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the Bidder indicated in Bidder’s Bid Forms A through L, attached hereto and made a part hereof, for the pricing proposed on the Pricing Schedule.

Bidder Company Name:

Bidder Headquarters Address:

City/State/Zip:

Signature/Title/Date:
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19 BID FORM B – BIDDER COMPANY INFORMATION
A. Bidder Company Full
Legal Name
B. Bidder Company
Marketplace (or DBA)
Name
C. Type of Legal Entity: ___ Corporation, registered in ____________________ (State) ___ Limited Liability Company, registered in _________________(State) ___ Partnership, registered in ________________(State)
___ Sole Proprietorship, registered in ____________(State) ___ Other ___________________________________________(Describe) D. Headquarters Address
(Street Address, City,
State, Country, Postal
Code):

E. Website Address: www.___________
F. Contact Person Details: Name:

Title:

Phone (Office):

Phone (Mobile):

Mailing Address (Street Address, City, State, Postal Code):

Fax Number:

G. Federal Taxpayer
Identification Number
(TIN):

H. Dun & Bradstreet
(DUNS) Number:

I. Names and Titles of
Top Three Bidder
Officers:

J. Years in Business:

K. Bidder Office Address
Closest to City of
Modesto (Street
Address, City, State,
Country, Postal Code):

L. City of Modesto
Business License
Number (note –
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20 provide only if
available now - - but
not required until any
contract begins):

M. State of California
Contractor License
Number and Expiration
Date (if available):

N. State of California
Department of
Industrial Relations
(DIR) Registration
Number and Expiration
Date (if available):
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21 BID FORM C - PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, insurance and other expenses necessary for Bidder to perform the required services shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.

The payment of Prevailing Wages (is not) required for this project.

Course Item QTY UOM Unit Price
Monthly
Total
Annual
Total
Creekside
Electric Powered Golf Cart as per
specifications 50 Each $_________ $__________ $_________ Creekside
Gas Powered Range Picker as per
specifications 1 Each $_________ $__________ $_________ Creekside Delivery/Shipment Fees 1 Each $_________ $__________ $_________ Creekside Subtotal $_________
Dryden
Electric Powered Golf Cart as per
specifications 50 Each $_________ $__________ $_________ Dryden
Gas Powered Range Picker as per
specifications 1 Each $_________ $__________ $_________ Dryden Delivery/Shipment Fees 1 Each $_________ $__________ $_________ Dryden Subtotal $_________
ePay
1% Rebate (See page 17 for
this option YES /NO, If no,
please mark a zero in the
column $_________
TOTAL SUM FOR CREEKSIDE AND DRYDEN $______________
Other Fees & Taxes
(Please note below) QTY UOM Unit Price
Monthly
Total
Annual
Total
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
TOTAL SUM OF BID ITEMS FOR ONE YEAR $_______________
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22 Optional Items
(Please note below) QTY UOM Unit Price
Monthly
Total
Annual
Total
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
TOTAL SUM $_______________
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23 Payment Terms:

Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):

Choose One:
• Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or • Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.

THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and offers to furnish the articles and/or services specified, in accordance with the specifications, terms and conditions of this IFB and these Bid documents, for the pricing indicated on the Pricing Schedule.

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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24 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS Exceptions to the City of Modesto’s IFB package, sample agreement, and associate specifications are not encouraged and may cause Bidder to be considered not responsible and/or its Bid to be considered not responsive. Therefore, if no exceptions, clarifications or amendments are proposed by Bidder, it is preferred that Bidder so indicate by typing or writing “Not Applicable” in the Description field in the first item row below. Less preferred, Bidder may indicate no exceptions, clarifications or amendments are proposed by leaving this form out of its’ Bid submission.

Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response.

Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.

Item # Reference To: Description
Page # Section or
Paragraph #
Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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25 BID FORM E – BIDDER CUSTOMER REFERENCES
Bidder must provide a list of five current or former customers able to discuss prior experience with similar type of services requested by the City in the above-referenced IFB. Bidder’s references shall have similar volume and requirements to the City of Modesto as described in the above-referenced IFB.

Bidders failing to provide references may be deemed as non-responsive.

The City may contact some or all of the references provided in order to determine the Bidder’s performance record on services similar to that described in the above-referenced IFB. The City reserves the right to contact references other than those provided in Bidder’s submission and to use the information gained from them in the award process.

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:
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26 City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
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27 BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.

Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract or development right.

PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.

Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.

For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.

Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.

Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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28 Print Names of Persons Having a Financial Interest in Bidder Receiving this Contract:

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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29 BID FORM G - LOCAL BUSINESS PREFERENCE DECLARATION
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-

3.204 of the Modesto Municipal Code) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within five percent (5%) of the lowest Bid or quote, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager.

Notwithstanding the foregoing, award to the local Bidder must still be approved by the City Council as would have the typical award.

To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

This document is only required should the Bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.

Check here:

I declare I am a local business per the above criteria
Bidder Company Name:

City of Modesto Address (Street,
City, State, Postal Code:

City of Modesto Business License
Number:

Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:

Print/Type Name:

Title:

Signature:

Date:
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30 BID FORM H - BIDDER COMPANY HISTORY STATEMENT
Bidder shall have been in business for a minimum of three continuous years (immediately prior to the time of the City’s solicitation) providing the services described in this Invitation for Bids (IFB).

The Bidder’s company history overview statement shall be approximately one to three pages in length and inserted below:

Bidder Company Legal Name: Insert Bidder Logo Here (if existent):

Insert Bidder Company History Overview Statement Beginning Here:
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31 BID FORM I - ADDENDA ACKNOWLEDGEMENT
In order to obtain any addenda information, throughout the IFB period, Bidder is responsible for regularly checking the City of Modesto’s Planet Bid website at https://pbsystem.planetbids.com/portal/14999/bo/bosearch for the IFB number listed on the Cover Page and in the header of each subsequent page of this IFB, and in any event, no later than the day prior to Bid opening. The changes identified in any addenda issued will modify this IFB and specifications. The addenda now become a part of this IFB and Bidder’s resultant Bid.

Signing the Bid on the signature portion thereof, the Bidder is acknowledging that the Bidder has confirmed that it has received all addenda issued for IFB and has included costs for such in the Bid submitted. Failure to list and acknowledge all addenda numbers may cause Bidder’s Bid to be considered nonresponsive.

Do not attach any of the addenda to this sheet nor include them with the Bid.

If no addenda have been issued against this IFB solicitation, Bidder may write “Not Applicable” and return this Bid Form as part of its submission. Alternatively, Bidder may leave this Bid Form out of its submission.

But if any addenda have been issued by the City of Modesto this document is required to be completed and returned.

The Bid is submitted with respect to the changes to the IFB included in addenda numbers:

List All Addenda Numbers, Separated by Commas
(“,”):

Bidder Company Name:
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
32 BID FORM J – BIDDER WARRANTY STATEMENTS
As a material part of its Bid, Bidder shall insert below a written statement detailing any materials and workmanship warranties, term and conditions in conformance with the specifications and requirements set forth in this IFB.

Notwithstanding any other provisions of this IFB, Bidder warrants that the materials, supplies, or other services furnished under any contract or purchase order resulting from its Bid shall be on the most suitable grade and meet or exceed the standards set forth in this IFB. Such warranty shall include the following: performance, workmanship, labor, materials, and Bidder design or engineering contributions. If a defect is discovered in any item of the materials, assemblies, components, supplies or services covered in this Bid, Bidder shall correct at its sole expense, all such defects as are reported within 30 days of City’s final acceptance. Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms or any resultant purchase order.

All materials, parts, labor, assemblies and components shall by subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto.

Bidder Company Legal Name: Insert Bidder Logo Here (if existent):

Insert Bidder Warranty Statement Beginning Here:
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
33 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS
Bidder shall provide below a summary covering the following:

A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications and representative experience.

B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein. #9..
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
34 BID FORM L - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
35 TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.1 SCOPE OF WORK:

The City of Modesto operates two (2) 18-hole municipal golf courses: Creekside Golf Course and Dryden Park Golf Course located in Modesto, CA. The City is seeking a Contractor to provide a four (4) year lease for (2) fleets of golf carts, provide regular maintenance, inspection, service, and repairs (collectively called “service”), and a warranty that will ensure the golf carts will be able to drive 36 holes for the entirety of the lease as described in this scope of work. The existing agreements for Golf Carts expire on August 31, 2023. It is anticipated that the successful contractor would begin operations on August 17, 2023.

Dryden Park Golf Course is a full length, 6,574-yard golf course, built on 140 acres in the late 1950’s. It appeals to golfers of all levels from beginner to expert. It has medium-size tees, average width tree-lined fairways and medium to large greens. There is a full service driving lighted range, practice putting greens and a practice Pitching green. Dryden achieved 29,243 average rounds over the last three fiscal years.

Creekside Golf Course opened for play in September of 1991. It is a championship 18-hole golf course measuring approximately 6,800 yards from the blue (championship) tees and is built on 160 acres. Creekside has three (3) lakes, large undulating greens, large tees, narrow fairways and many sand traps. The course appeals to all levels of golfers from beginner to expert. Two (2) holes are in the bottom of a bluff created by Dry Creek and are adjacent to the undeveloped Dry Creek Regional Park and Trail. The remainder of the course is located above the flood plain. Creekside has averaged 46,146 rounds over the last three fiscal years.

GOLF CART SPECIFICATIONS AND LEASE DETAILS:

1. Quantity and Type
• 100 New Carts
• 2 New Range Pickers
• 2 Accessible Carts (new or used) for disabled persons (optional)

2. Cost of Golf Carts
Using the Pricing Schedule in this RFB, the Contractor will provide the cost of the Golf Carts. The Contractor will provide an operating lease. The operating lease must define the terms of the lease including the monthly payment, and optional purchase price. Lease must include applicable taxes and fees, if any.

3. Battery Solution
The Contractor will provide battery options with a minimum warranty of 48 months. The options must be Lead Acid batteries or Lithium-Ion batteries only.
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
36 4. Golf Cart Specifications
a. Golf Carts:

All Golf carts will be new from the factory. Specification sheets are required for each proposed vehicle solution within the bid. At a minimum, each of the following features are required:
i. Standard roof
ii. Standard paint color
iii. Standard wheel package
iv. No windshield
v. Sweater basket
vi. Information holder
vii. Watering system (battery)
viii. Cart numbers
ix. Standard 2-seaters
x. USB connection
City is also interested in the following options but are not required:
i. Geo Fencing
ii. Speed Control
b. Range Pickers:
i. Gas-powered vehicle
ii. Equipped with protective cage
iii. Equipped with headlights and taillights
c. Accessible Golf Carts (optional):
i. Equipped with a swivel seat and/or standup seat
ii. Equipped with hand controls
iii. Condition may be Used

5. Golf Carts should meet the specifications as defined above or have an equivalent thereto. City reserves the right to determine equivalency of equipment.

1.2 SERVICING:

Contractor must provide regular service on all makes and models of golf cart equipment, including, but not limited to, batteries, roofs, seats, body of the cart as well as the driving range pickers, which are heavy-duty vehicles compared to the standard golf cart (collectively called “equipment”). “Service” is defined as #9..
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
37 Regular maintenance, inspection, service, and repairs.

Scheduled service under this agreement shall be performed during regular business hours of each respective course from 8:00 am to 5:00 pm. The rate shall be billed at an hourly rate and a quote will be provided to the Technical Liaison. Materials will be at the Contractor’s landed cost less any earned discounts.

1.3 WARRANTY:

The purpose of servicing the golf carts is to eliminate the existence of warranty claims. City expects the contractor to alert the City if potential problems can be averted and will allow City to correct the problem to avoid voiding the warranty. Contractor must guarantee the entire golf cart, throughout the entirety of the lease. Golf carts must be able to run a minimum of 36 holes per day for the entirety of the lease. If a golf cart cannot run 36 holes per day at any point during the contract, Contractor will correct the deficiency at no charge to the City. Any other exclusions or normal wear and tear items must be disclosed in the bid.

1.4 DELIVERY:

Delivery shall be FOB destination, prepaid and allowed. Full Delivery consists of golf carts onsite at each course as noted in the table below and fully assembled.

Item
Creekside Golf Course
701 Lincoln Ave.

Modesto, CA 95354
Dryden Golf Course
920 Sunset Ave.

Modesto, CA 95351
Golf Cart 50 qty 50 qty
Range Picker 1 qty 1 qty
Total 51 qty 51 qty
Delivery charges shall be included in the Pricing Schedule. Contractor must provide the lead time necessary to deliver the new fleet of golf carts once the contract is signed. The full delivery of the Golf Carts must be completed by August 17, 2023.

1.5 CITY REPRESENTATIVE:

All Services provided under any resulting contract shall be under the general technical guidance and direction of the City of Modesto, Parks, Recreation & Neighborhoods Department. The Parks, Recreation & Neighborhoods Department is not authorized to commit the City to change in specifications, requirements, scope of work, or changes in pricing. Changes of a contractual or business nature shall be affected only by written change to the contract, issued by the City of Modesto, Parks, Recreation & Neighborhoods Department.

1.6 REQUIRED LICENSES:

Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement. #9..
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INVITATION FOR BIDS # 2122-62

GOLF CARTS LEASE FOR DRYDEN

AND CREEKSIDE GOLF COURSE
38 1.7 CALIFORNIA CONTRACTORS LICENSE: Not applicable for this bid. #9..
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39 SAMPLE AGREEMENT

SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the

GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
as described in IFB 2122-62, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:

1. THE WORK:
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40 a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $_________________. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $____________. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.

AGREEMENT PRICING
[TBD – Insert Pricing Table Here]

2. CITY REPRESENTATIVE:

CITY Representative is:
________________________ ____________________________
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

3. TERM OF AGREEMENT:
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41 The term of the AGREEMENT shall be for a period of four years, options at the sole discretion of CITY.

Year 1: 2023 through 2024
Year 2: 2024 through 2025
Year 3: 2025 through 2026
Year 4: 2026 through 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the City of Modesto West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

4. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover #9..
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42 any automobile for bodily injury and property damage. c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.

5. BONDS. Not applicable for this bid.
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43 6. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total

7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, #9..
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44 officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.

9. ATTORNEYS’ FEES. If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

10. COMMENCEMENT AND COMPLETION OF THE WORK:

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2022-_______;
b. CONTRACTOR Bid submittal;
c. IFB No.2122-62;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non- #9..
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45 performance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; #9..
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46 f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.

12. COMPLIANCE WITH ALL LAWS:
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47 CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

13. FAILURE TO PERFORM SATISFACTORY WORK: It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.

Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.

14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
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48 15. CITY PROCESS/PROCEDURE APPROVALS: CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.

16. DIR REGISTRATION: Pursuant to Labor Code section 1771.1, CONTRACTOR may not engage in the performance of the Services set forth in Exhibit “C”, unless currently registered and qualified to perform public work pursuant to Section 1725.5 thereof. As required in Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, that during term of this AGREEMENT, CONTRACTOR shall be registered to perform public work pursuant to Section 1725.5 thereof.

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES: If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.

18. NOTICES:

CONTRACTOR: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
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49 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.

20. QUANTITIES: No minimum or maximum is guaranteed or implied.

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in #9..
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50 Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS: CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.

25. RECORDS. All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the #9..
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51 documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT. Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.

27. INDEPENDENT CONTRACTOR; NOT AGENT. At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.

28. DRUG FREE WORKPLACE: CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

29. ASSIGNMENT:

Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.

30. WAIVER:
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52 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.

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.

33. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

34. PARTIAL INVALIDITY:

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_______, adopted by the Council of the City of Modesto on the _____________ day of #9..
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53 _____________________, 2023 and _____________________has caused this Agreement to be duly executed.

CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: __________________________ By: _________________________________ JOSEPH P. LOPEZ, (Signature)
City Manager
By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:

By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 7, 2023
Date: February 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Tuolumne River Regional Park Riverwalk Trail - Gateway to Legion Park Design Award
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider approving an Agreement with Sherwood Design Engineers, LTD. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Legion Project for a total amount not to exceed $495,689. (Funding Source: Parks and Air Quality Capital Facility Fee Fund, LTF – Non-Motorized Fund, TRRP CIP Fund) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

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

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

The Master Plan and Master Environmental Impact Report (MEIR) were developed over a twoyear period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001.

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

Riparian habitat restoration activities have included construction of backwater channels, riparian #10..
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terraces, wildlife areas, amphimeadow and river structure dam removal. Recreational construction activities have included an outdoor classroom, river observation deck, multiple Class 1 trails and a pedestrian bridge installation.

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

The TRRP Riverwalk - Trail Gateway to Legion Park Project will provide for a new paved trail connection between the Gateway Parcel and Legion Park within the TRRP. The project will provide for active recreational uses of the river frontage and be compatible for commuting uses between City employment centers and neighborhood destinations.

DISCUSSION:

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

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

In addition, staff recommends Council approve a 10% additional services budget in the amount of $45,063 to allow for additional services that may be required due to unforeseen conditions, delays or expenses for an agreement total not to exceed $495,689. This additional services budget does not commit the City to spend the additional funding, but allows the Department Director to approve change orders up to the additional services limit, without further Council action.

In accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, this agreement is for professional services and, therefore, exempt from the bid requirement. However, staff proceeded with the RFP process pursuant to Administrative Directive 3.1.

FISCAL IMPACT:

The project design will be funded by the Parks & Air Quality Capital Facility Fee Fund, LTF – Non-Motorized Fund, TRRP CIP Fund. Funding is housed in Project 101232 – TRRP Riverwalk Gateway - Legion. The construction is currently not funded but completing the design of the #10..
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project will make the City more competitive for grant funding to complete the construction of this project.

Revenue:

Current Budgeted Revenue – LTF – Non-Motorized Fund (Fund 1520) $ 189,759 Current Budgeted Revenue – Parks & Air Quality CFF Fund (Fund 3432) $ 200,000 Additional Revenue from TRRP CIP Fund (Fund 6710) $ 210,241 Total Revenue $ 600,000
Anticipated Expenses:

Sherwood Design Engineers, LTD Agreement (not to exceed) $ 495,689 Current staff cost $ 77,112
Additional staff and other incidental costs (Estimated) $ 27,199 Total Anticipated Expenses $ 600,000
COMMITTEE RECOMMENDATION:

This item was reviewed by the Safety and Communities Committee on February 13, 2023, and the Committee recommended the item be forwarded to Council for approval.

CEQA/NEPA REQUIREMENTS:

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

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

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving an Agreement with Sherwood Design Engineers, LTD. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Legion Park Project for an amount of $450,626, plus $45,063 for additional services, if needed, for an Agreement total not to exceed $495,689 and authorizing the City Manager, or his designee, to execute the Agreement.

Resolution amending the Fiscal Year 2022-23 Capital Improvement Program project 101232 budget in the amount of $210,241 to increase the project expenditure budget and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of this Resolution.

Approved by:

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

1. Resolution (2)

2. Agreement – Sherwood Design Engineers, LTD.

3. Concept drawing for TRRP Riverwalk Trail – Gateway to Legion Park Project #10..
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03/07/2023/PRN/NHoux/Item XX 1 2023-XXX

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING AN AGREEMENT WITH SHERWOOD DESIGN
ENGINEERS, LTD. TO PREPARE CONSTRUCTION DOCUMENTATION FOR THE

TUOLUMNE RIVER REGIONAL PARK (TRRP) RIVERWALK TRAIL - GATEWAY TO LEGION PARK PROJECT FOR AN AMOUNT OF $450,626, PLUS $45,063 FOR

ADDITIONAL SERVICES, IF NEEDED, FOR AN AGREEMENT TOTAL NOT TO EXCEED $495,689 AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE,

TO EXECUTE THE AGREEMENT
WHEREAS, the Tuolumne River Regional Park consists of 500-acres of riparian land within the City of Modesto and Stanislaus County; and
WHEREAS, in 1999, the Tuolumne River Regional Park Commission updated the original land use plan, which included preparation of a TRRP Master Plan and Master Environmental Impact Report; and
WHEREAS, the Master Plan and Master Environmental Impact Report (MEIR) were developed over a two-year period and were certified by the TRRP Commission and adopted by Ceres City Council, Modesto City Council and County Board of Supervisors in 2001; and WHEREAS, construction of the Gateway Parcel development (the area on the north side of the river from the confluence of the Tuolumne River and Dry Creek to Highway 99) commenced in 2006; and
WHEREAS, riparian habitat restoration activities have included construction of backwater channels, riparian terraces, wildlife areas, amphimeadow and river structure dam removal; and
WHEREAS, The TRRP Riverwalk - Trail Gateway to Legion Park Project will provide for a new paved trail connection between the Gateway Parcel and Legion Park within the TRRP; and
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WHEREAS, the project will provide for active recreational uses of the river frontage and be compatible for commuting uses between City employment centers and neighborhood destinations; and
WHEREAS, in accordance with Administrative Directive 3.1, “Selection Procedures for Professional Consultants Who Provide Architectural & Engineering for Capital Projects”, staff initiated a Request for Qualifications and Proposals (RFQ/P) to perform Professional Design Consulting Services; and
WHEREAS, on October 6, 2021, the City’s Parks Planning and Development Division issued a Request for Proposals (RFP) # PRN-21-101164 for professional design consulting services for the Tuolumne River Regional Park (TRRP) Three Trails Connection Project; and WHEREAS, on November 10, 2021, staff received two (2) consultant proposals, and a consultant selection committee was formed and met to review the proposals received; and WHEREAS, the committee decided that the project be split into three different sections and determined that the prospective professional design consultant, Sherwood Design Engineers, LTD, is well qualified to complete Section Two – TRRP Riverwalk Trail - Gateway to Legion Park; and
WHEREAS, in addition, staff recommends Council approve a 10% additional services budget in the amount of $45,063 to allow for additional services that may be required due to unforeseen conditions, delays or expenses for an agreement total not to exceed $495,689; and WHEREAS, this additional services budget does not commit the city to spend the additional funding, but allows the Department Director to approve change orders up to the additional services limit, without further council action; and #10..
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03/07/2023/PRN/NHoux/Item XX 3 2023-XX
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, this agreement is for professional services and, therefore, exempt from the bid requirement. However, staff proceeded with the RFP process pursuant to Administrative Directive 3.1.

NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves an Agreement with Sherwood Design Engineers, LTD. to prepare construction documentation for the Tuolumne River Regional Park (TRRP) Riverwalk Trail - Gateway to Legion Park Project for an amount of $450,626, plus $45,063 for additional services, if needed, for an Agreement total not to exceed $495,689.

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 day of , 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:
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03/07/2023/PRN/NHoux/Item XX 4 2023-XX
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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03/07/2023/PRN/NHoux/Item XX 1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2022-23 CAPITAL
IMPROVEMENT PROGRAM PROJECT 101232 BUDGET, IN THE AMOUNT OF $210,241 TO INCREASE THE PROJECT EXPENDITURE BUDGET AND

AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO TAKE THE

NECESSARY STEPS TO IMPLEMENT THE PROVISIONS OF THIS

RESOLUTION
WHEREAS, the Tuolumne River Regional Park consists of 500-acres of riparian land within the City of Modesto and Stanislaus County; and
WHEREAS, the project will provide for active recreational uses of the river frontage and be compatible for commuting uses between City employment centers and neighborhood destinations; and
WHEREAS, in accordance with Administrative Directive 3.1, “Selection Procedures for Professional Consultants Who Provide Architectural & Engineering for Capital Projects”, staff initiated a Request for Qualifications and Proposals (RFQ/P) to perform Professional Design Consulting Services; and
WHEREAS, the committee decided that the project be split into three different sections and determined that the prospective professional design consultant, Sherwood Design Engineers, LTD, is well qualified to complete Section Two – TRRP Riverwalk Trail - Gateway to Legion Park; and
WHEREAS, in addition, staff recommends Council approve a 10% additional services budget in the amount of $45,063 to allow for additional services that may be required due to unforeseen conditions, delays or expenses for an agreement total not to exceed $495,689; and WHEREAS, in order to fully fund the agreement a budget adjustment in the amount of $210,241 is needed; and
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WHEREAS, there are sufficient funds in Fund 6710 – JPA - TRRP Special Revenue Fund – CIP reserves for the project; and
WHEREAS, the City Council shall consider amending the 2022-23 Capital Improvement Program project 101232 budget in the amount of $210,241.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby amends the Fiscal Year 2022-23 Capital Improvement Program project 101232 budget in the amount of $210,241 to increase the project expenditure budget.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to implement the provisions of this resolution.

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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SHERWOOD DESIGN ENGINEERS, LTD AGREEMENT WITH THE CITY OF

MODESTO FOR THE TUOLUMNE RIVER REGIONAL PARK
RIVERWALK TRAIL – GATEWAY TO LEGION PARK PROJECT
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and SHERWOOD DESIGN ENGINEERS, LTD, a California corporation, hereinafter referred to as "Consultant".

This Agreement is made with regard to the following recitals:

A. The City has determined that environmental and construction documentation should be prepared for the Tuolumne River Regional Park Riverwalk Trail – Gateway to Legion Park Project.

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

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

1. SCOPE OF SERVICES.

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

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

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

3. COMPENSATION.

Consultant agrees to accept a sum not to exceed FOUR HUNDRED FIFTY THOUSAND SIX HUNDRED TWENTY-SIX AND 00/100 DOLLARS ($450,626 maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.

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

City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, #10..
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and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.

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

Reimbursable Expenses including all printing and reproduction, travel, vehicle mileage, delivery and horticultural soils samples expenses will be billed at cost. The total cost for all reimbursable expenses for the Project shall not exceed $6,400, and is included in the not exceed figure of $450,626. It is the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget. Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due.

Additional services may be authorized by the Department Director in an amount up to, but not to exceed 10% of the agreed maximum compensation, or FORTY-FIVE THOUSAND SIXTY-THREE AND 00/100 DOLLARS ($45,063). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department #10..
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Director, or designee, indicating the reason for additional work, scope and cost of such work.

The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed FOUR HUNDRED NINTY FIVE THOUSAND SIX HUNDRED EIGHTY-NINE AND 00/100 DOLLARS ($495,689). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.

4. OBLIGATIONS OF CONSULTANT.

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

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

5. PERFORMANCE BY KEY EMPLOYEE.

Consultant has represented to City that Robyn Cooper, Senior Project Manager, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by #10..
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Consultant. Consultant therefore agrees that twenty percent (20%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.

6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.

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

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

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

7. NEWS AND INFORMATION RELEASE.

Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this #10..
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Agreement, without first obtaining review and approval of said news releases from City through the City Manager.

8. INTEREST OF CONTRACTOR.

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

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

9. AMENDMENTS.

Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of #10..
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work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.

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

10. INDEPENDENT CONTRACTOR.

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

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

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

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

Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement. #10..
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Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.

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

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

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

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

11. ASSIGNMENT.

Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance. #10..
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12. PATENT/COPYRIGHT MATERIALS.

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

13. NOTICES.

Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
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FOR CONSULTANT: Name: Sherwood Design Engineers, Ltd
Address: 1525 Seabright Avenue
Santa Cruz, CA 95062
Attention: Robyn Cooper, MS, PE, Senior Project Manager Phone: (831) 426-9054
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Laurie A. Smith
Phone: (209) 577-5344
Email: [email protected]

14. INSURANCE REQUIREMENTS.

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

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

If at any time any of said policies shall be unsatisfactory to the City or State of California, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City or State of California, the Consultant shall promptly obtain a new 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 #10..
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insurance and certificates as above provided, this Agreement, at the election of the City or State of California, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City and State of California, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City and State of California, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City or State of California. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City or State of California; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and #10..
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volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.

15. TERMINATION OF AGREEMENT.

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

Termination by City for Convenience
TheCitymay also terminate theConsultant's performance underthe Agreement, eitherin whole orin part, at its own discretion, or when conditions encountered during the Work make it impossible orimpracticable to proceed, or when theCityis prevented fromproceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. TheCity shall provide no lessthan ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.

Post-Termination Procedure
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foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates,summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed #10..
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by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.

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

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

16. CERTIFIED PAYROLL REQUIREMENT.

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

17. INDEMNITY.

The Consultant shall hold the City and State of California, it agents , officers, employees, and volunteers, harmless, 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, to the extent caused by any negligent or wrongful act, error or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. Consultant’s cost of defense shall not exceed the Consultant’s proportionate percentage of fault. #10..
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Consultant's obligation to defend, indemnify, and hold the City and State of California, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.

18. DISPUTE RESOLUTION.

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

This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration #10..
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Association within ninety (90) days after mailing of the written rejection by City to Consultant.

Otherwise, the claim or claims shall be deemed waived in their entirety.

The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made.

Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.

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

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

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 #10..
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arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.

Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.

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

19. ENTIRE AGREEMENT.

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

20. PARTIAL INVALIDITY.

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. #10..
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21. WAIVER.

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

22. AUDIT.

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

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

23. GOVERNING LAW.

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

24. HEADINGS NOT CONTROLLING.

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

25. COMPLIANCE WITH LAWS.

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.
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26. CITY BUSINESS LICENSE.

Consultant will have a City of Modesto business license.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of , 2023, and ____________ has caused this agreement to be duly executed in duplicate as of the Effective Date.
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Parks, Recreation and Neighborhoods Department,
Parks Planning & Development Division
1010 Tenth Street, Suite 4400
Modesto, California 95354
209.577.5344
Modestogov.com
EXHIBIT “A”

SCOPE OF WORK, TRRP RIVERWALK TRAIL - GATEWAY TO LEGION PARK

PROJECT BACKGROUND
The Tuolumne River Regional Park (TRRP) Project was conceived during the 1960s to preserve and enhance approximately 7-miles of the river corridor that travels through the City of Modesto. The park includes approximately 500 acres, is mostly on the north side of the river, and extends from Mitchell Road and the city airport on the east, to just beyond Carpenter Road on the west. Approximately 180- acres of the park is developed to date.

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

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

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

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

Within the Tuolumne River Regional Park the City is actively planning for the Neece Drive NonMotorized Boat Launch Facility (TRRP Golf Course Area), Bellenita Soccer Field Complex (TRRP Carpenter Road Area), Gateway River Overlook (TRRP Gateway Area), Legion Park River Pavilion (TRRP Legion Park Area) and Legion Park Learning Theater (TRRP Legion Park Area) projects. These projects will likely begin construction in late 2022 and intermittently continue until 2025. #10..
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PROJECT DESCRIPTION
The Tuolumne River Regional Park (TRRP) Riverwalk Trail Gateway to Legion Park Project will provide for a new paved trail connection between the Gateway Parcel and Legion Park within the TRRP. The project will provide for active recreational uses of the river frontage and be compatible for commuting uses between City employment centers and neighborhood destinations.

The work to be accomplished in this project consists of preparation of construction documentation and completion of permit application documentation as necessary to obtain permit acceptance. For the TRRP Riverwalk Trail - Gateway to Legion Park Project, emphasis on continuing and improving the existing conceptual and Master Plan designs, value engineering, simplicity and quality design will be essential to the success of this project.

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

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

The permitting will be comprehensive and will include some, if not all, the following items:
• Review of the current Initial Study/Finding of Conformance with the MEIR for this project and preparation of a Phase I/Environmental Site Assessment for this project. • Coordination with all necessary Federal and State agencies to obtain permits for construction of this work. Consultant will be responsible to prepare applications and assist City staff in ensuring the permits are obtained prior to construction.
• An Archeologist may be required due to the location of the project being adjacent to the Tuolumne River.
• A Biological Assessment will be required and need to include: plant species; tree species, location and DBH; and wildlife.

The Construction Documentation will be comprehensive and will include some, if not all, the following items.
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TRRP RIVERWALK TRAIL - GATEWAY TO LEGION PARK PROJECT:

The TRRP Riverwalk Trail - Gateway to Legion Park Project includes design construction documentation for a paved Class 1 trail along the river frontage extending from east Gateway Parcel through the TRRP River Pavilion Learning Theater Project and make final connection to the Mary Grogan Grove trailhead on Tioga Drive. Additionally, it will include documentation for the installation of a 16’ clear width prefabricated steel pedestrian bridge crossing over Dry Creek, paved trail connection from Gateway Parcel Confluence Point to Gateway Parcel River Overlook Plaza, pedestrian plaza areas and day-use picnic sites. Design shall be split into construction phases.

Design shall include, at minimum, the following items:
• Site preparation, finish grading and drainage.
• Rough grading and storm water pollution prevention.
• Sensitive habitat protection plans and removal of non-native species. • Demolition of the existing parking lot and replacement with a new (36) space parking lot. • Engineered retaining wall structure(s), where applicable. • Upgraded existing parallel parking along Legion Park Drive. • Street curb, gutter replacement and repair, where applicable. • An approximate 1.4 mile 10'-12’ wide permeable concrete paved Class 1 trail with an adjacent 2’-4’ wide decomposed granite trail running parallel to each other from Confluence Point to River Overlook Plaza, and Gateway Parcel to Mary Grogan Grove passing through the River Pavilion and Learning Theater Project.
• A minimum 16’ clear width prefabricated steel bridge crossing over Dry Creek with a vehicle loading limit suitable for emergency response vehicles such as ambulance, police car and maintenance service pick-up trucks (excluding fire trucks). • One approximately 240 sq. ft. prefabricated restroom (includes power, water and sewer connections)
• River pavilion Learning center (including (1) Drinking fountain to be placed between pavilion and restroom building. (1) Drinking fountain to be placed near Day-Use Recreation Areas). Design of the Learning Center and River Pavilion will be completed by City of Modesto, and the Design Team scope only includes minor modifications and trail connectivity. • Approximately six-(6) 12’x20’ day-use concrete paved family picnic pads each with a picnic table, bbq, waste receptacle and paved trail connection to the Riverwalk Trail. Day-use areas to be placed along south side of Legion Park Drive near the River Pavilion Project site overlooking river and recreational beach area.
• Recreation trailheads, with small concrete paved plaza space, compatible for installation of an information kiosk, wayfinding signage, bench seating, waste receptacle and area lighting at Confluence Point, Mary Grogan Grove and former Legion Hall. #10..
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• 1,500-2,000 Linear feet of steel post and pipe fencing adjacent to the trail along Legion Park Drive and South Morton Drive, matching existing post and pipe fencing installed along Santa Cruz Avenue. Fencing along trail corridor throughout. Fencing and bollards are intended to restrict unauthorized vehicle access where applicable along roadways. (It is anticipated that the Dry Creek to Santa Cruz Ave section will likely need minimal fencing). • Trail lighting throughout. Where appropriate Trail and Street Lighting will be combined. (25’ light pole fixtures along trail sections. Fixtures to include hardwired and solar options). • Pre-manufactured concrete park site signage at former Legion Hall and Mary Grogan Grove trailheads (designed by City).
• Double hung maintenance entry gate at former Legion Hall, Mary Grogan Grove and day-use area.
• Site Furnishings to include picnic table(s), bench(s), bike rack(s), bollard(s), kiosks and comprehensive wayfinding signage.
• Design to include (4) bench seating resting areas between Confluence Point and Santa Cruz Avenue trail section.
• Parkway landscaping and permanent irrigation system at roadway intersections and plaza spaces.
• Tree planting along trail corridors throughout. Riparian habitat landscape plantings, with installation of a rigid temporary irrigation system to establish riparian habitat plantings for a period of three years, where applicable.
• Approximately (1) acre of irrigated turf area at Day-Use Area. • Trail from Confluence Point to River Overlook Plaza to include three-(3) 24”x36” mounted educational interpretive signage panels.

PROFESSIONAL DESIGN CONSULTING SERVICES TO INCLUDE
Project Management: As an on-going task throughout the project, Sherwood will provide project management of the overall project and will manage sub-consultants to ensure that the workflow between the firms is well coordinated, seamless, and timely. This task will cover internal design meetings and day to day correspondence by phone/video conference and e-mail. This task includes time to prepare contract documents, invoicing, financial management, and project data management.

Sherwood will prepare and maintain a Project Schedule that will include a timeline for each task identified in this work plan (and included in this proposal). Sherwood will coordinate with the subconsultants to ensure that the schedule is realistic and followed. Should there need to be any modifications to the schedule, Sherwood will notify the City immediately, discuss modifications with the City, and update the schedule accordingly. Sherwood will also prepare and maintain an overall Project Budget, for each task. Sherwood will maintain the budget with weekly check ins and monthly invoicing to ensure close adherence to the agreed upon budget.
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Coordination Meetings and Site Visits: Throughout the course of the project, and based on the RFP, Sherwood anticipates up to eleven (11) progress/coordination meetings with City staff. These meetings will include Kick-Off meetings, Site visits, Public Outreach, Interdepartmental Meetings, and Construction Support Meetings.

The Interdepartmental meetings will allow the City and the Design Team to review the progress of the project, explore issues, identify resolutions, and provide recommendations regarding the project design.

As part of this task, Sherwood will coordinate and attend meetings, prepare meeting agendas (as necessary), compile and distribute meeting minutes. Time allocated to these meetings will be distributed in the tasks below.

This task includes time to participate in conference calls with the City on a monthly basis, as needed, throughout the duration of the project. Sherwood estimates that the monthly calls will last no more than 30 to 45 minutes. Sherwood will follow up the call with an email summarizing the main points of the call to memorialize any decisions made. If a call is not needed or participants are not available, Sherwood will provide a check-in email to summarize the status of the project.

Based on the above, the following scope of services to be performed in chronological order. All work product generated under this agreement shall become the property of the City of Modesto.

TASK #1 – PERMITTING

1.1 Kick-off meeting with City Staff to review project scope and schedule, obtain background information and data regarding the project; and review the approach to be taken in preparing project permits (Meeting in Modesto, Meeting #1).

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

Identify potential need for additional scope of work in the overall project plan and will review our findings with the City in a written document. Agreed upon additional scope of work items will be addressed as outlined in the consultant agreement.

1.3 Sherwood and Key Design Team Members to conduct a full day site visit to review existing conditions, identify project opportunities and constraints, and become more familiar with the project site. Sherwood will document the site visit with photographs and notes to be submitted to the City (Meeting in Modesto, Meeting #2).

1.4 Prepare a final project description which will be the basis for the preparation of the permits.

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

1.6 Conduct and prepare a Biological Assessment as required by CEQA determinations and as directed by City of Modesto Staff.

1.7 Prepare a Cultural Resources Report for the project site. #10..
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1.8 Prepare an Initial Study to organize the analysis and be available as needed to add mitigation measures

1.9 Based on comments from City staff, prepare a final Phase I/Environmental Site Assessment and Biological Assessment.

1.10 Prepare Sensitive Habitat Protection Plans (Plans) to ensure habitat is protected during and post-construction. Sensitive habitats include but are not limited to nesting birds, bat roots, Valley Elderberry Longhorn Beetle, salmonids, riparian vegetation (including Sambucus species).

Plans to include protection fencing locations, appropriate buffers, work windows, preconstruction survey protocols, etc. In addition, map the non-native/invasive species present within the project area. Specify in the project specifications invasive species to be removed during the construction phase.

1.11 Complete an Aquatic Resources Determination including a Literature Review and Field Work.

Aquatic Resources include wetlands, estuaries, rivers, lakes, and ponds. The Corps of Engineers has published guidance on the indicators that are used to determine the presence of wetlands (Corps of Engineers, 1987 and 2006). In addition, the State of California has issued regulations that essentially adopt the Corps of Engineers procedures but also have some additional situations where vegetation is absent. The indicators used by these agencies include wetland plants, wetland hydrology, and wetland soils as well as indicators of standing or flowing water.

Prior to conducting a site review, complete review of publicly available maps and documents that may assist in completing the delineation of aquatic resources. These documents include USGS maps, Wetland Inventory Maps, and/or NRCS soil maps. In addition, any documents provided by the City to be reviewed.

Conduct an on-site inspection of the property to evaluate the presence, if any, of the indicators used by the Corps to determine wetland and non-wetland “waters” presence. Complete sufficient soil, plant, and hydrologic observations to determine the occurrence or absence of areas meeting the wetland criteria. Data to be collected in sufficient detail to meet the standards required by the Corps of Engineers. Use GPS technology to map the extent of aquatic features as well as location of data collection.

Inspect the site for conditions that may lead to a disclaimer such as the presence of man-made settling basins, ditches dug on uplands, and/or isolated wetlands as defined by the Corps of Engineers and/or Regional Board.

Review the data collected to determine areas which meet the criteria required in the Corps manual. Prepared a report in accordance with the format required by the Sacramento District of the Corps of Engineers. Report to include a delineation map submitted on either aerial photography or 100-scale topographic maps using one-foot contours or a suitable aerial photograph and sample point data sheets with the results of the field investigations. Prepare a draft report for review by the City.
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1.12 Coordinate and prepare all necessary permit applications and additional information if and as required by the California Department of Fish and Wildlife, San Joaquin Valley Air Quality Control Board, California State Lands, Army Corps of Engineers (if needed), Regional Water Quality Control Board, Department of Water Resources, Bureau of Reclamation and any other agency as identified in the Initial Study or as identified by the City of Modesto.

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

1.13 Revise the above-mentioned environmental documents based on comments from City and provide final draft document(s).

TASK #2 – CONSTRUCTION DOCUMENTATION

2.1 Conduct an interdepartmental start up meeting to begin the construction documentation process. (Meeting in Modesto, Meeting #3).

2.2 Prepare topographic survey of the project site, incorporate survey into the construction documentation. The survey shall include existing grades, any above and below ground utility structures and utility lines, trees identifying size (dbh), type and condition, all above ground miscellaneous structures, pavement, curbing, gutter, stripping, fire hydrants, fencing and ROW/boundary survey. Preparation of project controls and the topographic survey assumes a 50-foot width in scope of work area, centered on trail alignment(s). Acquiring title reports is not a part of this scope.

2.3 Complete a geotechnical investigation of the project site. Based on the project descriptions drill a maximum of twenty (20) exploratory borings ranging in depth from 10-25 feet or until auger refusal. Samples and laboratory testing conducted to be summarized in a technical report along with recommendations for site preparation, structure requirements, and pavement requirements. Additionally, prepare a horticultural soils report for landscape soil preparation.

Reports to be submitted to City staff for review, and recommendations to be incorporated into the construction documents.

2.4 Complete a Drainage Study, as necessary, to modify and update street curb, gutter replacement and repair along trail segments. The drainage study will be summarized in a Draft and Final Drainage Report to be presented to the City for review.

2.5 Based on the existing TRRP Master Plan (and any applicable Master Plan Updates), prepare preliminary 30% construction documents including plans, outline specifications and refined cost estimate. Plans to be a continuation of the project’s conceptual plan and previous work presented in the TRRP Master Plan. The plan will be limited to a plan view of the trail alignment, showing proposed connections points, and trail features. Deliver one (1) PDF sets of plans and specifications to City. City staff will require a minimum of four (4) weeks for review of 30% construction documents.
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2.6 Conduct an interdepartmental review session to review City comments. (Meeting in Modesto, Meeting #4).

2.7 Develop the content, graphics, and templates/branding for the interpretative signage. Draft and Final signs will be presented to the City for review and approval. NOTE: It is assumed that the City will coordinate fabrication and mounting.

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

2.9 Conduct an interdepartmental review session to review City comments. (Meeting in Modesto, Meeting #5).

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

The construction documents for the park will include, at a minimum (as applicable):
• title sheet
• existing conditions and demolition plan
• underground utilities plan
• grading and drainage plan (using 1’ contours)
• storm water pollution prevention plan
• site construction plans
• planting plan
• irrigation plan
• details and specifications
• structural details
• technical specifications, city will provide boiler plate specifications • bid form
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Submit for review and make necessary modifications as part of final ‘Bid Set’ submittal. Present itemized final cost estimate for construction.

Provide one (1) set of final wet stamped Bond original plans and specifications for reproduction and a signed pdf of the plan set, one (1) AutoCAD (version 2023 compatible) drawings file. Use “D” size plan sheet and City of Modesto Title Block and Standards. All final plans & specifications shall be stamped & signed by a registered professional (Landscape Architect or Engineer), as appropriate.

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

TASK #3 – BIDDING AND CONSTRUCTION SUPPORT

3.1 Assist the City in the Bid Process, as required. Assist the City in preparing the construction bid package, attending the pre-bid site walk, and answering questions from prospective bidders.

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

3.3 Provide site visit reviews and prepare reports at key milestones of construction progress and quality, provide recommendations for correction of any deficiencies, with photographs (approximately three-(3) Field Meetings, Meeting #6, #7, #8).

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

3.5 Make final site visit review and report on completed project (Field Meeting, Meeting #9).

Prepare a letter Report summarizing project conformance finding. #10..
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PROJECT SCHEDULE:

The anticipated milestones for this project (all dates are tentative):

MILESTONE DATE
Award Design Contract Tuesday, March 7, 2023
Design Start March 2023
Design Completion Approx. March 2024

PROPOSED COMPENSATION
The following fees are based on the scope of work described previously in Exhibit “A”. Payments will be made on a monthly basis when portions of the tasks are completed. The monthly billing shall be at the Hourly Rates included in Exhibit “B”, and verifiable documentation on any reimbursable expenses incurred.

Scope of Work Exclusions: The consultant is not required to provide the following services:

1. Agency permitting fees

2. Percolation tests

3. Hazardous Waste Remediation

4. Traffic Engineering and Traffic Studies

5. Fire Water analysis including flow/pressure or hydrant flow test Task #1 – Permitting (not to exceed) $ 166,522
Task #2 – Construction Documentation (not to exceed) $ 234,762 Task #3 - Bidding and Construction Support (not to exceed) $ 42,942 Reimbursable Expenses (not to exceed) $ 6,400
Total Contract Amount $ 450,626
Additional Services (not to exceed 10%) $ 45,063
Grand Total $ 495,689
#10..
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95354
209.577.5344
EXHIBIT “B”

TRRP RIVERWALK TRAIL - GATEWAY TO LEGION PARK, HOURLY RATES The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved. In addition, monthly progress payment invoices shall include the minimum attachments: Detailed description or itemization of work completed for the time period, task billing summary, hourly rates from all consultants.
2022 2023 2024
Sherwood Design
Engineering
(Civil Engineering Design)
Managing Principal $290 $305 $320
Principal $250 $263 $276
Associate Principal $225 $236 $248
Senior Engineer $215 $226 $237
Senior Project Manager/QSP $215 $226 $237
IT Director $210 $221 $232
Project Manager/Senior Project Engineer $205 $215 $226
Project Engineer/Project Designer $195 $205 $215
Design Engineer III/Designer III $180 $189 $198
CAD Manager $175 $184 $193
Design Engineer II/Designer II $165 $173 $182
Sr CAD Technician $165 $173 $182
Design Engineer I/Designer I $160 $168 $176
CAD Technician $150 $158 $165
Graphic Designer $150 $158 $165
Project Assistant $125 $131 $138
Design Workshop
(Landscape
Architecture)
Principal VI $450 $473 $496
Principal V $400 $420 $441
Principal IV $350 $368 $386
Principal III $300 $315 $331
Principal II $275 $289 $303
Principal I/Landscape VII $250 $263 $276
Associate/Landscape Architect VI $225 $236 $248
Associate/Landscape Architect V $200 $210 $221
Associate/Landscape Architect IV $175 $184 $193
Associate/Landscape Architect III $150 $158 $165
Associate/Landscape Architect III $130 $137 $143
#10..
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Associate/Landscape Architect I $110 $116 $121
Intern $65-85 $70-90 $75-100
PlaceWorks
(Environmental Analysis
and Educational
Interpretive Signage
Principal $210-335
Associate Principal $195-275
Senior Associate II $170-260
Senior Associate I $160-215
Associate II $135-190
Associate I $125-200
Project Planner $105-165
Planner $90-145
Graphics Specialist $90-155
Administrator $145-200
Clerical/Word Processing/Technical Editor $45-150
Intern $75-115
WRA
(Biological/Permitting)
Director/Principal $252 $270 $289
Senior Associate $237 $254 $271
Associate $194 $208 $222
Senior Scientists $171 $183 $196
Scientist $158 $169 $181
Senior Technician $136 $146 $156
Technician $114 $122 $131
Sr Restoration Designer $237 $254 $271
Sr Associate Landscape Architect $219 $234 $251
Associate Landscape Architect $194 $208 $222
Landscape Architect $171 $183 $196
Senior Landscape Designer $158 $169 $181
Landscape Designer II $143 $153 $164
Landscape Designer I $122 $131 $140
Env Planning Director $237 $254 $271
Senior Env Planner $237 $254 $271
Sr Open Space Planner $237 $254 $271
Sr Associate Env Planner $219 $234 $251
Associate Env Planner $200 $214 $229
Environmental Planner II $171 $183 $196
Environmental Planner I $158 $169 $181
Assistant Environmental Planner II $136 $146 $156
#10..
- 394 -
Assistant Environmental Planner I $126 $135 $144
Conservation Strategies (CS) Sr Project
Manager $237 $254 $271
CS Sr Associate $219 $234 $251
CS Associate $194 $208 $222
CS Sr Scientist $173 $185 $198
CS Scientist $160 $171 $183
CS Sr Technician $143 $153 $164
CS Technician $130 $139 $149
Restoration Engineering Director $245 $262 $281
Senior Engineer $237 $254 $271
Sr Associate Engineer $219 $234 $251
Associate Engineer $200 $214 $229
Engineer I $160 $171 $183
Assistant Engineer II $143 $153 $164
Assistant Engineer $126 $135 $144
GIS Manager $219 $234 $251
GIS Professional II $183 $196 $210
GIS Professional $158 $169 $181
GIS Sr Technician $136 $146 $156
GIS Technician $126 $135 $144
Project Biologist $110 $118 $126
Sr Field Technician $154 $165 $176
Field Technician $120 $128 $137
Jr Field Technician $98 $105 $112
Clerical Support $84 $90 $96
TOA
(Cultural Resources)
Principal $120 $128 $137
Senior Associate $95 $102 $109
Staff $75 $80 $86
Aurum
(Electrical Engineering)
Engineering Director $211 $217 $224
Senior Project Manager $188 $194 $200
Project Manager $183 $188 $194
Electrical Designer $173 $178 $183
CADD Manager $135 $139 $143
Drafter $116 $119 $123
Bookkeeper $83 $86 $89
Administrative Assistant $73 $75 $77
#10..
- 395 -
Streeter Group
(Structural Engineering)
Principal Engineer/Architect $225 $225 $236
Senior Engineer/Architect $195 $195 $205
Associate Engineer/Architect $160 $160 $168
Engineering Technician $120 $120 $126
Computer Draftsperson $95 $95 $100
Clerical/Word Processing/Technical Editor $75 $75 $79
Principal Engineer/Architect/Expert
Witness $350 $350 $368
O'Dell
(Survey)
Principal $280 $294 $309
Senior Civil Engineer $215 $226 $237
Senior Engineer 2 $200 $210 $221
Senior Engineer 1 $185 $194 $204
Engineer 2 $180 $189 $198
Engineer 1 $170 $179 $187
Assistant Engineer 2 $145 $152 $160
Assistant Engineer 1 $130 $137 $143
Senior Landscape Architect 2 $200 $210 $221
Senior Landscape Architect 1 $180 $189 $198
Landscape Architect 2 $170 $179 $187
Landscape Architect 1 $160 $168 $176
Landscape Designer 3 $155 $163 $171
Landscape Designer 2 $145 $152 $160
Landscape Designer 1 $135 $142 $149
Planner $175 $184 $193
Assistant Planner $140 $147 $154
Dry Utility Project Manager 2 $170 $179 $187
Dry Utility Project Manager 1 $150 $158 $165
Utility Engineer $135 $142 $149
CADD Operator 2 $115 $121 $127
CADD Operator 1 $95 $100 $105
Surveyor Manager $205 $215 $226
Senior Land Surveyor $195 $205 $215 $195 $205 $215
Senior Surveyor 2 $190 $200 $209
Senior Surveyor 1 $170 $179 $187
Surveyor 2 $150 $158 $165
Surveyor 1 $140 $147 $154
Assistant Surveyor 2 $130 $137 $143
#10..
- 396 -
Assistant Surveyor 1 $115 $121 $127
Survey Crew 2-man/1-man $320/$180 $336/$189 $353/$198
Survey Crew 2-man/1-man
(Prevailing Wage) $396/$225 $416/$236 $437/$249
Administrative $96 $101 $106
Krazan & Associates Inc
(Geotechnical
Engineering)
Principal Engineer $250 $263 $276
Registered Sr. Engineer $225 $236 $248
professional Geologist $235 $247 $259
Certified Asbestos Inspector/Manager $215 $226 $237
Project Engineer/Manager $150 $158 $165
Project Geologist $150 $158 $165
Environmental Specialist $150 $158 $165
Staff Professional $150 $158 $165
Construction Inspector and Field Soils and Materials Tester Group 1 $150 $158 $165
Group 2 $135 $142 $149
Group 3 $125 $131 $138
Group 4 $115 $121 $127
Offsite Technician/Inspector $95 $100 $105
Draftsman (AutoCAD) $125 $131 $138
Administrative Support $55 $58 $61
Word Processing $55 $58 $61
Cal Inc
(Phase 1 - Environmental
Assessment)
Flat Fee for Phase 1 - EA
#10..
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#10..
- 398 -
#10..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

March 7, 2023
Date: February 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Dryden Golf Course Clubhouse Demolition – Emergency Work CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider approving payment to W.C. Maloney, Stockton, CA, for Emergency Work related to the demolition of the Dryden Golf Course Clubhouse, for a total amount not to exceed $74,873. (Funding Source: Golf Fund)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

On August 4, 2020, the Dryden Golf Course Clubhouse was significantly damaged by fire. The Fire department’s report indicates that the likely cause was due to individuals building a campfire next to the exterior wall of the clubhouse. Unfortunately, the fire spread rapidly, consuming the interior of the building, destroying all the items for sale in the clubhouse, and causing potential total loss of the structure itself. Staff worked quickly to provide a temporary clubhouse alternative in the form of a modular building, while a full assessment could be completed on the clubhouse structure. It quickly became evident that the structure would need substantial renovation and potentially have to be entirely rebuilt.

After continual issues with the building, along with non-stop break-ins, staff determined that it is in the best interest of the citizens of Modesto to demolish the building and construct a new clubhouse. A new building would be designed to be more vandal-proof than the current building and would expand the multi-purpose use of the clubhouse. #11..
- 400 -
City Council, March 7, 2023
Dryden Golf Course Clubhouse Demolition – Emergency Work

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Modesto City CouncilMarch 7, 2023

Modesto City Council
March 7, 2023