1) Holds PG&E liable for any damages or injury that might occur because of its equipment. 2) Addresses visual esthetics by installing the Gas SmartMeters on existing streetlights, instead of locating additional poles. As a public utility, PG&E is authorized to install its own poles in the public right-of-way.
3) Provides the City with one-time revenue for each Gas SmartMeter installed paid in lump sum.
DISCUSSION:
In June of 2021, the City of Modesto received a request from PG&E to add a Gas SmartMeter location at 4776 Parker Road. This is allowed per the agreement, so long as Exhibit A is updated identifying each of the locations the SmartMeters are approved for installation. 4776 Parker Road is within a flat rate service area, in which streetlights are paid for on a flat rate, not metered.
Modesto Irrigation District (MID) has had numerous policy updates since 2008, one of which is disallowing attachments requiring power to flat rated areas. MID now requires any additional item that requires power be installed on a metered service.
Therefore, the proposed Amendment now requires any additional SmartMeter location to be on a metered service or requires PG&E to install a service for the equipment to be metered.
FISCAL IMPACT:
The City currently charges a $780 licensee fee that is prorated from 2008 for the 20-year agreement term and an additional $120 administrative fee to process the request. Revenue shall be deposited in Surface Transportation Fund 1700-53520 – Electricity Utility Cost Center.
COMMITTEE RECOMENDATION:
This item was presented to the Economic Development Committee on February 6, 2023, and recommended forwarding to Council for approval.
CEQA/NEPA REQUIREMENTS:
This is not a project as defined by CEQA guidelines, Categorical Class III, Section 15303.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the First Amendment to the Agreement with Pacific Gas and Electric for Gas SmartMeter installation adding 4776 Parker Road, and authorizing the City Manager, or his designee, to execute the Amendment.
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City Council, March 14, 2023
Pacific Gas and Electric Amendment for Gas SmartMeter Installation
Approved by:
Bill Sandhu, Director of Public Works
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. 2008 PG&E Agreement
3. Amendment Agreement
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE FIRST AMENDMENT TO THE
AGREEMENT WITH PACIFIC GAS AND ELECTRIC FOR GAS
SMARTMETER INSTALLATION ADDING 4776 PARKER ROAD, AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE AMENDMENT
WHEREAS, on July 1, 2008 by Resolution No. 2008-401, Council approved a 20- year license agreement with Pacific Gas and Electric for the installation of Gas Smartmeter on City of Modesto owned streetlights; and
WHEREAS, in June of 2021, the City of Modesto received a request from PG&E to add a Gas SmartMeter location at 4776 Parker Road; and WHEREAS, Modesto Irrigation District (MID) now requires any additional item that requires power to be installed on a metered service; and WHEREAS, staff is requesting authorization to add 4776 Parker Road to the PG&E SmartMeter Agreement.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the First Amendment to the Agreement with Pacific Gas and Electric by adding 4776 Parker Road.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the Amendment, in a form approved by the City Attorney. #17..
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2 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of 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 NAYERES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY:
JOSE M. SANCHEZ, City Attorney
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EXHIBIT A
STREETLIGHT LICENSE AGREEMENT
To CITY OF MODESTO Date: July 31, 2022
SCOTT COLLINS, PE, TE Agreement: XXDC-00-0027
P.O. Box 642
MODESTO, CALIFORNIA, 95353
In accordance with that certain Streetlight License Agreement between the City of Modesto (“City”) and PG&E dated July 01, 2008 (the “Agreement”) we hereby request permission to place, relocate, or update data associated with the attachments on the City streetlights designated below.
1. Location of all streetlight attachments:
NLC # Street Device
Type NLC # Street Device Type
12171 W/S DALE RD DCU 12201 211 LAS PLAMAS AVE DCU
12172 W/S SISK RD DCU 12202 220 KINGSTON LN DCU
12173 3732 WOODGLEN DR DCU 12214 3716 LOUISBURG DCU
12178 827 WALNUT WAY DCU 12216 4776 Parker Rd DCU
12186 IFO 1341 MC WILLIAMS WAY DCU 12217 BTW 1900/1901 NATCHEZ WAY DCU 12187 E/S MORSE RD DCU 12218 3921 RUFFED GROUSE DCU
12190 3648 VENEMAN AVE DCU 12219 A/F 2717 MARINA DR DCU 12191 1417 LECOURBE DCU 12220 1720 BERGEN DR DCU
12192 2101 HISTORY WAY DCU 12221 1317 SHARONWOOD DR DCU 12193 948 SYLVAN MEADOWS DR DCU 12222 1002 E FAIRMONT AVE DCU 12194 200 ERICWOOD CT DCU 12223 511 TOULUMNE BLVD DCU
12195 1816 ROBBIE AVE DCU 12226 2316 USTICK RD DCU
12196 1520 GRAPE AVE DCU 12228 S/S HATCH RD DCU
12197 Calle De Rosas DCU 12229 508 CRATER AVE DCU
12198 ENSLEN AVE DCU 16369 ENCINA AVE @ PHOENIX AVE DCU 12199 L ST DCU 19444 3124 CLARKSBURG WY DCU
12200 SHERMAN AVE DCU
As locations are removed, available slots that have already been paid can be utilized for future installations with an updated Exhibit A. Current available slots are 0.
2. Schematic drawing of the attachments to be contracted under this permit are attached. Location of each streetlight shown as a pin by NLC on the map attached. Individual additions, relocations, removals outlined in Specific Modifications section.
Permittee: Pacific Gas and Electric Company Department: SmartMeter Operations Authorizing Name: Ping Zhao Phone: (877) 709-7662
3. City will update contact information for PG&E to receive all Notices, as indicated in the agreement, to the following address.
PART 1 REQUEST FOR ACCESS
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PG&E's Address:
Pacific Gas & Electric Company
SmartMeter Operation Center
c/o Patrick Mulshine
1850 Gateway Boulevard Ste 8020B,
Concord, CA 94520-3279
Subject to the terms and conditions of the Agreement, you are hereby authorized to install the attachments described in this Exhibit.
CITY OF Modesto:
BY: Execution Date:
PART 2 AUTHORIZATION
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Exhibit A - PG&E SmartMeter DCU Equipment Schematic
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Exhibit A - PG&E SmartMeter AP & Relay Equipment Schematic #17..
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Exhibit A - PG&E SmartMeter Equipment Specific Modifications NLC # Street City Latitude Longitude Device
Type
Ownership Power &
Mounting
Action
12216 4776 Parker Rd Modesto 37.667116 -120.907169 DCU City of Modesto Streetlight Addition #17..
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Exhibit A – Map of PG&E SmartMeter Equipment on Modesto City Streetlights #17..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
March 14, 2023
Date: February 8, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Computerized Maintenance Management System Annual Software Maintenance for Lucity
CONTACT: Jason Farnsworth, Wastewater Division Manager, [email protected], 209-577-6255
DESCRIPTION:
Consider approving an Agreement with CentralSquare Technologies, LLC (CentralSquare) for the Annual Maintenance of Lucity, a Computerized Maintenance Management System (CMMS) Software for a total amount not to exceed $243,820 over five years. (Funding Source: Various) STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives, Goal D:
Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
In April 2014, the previous internal audit consulting firm, Moss Adams, issued a Water and Wastewater Efficiency Study Final Report. Finding #14 recommended the existing CMMS be replaced in Wastewater Collections, and Finding #15 recommended the City pursue mobile technologies that allow for data entry, work order receipting, and field communication.
On January 12, 2016, by Resolution No. 2016-08, Council approved an agreement with Lucity Inc., Overland Park, KS (Lucity), for the purchase and implementation of a CMMS for Wastewater Collections to improve critical business processes using the most effective and efficient system to support utilities operational needs.
In March 2017, the implementation of the Lucity CMMS was completed within Wastewater Collections.
On March 13, 2018, by Resolution No. 2018-117, Council approved an agreement for the purchase of a Utility Department enterprise license for Lucity and two additional implementations of Lucity in the Water Division and Wastewater Division Environmental #18..
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City Council, March 14, 2023
Computerized Maintenance Management System Annual Software Maintenance Agreement for Lucity
Compliance Section with Lucity, Inc. for an initial cost of $276,075 and a total cost not to exceed $439,100 over five years.
On April 24, 2018, by Resolution No. 2018-171, Council approved an amendment to Agreement #137798 for additional funds related to the purchase of an enterprise license for ESRI Geographical Information Services (GIS) software and to account for the cost to integrate ESRI GIS and Lucity.
The current agreement the City holds with CentralSquare for the maintenance of Lucity is due to expire on March 20, 2023.
DISCUSSION:
Since the implementation of Lucity, the Utilities, Public Works and the Parks, Recreation and Neighborhoods (PRN) Departments have been able to successfully manage assets, respond to customer requests, conduct preventative maintenance, manage work orders, and generate reports.
Lucity CMMS software includes modules applicable to City-Wide Departmental use1. This software is fully integrated with GIS, which plays a vital role in effectively generating timely and accurate reports for internal and external customers, improves efficiency, data analysis and reporting, and allows management to make informed and timely decisions.
A new agreement is necessary to continue the uninterrupted support and maintenance of the City’s Lucity software and receive the full benefits of this Computerized Maintenance Management System.
Modesto Municipal Code (MMC) Section 8-3.203 generally requires all purchases, in excess of fifty thousand dollars ($50,000) to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process.
Additionally, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality. Here, CentralSquare Technologies, LLC should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b) since they are the original manufacturer and the only vendor that is able to provide this software. Additionally, CentralSquare Technologies, LLC should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(d) it is only sold as a direct transaction between CentralSquare and end clients. Therefore, this purchase qualifies for exemption from the formal bidding procedure. 1 Lucity includes modules for Environmental, Sewer, Storm, Transportation, Water, Electrical, Gas, Trees/Parks, Fleet, Plant/Equipment, Facility, and Refuse/Recycling. #18..
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City Council, March 14, 2023
Computerized Maintenance Management System Annual Software Maintenance Agreement for Lucity
FISCAL IMPACT:
All costs associated with the annual maintenance requirements of Lucity have been budgeted in the Fiscal Year 2022-2023 operating budget.
The cost analysis and summary for the previous five-year spend is represented in the following table. During this previous Agreement cycle, CentralSquare Technologies underwent an internal reorganization and Lucity Inc., was consolidated into Tritech Software Systems, a subsidiary of CentralSquare Technologies, LLC. This change is represented by the multiple contract numbers during the previous five-year summary2.
AGREEMENT YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 TOTAL
137798 $320,575 $0 $42,025 $0 $0 $362,600
195958 $0 $0 $4,123 $39,331 $42,024 $85,478
TOTAL $320,575* $0 $46,148 $39,331 $42,024 $448,078
LUCITY PAST FIVE-YEAR SUMMARY
*Cost included: Water and Stormwater implementation and the purchase of Lucity Enterprise License.
The anticipated costs have been funded within the Utilities, Public Works and PRN Department Funds and will continue to be budgeted according to future anticipated costs over the next five years. CentralSquare will implement a 5% increase in years two through five for maintenance fees. The entire scope of maintenance fees and associated costs can be found in the Exhibit A attachment.
Lucity Maintenance Fees YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 Total System Maintenance (4100-45020-53300) $3,309 $3,475 $3,649 $3,831 $4,023 $18,287 Construction (4100-45040-53300) $3,309 $3,475 $3,649 $3,831 $4,023 $18,287 Wells and Tanks (4100-45050-53300) $3,309 $3,475 $3,649 $3,831 $4,023 $18,287 Water Quality (4100-45055-53300) $3,309 $3,475 $3,649 $3,831 $4,023 $18,287 Service and Meters (4100-45060-53300) $3,309 $3,475 $3,649 $3,831 $4,023 $18,287 Sewer Collections (4210-44211-53300) $16,503 $17,328 $18,194 $19,104 $20,059 $91,188 Stormwater Compliance (4480-44111-53300) $4,457 $4,679 $4,913 $5,159 $5,418 $24,626 Park Operations (0100-35220-53300) $1,324 $1,390 $1,459 $1,532 $1,609 $7,314 Streets (1700-53130-53300) $883 $927 $973 $1,022 $1,072 $4,877 Concrete (Streets) (1700-53142-53300) $441 $463 $486 $513 $535 $2,438 Traffic Electrical (1700-53540-53300) $1,324 $1,390 $1,459 $1,532 $1,609 $7,314 Traffic Operations (1700-53550-53300) $1,324 $1,390 $1,459 $1,532 $1,609 $7,314 Forestry (4892-56040-53300) $1,324 $1,390 $1,459 $1,532 $1,609 $7,314 Total Cost $44,125 $46,332 $48,647 $51,081 $53,635 $243,820 Green Waste Fund
Surface Transportation Fund
LUCITY CMMS ESTIMATED COST BREAKDOWN BY ACCOUNTING STRING Water Fund
Wastewater Fund
Stormwater Fund
General Fund
2 Lucity Inc. Agreement #137798. CentralSquare Technologies, LLC Agreement #195958 #18..
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City Council, March 14, 2023
Computerized Maintenance Management System Annual Software Maintenance Agreement for Lucity
COMMITTEE RECOMMENDATION:
This item was presented to the Economic Development Committee on Monday, February 6, 2023, and the Committee recommended forwarding the item to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Agreement with CentralSquare Technologies for the Annual Maintenance of Lucity, a Computerized Maintenance Management System for five (5) year Agreement with an estimated annual amount of $44,125 with an annual increase of 5%, for a total amount not to exceed $243,820; and authorizing the City Manager, or his designee, to execute the Agreement.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Financial Interest Disclosure
4. Bid Waiver
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03/14/23/UTL/JFarnsworth/Item # 1 2023-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING THE AGREEMENT WITH CENTRALSQUARE
TECHNOLOGIES FOR THE ANNUAL MAINTENANCE OF LUCITY, A
COMPUTERIZED MAINTENANCE MANAGEMENT SYSTEM FOR A FIVE (5) YEAR AGREEMENT WITH AN ESTIMATED ANNUAL AMOUNT OF $44,125 WITH AN ANNUAL INCREASE OF 5%, FOR A TOTAL AMOUNT NOT TO EXCEED $243,820; AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, in April 2014, the previous internal audit consultant, Moss Adams, issued a Water and Wastewater Efficiency Study Final Report and Finding #14 recommended the existing Computerized Maintenance Management System be replaced in Wastewater Collections; and
WHEREAS, on January 12, 2016, by Resolution No. 2016-08, Council approved an agreement with Lucity Inc., Overland Park, KS, for the purchase and implementation of Lucity CMMS for Wastewater Collections to improve critical business processes using the most effective and efficient system to support utilities operational needs; and WHEREAS, on March 13, 2018, by Resolution No. 2018-117, Council approved an agreement for the purchase of a Utility Department enterprise license for Lucity and two (2) additional implementations of Lucity in the Water Division and Wastewater Division Environmental Compliance Section with Lucity, Inc.; and WHEREAS, since the implementation of Lucity, the Utilities, Public Works, and Parks, Recreation and Neighborhoods (PRN) Departments have been able to successfully manage assets, respond to customer requests, conduct preventative maintenance, manage work orders, and generate reports; and
WHEREAS, Lucity CMMS software includes modules applicable to City-Wide Departmental use and is fully integrated with the City’s Geographical Information #18..
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03/14/23/UTL/JFarnsworth/Item # 2 2023-XXX
Services (GIS) software which plays a vital role in effectively generating timely and accurate reports for internal and external customers, improves efficiency, data analysis and reporting, and allows management to make informed and timely decisions; and WHEREAS, a new agreement is necessary to continue the uninterrupted support and maintenance of the City’s Lucity CMMS software; and WHEREAS, Modesto Municipal Code (MMC) Section 8-3.203 generally requires all purchases, in excess of fifty thousand dollars ($50,000) to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article in process; and
WHEREAS, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality; and WHEREAS, CentralSquare Technologies, LLC should be exempt from the formal bidding procedure in accordance with MMC 8-3.204(b) since they are the original manufacturer and the only vendor that is able to provide this software. Additionally, CentralSquare Technologies, LLC should be exempt from the formal bidding procedure in accordance with MMC 8-3.204(d) it is only sold as a direct transaction between CentralSquare and end clients.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the agreement with CentralSquare Technologies for the Annual Maintenance of Lucity, a Computerized Maintenance Management System for a five (5) year agreement with an estimated annual amount of $44,125 with an annual increase of #18..
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03/14/23/UTL/JFarnsworth/Item # 3 2023-XXX
5%, for a total amount not to exceed $243,820.
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. #18..
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03/14/23/UTL/JFarnsworth/Item # 4 2023-XXX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of 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: Name, Name, Name, Name, Name, Name, Mayor Name
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYERES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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CentralSquare Support and Maintenance Agreement
This CentralSquare Support and Maintenance Agreement (the "Agreement"), effective as of the latest date shown on the signature block below (the "Effective Date"), is entered into between CentralSquare Technologies, LLC, a Delaware Limited Liability Company with its principal place of business in Lake Mary, FL ("CentralSquare") and the City of Modesto, California ("Customer"), together with CentralSquare, the "Parties", and each, a "Party".
WHEREAS, Lucity, Inc and Customer have entered into an agreement on January 12, 2016; and WHEREAS, through asset purchase on or about 2018, CentralSquare Technologies, LLC., is the owner of all Lucity, Inc., products, services, and contractual obligations; and WHEREAS, this CentralSquare Support and Maintenance Agreement supersedes and replaces the Agreement dated January 12, 2016, and is entered into to provide continued Software Support for Customer’s licensed CentralSquare software applications for a period as further defined herein; and WHEREAS, CentralSquare licenses and gives access to certain software applications (“Solutions”) to its customers and also provides maintenance, support, migration, installation, and other professional services; and WHEREAS, Customer desires to license and/or gain access to certain Solutions and receive professional services described herein, and CentralSquare desires to grant and provide Customer license and access to such offerings as well as to support them with professional services, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, by the signatures of their duly authorized representative below, the Parties intending to be legally bound, agree to all of the following provisions and exhibits of this Agreement:
CentralSquare Technologies, LLC City of Modesto, CA
1000 Business Center Dr.
Lake Mary, FL 32746
P.O. Box 642
Modesto, CA 95353
By: By:
Print Name: Print Name:
Print Title: Print Title:
Date Signed: Date Signed:
1. Solution: Enterprise Asset Management – Public Administration
2. Term.
2.1. Initial Term. The Initial Term of this Agreement commences as of the Effective Date and will continue in effect for five (5) years from such date unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”).
3. Fees. In consideration of the rights and services granted by CentralSquare to Customer under this Agreement, Customer shall make payments to CentralSquare pursuant to the amounts and payment terms outlined in Exhibit 1 (the “Project Cost Summary”).
4. Definitions. Capitalized terms not otherwise defined in this Agreement have the meanings set forth below:
4.1. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise.
4.2. "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. #18..
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2 4.3. "Authorized User" means Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Solutions under the rights granted to Customer pursuant to this Agreement, and for whom access to the Solutions has been purchased.
4.4. “Baseline” means the version of a Solution updated to the particular time in question through CentralSquare’s warranty services and maintenance, but without any other modification whatsoever.
4.5. “Component System” means any one of the Solutions identified in Exhibit 1, including all copies of Source Code, Object Code and all related specifications, Documentation, technical information, and all corrections, modifications, additions, development work, improvements and enhancements to and all Intellectual Property Rights for such Component System.
4.6. "Customer Data" means information, data, and content, in any form or medium, collected, downloaded, or otherwise received, directly or indirectly from Customer, an Authorized User or end-users by or through the Solutions, provided the data is not personally identifiable and not identifiable to Customer.
4.7. “Custom Modification” means a change that CentralSquare has made at Customer’s request to any Component System in accordance with a CentralSquare -generated specification, but without any other changes whatsoever by any Person.
4.8. "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated by Customer or through the use of third-party services.
4.9. “Defect” means a material deviation between the Baseline Solution and its Documentation, for which Defect Customer has given CentralSquare enough information to enable CentralSquare to replicate the deviation on a computer configuration that is both comparable to the Customer Systems and that is under CentralSquare’s control. Further, with regard to each Custom Modification, Defect means a material deviation between the Custom Modification and the CentralSquare generated specification and documentation for such Custom Modification, and for which Defect Customer has given CentralSquare enough information to enable CentralSquare to replicate the deviation on a computer configuration that is both comparable to the Customer Systems and that is under CentralSquare’s control.
4.10. "Documentation" means any manuals, instructions, or other documents or materials that CentralSquare provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Solutions, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
4.11. “Enhancements” means general release (as opposed to custom) changes to a Baseline Component System or Custom Modification which increase the functionality of the Baseline Component System or Custom Modification in question.
4.12. "Harmful Code" means any software, hardware, device or other technology, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Solutions as intended by this Agreement.
4.13. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
4.14. “Maintenance” means optimization, error correction, modifications, and updates to CentralSquare Systems to correct any known Defects and improve performance. Maintenance will be provided for each Component System, the hours and details of which are described in Exhibit 2 (“Support Standards”).
4.15. “New Releases” means new editions of a Baseline Component System or Custom Modification.
4.16. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
4.17. "Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located. Personal Information includes all "nonpublic personal information" as defined under the Gramm-Leach-Bliley Act, "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996, "Personal Data" as defined in the EU General Data Protection Regulation (GDPR 2018), "Personal #18..
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3 Information" as defined under the Children's Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
4.18. “Professional Services” means installation, implementation, development work, training or consulting services including custom modification programming, support relating to custom modifications, on-site support services, assistance with data transfers, system restarts and reinstallations provided by CentralSquare.
4.19. “Representatives" means, with respect to a Party, that Party's employees, officers, directors, agents, subcontractors, and legal advisors.
4.20. "CentralSquare Personnel" means all individuals involved in the performance of Support Services and Professional Services as employees, agents, Subcontractors or independent contractors of CentralSquare.
4.21. "Solutions" means the Component Systems, Documentation, Custom Modifications, development work, CentralSquare Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, provided or used by CentralSquare or any Subcontractor in connection with Professional Services or Support Services rendered under this Agreement.
4.22. "CentralSquare Systems" means the information technology infrastructure used by or on behalf of CentralSquare to deliver Solutions, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by CentralSquare or through the use of third-party services.
4.23. “Support Services” means Maintenance, Enhancements, implementation of New Releases, and general support efforts to respond to incidents reported by Customer in accordance with the detailed Support Standards outlined in Exhibit 2.
4.24. "Third-Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, related services, equipment, or components of or relating to the Solutions that are not proprietary to CentralSquare.
5. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Solutions except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
5.1. copy, modify, or create derivative works or improvements of the Solutions, or rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Solutions to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
5.2. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Solutions, in whole or in part;
5.3. bypass or breach any security device or protection used by Solutions or access or use the Solutions other than by an Authorized User through the use of his or her own then valid access;
5.4. input, upload, transmit, or otherwise provide to or through the CentralSquare Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
5.5. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the CentralSquare Systems, or CentralSquare's provision of services to any third-party, in whole or in part;
5.6. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Documentation or Solutions, including any copy thereof;
5.7. access or use the Solutions in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party, or that violates any applicable law;
5.8. access or use the Solutions for purposes of competitive analysis of the Solutions, the development, provision, or use of a competing software service or product or any other purpose that is to CentralSquare's detriment or commercial disadvantage or otherwise access or use the Solutions beyond the scope of the authorization granted under this Section.
6. Customer Obligations.
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4 6.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Solutions are accessed or used; (b) provide CentralSquare Personnel with such access to Customer's premises and Customer Systems as is necessary for CentralSquare to perform the Support Services in accordance with the Support Standards and Specifications; and (c) provide all cooperation as CentralSquare may reasonably request to enable CentralSquare to exercise its rights and perform its obligations under and in connection with this Agreement.
6.2. Effect of Customer Failure or Delay. CentralSquare is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
6.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 5, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Solutions and permanently erasing from their systems and destroying any data to which any of them gained unauthorized access); and (b) notify CentralSquare of any such actual or threatened activity.
7. Professional Services.
7.1. Compliance with Customer Policies. While CentralSquare Personnel are performing services at Customer's site, CentralSquare will ensure that such personnel comply with Customer’s reasonable security procedures and site policies that are generally applicable to Customer’s other suppliers providing similar services and that have been provided to CentralSquare in writing or in advance. Customer shall promptly reimburse CentralSquare for any out-of-pocket costs incurred in complying with such procedures and policies.
7.2. Contributed Material. In the process of CentralSquare’s performing Professional Services, Customer may, from time to time, provide CentralSquare with designs, plans, or specifications, improvements, works or other material for inclusion in, or making modifications to, the Solutions, the Documentation or any other deliverables (“Contributed Material”). Customer grants to CentralSquare a nonexclusive, irrevocable, perpetual, transferable right, without the payment of any royalties or other compensation of any kind and without the right of attribution, for CentralSquare, CentralSquare’s Affiliates and CentralSquare’s licensees to make, use, sell and create derivative works of the Contributed Material.
8. Confidentiality.
8.1. Defined. Information that is conveyed orally shall be designated as confidential at the time of disclosure and shall be reduced to writing within ten (10) business days. Notwithstanding any provision in this Section 9, Customer specifically acknowledges that the Software, including without limitation the database architecture and sequence and Documentation, comprise Confidential Information and knowhow that are the exclusive property of CentralSquare.
8.2. Nondisclosure. The parties agree, unless otherwise provided in this Agreement or required by law, not to use or make each other's Confidential Information available to any third party for any purpose other than as necessary to perform under this Agreement. The recipient shall protect the Confidential Information from disclosure by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication by its employees or agents. Customer further agrees that it will not allow any form or variation of the Software to enter the public domain. Both parties acknowledge that any breach of its obligations with respect to Confidential Information may cause the other irreparable injury for which there are inadequate remedies at law and that the non-disclosing party shall be entitled to equitable relief in addition to all other remedies available to it. Customer shall not disclose the results of any performance or functionality tests of the Software to any third party without CentralSquare’s prior written approval.
8.3. Exceptions. A party's Confidential Information shall not include information that: (a) is or becomes publicly available through no act or omission of the recipient; (b) was in the recipient’s lawful possession prior to the disclosure and was not obtained by the recipient either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the recipient by a third party without restriction on recipient’s disclosure, and where recipient was not aware that the information was the confidential information of discloser; (d) is independently developed by the recipient without violation of this Agreement; or (e) is required to be disclosed by law.
9. Security.
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5 9.1. CentralSquare will implement commercially reasonable administrative, technical and physical safeguards designed to ensure the security and confidentiality of Customer Data, protect against any anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access or use of Customer Data. CentralSquare will review and test such safeguards on no less than an annual basis.
9.2. Customer shall maintain, in connection with the operation or use of the Solutions, adequate technical and procedural access controls and system security requirements and devices, necessary for data privacy, confidentiality, integrity, authorization, authentication and non-repudiation and virus detection and eradication.
9.3. To the extent that Authorized Users are permitted to have access to the Solutions, Customer shall maintain agreements with such Authorized Users that adequately protect the confidentiality and Intellectual Property Rights of CentralSquare in the Solutions and Documentation, and disclaim any liability or responsibility of CentralSquare with respect to such Authorized Users.
10. Personal Data. If CentralSquare processes or otherwise has access to any personal data or personal information on Customer’s behalf when performing CentralSquare’s obligations under this Agreement, then:
10.1. Customer shall be the data controller (where “data controller” means an entity which alone or jointly with others determines purposes for which and the manner in which any personal data are, or are to be, processed) and CentralSquare shall be a data processor (where “data processor” means an entity which processes the data only on behalf of the data controller and not for any purposes of its own);
10.2. Customer shall ensure that it has obtained all necessary consents and it is entitled to transfer the relevant personal data or personal information to CentralSquare so that CentralSquare may lawfully use, process and transfer the personal data and personal information in accordance with this Agreement on Customer’s behalf, which may include CentralSquare processing and transferring the relevant personal data or personal information outside the country where Customer and the Authorized Users are located in order for CentralSquare to provide the Solutions and perform its other obligations under this Agreement; and
10.3. CentralSquare shall process personal data and information only in accordance with lawful and reasonable instructions given by Customer and as set out in and in accordance with the terms of this Agreement; and
10.4. each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data and personal information or its accidental loss, destruction or damage so that, having regard to the state of technological development and the cost of implementing any measures, the measures taken ensure a level of security appropriate to the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage in relation to the personal data and personal information and the nature of the personal data and personal information being protected. If necessary, the parties will cooperate to document these measures taken.
11. Representations and Warranties.
11.1. LIMITED WARRANTY. CentralSquare warrants that it owns or otherwise has the rights in the Software and has the right to license the Software as described in this Agreement. CentralSquare further warrants and represents that the CentralSquare Software does not contain any “back door”, “time bomb”, “Trojan horse”, “worm”, “drop dead device” or other program routine or hardware device inserted and intended by CentralSquare to provide a means of unauthorized access to, or a means of disabling or erasing any computer program or data, or otherwise disabling the CentralSquare Software. Nothing herein shall be deemed to constitute a warranty against viruses. The provisions of section and its subsections below, shall constitute the agreement of the Parties with respect to viruses. Customer’s sole remedy with respect to the foregoing warranty shall be to receive an Update to the CentralSquare Software that does not contain any of the above-described routines or devices.
11.2. DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH
ABOVE, CENTRALSQUARE MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR
IMPLIED, WITH REGARD TO THE SOLUTIONS, PROFESSIONAL SERVICES, SUPPORT
SERVICES, AND/OR ANY OTHER MATTER RELATING TO THIS AGREEMENT, AND THAT
CENTRALSQUARE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHER, INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR #18..
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6 TRADE PRACTICE, AND SPECIFICALLY DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. FURTHER, CENTRALSQUARE EXPRESSLY DOES NOT WARRANT THAT A
SOLUTION, ANY CUSTOM MODIFICATION OR ANY IMPROVEMENTS WILL BE USABLE BY
CUSTOMER IF THE SOLUTION OR CUSTOM MODIFICATION HAS BEEN MODIFIED BY ANYONE
OTHER THAN CENTRALSQUARE PERSONNEL, OR WILL BE ERROR FREE, WILL OPERATE
WITHOUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS” AND ANY REPRESENTATION OR WARANTY OF OR
CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER. THIS AGREEMENT DOES NOT AMEND, OR MODIFY CENTRALSQUARE’S WARRANTY UNDER ANY AGREEMENT OR ANY CONDITIONS, LIMITATIONS, OR RESTRICTIONS THEREOF.
12. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when delivered personally, sent by United States registered or certified mail, return receipt requested; transmitted by facsimile or email confirmed by United States first class mail, or sent by overnight courier. Notices must be sent to a Party at its address shown below, or to such other place as the Party may subsequently designate for its receipt of notices in writing by the other Party.
If to
CentralSquare :
CentralSquare
1000 Business Center Dr.
Lake Mary, FL 32746
Phone: 407-304-3235 email: [email protected]
Attention: Senior Counsel / Contracts Department
If to Customer: City of Modesto, CA
P.O. Box 642
Modesto, CA 95353
Phone: 209-577-6255 email: [email protected]
Attention: Jason Farnsworth
13. Force Majeure. Neither Party shall be responsible for failure to fulfill its obligations hereunder or liable for damages resulting from delay in performance as a result of war, fire, strike, riot or insurrection, natural disaster, pandemic or epidemic, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of Equipment, software, or services from suppliers, default of a subcontractor or vendor to the Party if such default arises out of causes beyond the reasonable control of such subcontractor or vendor, the acts or omissions of the other Party, or its officers, directors, employees, agents, contractors, or elected officials, and/or other occurrences beyond the Party’s reasonable control (“Excusable Delay” hereunder). In the event of such Excusable Delay, performance shall be extended on a day for day basis or as otherwise reasonably necessary to compensate for such delay.
14. Indemnification.
14.1. CentralSquare Indemnification. CentralSquare shall indemnify, defend, and hold harmless Customer from any and all claims, lawsuits or liability, including attorneys' fees and costs, allegedly arising out of, in connection with, or incident to any loss, damage or injury to persons or property or arising solely from a wrongful or negligent act, error or omission of CentralSquare, its employees, agents, contractors, or any subcontractor as a result of CentralSquare’s or any subcontractor’s performance pursuant to this Agreement; however, CentralSquare shall not be required to indemnify Customer for any claims or actions caused to the extent of the negligence or wrongful act of Customer, its employees, agents, or contractors. Notwithstanding anything to the contrary in the foregoing, if a claim, lawsuit or liability results from or is contributed to by the actions or omissions of Customer, or its employees, agents or contractors, CentralSquare’s obligations under this provision shall be reduced to the extent of such actions or omissions based upon the principle of comparative fault.
14.2. Sole Remedy. THIS SECTION SETS FORTH CUSTOMER'S SOLE REMEDIES AND
CENTRALSQUARE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR
ALLEGED CLAIMS THAT THE SERVICES AND SOLUTIONS OR ANY SUBJECT MATTER OF THIS
AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
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7 15. Insurance. CentralSquare shall procure and maintain for the duration of the Agreement insurance against claims for security breaches, system failures, injuries to persons, damages to software, or damages to property (including computer equipment) which may arise from or in connection with the performance of the work hereunder by CentralSquare, its agents, representatives, or employees. CentralSquare shall procure and maintain for the duration of the Agreement insurance against claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.
15.1. Minimum Scope and Limit of Insurance. If CentralSquare maintains broader coverage and/or higher limits than the minimums shown below, Customer requires and shall be entitled to the broader coverage and/or the higher limits maintained by CentralSquare. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Customer.
15.1.1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 or its equivalent covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
15.1.2. Automobile Liability: Insurance Services Office Form Number CA 0001 or its equivalent covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
15.1.3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
15.1.4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CentralSquare in this Agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
15.1.5. Technology Professional Liability Errors & Omissions Insurance appropriate to CentralSquare’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CentralSquare in this Agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
15.1.5.1. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Customer in the care, custody, or control of CentralSquare.
15.2. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
15.2.1. Additional Insured Status. The City of Modesto, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of CentralSquare including materials, parts, or equipment furnished in connection with such work or #18..
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8 operations. General liability coverage can be provided in the form of an endorsement to CentralSquare’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
15.2.2. Primary Coverage. For any claims related to this Agreement, CentralSquare‘s insurance coverage shall be primary and non-contributory. Coverage for commercial liability shall be at least as broad as ISO CG 20 01 04 13, or its equivalent,as respects the City of Modesto, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Modesto, its officers, officials, employees, or volunteers shall be excess of CentralSquare’s insurance and shall not contribute with it. This requirement shall also apply to any Excess policies.
15.2.3. Umbrella or Excess Policy. CentralSquare may use Umbrella or Excess Policies to provide the liability limits as required in this Agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and noncontributory, additional insured, indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until CentralSquare’s primary and excess liability policies are exhausted.
15.2.4. Notice of Cancellation. CentralSquare shall notify Customer of any non-renewal or cancellation of Insurance.
15.2.5. Waiver of Subrogation. CentralSquare hereby grants to Customer a waiver of any right to subrogation which any insurer of CentralSquare may acquire against Customer by virtue of the payment of any loss under such insurance. CentralSquare agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not Customer has received a waiver of subrogation endorsement from the insurer.
15.2.6. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to Customer.
15.2.7. Claims Made Policies. If any of the required policies provide coverage on a claims-made basis:
15.2.7.1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
15.2.7.2. Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract of work.
15.2.7.3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, CentralSquare must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.
15.2.8. Verification of Coverage. CentralSquare shall furnish Customer with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by Customer before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive CentralSquare’s obligation to provide them..
15.2.9. Subcontractors. CentralSquare shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and CentralSquare shall ensure that Customer is an additional insured on insurance required from subcontractors.
15.2.10. .
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9 15.2.11.
16. Termination. This Agreement may be terminated:
16.1. For cause by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
16.2. For lack of payment by written notice to Customer, if Customer’s failure to pay amounts due under this Agreement has continued more than ninety (90) days after delivery of written notice of non-payment.
17. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement:
17.1. Upon the expiration or earlier termination of this Agreement, each Party shall continue to hold such Confidential Information in confidence pursuant to Section 9; and
17.2. Upon the expiration of this Agreement, each Party shall pay to the other all amounts accrued prior to and through the date of termination of this Agreement.
18. Assignment. Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by either Party without the prior written consent of the other Party, which consent will not be unreasonably withheld; provided however, that in the event of a merger or acquisition of all or substantially all of CentralSquare’s assets, CentralSquare may assign this Agreement to an entity ready, willing and able to perform CentralSquare’s executory obligations hereunder, as evidenced by an express written assumption of the obligations hereunder by the assignee.
19. Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, including the breach, termination, or validity thereof, shall be resolved by final and binding arbitration.
19.1. Exclusive Dispute Resolution Mechanism. The Parties agree to resolve any dispute, controversy, or claim arising out of or relating to this Agreement (each, a "Dispute"), exclusively under the provisions of this Section. Either Party may seek interim or provisional relief in any court of competent jurisdiction if necessary, to protect the rights or property of that Party pending the appointment of the arbitrator or pending the arbitrator’s determination of the merits of the dispute.
19.2. Good Faith Negotiations. The Parties agree to send written notice to the other Party of any Dispute (“Dispute Notice”). After the other Party receives the Dispute Notice, the parties agree to undertake good faith negotiation between themselves to resolve the Dispute. Each Party shall be responsible for its associated travel costs. The parties agree to attend no fewer than three negotiation sessions attended Vice Presidents of each Party (or employees of equivalent or superior position).
19.3. Escalation to Mediation. If the Parties cannot resolve any Dispute during the good faith negotiations either Party must initiate mediation under Section 18.4.
19.4. Mediation. Subject to Sections 18.2 and 18.3, the Parties may escalate a Dispute to a mutually agreed to mediator. Parties agree to act in good faith in selecting a neutral mediator and in scheduling the mediation proceedings. The parties agree to use commercially reasonable efforts in participating in the mediation. The parties agree the mediator’s fees and expenses, and the mediator’s costs incidental to the mediation will be shared equally between the parties. The parties shall bear their own fees, expenses, and costs.
19.5. Confidential Mediation. The Parties further agree all written or oral offers, promises, conduct, and statements made in the course of the mediation are confidential, privileged, and inadmissible for any purpose in any litigation, arbitration or other proceeding involving the Parties. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
19.6. Litigation or Arbitration as a Final Resort. If the Parties cannot resolve a Dispute through mediation, then once an impasse is issued by the mediator either Party must commence binding arbitration in accordance with the provisions of 18.7 and 18.8.
19.7. Arbitration. The Parties agree that any dispute, controversy, or claim arising out of or related to the Employee’s employment with the Company or termination of employment, this Agreement, or any alleged breach of this Agreement shall be governed by the Federal Arbitration Act (FAA) and submitted to and decided by binding arbitration to be held in Stanislaus County, California. Parties agree to hold the deliberations in such arbitration confidential.
19.8. Arbitration Procedure. The Parties agree arbitration must be commenced by delivering a notice of arbitration to the other Party. The Notice must set out the nature of the claim(s), and the relief requested. #18..
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10 Within thirty (30) days of the receipt of the notice, the receiving Party shall deliver an answer, any counterclaim(s), and relief requested. Arbitration shall be heard by a single arbitrator. Each Party shall pay its own costs of arbitration. The Parties shall confer in good faith to attempt to agree upon a suitable arbitrator, and if unable to do so, they will select an arbitrator from the American Arbitration Association’s employment arbitration panel for the area. The arbitrator shall decide the procedures in the arbitration after consultation with the Parties. The arbitrator will have the power to grant any provisional or final remedy or relief it deems appropriate, including conservatory measures and an award of attorneys’ fees.
The decision of the arbitrator shall be final and binding upon the Parties hereto. The Parties agree that judgment may be entered upon the award by any court having jurisdiction.
20. Waiver/Severability. The failure of any Party to enforce any of the provisions hereof will not be construed to be a waiver of the right of such Party thereafter to enforce such provisions. If any provision of this Agreement is found to be unenforceable, that provision will be enforced to the maximum extent possible, and the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
21. LIABILITY. NOTWITHSTANDING ANY PROVISION WITHIN THIS AGREEMENT TO THE CONTRARY, AND
REGARDLESS OF THE NUMBER OF LOSSES, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE, OR OTHERWISE:
21.1. NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY
KIND, AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR LOSSES OF PROFIT,
REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, DATA, REPUTATION, AND MORE
GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF
WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND
NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF
WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES; AND
21.2. CENTRALSQUARE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED $250,000 .
21.3. THE LIMITATION OF LIABILITY SHALL NOT LIMIT THE APPLICATION OF CENTRALSQUARE’S
INSURANCE FOR ANY CLAIM FOR WHICH COVERAGE MAY BE AVAILABLE, WHICH SHALL APPLY UP TO ITS FULL COVERAGE LIMITS.
22. Third-Party Materials. CentralSquare may from time to time, in its discretion engage third parties to perform services, provide software, or provide equipment. Customer acknowledges and agrees CentralSquare provides front-line support services for third parties, but these third parties assume all responsibility and liability in connection with the third-party software, equipment, or related services. CentralSquare is not authorized to make any representations or warranties that are binding upon the third-party or to engage in any other acts that are binding upon the third-party, excepting specifically that CentralSquare is authorized to represent third-party fees in the Agreement and to accept payment of such amounts from Customer on behalf of the third-party for as long as such third-party authorizes CentralSquare to do so. As a condition precedent to installing or accessing any third-party Materials, Customer may be required to execute a click-through, shrink-wrap End User License Agreement (EULA) or similar agreement provided by the Third-Party Materials provider. All thirdparty materials are provided “as-is” and any representation or warranty concerning them is strictly between Customer and the third-party.
23. Entire Agreement. This Agreement, and any Exhibits specifically incorporated therein by reference, constitutes the entire agreement between the Parties with respect to the subject matter. These documents supersede and merge all previous and contemporaneous proposals of sale, communications, representations, understandings and agreements, whether oral or written, between the Parties with respect to the subject hereof.
This Agreement may not be modified except by a writing subscribed to by authorized representatives of both Parties.
24. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit, or remedy of any nature under or by reason of this Agreement.
25. Counterparts. This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. This Amendment shall be considered properly executed by a Party if executed by that Party and transmitted by facsimile or other electronic means including, without limitation, Docusign, Tagged Image Format Files (TIFF), or Portable Document Format (PDF).
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11 26. Material Adverse Change. If any Law, Regulatory Approval, applicable standard, process, OEM requirement is changed or comes into force after the Effective Date, including but not limited to PCI standards (collectively, a “Material Adverse Change”), which is not explicitly addressed within this Agreement and results in significant extra costs for either Party in relation to the performance of this Agreement, both Parties shall promptly meet, discuss in good faith, and agree upon reducing the technical, operational, and/or commercial impact of such Material Adverse Change.
27. Cooperative Purchases. This Contract may be used by other government agencies. CentralSquare has agreed to offer similar services to other agencies under the same terms and conditions as stated herein except that the compensation may be negotiated between CentralSquare and other agencies based on the specific revenue expectations, agency reimbursed costs, and other agency requirements. The Customer will in no way whatsoever incur any liability in relation to specifications, delivery, payment, or any other aspect of purchases by such agencies.
28. Order of Precedence.
28.1. In the event of any conflict or inconsistency between this Agreement, the Exhibits, or any purchase order, then the following priority shall prevail:
28.1.1. The main body of this Agreement and any associated amendments or change orders.
28.1.2. The attached Exhibits to this Agreement.
28.1.3. Purchase Orders placed with CentralSquare in accordance with this Agreement.
Customer’s purchase terms and conditions or CentralSquare’s sales terms and conditions are not applicable and shall have no force and effect, whether referenced or not in any document in relation to this Agreement.
28.2. Incorporated Exhibits to this Agreement:
Exhibit 1 – Project Cost Summary
Exhibit 2 - Maintenance & Support Standards
Exhibit 3 – Travel Expense Guidelines
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Note: Pricing for Professional Services is a good faith estimate based on the information available to CentralSquare at the time of execution of this Agreement. The total amount that Customer may pay for these services can vary based on the actual number of hours required to complete the services.
If required, additional services will be provided on a time and materials basis at hourly rates equal to CentralSquare’s then-current list price rates for the services at issue.
1 EXHIBIT 1
Project Cost Summary
Product: Annual Maintenance Fees
4/05/2023 -
4/04/2024
4/05/2024 -
4/04/2025
4/05/2025 -
4/04/2026
4/05/2026 -
4/04/2027
4/05/2027 -
4/04/2028
Enterprise Asset Management Assets Site $7,740.74 $8,127.78 $8,534.17 $8,960.87 $9,408.92 Enterprise Asset Management GIS Desktop Site $3,872.47 $4,066.09 $4,269.40 $4,482.87 $4,707.01 Enterprise Asset Management GIS Web Site $1,549.59 $1,627.07 $1,708.42 $1,793.84 $1,883.54 Enterprise Asset Management Mobile Site $7,740.60 $8,127.63 $8,534.01 $8,960.71 $9,408.75 Enterprise Asset Management REST API Site $7,740.60 $8,127.63 $8,534.01 $8,960.71 $9,408.75 Enterprise Asset Management Citizen Portal Site $7,740.60 $8,127.63 $8,534.01 $8,960.71 $9,408.75 Enterprise Asset Management Work Site $7,740.60 $8,127.63 $8,534.01 $8,960.71 $9,408.75 Totals $44,125.20 $46,331.46 $48,648.03 $51,080.43 $53,634.46 Renewal Terms
PAYMENT TERMS:
Payment due in full 30 days from date of invoice.
RECURRING FEES
a. The Annual Access Fee is due: on the Execution Date, and annually thereafter on the anniversary of the Execution Date.
b. Commencing one year after Go Live, the “Anniversary Date”, the Annual Software Maintenance Fee will be due for CentralSquare support and maintenance. Thereafter, on the Anniversary Date, Annual Software Maintenance Fees will be due on or before the commencement of the subsequent renewal term. c. Annual Software Maintenance Fees and Annual Subscription Fees shall increase by 5% from the prior year.
ANCILLARY FEES
d. Reimbursement of travel and living expenses will be governed by Exhibit 3 (“Travel Expense Guidelines”) attached hereto and will be invoiced monthly in arrears and due within thirty (30) days from date of invoice. e. Customer is responsible for paying all taxes relating to this Agreement. Applicable tax amounts (if any) are not included in the fees set forth in this Agreement. If Customer is exempt from the payment of any such taxes, Customer must provide CentralSquare valid proof of exemption; otherwise, CentralSquare will invoice Customer and Customer will pay to CentralSquare all such tax amounts. f. If Customer fails to make any payment when due, then CentralSquare may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law; and If such failure continues for 90 days following written notice thereof, CentralSquare may suspend performance or access until past due amounts have been paid. #18..
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Note: Pricing for Professional Services is a good faith estimate based on the information available to CentralSquare at the time of execution of this Agreement.
The total amount that Customer may pay for these services can vary based on the actual number of hours required to complete the services. If required, additional services will be provided on a time and materials basis at hourly rates equal to CentralSquare’s then-current list price rates for the services at issue. 1 EXHIBIT 2
Support Standards
I. Support Hours: Hours During Which CentralSquare ’s Telephone Support Will be Available to Customer in Connection with the Provision of Maintenance: Unless otherwise noted in the Order as to Support Type, support hours are Monday through Friday, 8:00 A.M. to 5:00 P.M. Customer’s Local Time within the continental United States, excluding holidays (“5x9”).
II. Targeted Response Times.
“Notification” means a communication to CentralSquare ’s help desk by means of: (i) CentralSquare ’s web helpline; or (ii) the placement of a telephone call.
III. Support Terms.
Beginning on the Execution Date and continuing for twelve (12) months thereafter (“Initial Support Term”), CentralSquare shall provide the ongoing Support Services described herein for the corresponding Fees outlined in Exhibit 1. Upon expiration of the Initial Support Term, ongoing Support Services shall automatically renew, with customer paying for additional annual support periods, each a (“Renewal Support Term”). This renewal will continue until termination of this Agreement provided that, CentralSquare shall not give notice of termination if it would be effective prior to a period equal to two times the Agreement’s Initial Support Term.
With respect to CentralSquare ’s support obligations, CentralSquare will use diligent, commercially reasonable efforts to respond to Notifications from Customer relating to the Solution identified in the Order in accordance with the following guidelines with the time period to be measured beginning with the first applicable CentralSquare “Telephone Support” hour occurring after CentralSquare ’s receipt of the Notification:
Priority Description Response Goal Resolution Goal
Urgent
1 A support issue shall be considered
Urgent when it produces a Total
System Failure; meaning the
Solution is not performing a process
that has caused a complete work
stoppage.
Normal Customer Service Hours: Telephone
calls to (833) - CST - SUPP will be immediately
answered and managed by the first available
representative. CentralSquare initially
responds to a Priority 1 case within one hour
after opening.
After Normal Customer Service Hours: Thirty
(30) minute call back after Client telephone
contact to (833) - CST – SUPP for NaviLine
only.
Priority 1 issues must be called in via (833) -
CST - SUPP in order to receive this level of
response.
Critical
2 A support issue shall be considered
Critical when a critical failure in
operations occurs; meaning
CentralSquare ’s Solution is not
performing a critical process and
prevents the continuation of basic
operations. Critical problems do not
have a workaround. This
classification does not apply to
intermittent problems.
Normal Customer Service Hours: Telephone
calls to (833) - CST - SUPP will be immediately
answered and managed by the first available
representative. CentralSquare initially
responds to a Priority 2 case within two hours
after opening.
After Normal Customer Service Hours: One (1)
hour minute call back after Client telephone
contact to (833) - CST – SUPP for NaviLine
only.
Non-Urgent Priority issues may also be
reported via
Https://support.centralsquare.com/s/contracus
Although resolution
times vary
depending on the
exact issue and
customer
environment,
CentralSquare has a
stated goal to
resolve an urgent
issue within 24 hours
or provide a
resolution plan with
urgent issues within
24 hours of being
reported.
A resolution plan will
detail the steps
necessary to
understand and
possibly resolve the
issue.
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1 Non-Critical
3 A support issue shall be considered
Non-Critical when a non-critical
failure in operations occurs;
meaning the Solution is not
performing non-critical processes,
but the system is still usable for its
intended purpose or there is a
workaround.
Normal Customer Service Hours: Telephone
calls to (833) - CST - SUPP will be answered
and managed by the first available
representative. CentralSquare initially
responds to a Priority 3 case within eight
business hours after opening.
Non-Critical Priority issues may also be
reported via
https://support.centralsquare.com/s/contracus
Non-Critical Priority issues are not managed
after Normal Customer Service Hours for PA
Products.
Minor
4 A support issue will be considered
Minor when the issue causes minor
disruptions in the way tasks are
performed, but does not affect
workflow or operations. This may
include cosmetic issues, general
questions, and how to use certain
features of the system.
Normal Customer Service Hours: Telephone
calls to 800-987-0911 will be answered and
managed by the first available representative.
CentralSquare initially responds the next
business day after the pint of opening a
Priority 4 case during CentralSquare’ s normal
local business hours or within two business
days after a P4 case is opened outside of
CentralSquare’ s normal local business hours.
Minor Priority issues may also be reported via
Https://support.centralsquare.com/s/contracus
Minor Priority issues are not managed after
Normal Customer Service Hours for PA
Products.
Response timing is measured from the moment a Case number is created. As used herein a “Case number” is created when a) CentralSquare ’s support representative has been directly contacted by Customer either by phone, in person, or through CentralSquare ’s online support portal, and b) when CentralSquare ’s support representative assigns a case number and conveys that case number to the Customer. Customer must provide remote access to its facility using a CentralSquare approved remote access Customer so that CentralSquare can perform the support obligations and/or services under this Agreement; and will provide appropriate security access and accounts for CentralSquare staff and each session participant #18..
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1 EXHIBIT 3
Travel Expense Guidelines
CentralSquare will adhere to the following guidelines when incurring travel expenses:
All arrangements for travel are to be made through the CentralSquare Corporate Travel Agent unless other arrangements have been made with the Customer and are documented in writing.
AIR TRAVEL – CentralSquare will use the least expensive class of service available with a minimum of seven (7) day, maximum of thirty (30) day, advance purchase. Upon request, CentralSquare shall provide the travel itinerary as the receipt for reimbursement of the airfare and any fees. Fees not listed on the itinerary will require a receipt for reimbursement.
Trips fewer than 250 miles round are considered local. Unless a flight has been otherwise approved by the Customer, Customer will reimburse the current IRS approved mileage rate for all local trips.
LODGING –CentralSquare will use the most reasonable accommodations possible, dependent on the city. All movies, and phone/internet charges are not reimbursable.
RENTAL CAR – Compact or Intermediate cars will be required unless there are three or more CentralSquare employees sharing the car in which case the use of a full-size car is authorized. Gas is reimbursable however, pre-paid gas purchases will not be authorized and all rental cars are to be returned with a full tank of gas. Upon request, receipts for car rental and gas purchases will be submitted to Customer. CentralSquare shall decline all rental car insurance offered by the car rental agency as staff members will be covered under the CentralSquare auto insurance policy. Fines for traffic violations are not reimbursable expenses.
OTHER TRANSPORTATION – CentralSquare staff members are expected to use the most economical means for traveling to and from the airport (Airport bus, hotel shuttle service). Airport taxi or mileage for the employee’s personal vehicle (per IRS mileage guidelines) are reimbursable if necessary. Upon request, receipt(s) for the taxi will be submitted to Customer. Proof of mileage may be required and may be documented by a readily available electronic mapping service. The mileage rate will be the then-current IRS mileage guideline rate (subject to change with any change in IRS guidelines).
OTHER BUSINESS EXPENSES – Parking at the airport is reimbursable. Tolls to and from the airport and while traveling at the Customer site are reimbursable. Tipping on cab fare exceeding 15% is not reimbursable. Porter tips are reimbursable, not exceeding $1.00 per bag. Laundry is reimbursable when travel includes a weekend day or Company Holiday, and the hotel stay is four nights or more. Laundry charges must be incurred during the trip and the limit is one shirt and one pair of pants/skirt per day. With the exception of tips, receipts shall be provided to Customer upon request for all the aforementioned items.
MEALS – Standard per Diem. Subject to change due to cost of living. #18..
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1 SOLE SOURCE # 2223-17
Annual License, Support, and Maintenace
Central Square Technologies
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.
DocuSign Envelope ID: 9E3E5976-D82A-4D50-BCFB-2A74EEEE4E29 #18..
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2 SOLE SOURCE # 2223-17
Annual License, Support, and Maintenace
Central Square Technologies
Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:
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:
CentralSquare Technologies, LLC
Ron A. Anderson, Chief Sales Officer
NONE
DocuSign Envelope ID: 9E3E5976-D82A-4D50-BCFB-2A74EEEE4E29 1/17/2023
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
March 14, 2023
Date: February 27, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Award Facultative Biosolids Removal Project
CONTACT: Cristian C. Ciotau, Senior Civil Engineer
[email protected], 209-577-5260
DESCRIPTION:
Consider approving the Plans and Specifications for the Facultative Biosolids Removal Project, accepting the Bid, and Awarding a Contract to Synagro, of Baltimore, MD, for a total amount not to exceed $6,725,038, and approving an Agreement with West Yost Associates for Engineering Support during construction, and Construction Management Services for a total amount not to exceed $2,246,522. (Funding Source: Wastewater Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City’s Strategic Plan Initiatives, Goal D:
Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.
BACKGROUND:
The Jennings Wastewater Treatment Plant (WWTP) is located at 7007 Jennings Rd, and provides secondary and biological nutrient removal (BNR).
Biosolids from the WWTP Fixed Film Reactors and Biological Nutrient Removal/Membrane Bioreactor (BNR/MBR) facilities are discharged to the East Recirculation Channel and Facultative Ponds for treatment and storage.
The East Recirculation Channel is located on the east perimeter channel which encloses Facultative Ponds No. 1, 2, and 3 (Ponds). The Irrigation Forebay is located directly south of the south perimeter channel enclosing the three ponds. The dredging surface areas of the East Recirculation Channel and Irrigation Forebay are approximately 6 and 8 acres, respectively.
The existing Ponds, Recirculation Channel and the Irrigation Forebay, have accumulated substantial amounts of biosolids as an extensive cleaning has never been undertaken, with the exception of a partial cleaning of Pond 1 approximately 35 years ago. Accumulation of biosolids reduces the capacity of these critical areas by displacing the volume needed for treatment. This #19..
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City Council, March 14, 2023
Award Facultative Biosolids Removal Project
project will provide for the removal of biosolids in critical areas of the Recirculation Channel, Facultative Pond No. 2 and the Irrigation Forebay, in order to maintain an effective secondary wastewater treatment process.
DISCUSSION:
The Project was advertised for bids on December 7, 2021 as having an initial contract period of three years with the possibility of up to two one-year renewal options, for a total contract period not to exceed five years.
Bids were publicly opened on March 8, 2022, pursuant to City Charter Section 1307. A total of two bids were received and following review of the bid packages, Synagro, of Baltimore, MD, was named the responsible bidder with the lowest responsive bid.
Bid Analysis:
Number of bids received
Number of bids within 10% of Engineer’s Estimate
Number of bids above the Engineer’s Estimate
Number of bids below the Engineer’s Estimate
Percent of lowest responsive bid below the Engineer’s Estimate 2 1
0 2
39.14%
The lowest responsive bid for the full five-year period, was provided by Synagro, of Baltimore, MD at 39.14% below the engineer’s estimate. The highest bid received was 3.51% below the engineer’s estimate. Bidder competition and participation were evident as the City received two bids, for this atypical kind of work.
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. The award of contract for the Facultative Biosolids Removal Project, to Synagro, of Baltimore, MD, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Synagro, of Baltimore, MD was the lowest responsive and responsible bidder.
Therefore, staff recommends awarding the contract to Synagro, of Baltimore, MD.
While the contingency policy is utilized for each construction contract awarded by the City, it is not written into each contract, nor is it a guaranteed amount included in the final compensation to the contractor. Prior to bidding a project, staff works diligently to ensure that all projects and bid packages contain well-defined scopes of work and that all projects stay within budget.
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, and revised on July 9, 2019 by Council Resolution No. 2019-326, established a contract change order authority of 8% for construction contracts of this dollar value. However, given the nature of this type of work, complexity and duration of this project, it is likely that this project could exceed the Director’s Authority of 8% ($413,849) of the contract amount of $5,173,106.
Therefore, City staff is requesting an increase in the Director’s Authority for the Construction Contingency to 30% ($1,551,932) of the construction contract price to address unforeseen conditions that may arise in the field as an extensive cleaning of this scale has never been undertaken in the history of the facility.
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City Council, March 14, 2023
Award Facultative Biosolids Removal Project
Additionally, considering the size, duration and complexity of the project Engineering Support During Construction and Construction Management Services will be needed to ensure the construction documents are followed and the work performed by the contractor meets the original design. The scope of work will include reviewing submittals, requests for information and field engineering support. West Yost Associates is the Engineer of Record for the original design, and therefore is the firm most qualified to provide these services. Selecting another engineering firm to provide these services would require that firm to interpret plans and design they did not prepare, which is inefficient and not a best practice.
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. Because West Yost Associates is uniquely qualified to provide the services for the reasons described above, other engineering firms were not solicited. Therefore, staff is requesting approval of an agreement with West Yost Associates, of Sacramento, CA for Engineering Support During Construction and Construction Management Services in the amount of $1,953,497, plus $293,025 in additional services (if needed), for a total amount not to exceed $2,246,522.
FISCAL IMPACT:
The total estimated cost for the construction phase of this project is $9,271,560. A new noncapital project will be created and funded to house expenses associated with this phase of the project, the entirety of this effort will be funded by Wastewater Fund Reserves.
ENGINEERING EXPENDITURES TO DATE:
Project 100860 - Facultative Biosolids Removal
$105,127
ANTICIPATED CONSTRUCTION EXPENDITURES:
Construction Contract (Synagro) $5,173,106
Construction Contract - Contingency (30%) $1,551,932
Construction Administration
Construction Management Agreement (West Yost) $1,953,497 Construction Management Agreement - Additional Services (15%) $293,025 City Staff $150,000
Engineering/Design/Administration
City Staff $150,000
TOTAL $9,271,560
CEQA/NEPA REQUIREMENTS:
Environmental review has been provided through Categorical Exemption – Section 15301 (Existing Facilities) Class1, (b).
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City Council, March 14, 2023
Award Facultative Biosolids Removal Project
COMMITTEE RECOMMENDATION:
This project was presented to the Finance Committee at the February 27, 2023 meeting, where the Committee approved and recommended forwarding this item to Council for award of construction.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving Plans and Specifications for the Facultative Biosolids Removal Project, accepting the Bid, and approving a Construction Contract with Synagro, of Baltimore, MD, in the amount of $5,173,106 plus $1,551,932 in contingency (if needed), for a total amount not to exceed $6,725,038 over five years and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution authorizing an increase in the Director’s Authority to issue Change Orders for the Facultative Biosolids Removal Project from 8% ($413,849) to 30% ($1,551,932) of the Construction Contract amount of $5,173,106 with Synagro, of Baltimore, MD.
Resolution approving an Agreement with West Yost Associates, of Sacramento, CA, for Engineering Support during Construction and Construction Management Services for the Facultative Biosolids Removal Project in the amount of $1,953,497 for the identified scope of services, plus $293,025 for additional services (if needed), for a total amount not to exceed $2,246,522 and authorizing the City Manager, or his designee to execute the Agreement.
Resolution amending the Fiscal Year 2022-23 Multi-Year Program Budget in the amount of $9,271,560 to be transferred into the Project from Wastewater Reserves to fund the Facultative Biosolids Removal Project and authorizing the City Manager, or his Designee, to implement the provisions of this Resolution.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (4)
2. Synagro - Construction Contract
3. West Yost - Engineering Support During Construction/Construction Management Agreement & Exhibit
4. Bid Results
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING PLANS AND SPECIFICATIONS FOR THE
FACULTATIVE BIOSOLIDS REMOVAL PROJECT, ACCEPTING THE BID,
AND APPROVING A CONSTRUCTION CONTRACT WITH SYNAGRO, OF
BALTIMORE, MD, IN THE AMOUNT OF $5,173,106 PLUS $1,551,932 IN
CONTINGENCY (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $6,725,038 OVER FIVE YEARS AND AUTHORIZING THE CITY MANAGER,
OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the Jennings Wastewater Treatment Plant (WWTP) provides secondary treatment and biological nutrient removal, and WHEREAS, biosolids from the WWTP Fixed Film Reactors and Biological Nutrient Removal/Membrane Bioreactor (BNR/MBR) facilities are discharged to the East Recirculation Channel and Facultative Ponds for treatment and storage, and WHEREAS, the existing Ponds, Recirculation Channel and the Irrigation Forebay, have accumulated substantial amounts of biosolids as an extensive cleaning has never been undertaken, and
WHEREAS, this project will provide for the removal of biosolids in critical areas of the Recirculation Channel, Facultative Pond No. 2 and the Irrigation Forebay, in order to maintain an effective secondary wastewater treatment process, and WHEREAS, the Facultative Biosolids Removal Project was advertised for bids on December 7, 2021, and
WHERAS, on March 8, 2022, bids were publicly opened, pursuant to City Charter Section 1307, five bids were received and Synagro, of Baltimore, MD, was the responsible bidder with the lowest responsive bid, and
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2 2023-
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid, and
WHEREAS, the award of contract for the Facultative Biosolids Removal Project to Synagro, of Baltimore, MD conforms to the Modesto Municipal code, and WHEREAS, the Director of Utilities has recommended that the bid of $5,173,106 received from Synagro, of Baltimore, MD, be accepted as the lowest responsible and responsive bid and the contract be awarded to Synagro, of Baltimore, MD.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Facultative Biosolids Removal Project, accepts the bid for a three-year Agreement with two, one-year extension options, for an estimated annual amount of $1,034,621 and a total amount not to exceed $5,173,106 over five years plus $1,551,932 in contingency (if needed) for a total amount not to exceed $6,725,038 and awards Synagro, of Baltimore, MD, the contract for the Facultative Biosolids Removal Project.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the contract, in a form approved by the City Attorney. #19..
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3 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of 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, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AUTHORIZING AN INCREASE IN THE DIRECTOR’S
AUTHORITY TO ISSUE CHANGE ORDERS FOR THE FACULTATIVE
BIOSOLIDS REMOVAL PROJECT FROM 8% ($413,849) TO 30% ($1,551,932) OF THE CONSTRUCTION CONTRACT AMOUNT OF $5,173,106 WITH
SYNAGRO, OF BALTIMORE, MD
WHEREAS, the City’s “Change Order Approval Policy”, enacted by Council Resolution No. 94-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, established a contract change order budget of 8% for projects with a construction value of between $1 Million and $10 Million, and WHEREAS, given the nature, complexity and duration of this project, additional work may be needed to address unexpected conditions that require changes in the project scope that may exceed the Director’s Authority of 8% ($413,849) of the contract amount of $5,173,106 over five years, and
WHEREAS, staff is requesting authorization to increase the Directors authority to issue change orders to 30% ($1,551,932) of the contract amount of $5,173,106 over five years.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby authorizes an increase in the Director of Utilities authority to issue change orders for the Facultative Biosolids Removal Project from 8% ($413,849) to 30% ($1,551,932) of the construction contract price of $5,173,106 over five years with Synagro, of Baltimore, MD.
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2 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of 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 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING AN AGREEMENT WITH WEST YOST
ASSOCIATES, OF SACRAMENTO, CA, FOR ENGINEERING SUPPORT
DURING CONSTRUCTION AND CONSTRUCTION MANAGEMENT
SERVICES FOR THE FACULTATIVE BIOSOLIDS REMOVAL PROJECT IN THE AMOUNT OF $1,953,497 FOR THE IDENTIFIED SCOPE OF SERVICES, PLUS $293,025 FOR ADDITIONAL SERVICES (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $2,246,522 AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, the Jennings Wastewater Treatment Plant (WWTP) provides secondary treatment and biological nutrient removal, and WHEREAS, biosolids from the WWTP Fixed Film Reactors and Biological Nutrient Removal/Membrane Bioreactor (BNR/MBR) facilities are discharged to the East Recirculation Channel and Facultative Ponds for treatment and storage, and WHEREAS, the existing Ponds, Recirculation Channel and the Irrigation Forebay, have accumulated substantial amounts of biosolids as an extensive cleaning has never been undertaken, and
WHEREAS, this project will provide for the removal of biosolids in critical areas of the Recirculation Channel, Facultative Pond No. 2 and the Irrigation Forebay, in order to maintain an effective secondary wastewater treatment process, and WHEREAS, West Yost Associates is the engineer of record, and WHEREAS, given the nature of this type of work, complexity and duration of this project Engineering Support During Construction and Construction Management Services are necessary from West Yost Associates to ensure the construction documents are followed and the work performed by the contractor meets the original design, and #19..
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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.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves an Agreement with West Yost Associates, in the amount of $1,953,497, plus $293,025 in additional services (if needed), for a total amount not to exceed $2,246,522 for Engineering Support During Construction and Construction Management Services for the Facultative Biosolids Removal Project.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the agreement in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th 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:
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BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2022-23 MULTI-YEAR
PROGRAM BUDGET IN THE AMOUNT OF $9,271,560 TO BE TRANSFERRED
INTO THE PROJECT FROM WASTEWATER RESERVES TO FUND THE
FACULTATIVE BIOSOLIDS REMOVAL PROJECT AND AUTHORIZING THE
CITY MANAGER, OR HIS DESIGNEE, TO IMPLEMENT THE PROVISIONS
OF THIS RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $9,271,560, in order to fund the Facultative Biosolids Removal Project; and WHEREAS, the Fiscal Year 2022-23 Multi-Year Program budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2022-23 Multi-Year Program Budget in the amount of $9,271,560.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #19..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th 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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ENGINEERING SUPPORT DURING CONSTRUCTION AND CONSTRUCTION
MANAGEMENT SERVICES AGREEMENT
FOR THE FACULTATIVE BIOSOLIDS REMOVAL 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 WEST YOST ASSOCIATES, a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that Engineering Support During Construction and Construction Management Services are necessary for the Facultative Biosolids Removal Project.
B. Consultant represents that it is qualified, willing and able to provide the said services.
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 preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed ONE MILLION NINE
HUNDRED FIFTY-THREE THOUSAND FOUR HUNDRED NINETY-SEVEN AND 00/100 DOLLARS ($1,953,497) (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, #19..
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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.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed fifteen percent (15%) of the agreed maximum compensation, or TWO HUNDRED NINETY-THREE THOUSAND TWENTY-FIVE AND 00/100 DOLLARS ($293,025). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager 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 City Manager. In that event, the new total compensation shall not exceed TWO MILLION TWO HUNDRED FORTY-SIX THOUSAND FIVE HUNDRED TWENTY-TWO AND 00/100 DOLLARS ($2,246,522). 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 best current, generally accepted and professional practices to make findings, render opinions, #19..
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prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Greg Chung, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that ten percent (10%) 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 #19..
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direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
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 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. #19..
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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.
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.
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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.
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.
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13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: West Yost Associates
Address: 8950 Cal Center Drive
Building 1, Suite 363
Sacramento, CA 95826
Attention: Greg Chung
Phone: (916) 306-2250
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone (209) 577-5260
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 #19..
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provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General 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 #19..
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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 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, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated.
Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special #19..
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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 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. #19..
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Termination by City for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding 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. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in 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 #19..
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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 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
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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
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.
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16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
Consultant's obligation to defend, indemnify, and hold the City, 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 #19..
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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 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.
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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 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.
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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.
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. #19..
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22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of , 2023, and WEST YOST ASSOCIATES has caused this agreement to be duly executed in duplicate as of the Effective Date. #19..
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8950 Cal Center Drive
Bldg. 1, Suite 363
Sacramento CA 95826
916.306.2250 phone
530.756.5991 fax
westyost.com
January 6, 2023 SENT VIA: EMAIL
Mr. Cristian Ciotau
Senior Engineer
City of Modesto
1010 10th Street, 4th Floor
Modesto, CA 95353
SUBJECT: Implementation Support for the Jennings Wastewater Treatment Plant Solids Removal Project
Dear Mr. Ciotau:
The purpose of this letter proposal is to provide the City of Modesto (City) a proposed Scope of Services and Budget for assistance with the implementation of the Jennings Wastewater Treatment Plant Solids Removal Project for the years 2023 through 2027. The City’s Contractor will remove solids from the Jennings Wastewater Treatment Plant (WWTP) facultative treatment ponds, dewater the removed solids, and apply the dewatered solids to the City’s Modesto Ranch. For 2023, we anticipate that the work will begin in early June and continue through October. For subsequent years, we anticipate that the work will begin April 1 and continue through October 31. During this solids removal period, the Contractor will also conduct related work, including the construction of dewatering wells. To support the City in this effort, West Yost proposes both construction management and engineering support services.
The overall term of the solids removal Contractor’s services is three years, with a possible two-year extension. The scope and budget described below covers all five year of this project and is based on a relatively conservative estimate of the implementation support needed; the estimate also reflects several unknowns regarding the amount of Contractor supervision required and the associated level of effort for construction management.
SCOPE OF SERVICES
The following is a list of the key tasks necessary to perform this proposed Scope of Services, each further described below:
Task 1. Construction Management Services
Task 2. Engineering Services During Construction
Task 3. Project Management
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Task 1. Construction Management Services
The purpose of this task is to provide construction management services for implementation of the solids removal project. The specific efforts to be provided are described below.
Preconstruction Conference
Prior to the initiation of the Contractor’s services each year, West Yost will facilitate a Preconstruction Conference. West Yost will prepare the agenda, conduct the preconstruction meeting, and prepare the summary of the meeting for record purposes. The agenda will include a review of the contract administrative requirements, the details of mobilization, and an overview of the first 60 days of operation. Open items will be carried over to the first Progress Meeting.
Document Preconstruction Existing Conditions
West Yost will document the preconstruction conditions at the City’s WWTP. Documentation will include the ingress/egress of the hauling transport trucks through the plant to document the existing condition of the roadways, curbs, signage, landscaping, etc. to required restoration conditions at the completion of the contract.
Project Setup, Review, and Coordination
West Yost will coordinate with the Contractor and the City’s Project Manager for the mobilization of the Contractor’s material and equipment needed to perform the solids removal. This initial effort will also be used to setup the lines of communication between the City staff, West Yost staff, and the Contractor.
Correspondence/Document Control
West Yost will be the point of contact for all matters related to the administration of the contract with the Contractor. All incoming and outgoing correspondence related to the project will be through the West Yost construction management team. This includes maintaining the project records in the webbased document control system eBuilder, which will be provided by the City.
Issues Management
West Yost will create and maintain a Potential Change Order log that will be used to track project issues that have been identified by the Contractor through requests for information (RFIs) and/or Change Order Requests, or from the City that are deemed “owner-initiated changes”. Management of the issues will involve establishing merit, preparing a rough order-of-magnitude cost estimate, and reviewing potential time impacts. If the issue is deemed as an additional scope of work to the Contractor, a request for quotation will be issued to the Contractor. If there is dispute with entitlement, the resolution will utilize an issue escalation process to resolve the matter at higher management levels of West Yost, the City, and the Contractor.
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Progress Payments
West Yost will review the Contractor’s monthly progress payment requests based on the weights and quantities of material removed from the channels or ponds each month. West Yost will track, separately from the Contractor, the quantity of the material removed and dewatered, based on the measurements of the moisture content of dewatered solids made by the West Yost team. The wet amount removed will be calculated using data obtained from the City’s analytical laboratory’s measurement of the moisture content in samples collected by West Yost and flow meter records maintained by the Contractor, using an Excel spreadsheet.
A comparison will be made with the Contractor’s records before the formal payment request is made by the Contractor. Upon reaching agreement with the Contractor, West Yost will approve the payment request and recommend to the City that it process the payment and track payment received by the Contractor to confirm payment is in accordance with prompt payment regulations. We will establish this procedure at the Preconstruction Conference.
Submittals
West Yost will receive all certifications, work plans, schedules, etc. that are required of this contract. We will review and formally return the submittal to the Contractor. Logs will be maintained showing submittals in review, submittals that have been returned with Amend and Resubmit status, and submittals not yet transmitted by the Contractor. Construction related submittals such as work plans, safety plans, stormwater pollution control plans, etc., will be reviewed by West Yost.
RFIs
West Yost will receive all RFIs generated and issued by the Contractor and distribute them to the appropriate parties. Responses will be generated by West Yost, and the RFI will be returned to the Contractor. If the response appears to have changed the contract scope, quality, or time, a potential change order (PCO) number will be assigned and used to track the resolution to closeout. Logs will be generated and be discussed during the weekly progress coordination meetings.
Progress/Coordination Meetings
West Yost will prepare agendas, conduct bi-weekly progress meetings with the Contractor, City staff, and other members of the project team to review overall progress, coordination, and communication related to safety, submittals, RFIs, changes, progress payments, coordination with plant operations, progress schedules, and quality. If other special meetings are necessary, West Yost will conduct and collect summaries of the discussions. Open items will be tracked to completion.
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Observation, Sampling, and Record Keeping
West Yost will provide observation and record keeping of the Contractor’s performance of the dewatering work five days per week for the first four weeks of the work each year, then taper down inspection as the project progresses to two to three days per week. Based on West Yost’s experience, the presence of an inspector fulltime during the beginning of the work helps to establish the expectations necessary to meet the contract requirements and develops a positive, collaborative, and trustful relationship between the construction management team, the City, and the Contractor.
Following this initial period of fulltime inspection and oversight of the Contractor’s work, the inspector’s time onsite can decrease, depending on the performance of the Contractor with respect to adhering to the contract, in addition to performance, safety, cost, and schedule.
The dewatering performance and recordkeeping monitoring will involve collecting composite samples from the biosolids that are being dewatered. These samples will be analyzed by the City for total solids (percent total solids) daily and periodically for volatile solids (percent volatiles). The sample containers will be provided by the City. West Yost will coordinate with City staff regarding the number of sample containers required each week and will clearly label sample bottles with the sample dates and testing requirements.
We also anticipate being onsite daily during an anticipated six-week period when land application is occurring. During the anticipated six-week land application operation, West Yost will monitor the weights of dewatered solids to confirm the total amount (dry tons) of solids removed and land applied based on hauling records maintained by the Contractor. West Yost will also confirm that solids are applied to the correct fields and coordinate project land application with other City land application activities that may be occurring simultaneously.
Finally, we anticipate being onsite daily during a three-week period when the dewatering wells are being constructed. For purposes of this proposal, we are assuming that these dewatering wells will not be installed during the initial four-week observation period or the six-week land application period.
Each day West Yost staff is onsite, we will complete daily observation tasks that include confirmation that the Contractor, who will be responsible for site safety, has established safety protocols, the work zones are being adhered to, and the overall housekeeping of the work zones are being properly maintained. Site visit reports will be made by the inspector that include a summary of the weather and conditions of the site, the type and quantity of equipment and manpower on-site, a general description of the work performed, and the quantity of dewatering and/or land application that was performed that day. Photos of the work will be date stamped will be included with the report.
Weekly Reporting Review and Final Report Review
West Yost will review the weekly and final reports prepared by the Contractor. Comments and/or questions will be addressed to the Contractor.
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Punchlist and Final Inspection
West Yost will arrange a final inspection following the end of the land application season (anticipated to be October 31 of each year). The inspection will create a final punchlist of work items remaining to be completed. The punchlist will be transmitted to the Contractor. The remainder of the contract will be to confirm that the items on the punchlist have been addressed, Contractor materials and equipment have been removed from the site, the biosolids staging area has been cleared, and any remaining deliverables are received.
Overhead Direct Costs
Overhead direct costs for vehicle usage consisting of $10/hour the Construction Manager and/or inspector is on site is included in the budget.
Task 1 Assumptions
Solids removal, dewatering, and application duration to be no longer than 22 weeks in the year 2023 and 30 weeks in years 2024 through 2027
In 2023, full-time inspection will be five days per week for 13 weeks, part-time inspection for 9 weeks
In 2024, 2026, and 2027, full-time inspection will be five days per week for 10 weeks, part-time inspection for 20 weeks
In 2025, full-time inspection will be five days per week for 13 weeks, part-time inspection for 17 weeks
Part-time construction management and administrative services based on approximately 20 and 13 hours per week, respectively
The City will provide sample containers for collecting the %TS and %VS samples and will be responsible for performing the analysis.
Task 1 Deliverables
West Yost will provide the following:
Preconstruction meeting agenda and meeting summary (for each year) Documentation showing the preconstruction existing conditions (for each year) Change Order log
Payment request recommendations (email communication) Formal submittal responses
Formal RFI responses
Progress meeting notes
Construction observation reports
Final punchlist (for each year)
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Task 2. Engineering Services During Construction
The purpose of this task is to provide engineering services during construction. The specific efforts to be provided are described below.
Preconstruction Conference
This task will involve participation of three (3) West Yost team members in the preconstruction meeting with the City, the Construction Manager, and the Contractor each year. It is anticipated that the meeting will be held at the Jennings WWTP.
Submittal Reviews
West Yost will review the Contractor submittals for general conformance with the Contract Documents.
This task will also include development and maintenance of a submittal log (to track the receipt, review, and return of submittals provided by the Contractor). Submittal reviews will be provided on West Yost’s standard review response form, modified to suit City’s standard submittal disposition codes. For budgeting purposes, it has been assumed that the following submittals will be reviewed each year:
Work Plan
Dewatering Plan
Hauling and Application Plan
Post-land application summary
Responses to RFIs
RFIs submitted by the Contractor will be reviewed and necessary guidance will be provided to the Contractor on interpretation of the Contract Documents. West Yost will respond to formal RFIs that are provided to West Yost by the Construction Manager. Responses to RFIs will be provided on West Yost standard response forms. For budgeting purposes, it has been assumed that four (4) RFI responses will be generated each year.
Progress Meetings and Site Visits
This task includes periodic attendance at progress meetings during the project. This task also includes time for site visits by engineering staff members to observe the work and/or meet with the Contractor and/or construction management team. Such engineering site visits will take place at the request of the City. For budgeting purposes, it has been assumed that an engineering representative from West Yost will attend up to two (2) progress meetings and/or site visits in person, and up to two (2) progress meetings by teleconference per year. All meetings and/or site visits are assumed to have a duration of 1 hour each, exclusive of travel time.
Regulatory Assistance
At the initiation of the project, West Yost will develop a biosolids sampling and analytical plan. This plan will address the sampling and analytical methods and procedures required to evaluate the quality of the biosolids and meet EPA 503 regulations. West Yost staff will also be available over the duration of the project to assist the City in evaluating the data collected and to make recommendations, as needed, regarding data collection practices.
EXHIBIT A
#19..
- 1544 -
Mr. Cristian Ciotau
January 6, 2023
The dewatered biosolids will be applied to the City’s Modesto Ranch as a soil amendment. Using the existing Land Management Prediction Tool developed by West Yost for the City, West Yost will predict the nutrient loading capacity available for each of the Ranch fields to determine the allowable biosolids land application rates for each of the fields to be used for land application. West Yost will coordinate with the construction management team to ensure that the allowable land application rates are communicated to the Contractor. Two meetings are anticipated to be necessary to support this effort.
Task 2 Assumptions
Four submittal reviews per year will be necessary
Four RFI responses per year will be generated
West Yost engineer will attend up to two in person progress meetings or site visits per year West Yost engineer will participate in up to two solids removal progress meetings by teleconference and two regulatory assistance focused meetings by teleconference per year Task 2 Deliverables
West Yost will provide the following:
Submittal review responses on West Yost standard response form RFI responses on West Yost standard response form
Biosolids sampling and analytical plan
Written documentation of recommended field loadings rates Task 3. Project Management
West Yost’s Project Manager will monitor progress of the work and will coordinate quality control review procedures. The anticipated services include preparing up to 50 monthly invoices summarizing the progress of the work. This task includes internal communication and documentation necessary to execute the activities described above. This task also includes budget tracking, quality control, and project administration.
Task 3 Deliverables
West Yost will provide monthly invoices
PROJECT BUDGET
West Yost’s proposed level of effort and budget for each of the tasks described above is shown by year in Table 1 and in the attached detailed fee estimate. West Yost will perform the Scope of Services described above on a time-and-expenses basis with a not-to-exceed budget of $1,953,497. Work will be expensed at the billing rates set forth in West Yost’s annual billing rate schedule for the year in which the work is performed. The 2023 Billing Rate Schedule is attached for reference. Any additional services not included in this Scope of Services will be performed only after receiving written authorization and a corresponding budget augmentation.
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Table 1. Example Table of Estimated Project Hours and Budget Task
Level of Effort,
hours
Estimated Budget,
dollars
Year 1 – 2023
Task 1. Construction Management Services 1,468 289,818
Task 2. Engineering Services During Construction 173 37,228 Task 3. Project Management 50 12,200
2023 Project Hours and Budget 1,691 $339,246
Year 2 – 2024
Task 1. Construction Management Services 1,568 322,988
Task 2. Engineering Services During Construction 143 38,787 Task 3. Project Management 50 12,800
2024 Project Hours and Budget 1,761 $374,575
Year 3 – 2025
Task 1. Construction Management Services 1,628 350,729
Task 2. Engineering Services During Construction 143 40,725 Task 3. Project Management 50 13,450
2025 Project Hours and Budget 1,821 $404,903
Year 4 – 2026
Task 1. Construction Management Services 1,568 352,655
Task 2. Engineering Services During Construction 143 42,404 Task 3. Project Management 50 14,000
2026 Project Hours and Budget 1,761 $409,059
Year 5 – 2027
Task 1. Construction Management Services 1,568 367,120
Task 2. Engineering Services During Construction 143 44,044 Task 3. Project Management 50 14,550
2027 Project Hours and Budget 1,761 $425,714
Total Project Hours and Budget 8,795 $1,953,497
EXHIBIT A
#19..
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Mr. Cristian Ciotau
January 6, 2023
Thank you for providing West Yost the opportunity to be of continued service to the City of Modesto.
We look forward to working with you on this project. Please call if you have any questions or require additional information.
Sincerely,
WEST YOST
Whitney Sandelin, PE Kathryn Gies, PE
Project Manager Principal-in-Charge
RCE # 86703 RCE # 65022
Attachment(s): A. Detailed Fee Estimate
B. West Yost 2023 Billing Rate Schedule
EXHIBIT A
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Detailed Fee Estimate
Attachment A
EXHIBIT A
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Costs
West Yost Associates CM IV RI_G3 CMA II P/VP EM/SM/GM II SE/SS/SG II SE/SS/SG I AIDE P/VP Hours Fee Sub. Other Total $267 $180 $106 $318 $315 $256 $244 $98 $318 w/ markup Direct Costs PROJECT: Jennings WWTP Solids Removal CM - 2023 J. Davis J. Shah A. Rangel G. Chung K. Gies C. Hardy W. Sandelin A. Guillebeau 10% Task 1 Construction Management Services
1.01 Preconstruction Conference 16 4 16 36 $ 6,688 $ 6,688
1.02 Precon Documentation of Conditions 8 24 16 48 $ 8,152 $ 8,152
1.03 Setup of Construction Site 20 32 20 72 $ 13,220 $ 13,220
1.04 Correspondence/Document Control 40 20 60 $ 12,800 $ 12,800
1.05 Issues Management 40 20 60 $ 12,800 $ 12,800
1.06 Progress Payments 40 40 $ 10,680 $ 10,680
1.07 Submittals 42 42 84 $ 15,666 $ 15,666
1.08 RFIs 20 20 40 $ 7,460 $ 7,460
1.09 Progress Coordination Meetings 84 84 168 $ 31,332 $ 31,332
1.10 Daily Observation and Reporting 40 700 740 136,680 $ $ 136,680
1.11 Review Weekly & Final Reports from GC 40 20 60 $ 12,800 $ 12,800
1.12 Punchlist and Final Inspection 20 40 60 $ 12,540 $ 12,540
1.13 Overhead Direct Charges 0 $ 9,000 $ 9,000
Subtotal, Task 1 (hours) 410 800 258 0 0 0 0 0 0 1468
Subtotal, Task 1 ($) $ 109,470 $ 144,000 $ 27,348 $ 280,818 $ 9,000 $ 289,818 Task 2 Engineering Services During Construction
2.01 Preconstruction Conference 6 6 6 18 $ 5,262 $ 1,170 $ 6,432
2.02 Submittal Reviews 4 8 8 20 $ 4,008 $ 4,008
2.03 Responses to RFIs 4 8 12 $ 3,224 $ 3,224
2.04 Progress Meetings and Site Visits 6 7 13 $ 3,616 $ 3,616
2.05 General Consultation 4 4 8 $ 2,248 $ 2,248
2.06 Regulatory Assistance 2 16 24 60 102 $ 17,700 $ 17,700 Subtotal, Task 2 (hours) 0 0 0 26 22 24 33 68 0 173
Subtotal, Task 2 ($) $ 8,268 $ 6,930 $ 6,144 $ 8,052 $ 6,664 $ 36,058 $ 1,170 $ 37,228 Task 3 Project Management
3.01 Billing 10 10 $ 2,440 $ 2,440
3.02 Project Management 40 40 $ 9,760 $ 9,760
Subtotal, Task 3 (hours) 0 0 0 0 0 0 50 0 0 50
Subtotal, Task 3 ($) $ 12,200 $ 12,200 $ 12,200
TOTAL (hours) 410 800 258 26 22 24 83 68 0 1,691
TOTAL ($) $ 109,470 $ 144,000 $ 27,348 $ 8,268 $ 6,930 $ 6,144 $ 20,252 $ 6,664 $ 329,076 $ 10,170 0 $ $ 339,246 Labor
EXHIBIT A
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Costs
West Yost Associates CM IV RI_G3 CMA II P/VP EM/SM/GM II SE/SS/SG II SE/SS/SG I ESG I P/VP Hours Fee Sub. Other Total $280 $189 $111 $334 $331 $269 $256 $176 $334 w/ markup Direct Costs PROJECT: Jennings WWTP Solids Removal CM - 2024 J. Davis J. Shah A. Rangel G. Chung K. Gies C. Hardy W. Sandelin A. Guillebeau 10% Task 1 Construction Management Services
1.01 Preconstruction Conference 16 4 16 36 $ 7,012 $ 7,012
1.02 Precon Documentation of Conditions 8 24 16 48 $ 8,552 $ 8,552
1.03 Setup of Construction Site 20 32 20 72 $ 13,868 $ 13,868
1.04 Correspondence/Document Control 40 20 60 $ 13,420 $ 13,420
1.05 Issues Management 40 20 60 $ 13,420 $ 13,420
1.06 Progress Payments 40 40 $ 11,200 $ 11,200
1.07 Submittals 42 42 84 $ 16,422 $ 16,422
1.08 RFIs 20 20 40 $ 7,820 $ 7,820
1.09 Progress Coordination Meetings 84 84 168 $ 32,844 $ 32,844
1.10 Daily Observation and Reporting 40 800 840 162,400 $ $ 162,400
1.11 Review Weekly & Final Reports from GC 40 20 60 $ 13,420 $ 13,420
1.12 Punchlist and Final Inspection 20 40 60 $ 13,160 $ 13,160
1.13 Overhead Direct Charges 0 $ 9,450 $ 9,450
Subtotal, Task 1 (hours) 410 900 258 0 0 0 0 0 0 1568
Subtotal, Task 1 ($) $ 114,800 $ 170,100 $ 28,638 $ 313,538 $ 9,450 $ 322,988 Task 2 Engineering Services During Construction
2.01 Preconstruction Conference 6 6 6 18 $ 5,526 $ 1,229 $ 6,755
2.02 Submittal Reviews 4 8 8 20 $ 4,792 $ 4,792
2.03 Responses to RFIs 4 8 12 $ 3,384 $ 3,384
2.04 Progress Meetings and Site Visits 6 7 13 $ 3,796 $ 3,796
2.05 General Consultation 4 4 8 $ 2,360 $ 2,360
2.06 Regulatory Assistance 2 16 24 30 72 $ 17,700 $ 17,700 Subtotal, Task 2 (hours) 0 0 0 26 22 24 33 38 0 143
Subtotal, Task 2 ($) $ 8,684 $ 7,282 $ 6,456 $ 8,448 $ 6,688 $ 37,558 $ 1,229 $ 38,787 Task 3 Project Management
3.01 Billing 10 10 $ 2,560 $ 2,560
3.02 Project Management 40 40 $ 10,240 $ 10,240
Subtotal, Task 3 (hours) 0 0 0 0 0 0 50 0 0 50
Subtotal, Task 3 ($) $ 12,800 $ 12,800 $ 12,800
TOTAL (hours) 410 900 258 26 22 24 83 38 0 1,761
TOTAL ($) $ 114,800 $ 170,100 $ 28,638 $ 8,684 $ 7,282 $ 6,456 $ 21,248 $ 6,688 $ 363,896 $ 10,679 0 $ $ 374,575 Labor
EXHIBIT A
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Costs
West Yost Associates CM IV RI_G3 CMA II P/VP EM/SM/GM II SE/SS/SG II SE/SS/SG I ESG I P/VP Hours Fee Sub. Other Total $294 $198 $117 $351 $347 $282 $269 $185 $351 w/ markup Direct Costs PROJECT: Jennings WWTP Solids Removal CM - 2025 J. Davis J. Shah A. Rangel G. Chung K. Gies C. Hardy W. Sandelin A. Guillebeau 10% Task 1 Construction Management Services
1.01 Preconstruction Conference 16 4 16 36 $ 7,368 $ 7,368
1.02 Precon Documentation of Conditions 8 24 16 48 $ 8,976 $ 8,976
1.03 Setup of Construction Site 20 32 20 72 $ 14,556 $ 14,556
1.04 Correspondence/Document Control 40 20 60 $ 14,100 $ 14,100
1.05 Issues Management 40 20 60 $ 14,100 $ 14,100
1.06 Progress Payments 40 40 $ 11,760 $ 11,760
1.07 Submittals 42 42 84 $ 17,262 $ 17,262
1.08 RFIs 20 20 40 $ 8,220 $ 8,220
1.09 Progress Coordination Meetings 84 84 168 $ 34,524 $ 34,524
1.10 Daily Observation and Reporting 40 860 900 182,040 $ $ 182,040
1.11 Review Weekly & Final Reports from GC 40 20 60 $ 14,100 $ 14,100
1.12 Punchlist and Final Inspection 20 40 60 $ 13,800 $ 13,800
1.13 Overhead Direct Charges 0 $ 9,923 $ 9,923
Subtotal, Task 1 (hours) 410 960 258 0 0 0 0 0 0 1628
Subtotal, Task 1 ($) $ 120,540 $ 190,080 $ 30,186 $ 340,806 $ 9,923 $ 350,729 Task 2 Engineering Services During Construction
2.01 Preconstruction Conference 6 6 6 18 $ 5,802 $ 1,290 $ 7,092
2.02 Submittal Reviews 4 8 8 20 $ 5,036 $ 5,036
2.03 Responses to RFIs 4 8 12 $ 3,556 $ 3,556
2.04 Progress Meetings and Site Visits 6 7 13 $ 3,989 $ 3,989
2.05 General Consultation 4 4 8 $ 2,480 $ 2,480
2.06 Regulatory Assistance 2 16 24 30 72 $ 18,572 $ 18,572 Subtotal, Task 2 (hours) 0 0 0 26 22 24 33 38 0 143
Subtotal, Task 2 ($) $ 9,126 $ 7,634 $ 6,768 $ 8,877 $ 7,030 $ 39,435 $ 1,290 $ 40,725 Task 3 Project Management
3.01 Billing 10 10 $ 2,690 $ 2,690
3.02 Project Management 40 40 $ 10,760 $ 10,760
Subtotal, Task 3 (hours) 0 0 0 0 0 0 50 0 0 50
Subtotal, Task 3 ($) $ 13,450 $ 13,450 $ 13,450
TOTAL (hours) 410 960 258 26 22 24 83 38 0 1,821
TOTAL ($) $ 120,540 $ 190,080 $ 30,186 $ 9,126 $ 7,634 $ 6,768 $ 22,327 $ 7,030 $ 393,691 $ 11,212 0 $ $ 404,903 Labor
EXHIBIT A
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Costs
West Yost Associates CM IV RI_G3 CMA II P/VP EM/SM/GM II SE/SS/SG II SE/SS/SG I ESG I P/VP Hours Fee Sub. Other Total $306 $206 $122 $365 $361 $294 $280 $193 $365 w/ markup Direct Costs PROJECT: Jennings WWTP Solids Removal CM - 2026 J. Davis J. Shah A. Rangel G. Chung K. Gies C. Hardy W. Sandelin A. Guillebeau 10% Task 1 Construction Management Services
1.01 Preconstruction Conference 16 4 16 36 $ 7,672 $ 7,672
1.02 Precon Documentation of Conditions 8 24 16 48 $ 9,344 $ 9,344
1.03 Setup of Construction Site 20 32 20 72 $ 15,152 $ 15,152
1.04 Correspondence/Document Control 40 20 60 $ 14,680 $ 14,680
1.05 Issues Management 40 20 60 $ 14,680 $ 14,680
1.06 Progress Payments 40 40 $ 12,240 $ 12,240
1.07 Submittals 42 42 84 $ 17,976 $ 17,976
1.08 RFIs 20 20 40 $ 8,560 $ 8,560
1.09 Progress Coordination Meetings 84 84 168 $ 35,952 $ 35,952
1.10 Daily Observation and Reporting 40 800 840 177,040 $ $ 177,040
1.11 Review Weekly & Final Reports from GC 40 20 60 $ 14,680 $ 14,680
1.12 Punchlist and Final Inspection 20 40 60 $ 14,360 $ 14,360
1.13 Overhead Direct Charges 0 $ 10,319 $ 10,319
Subtotal, Task 1 (hours) 410 900 258 0 0 0 0 0 0 1568
Subtotal, Task 1 ($) $ 125,460 $ 185,400 $ 31,476 $ 342,336 $ 10,319 $ 352,655 Task 2 Engineering Services During Construction
2.01 Preconstruction Conference 6 6 6 18 $ 6,036 $ 1,342 $ 7,378
2.02 Submittal Reviews 4 8 8 20 $ 5,244 $ 5,244
2.03 Responses to RFIs 4 8 12 $ 3,700 $ 3,700
2.04 Progress Meetings and Site Visits 6 7 13 $ 4,150 $ 4,150
2.05 General Consultation 4 4 8 $ 2,580 $ 2,580
2.06 Regulatory Assistance 2 16 24 30 72 $ 19,352 $ 19,352 Subtotal, Task 2 (hours) 0 0 0 26 22 24 33 38 0 143
Subtotal, Task 2 ($) $ 9,490 $ 7,942 $ 7,056 $ 9,240 $ 7,334 $ 41,062 $ 1,342 $ 42,404 Task 3 Project Management
3.01 Billing 10 10 $ 2,800 $ 2,800
3.02 Project Management 40 40 $ 11,200 $ 11,200
Subtotal, Task 3 (hours) 0 0 0 0 0 0 50 0 0 50
Subtotal, Task 3 ($) $ 14,000 $ 14,000 $ 14,000
TOTAL (hours) 410 900 258 26 22 24 83 38 0 1,761
TOTAL ($) $ 125,460 $ 185,400 $ 31,476 $ 9,490 $ 7,942 $ 7,056 $ 23,240 $ 7,334 $ 397,398 $ 11,661 0 $ $ 409,059 Labor
EXHIBIT A
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Costs
West Yost Associates CM IV RI_G3 CMA II P/VP EM/SM/GM II SE/SS/SG II SE/SS/SG I ESG I P/VP Hours Fee Sub. Other Total $318 $215 $126 $379 $376 $305 $291 $200 $379 w/ markup Direct Costs PROJECT: Jennings WWTP Solids Removal CM - 2027 J. Davis J. Shah A. Rangel G. Chung K. Gies C. Hardy W. Sandelin A. Guillebeau 10% Task 1 Construction Management Services
1.01 Preconstruction Conference 16 4 16 36 $ 7,964 $ 7,964
1.02 Precon Documentation of Conditions 8 24 16 48 $ 9,720 $ 9,720
1.03 Setup of Construction Site 20 32 20 72 $ 15,760 $ 15,760
1.04 Correspondence/Document Control 40 20 60 $ 15,240 $ 15,240
1.05 Issues Management 40 20 60 $ 15,240 $ 15,240
1.06 Progress Payments 40 40 $ 12,720 $ 12,720
1.07 Submittals 42 42 84 $ 18,648 $ 18,648
1.08 RFIs 20 20 40 $ 8,880 $ 8,880
1.09 Progress Coordination Meetings 84 84 168 $ 37,296 $ 37,296
1.10 Daily Observation and Reporting 40 800 840 184,720 $ $ 184,720
1.11 Review Weekly & Final Reports from GC 40 20 60 $ 15,240 $ 15,240
1.12 Punchlist and Final Inspection 20 40 60 $ 14,960 $ 14,960
1.13 Overhead Direct Charges 0 $ 10,732 $ 10,732
Subtotal, Task 1 (hours) 410 900 258 0 0 0 0 0 0 1568
Subtotal, Task 1 ($) $ 130,380 $ 193,500 $ 32,508 $ 356,388 $ 10,732 $ 367,120 Task 2 Engineering Services During Construction
2.01 Preconstruction Conference 6 6 6 18 $ 6,276 $ 1,395 $ 7,671
2.02 Submittal Reviews 4 8 8 20 $ 5,444 $ 5,444
2.03 Responses to RFIs 4 8 12 $ 3,844 $ 3,844
2.04 Progress Meetings and Site Visits 6 7 13 $ 4,311 $ 4,311
2.05 General Consultation 4 4 8 $ 2,680 $ 2,680
2.06 Regulatory Assistance 2 16 24 30 72 $ 20,094 $ 20,094 Subtotal, Task 2 (hours) 0 0 0 26 22 24 33 38 0 143
Subtotal, Task 2 ($) $ 9,854 $ 8,272 $ 7,320 $ 9,603 $ 7,600 $ 42,649 $ 1,395 $ 44,044 Task 3 Project Management
3.01 Billing 10 10 $ 2,910 $ 2,910
3.02 Project Management 40 40 $ 11,640 $ 11,640
Subtotal, Task 3 (hours) 0 0 0 0 0 0 50 0 0 50
Subtotal, Task 3 ($) $ 14,550 $ 14,550 $ 14,550
TOTAL (hours) 410 900 258 26 22 24 83 38 0 1,761
TOTAL ($) $ 130,380 $ 193,500 $ 32,508 $ 9,854 $ 8,272 $ 7,320 $ 24,153 $ 7,600 $ 413,587 $ 12,127 0 $ $ 425,714 Labor
EXHIBIT A
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(Effective January 1, 2023 through December 31, 2023)*
POSITIONS
ENGINEERING
Principal/Vice President $338
Engineer/Scientist/Geologist Manager I / II $319 / $334 Principal Engineer/Scientist/Geologist I / II $288 / $307 Senior Engineer/Scientist/Geologist I / II $259 / $272
Associate Engineer/Scientist/Geologist I / II $215 / $231 Engineer/Scientist/Geologist I / II $173 / $201
Engineering Aide $101
Field Monitoring Services $125
Administrative I / II / III / IV $92 / $115 / $138 / $152
ENGINEERING TECHNOLOGY
Engineering Tech Manager I / II $332 / $334
Principal Tech Specialist I / II $305 / $315
Senior Tech Specialist I / II $279 / $291
Senior GIS Analyst $252
GIS Analyst $239
Technical Specialist I / II / III / IV $178 / $203 / $228 / $254 Technical Analyst I / II $128 / $152
Technical Analyst Intern $103
Cross-Connection Control Specialist I / II / III / IV $133 / $144 / $162 / $180 CAD Manager $201
CAD Designer I / II $156 / $176
CONSTRUCTION MANAGEMENT
Senior Construction Manager $322
Construction Manager I / II / III / IV $197 / $211 / $224 / $283 Resident Inspector (Prevailing Wage Groups 4 / 3 / 2 / 1) $172 / $191 / $213 / $221 Apprentice Inspector $156
CM Administrative I / II $83 / $112
Field Services $221
2023 Billing Rate Schedule
LABOR CHARGES
(DOLLARS PER HOUR)
■ Hourly rates include Technology and Communication charges such as general and CAD computer, software, telephone, routine in-house copies/prints, postage, miscellaneous supplies, and other incidental project expenses. ■ Outside Services such as vendor reproductions, prints, shipping, and major West Yost reproduction efforts, as well as Engineering Supplies, etc. will be billed at actual cost plus 15%. ■ The Federal Mileage Rate will be used for mileage charges and will be based on the Federal Mileage Rate applicable to when the mileage costs were incurred. Travel other than mileage will be billed at cost. ■ Subconsultants will be billed at actual cost plus 10%. ■ Expert witness, research, technical review, analysis, preparation and meetings billed at 150% of standard hourly rates. Expert witness testimony and depositions billed at 200% of standard hourly rates. ■ A Finance Charge of 1.5% per month (an Annual Rate of 18%) on the unpaid balance will be added to invoice amounts if not paid within 45 days from the date of the invoice. * This schedule is updated annually
EXHIBIT B
#19..
- 1554 -
(Effective January 1, 2023 through December 31, 2023)*
Equipment Charges
EQUIPMENT
2" Purge Pump & Control Box $300 / day
Aquacalc / Pygmy or AA Flow Meter $28 / day
Emergency SCADA System $35 / day
Field Vehicles (Groundwater) $1 / mile
Gas Detector $80 / day
Generator $60 / day
Hydrant Pressure Gauge $10 / day
Hydrant Pressure Recorder, Impulse (Transient) $55 / day Hydrant Pressure Recorder, Standard $40 / day
Low Flow Pump Back Pack $135 / day
Low Flow Pump Controller $200 / day
Powers Water Level Meter $32 / day
Precision Water Level Meter 300ft $30 / day
Precision Water Level Meter 500ft $40 / day
Precision Water Level Meter 700ft $45 / day
QED Sample Pro Bladder Pump $65 / day
Stainless Steel Wire per foot $0 / day
Storage Tank $20 / day
Sump Pump $24 / day
Transducer Components (per installation) $23 / day
Trimble GPS – Geo 7x $220 / day
Tube Length Counter $22 / day
Turbidity Meter $30 / day
Vehicle (Construction Management) $10 / hour
Water Flow Probe Meter $20 / day
Water Quality Meter $50 / day
Water Quality Multimeter $185 / day
Well Sounder $30 / day
BILLING RATES
2023 Billing Rate Schedule
* This schedule is updated annually
EXHIBIT B
#19..
- 1555 -
Low Bidder
Item # Item Description Units Quantity Unit Price Extension Tuesday, April 19, 2022 Bid Tabulation
Facultative Biosolids Removal
14-D-0129
The Project was created to address the solids accumulation in the East Recirculation Channel, Irrigation Forebay and Facultative Pond No.2 Digestion Pits, which occurred during years of plant operation at the Jennings Wastewater Treatment Plant
100860
3/8/2022 Utilities
Vault ID #:
Project Title:
Project Description:
Fund #:
Agency #:
Bid Opening: Organization:
Project ID #: 2022-012
at 11:00 AM
Design Manager: Cristian Ciotau
Basis of Award: By Blind Bid Designer: West Yost Associates (650) 330-0729 435 Williams Court, Suite 100 Baltimore MD 21220
SYNAGRO
Base Bid
1 Mobilization/Demobilization LS 1 $481,712.00 $481,712.00 2 2.1 2022 Dredging/Dewatering/Application $377.00
from East Recirculation Channel
TON 2300 $867,100.00
3 2.2 2023 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
4 2.3 2024 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
5 2.4 2025 Dredging/Dewatering/Application $441.00
from East Recirculation Channel
TON 2300 $1,014,300.00
6 2.5 2026 Dredging/Dewatering/Application $463.00
from East Recirculation Channel
TON 2300 $1,064,900.00
7 Construction of dewatering wells and $139,777.00
dewatering of Facultative Pond No. 3
Digestion pits
LS 1 $139,777.00
8 Dredging/Dewatering/Application from $375.27
Irrigation Forebay
TON 3000 $1,125,810.00
9 Construction of dewatering wells and $156,550.00
dewatering of Facultative Pond No. 2
Digestion pits
LS 1 $156,550.00
10 Removal/Drying/Application from Facultative $78.77
Pond No. 2
TON 4100 $322,957.00
Total: $5,173,106.00
Percent From Engineer's Estimate: -39.14%
(780) 963-1484 1201 Pacific Ave, Suite600 Tacoms WA 98402 American Process Group
Base Bid
1 Mobilization/Demobilization LS 1 $592,869.40 $592,869.40
#19..
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Item # Item Description Units Quantity Unit Price Extension 1 LS 1 $592,869.40 $592,869.40
2 2.1 2022 Dredging/Dewatering/Application $460.75
from East Recirculation Channel
TON 2300 $1,059,725.00
3 2.2 2023 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
4 2.3 2024 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
5 2.4 2025 Dredging/Dewatering/Application $593.23
from East Recirculation Channel
TON 2300 $1,364,429.00
6 2.5 2026 Dredging/Dewatering/Application $593.23
from East Recirculation Channel
TON 2300 $1,364,429.00
7 Construction of dewatering wells and $572,491.51
dewatering of Facultative Pond No. 3
Digestion pits
LS 1 $572,491.51
8 Dredging/Dewatering/Application from $472.80
Irrigation Forebay
TON 3000 $1,418,400.00
9 Construction of dewatering wells and $772,560.44
dewatering of Facultative Pond No. 2
Digestion pits
LS 1 $772,560.44
10 Removal/Drying/Application from Facultative $257.80
Pond No. 2
TON 4100 $1,056,980.00
Total: $8,201,884.35
Percent From Engineer's Estimate: -3.51%
Construction Contingency -
Estimated Contract Total
Construction Administration -
Estimated Project Total
$984,226.12
$9,186,110.47
$984,226.12
$10,170,336.59
12 12
%
%
Engineer's Estimate
Base Bid
1 Mobilization/Demobilization LS 1 $100,000.00 $100,000.00 2 2.1 2022 Dredging/Dewatering/Application $492.75
from East Recirculation Channel
TON 2300 $1,133,325.00
3 2.2 2023 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
4 2.3 2024 Dredging/Dewatering/Application $0.00
from East Recirculation Channel
TON 2300 $0.00
5 2.4 2025 Dredging/Dewatering/Application $492.75
from East Recirculation Channel
TON 2300 $1,133,325.00
6 2.5 2026 Dredging/Dewatering/Application $492.75
from East Recirculation Channel
TON 2300 $1,133,325.00
7 Construction of dewatering wells and $500,000.00
dewatering of Facultative Pond No. 3
Digestion pits
LS 1 $500,000.00
8 Dredging/Dewatering/Application from $666.67
Irrigation Forebay
TON 3000 $2,000,010.00
9 Construction of dewatering wells and $500,000.00
dewatering of Facultative Pond No. 2
Digestion pits
LS 1 $500,000.00
#19..
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Item # Item Description Units Quantity Unit Price Extension 10 Removal/Drying/Application from Facultative $487.81
Pond No. 2
TON 4100 $2,000,014.85
Total: $8,499,999.85
#19..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
March 14, 2023
Date: February 16, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Seventh Street Village Project with Visionary Home Builders CONTACT: Jessica Hill, Interim Director of Community and Economic Development [email protected], (209) 577-5211
DESCRIPTION:
Hearing to consider approving a joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Grant in an amount not to exceed $50,000,000, a City funding commitment in a total amount not to exceed $7,000,000 plus $200,000 in activity delivery costs for a grand total of $7,200,000, and the deferral of Capital Facilities Fees in an amount $ 967,750 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street, contingent on the successful award of the Affordable Housing and Sustainable Communities Grant. (Funding Source: Community Development Block Grant, Permanent Local Housing Allocation, HOME Investment Partnership, and Capital Facility Fees) STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: Develop a Homelessness and Housing Plan.
BACKGROUND:
As an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development1 (HUD) which requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant2 (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP). The City also qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA), each designated to fund components of the development of affordable housing. 1 https://www.hud.gov/
2 https://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs/ - “The Community Development Block Grant (CDBG) program is a flexible program that provides communities with resources to address a wide range of unique community development needs”. #20..
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City Council, March 14, 2023
Seventh Street Village Project with Visionary Home Builders
Despite multiple affordable housing agencies and the availability of housing vouchers and rental subsidy programs, there is a shortage of housing units in the City.
To help address this shortage, the City of Modesto (City) released a Request for Proposals (RFP) for Affordable Housing projects on December 14, 2022, to solicit proposals that could qualify for the various funding sources that the City receives as an Entitlement community that can be used for the development of affordable housing. This approach helped create a pipeline of projects allowing the City to be strategic with funding allocations for housing projects and availing more opportunities to leverage additional funding to promote development in the City.
This RFP process prioritized review of applications submitted that are Tier 1 – Design Development defined as New Construction or Rehabilitation with 50% of the project funding identified, with the site identified and can be under contract by the time of award, can obtain permits within 6 months, and can demonstrate construction can begin within 12 months of award. The RFP submission process also requires that housing developers demonstrate the ability to:
Construct, acquire, and/or rehabilitate affordable housing developments. Maintain affordable housing developments and
Adhere to all program guidelines and funding requirements are encouraged to submit applications.
Populations to be served by housing: extremely low- (30% Annual Median Income (AMI)), very low- (50% AMI), and low-income (80% AMI) households or as specified by funding source requirements.
Each qualified development will be evaluated for the suitability of all applicable funding sources. All requirements of the applicable funding sources will apply to developments funded under this NOFA.
Proposed developments must be leveraged with other funding sources, such as private equity loans from lending institutions, funds from federal, state and/or local programs.
Successful applicants will be able to clearly demonstrate how their proposal will improve access to affordable housing within the City of Modesto and maintain restricted units, as applicable, for the duration of the affordability period.
DISCUSSION:
Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with the City.
Proposed Project
The Seventh Street Village development will sit on four parcels totaling .88 acres. The project is comprised of 79 housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units will be dedicated to housing onsite community staff.
Additional project details are listed below:
Project Location: 7th and J Street (yellow area)
Zoning: Transition Downtown Zone
Site area: .88 acres
Total stories: 6 stories
Height: 72 ft.
#20..
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City Council, March 14, 2023
Seventh Street Village Project with Visionary Home Builders
Street and areas of interest:
Transit Station: .2 miles
625 I Street: .01 miles (across 7th street)
Old St Stanislaus: .01 miles (across J Street)
10th Street Place: .4 miles
Parking:
48,000 square ft of parking on the ground and second floors. ADA Stalls: 8 spaces
Standard Stalls: 102 spaces
Total: 110 spaces
The proposed project is a modern garden-style community that will consist of one four-story building on a podium. The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab.
Floor area:
Commercial: 5,000 square ft.
Leasing office: 1,700 square ft.
Head start school: 2,300 square ft.
Residential:
One bedroom: 12 units (700 sf)
Two bedrooms: 35 units (900 sf)
Three bedrooms: 32 (1260 sf)
All base-level housing will be ADA accessible.
Seventh Street Village units will have a full kitchen with pantry cabinets, interior laundry rooms with full-size washers and dryers, separate dining, and family rooms. The elevation style was chosen to follow the Central California modern downtown lifestyle and is enhanced, stucco wall finish with a large portion of manufactured accent such as metal siding, brick, iron railings, stair rails, accent details, with strong overall ridgelines. elements on each building elevation. To add energy efficiency, the project is designed to achieve Green Point Rating Certification.
On-site Amenities:
Head start/Day Care Facility
Community Center
Cooling Center
Computer Lab 1-4 computers with internet access
Office Space for Services
Technology
2 Playgrounds
Indoor Basketball Court
The project is within walking distance of public transportation, recreation, an elementary and high school, and proximity to shopping and services. These nearby services will enhance the #20..
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City Council, March 14, 2023
Seventh Street Village Project with Visionary Home Builders
marketability of the subject property. The enhanced level of design and proximity to amenities is an element to provide a sense of community and pride.
Transportation Improvements
This project is proposing to include transportation improvements in alignment with the Downtown Master Plan.
Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L street to I Street in front of the Transit Center and down I Street. These improvements include improved and new bike lanes and sidewalks with greening improvements including shade trees. Sidewalk improvements on 7th,8th, and F street or a total of 1000ft of new sidewalks and 1000ft of improved sidewalk infrastructure.
In collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb-outs along this route.
In collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine.
With the proximity to the Transit Center, Downtown, and other public transportation lends this project to be a strong application for the State of California’s Affordable Housing and Sustainability Grant (AHSC). This grant focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions. The State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in funding under the AHSC program. The City and VHB are seeking to submit a joint application for this project for a total up to award of, $50,000,000. Up to $35,000,000 will be a loan given to VHB and used for the construction of Phase I of this development, and up to $15,000,000 will be a grant given to the City and used for transportation-related infrastructure improvements. The City recommends committing to fund this project in an amount not exceeding $7,967,750 for the development of the project and the deferral of Capital Facility Fees to be submitted with the AHSC application.
The City’s funding commitment will be contingent upon the award of the AHSC grant. Once awarded the AHSC application this project will be seeking further tax credits to fund the nexus between the AHSC and the City commitments to this project. If this project secures all its proposed application funding, agreements will return to Council for consideration and execution.
The project is estimated to cost $56,735,325.
Project Proposal
Source Amount
Modesto CDBG $ 2,000,000
Modesto PLHA $ 1,490,784
Modesto HOME $ 3,509,216
Modesto Commitment $ 7,000,000
Modesto CFF Deferral $ 967,750
AHSC Application Request- not to exceed $50,000,000
AHSC Seventh Street Village Development- not to exceed $35,000,000 AHSC Downtown Improvements and Other Transit Improvements- not to exceed $15,000,000 Transportation Improvements $ 9,000,000
ACE Locomotive $ 6,000,000
#20..
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City Council, March 14, 2023
Seventh Street Village Project with Visionary Home Builders
Tax Credits and Other Sources $32,664,848
Total Project Cost $56,731,325
FISCAL IMPACT:
The funding for this program will come from the following sources:
State of California’s Department of Housing and Community Development, and project budget will transfer $1,490,784 from fund (1120) – Grants – PLHA Program U.S. Department of Housing and Urban Development CDBG, and project budget will transfer $2,200,000 from fund (1130) – CDBG Direct Programs U.S. Department of Housing and Urban Development, and project budget will transfer $3,509,216 from fund (1170) – HOME Investment Partnership Program There will be no impact to the General Fund.
COMMITTEE RECOMMENDATION:
On March 9, 2023 Citizens Housing and Community Development Committee met and approved a joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Grant in an amount not to exceed $50,000,000, a City funding commitment in a total amount not to exceed $7,000,000 plus $200,000 in activity delivery costs for a grand total of $7,200,000, and the deferral of Capital Facilities Fees in an amount $ 967,750 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street, contingent on the successful award of the Affordable Housing and Sustainable Communities Grant. forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Grant in an amount not to exceed $50,000,000 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street as well as any grant required transportation improvements as outlined in the grant application and authorizing the City Manager or his designee to negotiate and execute an agreement with Visionary Home Builders, Inc. and any other documents related to the submission of the grant application.
Resolution approving a City funding commitment in a total amount not to exceed $7,000,000 and $200,000 in activity delivery costs for a grand total of $7,200,000 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street, contingent on the successful award of the State of California for the Affordable Housing and Sustainable Communities Grant.
Resolution approving the deferral of Capital Facilities Fees in an amount not to exceed $967,750 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street contingent on the successful award of the State of California for the Affordable Housing and Sustainable Communities Grant. #20..
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City Council, March 14, 2023
Seventh Street Village Project with Visionary Home Builders
Approved by:
Jessica Hill, Interim Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Resolution – Funding
3. Resolution – CFF Deferral
4. Draft – AHSC Implementation Agreement
#20..
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03.09.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A JOINT SUBMISSION BETWEEN THE CITY OF MODESTO AND VISIONARY HOME BUILDERS OF CALIFORNIA, INC. FOR THE STATE OF CALIFORNIA’S AFFORDABLE HOUSING AND
SUSTAINABILITY GRANT IN AN AMOUNT NOT TO EXCEED $50,000,000
FOR THE DEVELOPMENT OF SEVENTH STREET VILLAGE ON THE
PROPERTIES LOCATED ON 7TH STREET BETWEEN J STREET AND I
STREET AS WELL AS ANY GRANT REQUIRED TRANSPORTATION
IMPROVEMENTS AS OUTLINED IN THE GRANT APPLICATION AND
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE
AND EXECUTE AN AGREEMENT WITH VISIONARY HOME BUILDERS,
INC. AND ANY OTHER DOCUMENTS RELATED TO THE SUBMISSION OF
THE GRANT APPLICATION
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP) and the City also qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA), each designated to fund components of the development of affordable housing.; and WHEREAS, despite multiple affordable housing agencies and the availability of housing vouchers and rental subsidy programs there is a shortage of housing units in the City; and
WHEREAS, to help address this shortage, the City of Modesto (City) released a Request for Proposals for Affordable Housing projects on December 14, 2022, to solicit proposals that could qualify for the various funding sources that the City receives as an Entitlement community that can be used for the development of affordable housing; and #20..
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01/10/2023/CED/JHill/Item # 2 2023-XX
WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with the with the City; and
WHEREAS, the Seventh Street Village development will sit on four parcels totaling .88 acres and project is comprised of 79-housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units as a modern garden-style community will consist of one four-story building on a podium.
The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab.; and WHEREAS, This project is proposing to include the transportation improvements in alignment with the Downtown Master Plan that includes Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L street to I Street in front of the Transit Center and down I Street and sidewalk improvements on 7th, 8th, and Fst for a total of 1000ft of new sidewalks and 1000ft of improved sidewalk infrastructure; and
WHEREAS, in collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb outs along this route and in collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine; and
WHEREAS, the proximity to the Transit Center, Downtown, and other public transportation lends this project to be a strong application the State of California’s #20..
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01/10/2023/CED/JHill/Item # 3 2023-XX
Affordable Housing and Sustainability Grant (AHSC); and WHEREAS, the State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in in funding under the AHSC program that focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions and the City and VHB are seeking to submit a joint application for this project for a total award, $50,000,000 will be a loan given to VHB and used for construction of Phase I of this development, and $19,101,273 will be a grant given to the City and used for transportation related infrastructure improvements; and WHEREAS, once awarded the AHCS application this project will be seeking further tax credits to fund the nexus between the AHCS and the City commitments to this project with a project is currently estimated to cost $91,000,000; and NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for the State of California’s Affordable Housing and Sustainability Grant in an amount not to exceed $50,000,000 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street as well as any grant required transportation improvements as outlined in the grant application.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to negotiate and execute an agreement with Visionary Home Builders, Inc. and any other documents related to the submission of the grant application in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of March, 2023, by Councilmember , who moved #20..
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01/10/2023/CED/JHill/Item # 4 2023-XX
its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
#20..
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03.09.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A CITY FUNDING COMMITMENT IN A TOTAL AMOUNT NOT TO EXCEED $7,000,000 PLUS $200,000 IN ACTIVITY DELIVERY COSTS FOR A GRAND TOTAL OF $7,200,000 FOR THE
DEVELOPMENT OF SEVENTH STREET VILLAGE ON THE PROPERTIES LOCATED ON 7TH STREET BETWEEN J STREET AND I STREET
CONTINGENT ON THE SUCCESSFUL AWARD OF THE STATE OF
CALIFORNIA FOR THE AFFORDABLE HOUSING AND SUSTAINABLE
COMMUNITIES GRANT.
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP) and the City also qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA), each designated to fund components of the development of affordable housing; and WHEREAS, despite multiple affordable housing agencies and the availability of housing vouchers and rental subsidy programs there is a shortage of housing units in the City; and
WHEREAS, to help address this shortage, the City of Modesto (City) released a Request for Proposals for Affordable Housing projects on December 14, 2022, to solicit proposals that could qualify for the various funding sources that the City receives as an Entitlement community that can be used for the development of affordable housing; and WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th #20..
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01/10/2023/CED/JHill/Item # 2 2023-XX
Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with the with the City; and
WHEREAS, the Seventh Street Village development will sit on four parcels totaling .88 acres and project is comprised of 79-housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units as a modern garden-style community will consist of one four-story building on a podium.
The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab.; and WHEREAS, the State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in in funding under the AHSC program that focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions and the City and VHB are seeking to submit a joint application for this project for a total award, $50,000,000 will be a loan given to VHB and used for construction of Phase I of this development, and $19,101,273 will be a grant given to the City and used for transportation related infrastructure improvements; and WHEREAS, the city commits to fund the this project in an amount not to exceed $7,000,000 plus $200,000 in activity delivery; and
WHEREAS, staff proposes the project be allocated as a PLHA funded Loan in an amount not to exceed $1,490,784; and
WHEREAS, staff proposes the project be allocated as a CDBG funded Grant in an amount not to exceed $2,000,000; and
WHEREAS, staff proposes the project be allocated as a HOME Entitlement funded loan in an amount not to exceed $3,509,216; and
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WHEREAS, the City’s funding commitment is contingent upon the award of a State of California for the Affordable Housing and Sustainable Communities Grant; and WHEREAS, upon award of State of California for the Affordable Housing and Sustainable Communities Grant, the City Council will formally approve funding described herein and approve agreements to effectuate the funding commitment, which must be negotiated by the City and Visionary Home Builders of California, Inc.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a City funding commitment in a total amount not to exceed $7,000,000 plus $200,000 in activity delivery costs for a grand total of $7,200,000 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street, contingent on the successful award of the State of California for the Affordable Housing and Sustainable Communities Grant.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of March, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
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01/10/2023/CED/JHill/Item # 4 2023-XX
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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03.09.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING THE DEFERRAL OF CAPITAL FACILITIES FEES IN AN AMOUNT NOT TO EXCEED $967,750 FOR THE DEVELOPMENT OF SEVENTH STREET VILLAGE ON THE PROPERTIES LOCATED ON 7TH
STREET BETWEEN J STREET AND I STREET, CONTINGENT ON THE
SUCCESSFUL AWARD OF THE STATE OF CALIFORNIA FOR THE
AFFORDABLE HOUSING AND SUSTAINABLE COMMUNITIES GRANT.
WHEREAS, the City of Modesto Capital Facilities Fees (CFF) Program was established in 1989, and
WHEREAS, the CFF Policies and Procedures also allows an applicant to submit a deferral application and request the CFF be deferred on new affordable units for households earning between fifty-one and eighty percent (51 - 80%) of the Area Median Income, and
WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted CFF deferral application on February 27, 2023, for a project located on 7th Street between I and J Street for development (Project); and
WHEREAS, the Project will provide 79 senior and family units, and WHEREAS, the Project will be affordable to low income households and will have a fifty-five year affordability covenant, and
WHEREAS, staff reviewed VHB CFF Deferral Application and found it complies with the CFF Policies & Procedures as all 79 units will be affordable to low income households.
WHEREAS, CFF fees are adjusted annually and the project has not yet initiated construction, and
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WHEREAS, at the time of application the fees are in an amount not to exceed $967,750; and
WHEREAS, upon award of State of California for the Affordable Housing and Sustainable Communities Grant, the City Council will formally approve a CFF Deferral Agreement for the total amount of CFF due for the Project.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves Deferral of the Capital Facilities Fees in an amount not to exceed $967,750 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street contingent on the successful award of the State of California for the Affordable Housing and Sustainable Communities Grant.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 14th day of March, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
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01/10/2023/CED/JHill/Item # 3 2023-XX
JOSE M. SANCHEZ, City Attorney
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1 AHSC IMPLEMENTATION AND
MUTUAL INDEMNITY AGREEMENT BETWEEN THE CITY OF MODESTO AND VISIONARY HOME BUILDERS OF CALIFORNIA, INC.
THIS AHSC IMPLEMENTATION AND MUTUAL INDEMNITY AGREEMENT (the “Agreement”) is made and entered into as of ,2023, between the City of Modesto (“City”), and Visionary Home Builders of California, Inc. a California nonprofit public benefit corporation (“Developer”), and collectively with the City, the “Parties”, or individually, a “Party”), upon the basis of the following facts, understanding and intentions of the parties:
A. The State of California, the Strategic Growth Council (“SGC”) and the Department of Housing and Community Development (“HCD”) issued a Notice of Funding Availability dated January 30, 2023 (the “AHSC NOFA”), under the Affordable Housing and Sustainable Communities (“AHSC”) Program established under Division 44, Part 1 of the Public Resources Code, commencing with Section 75200.
B. Developer. is applying for AHSC Funds in response to the AHSC NOFA to provide funding for (A) the construction of Seventh Street Village, affordable housing project located on 914, 918, 924, 930 7th Street in Modesto, California (the “Housing Project”); (B) the construction of certain sustainable transportation infrastructure (the “STI Improvements”); (C) the construction of certain transportation-related amenities (the “TRA Improvements”); and (D) certain costs related to ______________ (the “AHSC Programs”). These improvements are described in more detail in the Final Application to be submitted by April 4, 2023 (collectively, the “AHSC Application”).
C. The AHSC Application seeks an award to the Developer in an aggregate amount of $30,201,702 in AHSC Funds consisting of: (A) $ 15,201,702 of AHSC loan Funds for a permanent loan (“AHSC Loan”) which will be disbursed to Seventh Street Village, L.P. (the “Partnership”), for construction of the Housing Project; (B15,000,000 of AHSC grant funds shall be used for the purpose of reimbursing the cost of the STI Improvements; (C) $9,000,000 of AHSC grant funds for the purpose of reimbursing the cost of the TRA Improvements; and (D) $6,000,000 of AHSC grant funds for reimbursing the costs of the AHSC Programs. The AHSC grants shall be referred to collectively as the “AHSC Grants”. The AHSC Loan and the AHSC Grants are collectively referred to herein as the “AHSC Financing.” D. The City and Developer are required to enter into this Agreement in order to comply with the specific AHSC Program Threshold Requirement stated in Section 106(a)(12) of the 2022 AHSC Program Guidelines dated December 15, 2022 (the “Transportation City Prior Experience Threshold Requirement”). This section of the guidelines dictates that applicants must demonstrate prior experience by providing evidence of at least two prior projects that are similar to the proposed AHSC project in scope and size, which have been completed by the applicant, or joint applicant, during the ten (10) years preceding the application due date. This section of the guidelines also states that the applicants may demonstrate the requisite experience by using the past experience of work completed of a non-applicant so long as the applicants can provide an executed agreement with that specific non-applicant for the completion of the related work in the AHSC Application for which funding is sought. The purpose of this Agreement is to, amongst other things, comply with the Transportation Agency Prior Experience Threshold Requirement. #20..
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E. The City owns the property that the Transportation Obligations will be constructed on, and thus has sufficient “site control” as that term is defined in the AHSC Program Guidelines.
F. The City is a non-applicant, but, as set forth herein, will have obligations to perform the following specific STI Improvements, TRA Improvements, and AHSC Programs included in the AHSC Application (collectively, the “Transportation Obligations”):
1. Provide appropriate documentation to demonstrate site control for STI and TRA locations.
2. Obtain required permitting, environmental, and all related local approvals for STI and TRA work to be done.
3. Fulfill the construction of the Transportation Related Infrastructure (TRA) Obligations.
4. Fullfil the construction of Sustainable Transportation Infrastructure (STI) Obligations.
G. The City shall be responsible for developing and constructing the Transportation Obligations, and for all costs and expenses related thereto, and Developer shall be responsible for constructing and developing the Housing Project and the HRI Improvements (together, the “Developer Obligations”), and for all costs and expenses related thereto. In connection with the AHSC Grants and AHSC Loan, Developer is required to enter into standard agreements, disbursement agreements, and regulatory agreements with HCD where Developer will be liable for the full and timely performance by the parties to complete the obligations set forth therein, including completion of the Housing Project, completion of the HRI, STI and TRA Improvements, and funding of the AHSC Programs, as described in the AHSC Application. The AHSC Application and all standard agreements, disbursement agreements, regulatory agreements and any other agreements required by HCD in connection with the AHSC Financing shall be collectively referred to herein as the “AHSC Documents”.
H. The City and Developer each acknowledge and agree that the inability or failure by either party to fully and timely complete each party’s respective improvements required by the AHSC Documents may affect the timing and right of the other party to receive disbursement of AHSC funds due the other party notwithstanding the other party’s full and timely performance of its obligations.
NOW, THEREFORE, in consideration of the recitals, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Obligations. The City shall, in its sole responsibility, complete the Transportation Obligations in accordance with the terms of the AHSC Documents and the approved design and construction documents. The Developer shall, in its sole responsibility, complete the Developer Obligations in accordance with the terms of the AHSC Documents and the approved design and construction documents. Each Party will provide the other Party with #20..
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copies of all requisitions for work related to their respective work, the notice of completion, and other documents related to their respective work that another party may reasonably request.
2. City Indemnity. City is responsible for carrying out the Transportation Obligations using AHSC grant proceeds in accordance with the AHSC Documents, including, but not limited to, any disbursement deadlines contained therein. City shall indemnify, defend, protect, and hold harmless Developer, and its affiliates, directors, officers, partners, members, agents and employees (each, an “Developer Indemnified Party”) against any and all claims, actions, suits, causes of action, losses, liabilities, injuries, costs, damages, or expenses (collectively, “Claims”), including, without limitation, any direct, indirect or consequential loss, liability, damage, or expense, court costs and attorneys’ fees, arising out of or in connection with the City’s performance of or failure to perform its obligations to complete the Transportation Obligations, in the manner and within the time periods, and to otherwise perform any covenants constituting City obligations, set forth in the AHSC Documents, including any claims, losses or liabilities of the Partnership caused by a breach or default under the AHSC Documents that triggers a default under the AHSC Loan. However, in no event shall the Developer Indemnified Party be indemnified hereunder for any Claims resulting from such party’s sole negligence or willful misconduct. City agrees to pay all of the Developer Indemnified Party’s reasonable costs and expenses, including attorneys’ fees, which may be incurred in any effort to successfully enforce any term of this Agreement, including, but not limited to, all such costs and expenses which may be incurred by any Developer Indemnified Party in any legal action, reference or arbitration proceeding brought by HCD or other third party.
3. Developer Indemnity. Developer is responsible for carrying out the Developer Obligations using AHSC grant proceeds and AHSC Loan funds in accordance with the AHSC Documents, including, but not limited to, any disbursement deadlines contained. Developer shall indemnify, defend, protect, and hold harmless the City and its affiliates, directors, officers, partners, members, agents and employees (each, an “City Indemnified Party”) against any and all Claims, including, without limitation, any direct, indirect or consequential loss, liability, damage, or expense, court costs and attorneys’ fees, arising out of or in connection with Developer’s performance of or failure to perform its Developer Obligations to complete construction and development of the Housing Development, in the manner and within the time periods, and to otherwise perform any covenants, set forth in the AHSC Documents. However, in no event shall the City Indemnified Party be indemnified hereunder for any Claims resulting from such party’s sole negligence or willful misconduct. Developer agrees to pay all of the reasonable costs and expenses of the City Indemnified Party, including attorneys’ fees, which may be incurred in any effort to successfully enforce any term of this Agreement, including, but not limited to, all such costs and expenses which may be incurred by any City Indemnified Party in any legal action, reference or arbitration proceeding brought by HCD or other third party.
4. Schedule of Performance; Progress Reports. Developer and City shall comply with the schedule of performance forth in Exhibit A attached hereto for the completion of their respective obligations hereunder (the “Schedule of Performance”). The City and Developer agree to give the other party a written monthly status report on the progress toward the milestones listed in Exhibit A, i.e., the Developer will report on the Developer’s progress on the Housing Project and HRI Improvements and the City will report on the City’s progress on the STI Improvements, TRA Improvements and AHSC Programs. If any Party anticipates not meeting the targeted construction and grant disbursement milestones as established in the AHSC #20..
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Documents, that Party will promptly notify the other parties in writing and will meet the other Party to discuss the reasons why the milestone dates may not be met and what actions the delayed party intends to take to meet the milestones or otherwise rectify the work schedule in order to maintain good standing with the terms and conditions established in the AHSC Documents.
5. Delegation. Notwithstanding the obligations of each party under this Agreement, each party shall be entitled to enter into sub-agreements with each other or with other parties to provide any assistance or services needed for each party to perform its obligations under this Agreement and the AHSC Documents.
6. Cost Overruns. Developer shall be responsible for paying all costs required to complete the Housing Project, irrespective of whether such costs exceeds the AHSC Loan and the portion of the AHSC Grant designated for the HRI Improvements. Agency. City shall be responsible for paying all costs required for the Transportation Obligations irrespective of whether such costs exceed the portion of the AHSC Grant designated for the Transportation Obligations.
7. Developer and Partnership Step In Rights.
(a) The Parties each acknowledge and agree that the inability or failure by the City to fully and timely complete the Transportation Obligations required by the AHSC Documents may affect the timing and right of the Developer to receive disbursement of AHSC Grants or AHSC Loan funds notwithstanding the other party’s full and timely performance of its obligations. If, at any time, the Developer determines in its reasonable discretion that City is not, or may not, be able to comply with the Schedule of Performance or its obligations hereunder, Developer shall have the right, but not the obligation, to step in and take over the performance of the Transportation Obligations, by delivering written notice to the City (“Work Takeover Notice”). (b) Within five (5) business days of Developer delivering the Work Takeover Notice, City shall meet with Developer within fifteen (15) business days (the “Discussion Period”) to discuss the cooperative steps to be taken by each Party for Developer to complete the Transportation Obligations in accordance with the Schedule of Performance. The City hereby acknowledges and agrees that Developer’s right to step in and take over the performance of the Transportation Obligations shall be effective after the expiration of the Discussion Period, without the necessity of any further notice or action by either party. (c) If Developer takes over the performance of the Transportation Obligations under this Section 7, then from and after the expiration of the Discussion Period the following provisions shall apply:
(i) Developer shall be entitled to prepare and submit all draw requests for AHSC Grant funds and apply such proceeds to pay invoices for such work. (ii) Developer shall be responsible for the performance and completion of the Transportation Obligations in accordance with the terms of the AHSC Documents and in accordance with the City's requirements for public works contracts and construction.
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(iii) Within five (5) business days following expiration of the Discussion Period, City shall fully and unconditionally assign to Developer all of the City’s rights and benefits under the design and construction documents, any and all contracts, and any and all permits and approvals related to the Transportation Obligations, and shall cooperate with commercially reasonable diligence with Developer’s efforts to complete the Transportation Obligations. (iv) Within five (5) business days following expiration of the Discussion Period, City shall fully and unconditionally assign to Developer all of City’s rights and benefits with respect to any and all funds which would have been available to and used by the City to complete the Transportation Obligations. (v) The terms of any assignment described in this Section 7(c) shall be reasonably acceptable to both City and Developer. The City shall be solely responsible for obtaining any third-party consents or approvals necessary to implement the provisions of this Section 7(c), including but not limited to approvals of architects, contractors, and funding sources. (d) The parties hereto hereby agree that the Partnership shall have the right to succeed to Developer’s rights hereunder as necessary to effectuate completion of the work under this Section 7. Under no circumstances shall such assumption by the Partnership be conditioned upon the assumption of the Partnership of any indemnification obligations contained herein, provided, however, that the Partnership will assume Developer’s indemnification obligations with respect to any subsequent breach by the Partnership under this Agreement first occurring after such assumption.
8. Disbursement of AHSC Grant Funds. Developer and City agree that the AHSC Grants for the Transportation Obligations shall be reimbursed directly to Agency and that the AHSC Grants for the HRI Improvements shall be reimbursed directly to Developer. The parties further agree that all of the AHSC Loan funds shall be disbursed directly to the Developer.
Notwithstanding the foregoing, if required by the AHSC Documents, the City shall submit to Developer all draw requests for AHSC Grant funds for the costs associated with the Transportation Obligations and Developer shall submit such requests to HCD and disburse to the City any such funds received from HCD. City shall apply any such proceeds received to pay the invoices submitted in connection with the draw request.
9. Implementation Agreements. In the event a grant award is received from AHSC, Developer and City recognize that each Party may need additional assurances from the other Parties (including assurances for the Project’s lenders and investors) regarding the specific grant award before commencement of construction of the Project. The Parties agree to cooperate in good faith to, if necessary, amend this Agreement and/or enter into an implementation agreement or other documents necessary to provide reasonable assurances and indemnifications related to the disbursement of AHSC Grant funds. The Parties recognize that any such amendments to this Agreement or execution of additional agreements may require approval of the City’s governing board and the Developer’s Board of Directors.
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10. Notices. Formal notices, demands, and communications between the parties shall be sufficiently given if, and shall not be deemed given unless, dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the parties as follows:
City: City of Modesto
1010 10th Street
Modesto, CA 95353
Attn: Community Development Director
Developer: Visionary Home Builders of California, Inc.
315 N. San Joaquin Street
Stockton, CA 95202
Attn: Carol J. Ornelas
11. Events of Default. The occurrence of any of the following events shall constitute an Event of Default under this Agreement:
(a) A Party fails to perform any of its obligations under this Agreement, and does not cure such failure within 30 days after written notice of such failure has been delivered to the defaulting party in accordance with Section 10 above; or (b) A Party purports to revoke this Agreement or this Agreement becomes ineffective for any reason.
12. Termination. This Agreement shall terminate upon the earlier of: (i) completion of the all obligations under the AHSC Documents; or (ii) mutual agreement of the parties hereto.
13. Third Party Beneficiary. The Partnership shall be a third party beneficiary of this Agreement and shall be entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party to this Agreement.
14. Assignment. City hereby acknowledges and approves the assignment by Developer and the Partnership to the Housing Project’s senior lender (“Construction Lender”) of all of their respective right, title and interest in, to and under the Agreement (the “Collateral”) as collateral security for the Partnership’s obligations to Construction Lender under, and in connection with Construction Lender’s loan to the Partnership. In the event Construction Lender forecloses upon the Collateral, City hereby agrees that Construction Lender shall have all of Developer’s rights and interests under the Agreement. Construction Lender is hereby made an express third party beneficiary of this Section 14, and the parties hereto shall not amend, modify or terminate the Agreement without Construction Lender’s express written consent.
15. Miscellaneous.
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(a) Nothing in this Agreement shall be construed to limit any claim or right which any party may otherwise have at any time against an Indemnitor or any other person arising from any source other than this Agreement, including any claim for fraud, misrepresentation, waste, or breach of contract other than this Agreement, and any rights of contribution or indemnity under any federal or state environmental law or any other applicable law, regulation, or ordinance.
(b) If any party delays in exercising or fails to exercise any right or remedy against a Party, that alone shall not be construed as a waiver of such right or remedy. All remedies of any Party against the other Party are cumulative. (c) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective representatives, heirs, executor, administrators, successors, and assigns. This Agreement may not be amended except by a written instrument executed by the parties hereto.
(d) This Agreement shall be deemed to have been delivered and accepted in the State of California and governed exclusively by the internal substantive laws of the State of California as the same may exist at the date hereof. The parties hereto hereby agree that any action hereon between the parties hereto and their successors in interest may be maintained in a court of competent jurisdiction located in the State of California, and consent to the jurisdiction of any such California court for the purposes connected herewith. (e) Except as otherwise expressly set forth in this Agreement, each party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.
(f) This Agreement may be executed in multiple counterpart copies, any one of which when duly executed, with all formalities hereof, shall be fully binding and effective as the original of this Agreement.
(g) This Agreement shall be effective as of the date first written above, provided however that in the event that the parties do not receive an award of the AHSC Financing, this Agreement shall automatically terminate and be of no further force or effect.
WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement 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.
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EXHIBIT A
Schedule of Performance
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