incorporate Post-Performance Monitoring Report requirements as defined and listed in Exhibit F, and follow the guidance provided in Exhibit L, "Project Monitoring Plan Guidance." 15) NOTIFICATION OF STATE. The Grantee shall promptly notify the State, in writing, of the following items:
A. Events or proposed changes that could affect the scope, budget, or work performed under this Grant Agreement. The Grantee agrees that no substantial change in the scope of a project will be undertaken until written notice of the proposed change has been provided to the State and the State has given written approval for such change. Substantial changes generally include changes to the scope of work, schedule or term, and budget.
B. Any public or media event publicizing the accomplishments and/or results of this Grant Agreement and provide the opportunity for attendance and participation by the State's representatives. The Grantee shall make such notification at least fourteen (14) calendar days prior to the event.
C. Discovery of any potential archaeological or historical resource. Should a potential archaeological or historical resource be discovered during construction, the Grantee agrees that all work in the area of the find shall cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the State has determined what actions should be taken to protect and preserve the resource. The Grantee agrees to implement appropriate actions as directed by the State.
D. The initiation of any litigation or the threat of litigation against the Grantee or an LPS regarding the Project or which may affect the Project in any way.
E. Applicable to construction projects only: Final inspection of the completed work on a project by a Registered Professional (Civil Engineer, Engineering Geologist, or other State approved certified/licensed Professional), in accordance with Exhibit D. The Grantee shall notify the State's Project Manager of the inspection date at least fourteen (14) calendar days prior to the inspection in order to provide the State the opportunity to participate in the inspection. 16) NOTICES. Any notice, demand, request, consent, or approval that either party desires or is required to give to the other party under this Grant Agreement shall be in writing. Notices may be transmitted by any of the following means:
A. By delivery in person.
B. By certified U.S. mail, return receipt requested, postage prepaid.
C. By "overnight" delivery service; provided that next-business-day delivery is requested by the sender.
D. By electronic means.
E. Notices delivered in person will be deemed effective immediately on receipt (or refusal of delivery or receipt). Notices sent by certified mail will be deemed effective given ten (10) calendar days after the date deposited with the U.S. Postal Service. Notices sent by overnight delivery service will be deemed effective one business day after the date deposited with the delivery service. Notices sent electronically will be effective on the date of transmission, which is documented in writing. Notices shall be sent to the addresses listed below. Either party may, by written notice to the other, designate a different address that shall be substituted for the one below. 17) PERFORMANCE EVALUATION. Upon completion of this Grant Agreement, the Grantee's performance will be evaluated by the State and a copy of the evaluation will be placed in the State file and a copy sent to the Grantee.
18) PROJECT REPRESENTATIVES. The Project Representatives during the term of this Grant Agreement are as follows:
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Department of Water Resources
Arthur Hinojosa
Manager, Division of Regional Assistance
P.O. Box 942836
Sacramento, CA 94236
Phone: (916) 902-6713
Email: [email protected]
Direct all inquiries to the Project Manager:
Department of Water Resources
LeAnne Sweeny
Division of Regional Assistance
P.O. Box 942836
Sacramento, CA 94236
Phone: (916) 271-0842
Email: [email protected]
Grant Agreement No. 4600014796
Contra Costa Water District
Stephen J. Welch
General Manager
P.O. Box H20
Concord, CA 94524
Phone: (925) 688-8060
Email: [email protected]
Contra Costa Water District
Maggie Dutton
Grants Specialist
P.O. Box H20
Concord, CA 94524
Phone: (925) 688-8132
Email: [email protected]
Either party may change its Project Representative or Project Manager upon written notice to the other party.
19) STANDARD PROVISIONS. This Grant Agreement is complete and is the final Agreement between the parties. The following Exhibits are attached and made a part of this Grant Agreement by this reference:
Exhibit A - Work Plan
Exhibit B - Budget
Exhibit C - Schedule
Exhibit D - Standard Conditions
Exhibit E - Authorizing Resolution
Exhibit F - Report Formats and Requirements
Exhibit G - Requirements for Data Submittal
Exhibit H - State Audit Document Requirements for the Grantee Exhibit I - Local Project Sponsors and Project Locations Exhibit J - Appraisal Specifications
Exhibit K - Information Needed for Escrow Processing and Closure Exhibit L - Project Monitoring Plan Guidance
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Grant Agreement No. 4600014796
IN WITNESS WHEREOF, the parties hereto have executed this Grant Agreement.
STATE OF CALIFORNIA
DEPARTMENT OF WATER RESOURCES
Arthur Hinojosa
Manager, Division of Regional Assistance
Date __________ _
Approved as to Legal Form and Sufficiency
Robin Brewer
Assistant General Counsel,
Office of the General Counsel
Date ___________ _
CONTRA COSTA WATER DISTRICT
Date __ O_G1__._/_1_s __ J _2-_2. ___ _
APPROVED AS TO FORM
~A~SiS
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9/19/2022
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EXHIBIT A
WORK PLAN
Grant Agreement No. 4600014796
Project: Empire Community Well 312 Treatment System & Flush Line Project IMPLEMENTING AGENCY: City of Modesto
PROJECT DESCRIPTION:
The Project will install a treatment system and flush line at Well 312 to bring the well back into service to provide potable water to the community of Empire. Well 312 went off-line in October 2016 due to primary maximum contaminant level (MCL) exceedances for 1,2,3-Trichloropropane (TCP). In order to be utilized for potable water, onsite wellhead treatment is necessary. Well 312 is a critical well for resilient water supply for the south side of the Empire community, particularly in a sustained drought. Upon completion, it is anticipated that Well 312 will supply an average of 1.5 million gallons per day (MGD) into the water system.
Budget Category (a): Project Administration
Task 1: Project Management
Perform project management and administration activities to ensure compliance with grant requirements, including preparing and submitting supporting grant documents. Prepare invoices including relevant supporting documentation for submittal to DWR via the Grantee. This task includes administrative responsibilities associated with the project such as coordinating with partnering agencies and managing consultants/contractors.
Deliverables:
• Invoices and associated backup documentation
Task 2: Reporting
Prepare quarterly progress reports detailing work completed during the reporting period as outlined in Exhibit F (Report Formats and Requirements) of this Agreement. Submit reports to DWR via the Grantee.
Prepare Project Completion Report and submit to DWR no later than 90 days after project completion for DWR Project Manager's comment and review. The report shall be prepared and presented in accordance with guidance as outlined in Exhibit F (Report Formats and Requirements) of this Agreement.
Deliverables:
• Quarterly Project Progress Reports
• Project Completion Report/Grant Completion Report
• Documentation (e.g., photo) of "Acknowledgment of Credit & Signage" per Standard Condition D.2 Budget Category (b): Land Purchase/Easement
Task 3: Land Purchase
Not applicable.
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Budget Category (c): Planning/Design/Engineering/Environmental Documentation Task 4: Feasibility Studies
The City of Modesto conducted a hydraulic evaluation of the Empire service area in 2017 in response to a significant number of wells being shut down due to elevated levels of 1,2,3-TCP and a reduction in surface water deliveries from the Modesto Irrigation District. This evaluation allowed the City of Modesto to identify necessary projects, develop cost estimates, prioritize potential projects, and determine how the reduction in potable wells would affect the overall system.
Deliverables:
• Hydraulic Evaluation of Empire Water System
Task 5: CEQA Documentation
Complete environmental review pursuant to CEQA. Prepare all necessary environmental documentation.
Prepare letter stating no legal challenges (or addressing legal challenges).
Deliverables:
• All completed CEQA documents as required
• Legal Challenges Letter
Task 6: Permitting
The following permits are anticipated to be acquired for this Project: Stanislaus County Encroachment Permit, City of Modesto Encroachment Permit, Regional Water Quality Control Board Discharge Permit, Division of Drinking Water Operating Permit, and San Joaquin Valley Air District Generator Permit. An agreement with Stanislaus County for discharge of a small amount of well water to an existing storm basin will also be acquired.
Deliverables:
• Copies of permits and agreements as required
Task 7: Design
This task includes development of the Basis of Design Report and preparation of 100% design plans and specifications. The flush line design is 100% complete. Final plans, specifications, and a cost estimate for the treatment system will be prepared for use in the bid package.
Deliverables:
• Basis of Design Report
• 100% Design Plans and Specifications
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Task 8: Project Monitoring Plan
Grant Agreement No. 4600014796
Develop and submit a Project Monitoring Plan per Exhibit L for DWR's review and approval.
Deliverables:
• Project Monitoring Plan
Budget Category (d): Construction/Implementation
Task 9: Contract Services
This task must comply with the Standard Condition D.10 - Competitive Bidding and Procurements. Activities necessary (as applicable) to secure a contractor and award the contract, including: develop bid documents, prepare advertisement and contract documents for construction contract bidding, conduct pre-bid meeting, bid opening and evaluation, selection of the contractor, award of contract, and issuance of notice to proceed.
Deliverables:
• Bid Documents
• Proof of Advertisement
• Award of Contract
• Notice to Proceed
Task 10: Construction Administration
This task includes managing contractor submittal review, answering requests for information, and issuing work directives. A full-time engineering construction observer will be on site for the duration of the Project.
Construction observer duties include documenting of pre-construction conditions, daily construction diary, preparing change orders, addressing questions of contractors on site, reviewing/ updating project schedule, reviewing contractor log submittals and pay requests, forecasting cash flow, notifying contractor if work is not acceptable. Upon completing the Project, the DWR Certificate of Project Completion and record drawings will be provided to DWR.
Deliverables:
• DWR Certificate of Project Completion
• Record Drawings
Task 11: Construction
Construction activities are outlined below.
11 (a): Mobilization and Demobilization: Mobilization will include setting up equipment and materials at the project site. Demobilization will include final testing of installed items and equipment including pressure testing, final clean up, and removal of construction materials. 11 (b): Construction will include:
• Removal of interfering portions of an existing fence for construction activities and reinstallation of the fence after construction activities are complete.
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• Installation of onsite treatment facilities at the existing Well 312 site that will treat the groundwater supply for 1,2,3-TCP contamination. The treatment facility will utilize granular activated carbon vessels and appurtenances.
• Installation of a gooseneck flushing structure and approximately 620 linear feet of 8-inch PVC piping and associated valving that will extend from the flushing structure to the nearby storm basin. • Installation of a back-up generator that would provide auxiliary power to ensure uninterrupted water service if there is a power outage to the community.
Deliverables:
• Photographic Documentation of Progress
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EXHIBIT B
BUDGET
Empire Community Well 312 Treatment System & Flush Line Project Implementing Agency: City of Modesto
BUDGET CATEGORY Grant Amount All Other Cost*
(a) Project Administration $30,000 -
(b) Land Purchase / Easement - -
(c) Planning / Design / Engineering /
$70,000 $169,000 Environmental Documentation
(d) Construction / Implementation $900,000 $364,000
TOTAL COSTS $1,000,000 $533,000
* The City of Modesto will provide remaining funding from the City's Water Fund Reserves.
Total Cost
$30,000
-
$239,000
$1,264,000
$1,533,000
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EXHIBIT C
SCHEDULE
Grant Agreement No. 4600014796
Empire Community Well 312 Treatment System & Flush Line Project BUDGET CATEGORY Start Date End Date
a Project Administration 3/19/2022 12/31/2024
b Land Purchase/ Easement N/A N/A
C Planning / Design / Engineering / Environmental Documentation 7/1/2022 12/31/2022 d Construction / Implementation 1/1/2023 9/30/2024
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EXHIBIT D
STANDARD CONDITIONS
D.1. ACCOUNTING AND DEPOSIT OF FUNDING DISBURSEMENT:
Grant Agreement No. 4600014796
A. Separate Accounting of Funding Disbursements: Grantee shall account for the money disbursed pursuant to this Grant agreement separately from all other Grantee funds. Grantee shall maintain audit and accounting procedures that are in accordance with generally accepted accounting principles and practices, consistently applied. Grantee shall keep complete and accurate records of all receipts and disbursements on expenditures of such funds. Grantee shall require its contractors or subcontractors to maintain books, records, and other documents pertinent to their work in accordance with generally accepted accounting principles and practices. Records are subject to inspection by State at any and all reasonable times.
B. Disposition of Money Disbursed: All money disbursed pursuant to this Grant agreement shall be deposited in a non-interest bearing account, administered, and accounted for pursuant to the provisions of applicable law.
C. Remittance of Unexpended Funds: Grantee shall remit to State any unexpended funds that were disbursed to Grantee under this Grant agreement and were not used to pay Eligible Project Costs within a period of sixty (60) calendar days from the final disbursement from State to Grantee of funds or, within thirty (30) calendar days of the expiration of the Grant agreement, whichever comes first.
D.2. ACKNOWLEDGEMENT OF CREDIT AND SIGNAGE: Grantee shall include appropriate acknowledgement of credit to the State for its support when promoting the Project or using any data and/or information developed under this Grant agreement. Signage shall be posted in a prominent location at Project site(s) (if applicable) or at the Grantee's headquarters and shall include the Department of Water Resources color logo and the following disclosure statement: "Funding for this project has been provided in full or in part from the Budget Act of 2021 and through an agreement with the State Department of Water Resources." The Grantee shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within this Paragraph.
D.3. AMENDMENT: This Grant agreement may be amended at any time by mutual agreement of the Parties, except insofar as any proposed amendments are in any way contrary to applicable law.
Requests by the Grantee for amendments must be in writing stating the amendment request and the reason for the request. Requests solely for a time extension must be submitted at least 90 days prior to the work completion date set forth in Paragraph 2. Any other request for an amendment must be submitted at least 180 days prior to the work completion date set forth in Paragraph 2. State shall have no obligation to agree to an amendment.
0.4. AMERICANS WITH DISABILITIES ACT: By signing this Grant agreement, Grantee assures State that it complies with the Americans with Disabilities Act (ADA) of 1990, (42 U.S.C. § 12101 et seq.), which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA.
D.5. AUDITS: State reserves the right to conduct an audit at any time between the execution of this Grant agreement and the completion of the Project, with the costs of such audit borne by State. After completion of the Project, State may require Grantee to conduct a final audit to State's specifications, at Grantee's expense, such audit to be conducted by and a report prepared by an independent Certified Public Accountant. Failure or refusal by Grantee to comply with this provision shall be considered a breach of this Grant agreement, and State may elect to pursue any remedies provided in Paragraph 1 O or take any other action it deems necessary to protect its interests. The Grantee agrees it shall return any audit disallowances to the State.
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Pursuant to Government Code section 8546.7, the Grantee shall be subject to the examination and audit by the State for a period of three (3) years after final payment under this Grant agreement with respect of all matters connected with this Grant agreement, including but not limited to, the cost of administering this Grant agreement. All records of Grantee or its contractor or subcontractors shall be preserved for this purpose for at least three (3) years after receipt of the final disbursement under this Agreement.
D.6. BUDGET CONTINGENCY: If the Budget Act of the current year covered under this Grant agreement does not appropriate sufficient funds for this program, this Grant agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of State to make any payments under this Grant agreement. In this event, State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Grant agreement and Grantee shall not be obligated to perform any provisions of this Grant agreement. Nothing in this Grant agreement shall be construed to provide Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year after the current year covered by this Grant agreement is reduced or deleted by the Budget Act, by Executive Order, or by order of the Department of Finance, the State shall have the option to either cancel this Grant agreement with no liability occurring to State, or offer a Grant agreement amendment to Grantee to reflect the reduced amount.
D. 7. CEQA: Activities funded under this Grant agreement, regardless of funding source, must be in compliance with the California Environmental Quality Act (CEQA). (Pub. Resources Code,§ 21000 et seq.) Any work that is subject to CEQA and funded under this Agreement shall not proceed until documents that satisfy the CEQA process are received by the State's Project Manager and the State has completed its CEQA compliance. Work funded under this Agreement that is subject to a CEQA document shall not proceed until and unless approved by the Department of Water Resources. Such approval is fully discretionary and shall constitute a condition precedent to any work for which it is required. If CEQA compliance by the Grantee is not complete at the time the State signs this Agreement, once State has considered the environmental documents, it may decide to require changes, alterations, or other mitigation to the Project; or to not fund the Project. Should the State decide to not fund the Project, this Agreement shall be terminated in accordance with Paragraph 10, "Default Provisions."
0.8. CHILD SUPPORT COMPLIANCE ACT: The Grantee acknowledges in accordance with Public Contract Code section 7110, that:
A. The Grantee recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Family Code section 5200 et seq.; and B. The Grantee, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
0.9. CLAIMS DISPUTE: Any claim that the Grantee may have regarding performance of this Agreement including, but not limited to, claims for additional compensation or extension of time, shall be submitted to the DWR Project Representative, within thirty (30) days of the Grantee's knowledge of the claim.
State and Grantee shall then attempt to negotiate a resolution of such claim and process an amendment to this Agreement to implement the terms of any such resolution.
0.10. COMPETITIVE BIDDING AND PROCUREMENTS: Grantee's contracts with other entities for the acquisition of goods and services and construction of public works with funds provided by State under this Grant agreement must be in writing and shall comply with all applicable laws and regulations regarding the securing of competitive bids and undertaking competitive negotiations. If the Grantee does not have a written policy to award contracts through a competitive bidding or sole source process, the Department of General Services' State Contracting Manual rules must be followed and DocuSign Envelope ID: F31656A3-5706-4029-8423-D38D98030EB0 #28..
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are available at: https://www.dgs.ca.gov/OLS/Resources/Page-Content/Office-of-Legal-ServicesResources-List-Folder/State-Contracting.
D.11. COMPUTER SOFTWARE: Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Grant agreement for the acquisition, operation, or maintenance of computer software in violation of copyright laws.
D.12. CONFLICT OF INTEREST: All participants are subject to State and Federal conflict of interest laws.
Failure to comply with these laws, including business and financial disclosure provisions, will result in the application being rejected and any subsequent contract being declared void. Other legal action may also be taken. Applicable statutes include, but are not limited to, Government Code section 1090 and Public Contract Code sections 10410 and 10411, for State conflict of interest requirements.
A. Current State Employees: No State officer or employee shall engage in any employment, activity, or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any State agency, unless the employment, activity, or enterprise is required as a condition of regular State employment. No State officer or employee shall contract on his or her own behalf as an independent contractor with any State agency to provide goods or services.
B. Former State Employees: For the two-year period from the date he or she left State employment, no former State officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements, or any part of the decision-making process relevant to the contract while employed in any capacity by any State agency. For the twelvemonth period from the date he or she left State employment, no former State officer or employee may enter into a contract with any State agency if he or she was employed by that State agency in a policy-making position in the same general subject area as the proposed contract within the twelve-month period prior to his or her leaving State service.
C. Employees of the Grantee: Employees of the Grantee shall comply with all applicable provisions of law pertaining to conflicts of interest, including but not limited to any applicable conflict of interest provisions of the California Political Reform Act. (Gov. Code, § 87100 et seq.) D. Employees and Consultants to the Grantee: Individuals working on behalf of a Grantee may be required by the Department to file a Statement of Economic Interests (Fair Political Practices Commission Form 700) if it is determined that an individual is a consultant for Political Reform Act purposes.
D.13. DELIVERY OF INFORMATION, REPORTS, AND DATA: Grantee agrees to expeditiously provide throughout the term of this Grant agreement, such reports, data, information, and certifications as may be reasonably required by State.
D.14. DISPOSITION OF EQUIPMENT: Grantee shall provide to State, not less than thirty (30) calendar days prior to submission of the final invoice, an itemized inventory of equipment purchased with funds provided by State. The inventory shall include all items with a current estimated fair market value of more than $5,000.00 per item. Within sixty (60) calendar days of receipt of such inventory State shall provide Grantee with a list of the items on the inventory that State will take title to. All other items shall become the property of Grantee. State shall arrange for delivery from Grantee of items that it takes title to. Cost of transportation, if any, shall be borne by State.
D.15. DRUG-FREE WORKPLACE CERTIFICATION: Certification of Compliance: By signing this Grant agreement, Grantee, its contractors or subcontractors hereby certify, under penalty of perjury under the laws of State of California, compliance with the requirements of the Drug-Free Workplace Act of 1990 (Gov. Code, § 8350 et seq.) and have or will provide a drug-free workplace by taking the following actions:
A. Publish a statement notifying employees, contractors, and subcontractors that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited DocuSign Envelope ID: F31656A3-5706-4029-8423-D38D98030EB0 #28..
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and specifying actions to be taken against employees, contractors, or subcontractors for violations, as required by Government Code section 8355.
B. Establish a Drug-Free Awareness Program, as required by Government Code section 8355 to inform employees, contractors, or subcontractors about all of the following:
i. The dangers of drug abuse in the workplace,
ii. Grantee's policy of maintaining a drug-free workplace, iii. Any available counseling, rehabilitation, and employee assistance programs, and iv. Penalties that may be imposed upon employees, contractors, and subcontractors for drug abuse violations.
C. Provide, as required by Government Code section 8355, that every employee, contractor, and/or subcontractor who works under this Grant agreement:
i. Will receive a copy of Grantee's drug-free policy statement, and ii. Will agree to abide by terms of Grantee's condition of employment, contract or subcontract.
D.16. EASEMENTS: Where the Grantee acquires property in fee title or funds improvements to real property already owned in fee by the Grantee using State funds provided through this Grant agreement, an appropriate easement or other title restriction providing for floodplain preservation and agricultural and/or wildlife habitat conservation for the subject property in perpetuity, approved by the State, shall be conveyed to a regulatory or trustee agency or conservation group acceptable to the State. The easement or other title restriction must be in first position ahead of any recorded mortgage or lien on the property unless this requirement is waived by the State.
Where the Grantee acquires an easement under this Agreement, the Grantee agrees to monitor and enforce the terms of the easement, unless the easement is subsequently transferred to another land management or conservation organization or entity with State permission, at which time monitoring and enforcement responsibilities will transfer to the new easement owner.
Failure to provide an easement acceptable to the State may result in termination of this Agreement.
D.17. FINAL INSPECTIONS AND CERTIFICATION OF REGISTERED PROFESSIONAL: Upon completion of the Project, Grantee shall provide for a final inspection and certification by a California Registered Professional (i.e., Professional Civil Engineer, Engineering Geologist), that the Project has been completed in accordance with submitted final plans and specifications and any modifications thereto and in accordance with this Grant Agreement.
D.18. GOVERNING LAW: This Grant agreement is governed by and shall be interpreted in accordance with the laws of the State of California.
D.19. GRANTEE'S RESPONSIBILITIES: Grantee and its representatives shall:
A. Faithfully and expeditiously perform or cause to be performed all project work as described in Exhibit A and in accordance with Exhibits B and C.
B. Accept and agree to comply with all terms, provisions, conditions, and written commitments of this Grant agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and statements made by Grantee in the application, documents, amendments, and communications filed in support of its request for funding.
C. Comply with all applicable California, federal, and local laws and regulations.
D. Implement the Project in accordance with applicable provisions of the law.
E. Fulfill its obligations under the Grant agreement and be responsible for the performance of the Project.
F. Obtain any and all permits, licenses, and approvals required for performing any work under this Grant agreement, including those necessary to perform design, construction, or operation and maintenance of the Project. Grantee shall provide copies of permits and approvals to State.
G. Be solely responsible for design, construction, and operation and maintenance of projects within the work plan. Review or approval of plans, specifications, bid documents, or other construction documents by State is solely for the purpose of proper administration of funds by State and shall not be deemed to relieve or restrict responsibilities of Grantee under this Agreement.
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H. Be solely responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement, including, but not limited to, contractors, subcontractors, suppliers, and providers of services. The Grantee shall be responsible for any and all disputes arising out of its contracts for work on the Project, including but not limited to payment disputes with contractors and subcontractors. The State will not mediate disputes between the Grantee and any other entity concerning responsibility for performance of work.
D.20. INDEMNIFICATION: Grantee shall indemnify and hold and save the State, its officers, agents, and employees, free and harmless from any and all liabilities for any claims and damages (including inverse condemnation) that may arise out of the Project and this Agreement, including, but not limited to any claims or damages arising from planning, design, construction, maintenance and/or operation of levee rehabilitation measures for this Project and any breach of this Agreement. Grantee shall require its contractors or subcontractors to name the State, its officers, agents and employees as additional insureds on their liability insurance for activities undertaken pursuant to this Agreement.
D.21. INDEPENDENT CAPACITY: Grantee, and the agents and employees of Grantees, in the performance of the Grant agreement, shall act in an independent capacity and not as officers, employees, or agents of the State.
D.22. INSPECTION OF BOOKS, RECORDS, AND REPORTS: During regular office hours, each of the parties hereto and their duly authorized representatives shall have the right to inspect and to make copies of any books, records, or reports of either party pertaining to this Grant agreement or matters related hereto. Each of the parties hereto shall maintain and shall make available at all times for such inspection accurate records of all its costs, disbursements, and receipts with respect to its activities under this Grant agreement. Failure or refusal by Grantee to comply with this provision shall be considered a breach of this Grant agreement, and State may withhold disbursements to Grantee or take any other action it deems necessary to protect its interests.
D.23. INSPECTIONS OF PROJECT BY STATE: State shall have the right to inspect the work being performed at any and all reasonable times during the term of the Grant agreement. This right shall extend to any subcontracts, and Grantee shall include provisions ensuring such access in all its contracts or subcontracts entered into pursuant to its Grant agreement with State.
D.24. LABOR CODE COMPLIANCE: The Grantee agrees to be bound by all the provisions of the Labor Code regarding prevailing wages and shall monitor all contracts subject to reimbursement from this Agreement to assure that the prevailing wage provisions of the Labor Code are being met. Current Department of Industrial Relations (DIR) requirements may be found at: http://www.dir.ca.gov/ lcp.asp.
For more information, please refer to DI R's Public Works Manual at: https://www.dir.ca.gov/ dlse/PWManualCombined.pdf. The Grantee affirms that it is aware of the provisions of section 3700 of the Labor Code, which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance, and the Grantee affirms that it will comply with such provisions before commencing the performance of the work under this Agreement and will make its contractors and subcontractors aware of this provision.
D.25. MODIFICATION OF OVERALL WORK PLAN: At the request of the Grantee, the State may at its sole discretion approve non-material changes to the portions of Exhibits A, B, and C which concern the budget and schedule without formally amending this Grant agreement. Non-material changes with respect to the budget are changes that only result in reallocation of the budget and will not result in an increase in the amount of the State Grant agreement. Non-material changes with respect to the Project schedule are changes that will not extend the term of this Grant agreement. Requests for nonmaterial changes to the budget and schedule must be submitted by the Grantee to the State in writing and are not effective unless and until specifically approved by the State's Program Manager in writing.
D.26. NONDISCRIMINATION: During the performance of this Grant agreement, Grantee and its contractors or subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee DocuSign Envelope ID: F31656A3-5706-4029-8423-D38D98030EB0 #28..
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or applicant for employment because of sex (gender), sexual orientation, gender identity, race, color, ancestry, religion, creed, national origin (including language use restriction), pregnancy, physical disability (including HIV and AIDS), mental disability, medical condition (cancer/genetic characteristics), age (over 40), marital/domestic partner status, and denial of medical and family care leave or pregnancy disability leave. Grantee and its contractors or subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Grantee and its contractors or subcontractors shall comply with the provisions of the California Fair Employment and Housing Act (Gov. Code, § 12990.) and the applicable regulations promulgated there under (Cal. Code Regs., tit. 2, § 11000 et seq.). The applicable regulations of the Fair Employment and Housing are incorporated into this Agreement by reference. Grantee and its contractors or subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
Grantee shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Grant agreement.
0.27. OPINIONS AND DETERMINATIONS: Where the terms of this Grant agreement provide for action to be based upon, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable.
D.28. PERFORMANCE BOND: Where contractors are used, the Grantee shall not authorize construction to begin until each contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100%) of contract value, and labor and materials (100%) of contract value. This requirement shall not apply to any contract for less than $25,000.00. Any bond issued pursuant to this paragraph must be issued by a California-admitted surety. (Pub. Contract Code, § 7103; Code Civ. Proc., § 995.311.)
0.29. PRIORITY HIRING CONSIDERATIONS: If this Grant agreement includes services in excess of $200,000, the Grantee shall give priority consideration in filling vacancies in positions funded by the Grant agreement to qualified recipients of aid under Welfare and Institutions Code section 11200 in accordance with Public Contract Code section 10353.
0.30. PROHIBITION AGAINST DISPOSAL OF PROJECT WITHOUT STATE PERMISSION: The Grantee shall not sell, abandon, lease, transfer, exchange, mortgage, hypothecate, or encumber in any manner whatsoever all or any portion of any real or other property necessarily connected or used in conjunction with the Project, or with Grantee's service of water, without prior permission of State.
Grantee shall not take any action, including but not limited to actions relating to user fees, charges, and assessments that could adversely affect the ability of Grantee meet its obligations under this Grant agreement, without prior written permission of State. State may require that the proceeds from the disposition of any real or personal property be remitted to State.
0.31. PROJECT ACCESS: The Grantee shall ensure that the State, the Governor of the State, or any authorized representative of the foregoing, will have safe and suitable access to the Project site at all reasonable times during Project construction and thereafter for the term of this Agreement.
0.32. REMAINING BALANCE: In the event the Grantee does not submit invoices requesting all of the funds encumbered under this Grant Agreement, any remaining funds revert to the State. The State will notify the Grantee stating that the Project file is closed and any remaining balance will be disencumbered and unavailable for further use under this Grant Agreement.
0.33. REMEDIES NOT EXCLUSIVE: The use by either party of any remedy specified herein for the enforcement of this Grant agreement is not exclusive and shall not deprive the party using such remedy of, or limit the application of, any other remedy provided by law.
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0.34. RETENTION: The State shall withhold ten percent (10%) of the funds, for each project, until the project is complete, and a Final Project Report is approved and accepted by DWR. If a project has multiple Components (within a project), at the State's discretion and upon a written request by the Grantee, any retained amount attributable to a single component may be released when that component is complete and the Final Component Completion Report is approved. Upon approval of the Final Project Report and/or Final Component Completion Report, any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest.
0.35. RIGHTS IN DATA: Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes and other written or graphic work produced in the performance of this Grant agreement shall be made available to the State and shall be in the public domain to the extent to which release of such materials is required under the California Public Records Act. (Gov.
Code, § 6250 et seq.) Grantee may disclose, disseminate and use in whole or in part, any final form data and information received, collected and developed under this Grant agreement, subject to appropriate acknowledgement of credit to State for financial support. Grantee shall not utilize the materials for any profit-making venture or sell or grant rights to a third party who intends to do so. The State shall have the right to use any data described in this paragraph for any public purpose.
D.36. SEVERABILITY: Should any portion of this Grant agreement be determined to be void or unenforceable, such shall be severed from the whole and the Grant agreement shall continue as modified.
0.37. SUSPENSION OF PAYMENTS: This Grant agreement may be subject to suspension of payments or termination, or both if the State determines that:
A. Grantee, its contractors, or subcontractors have made a false certification, or B. Grantee, its contractors, or subcontractors violates the certification by failing to carry out the requirements noted in this Grant agreement.
0.38. SUCCESSORS AND ASSIGNS: This Grant agreement and all of its provisions shall apply to and bind the successors and assigns of the parties. No assignment or transfer of this Grant agreement or any part thereof, rights hereunder, or interest herein by the Grantee shall be valid unless and until it is approved by State and made subject to such reasonable terms and conditions as State may impose.
0.39. TERMINATION BY GRANTEE: Subject to State approval which may be reasonably withheld, Grantee may terminate this Agreement and be relieved of contractual obligations. In doing so, Grantee must provide a reason(s) for termination. Grantee must submit all progress reports summarizing accomplishments up until termination date.
0.40. TERMINATION FOR CAUSE: Subject to the right to cure under Paragraph 10, "Default Provisions," the State may terminate this Grant agreement and be relieved of any payments should Grantee fail to perform the requirements of this Grant agreement at the time and in the manner herein, provided including but not limited to reasons of default under Paragraph 10, "Default Provisions."
0.41. TERMINATION WITHOUT CAUSE: The State may terminate this Agreement without cause on 30 days' advance written notice. The Grantee shall be reimbursed for all reasonable expenses incurred up to the date of termination.
0.42. THIRD PARTY BENEFICIARIES: The parties to this Agreement do not intend to create rights in, or grant remedies to, any third party as a beneficiary of this Agreement, or any duty, covenant, obligation or understanding established herein.
0.43. TIMELINESS: Time is of the essence in this Grant Agreement.
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D.44. TRAVEL : Only ground transportation and lodging are eligible for grant reimbursement. Per diem costs will not be eligible for grant reimbursement. Any reimbursement for necessary travel shall be at rates not to exceed those set by the California Department of Human Resources. These rates may be found at: http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. Reimbursement will be at the State travel amounts that are current as of the date costs are incurred. No travel outside of the project sponsor's service area shall be reimbursed unless prior written authorization is obtained from the State.
D.45. UNION ORGANIZING: Grantee, by signing this Grant agreement, hereby acknowledges the applicability of Government Code sections 16645 through 16649 to this Grant Agreement.
Furthermore, Grantee, by signing this Grant Agreement, hereby certifies that:
A. No State funds disbursed by this Grant agreement will be used to assist, promote, or deter union organizing.
B. Grantee shall account for State funds disbursed for a specific expenditure by this Grant agreement to show those funds were allocated to that expenditure.
C. Grantee shall, where State funds are not designated as described in (b) above, allocate, on a pro rata basis, all disbursements that support the program.
D. If Grantee makes expenditures to assist, promote, or deter union organizing, Grantee will maintain records sufficient to show that no State funds were used for those expenditures and that Grantee shall provide those records to the Attorney General upon request.
D.46. VENUE: The State and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement.
D.47. WAIVER OF RIGHTS: None of the provisions of this Grant Agreement shall be deemed waived unless expressly waived in writing. It is the intention of the parties here to that from time to time either party may waive any of its rights under this Grant agreement unless contrary to law. Any waiver by either party of rights arising in connection with the Grant agreement shall not be deemed to be a waiver with respect to any other rights or matters, and such provisions shall continue in full force and effect.
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EXHIBIT E
AUTHORIZING RESOLUTION
RESOLUTION NO. 22-012
A RESOLUTION OF THE BOARD OF DIRECTORS
Grant Agreement No. 4600014796
OF THE CONTRA COSTA WATER DISTRICT AUTHORIZING
AN APPLICATION TO THE 2021 URBAN AND MIJlTIBENEFIT
DROUGHT REUEF GRANT PROGRAM AND EXECUTION OF AN AGREEMENT
WITH THE CAUFORNIA DEPARTMENT OF WATER RESOURCES
WHEREAS, the Budget Act of 2021 {Stats. 2021, ch. 240 §80) allocated $300 million to the Califomia Department of Water Resources (OWR) to deliver grants for interim and immediate drought relief to urban communities and for multibenefit projects; and WHEREAS, the grant funding is intended to provide water to communities that face the loss or contamination of their water supplies, to address immediate impacts on human health and safety, and to protect fish and wildlife resources; and WHEREAS, DWR issued a Guidelines and Proposal SOiicitation Package for the 2021 Urban and Muitibenefit Drought Relief Grant Program to solicit applications for available funding on a competitive basts, statewide; and
WHEREAS, a portion of available funding is available as a set-aside for projects that support Underrepresented Communities and Native American Tribes through the Proposition 1 Integrated Regional Water Management (IRWM) Disadvantaged Community {DAC) Involvement Program; and
WHEREAS, the Contra COsta Water District (District) currently serves as the grantee and grant administrator of a Proposition 1 DAC Involvement Grant on behatf of the San Joaquin River Funding Area {SJRFA); and
WHEREAS, the SJRFA seeks to request $1 milllon of the set-aside funding from the 2021 Urban and Multibenefit Drought Relief Grant Program to benefit the City of Modesto, which intends to use the funding for a water supply and water treatment project benefitting a DAC; and
WHEREAS, as the grantee and grant administrator, the District would apply for the OAC set-aside funding on behalf of the SJRFA, and, upon award, would amend the awarded amount into the District's existing Proposition 1 DAC Involvement Program Grant Agreement No. 4600012737;and
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WHEREAS, grant applicants must provide a copy of a resotutlon adopted by the applicant1s governing body designating an authorized representative to submit an application and execute a funding agreement to receive a 2021 Urban and Multibeneflt Drought Relief Grant.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Contra Costa Water District that the General Manager, or deslgnee, Is hereby authorized to prepare the necessary data and conduct Investigations; execute and submit all documents, applications, and proposals; and take other such actions that may be necessary to apply for grant funding from 0WR.
BE IT FURTHER RESOLVED, by the Board of Direi!ctors of the Contra Costa Water District that the General Manager, or designee, is hereby authorized to execute any and all agreements and amendments thereto, in a form to be approved by legal counsel, and to submit all documents, payment requests, and reports necessary to obtain grant funding from DWR.
The foregoing Resolution was duly and regularly adopted at a meeting held on the 20th day of April 2022, by the Board of Directors of the Contra Costa Water District by the following vote:
AYES: Martinez, Burgh, Avila, Borba, Holdaway
NOES:
ABSTAIN:
ABSENT:
Lisa M. Borba, President
ATTEST:
Veronica Sepulveda, District Secretary
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EXHIBIT F
REPORT FORMATS AND REQUIREMENTS
Grant Agreement No. 4600014796
The following reporting formats should be utilized. Please obtain State approval prior to submitting a report in an alternative format.
PROGRESS REPORTS
Progress reports shall generally use the following format. This format may be modified as necessary to effectively communicate information. For each project, discuss the following at the task level, as organized in Exhibit A:
• Percent complete (by work)
• Discussion of work accomplished during the reporting period. • Milestones or deliverables completed/submitted during the reporting period. • Meetings held or attended.
• Scheduling concerns and issues encountered that may delay completion of the task.
For each project, discuss the following at the project level, as organized in Exhibit A:
• Work anticipated for the next reporting period.
• Photo documentation, as appropriate.
• Budget projections for grant share for the next two quarters • Any schedule or budget modifications approved by DWR during the reporting period.
PROJECT COMPLETION REPORT
The Project Completion Report (or a Component Completion Report, if a Project has multiple Components) shall generally use the following format provided below for each project after completion.
Executive Summary
The Executive Summary should include a brief summary of project information and include the following items:
• Brief description of work proposed to be done in the original Grant application. • List any official amendments to this Grant Agreement, with a short description of the amendment.
Reports and/or Products
The following items should be provided, unless already submitted as a deliverable:
• A copy of any final technical report or study, produced for or utilized in this Project as described in the Exhibit A
• Electronic copies of any data collected, not previously submitted • Discussion of problems that occurred during the work and how those problems were resolved • Final project schedule showing actual progress versus planned progress as shown in Exhibit C Additional information that may be applicable for implementation projects includes the following:
• Record drawings
• Final geodetic survey information
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• Project photos
Cost & Disposition of Funds
A list showing:
• Summary of Project costs including the following items:
o Accounting of the cost of project expenditure;
Grant Agreement No. 4600014796
o Include all internal and external costs not previously disclosed (i.e., additional cost share); and o A discussion of factors that positively or negatively affected the project cost and any deviation from the original Project cost estimate.
Additional Information
• Benefits derived from the Project, with quantification of such benefits provided. • If applicable, Certification from a California Registered Professional (Civil Engineer or Geologist, as appropriate), consistent with Exhibit D, that the project was conducted in accordance with the approved Work Plan in Exhibit A and any approved amendments thereto. • Submittal schedule for the Post-Performance Report.
GRANT COMPLETION REPORT
The Grant Completion Report shall generally use the following format. This format may be modified as necessary to effectively communicate information on the various projects funded by this Grant Agreement, and includes the following:
• Executive Summary: consisting of a maximum of ten (10) pages summarizing information for the grant as well as the individual projects.
• Brief discussion whether the level, type, or magnitude of benefits of each project are comparable to the original project proposal; any remaining work to be completed and mechanism for their implementation; and a summary of final funds disbursement for each project.
Additional Information: Summary of the submittal schedule for the Post-Performance Reports applicable for the projects in this Grant Agreement.
POST-PERFORMANCE REPORT
The Post-Performance Report (PPR) should be concise and focus on how each project is performing compared to its expected performance; whether the project is being operated and maintained and providing intended benefits as proposed. A PPR template may be provided by the assigned DWR Grant Manager upon request. The PPR should follow the general format of the template and provide requested information as applicable. The following information, at a minimum, shall be provided:
Reports and/or products
• Header including the following:
o Grantee Name
o Implementing Agency (if different from Grantee)
o Grant Agreement Number
o Project Name
o Funding grant source
o Report number
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• Post-Performance Report schedule
• Time period of the annual report (e.g., January 2018 through December 2018) • Project Description Summary
• Discussion of the project benefits
• An assessment of any differences between the expected versus actual project benefits as stated in the original application. Where applicable, the reporting should include quantitative metrics (e.g., new acrefeet of water produced that year, etc.). • Summary of any additional costs and/or benefits deriving from the project since its completion, if applicable.
• Any additional information relevant to or generated by the continued operation of the project.
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EXHIBIT G
REQUIREMENTS FOR DA TA SUBMITTAL
Surface and Groundwater Quality Data:
Grant Agreement No. 4600014796
Groundwater quality and ambient surface water quality monitoring data that include chemical, physical, or biological data shall be submitted to the State as described below, with a narrative description of data submittal activities included in project reports.
Surface water quality monitoring data shall be prepared for submission to the California Environmental Data Exchange Network (CEDEN). The CEDEN data templates are available on the CEDEN website.
Inclusion of additional data elements described on the data templates is desirable. Data ready for submission should be uploaded to your CEDEN Regional Data Center via the CEDEN website. CEDEN website: http://www.ceden.org.
If a project's Work Plan contains a groundwater ambient monitoring element, groundwater quality monitoring data shall be submitted to the State for inclusion in the State Water Resources Control Board's Groundwater Ambient Monitoring and Assessment (GAMA) Program Information on the GAMA Program can be obtained at: https://www.waterboards.ca.qov/water issues/programs/qama/. If further information is required, the Grantee can contact the State Water Resources Control Board (SWRCB) GAMA Program.
A listing of SWRCB staff involved in the GAMA program can be found at:
https://www.waterboards.ca.gov/water issues/programs/gama/contact.shtml.
Groundwater Level Data
For each project that collects groundwater level data, the Grantee will need to submit this data to DWR's Water Data Library (WDL), with a narrative description of data submittal activities included in project reports, as described in Exhibit F, "Report Formats and Requirements." Information regarding the WDL and in what format to submit data in can be found at: http://www.water.ca.gov/waterdatalibrary/.
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EXHIBIT H
Grant Agreement No. 4600014796
STATE AUDIT DOCUMENT REQUIREMENTS FOR THE GRANTEE
The following provides a list of documents typically required by State Auditors and general guidelines for the Grantee. List of documents pertains to both State funding and the Grantee's Local Cost Share and details the documents/records that State Auditors would need to review in the event of this Grant Agreement is audited.
The Grantee should ensure that such records are maintained for each funded project.
State Audit Document Requirements
Internal Controls
1. Organization chart (e.g., Agency's overall organization chart and organization chart for the State funded Program/Project).
2. Written internal procedures and flowcharts for the following:
a) Receipts and deposits
b) Disbursements
c) State reimbursement requests
d) Expenditure tracking of State funds
e) Guidelines, policy, and procedures on State funded Program/Project
3. Audit reports of the Agency internal control structure and/or financial statements within the last two years.
4. Prior audit reports on the State funded Program/Project.
State Funding:
1. Original Grant Agreement, any amendment(s) and budget modification documents.
2. A listing of all bond-funded grants, loans, or subventions received from the State.
3. A listing of all other funding sources for each Program/Project.
Contracts:
1. All subcontractor and consultant contracts and related or partners' documents, if applicable.
2. Contracts between the Agency and member agencies as related to the State funded Program/Project.
Invoices:
1. Invoices from vendors and subcontractors for expenditures submitted to the State for payments under the Grant Agreement.
2. Documentation linking subcontractor invoices to State reimbursement, requests and related Grant Agreement budget line items.
3. Reimbursement requests submitted to the State for the Grant Agreement.
Cash Documents:
1. Receipts ( copies of warrants) showing payments received from the State.
2. Deposit slips (or bank statements) showing deposit of the payments received from the State.
3. Cancelled checks or disbursement documents showing payments made to vendors, subcontractors, consultants, and/or agents under the grants or loans.
4. Bank statements showing the deposit of the receipts.
Accounting Records:
1. Ledgers showing entries for funding receipts and cash disbursements.
2. Ledgers showing receipts and cash disbursement entries of other funding sources.
3. Bridging documents that tie the general ledger to requests for Grant Agreement reimbursement.
Administration Costs:
1. Supporting documents showing the calculation of administration costs.
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Personnel:
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1. List of all contractors and Agency staff that worked on the State funded Program/Project.
2. Payroll records including timesheets for contractor staff and the Agency personnel who provided services charged to the program
Project Files:
1. All supporting documentation maintained in the project files.
2. All Grant Agreement related correspondence.
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EXHIBIT I
Grant Agreement No. 4600014796
LOCAL PROJECT SPONSORS AND PROJECT LOCATIONS
The Grantee has assigned, for each project, a Local Project Sponsor (LPS). LPSs may act on behalf of the Grantee for the purposes of individual project management, oversight, compliance, and operations and maintenance. LPSs are identified for each sponsored Project below:
Local Project Sponsor Agency Designation
Sponsored Project: Empire Community Well 312 Treatment System & Flush Line Project Sponsor Agency: City of Modesto
Agency Address: 1010 10th Street, Modesto, CA 95354
Project Location: Modesto, California (37.631002000000002, -120.89973) Modesto
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EXHIBIT J
APPRAISAL SPECIFICATIONS
Grant Agreement No. 4600014796
For property acquisitions funded by this Grant Agreement, the Grantee shall submit an appraisal for review and approval by the Department of General Services or DWR's Real Estate Branch prior to reimbursement or depositing State funds into an escrow account. This information should be submitted at least 90 days prior to a reimbursement request to account for review time. All appraisal reports, regardless of report format, shall include all applicable Appraisal Specifications below. Appraisals for a total compensation of $150,000 or more shall be reported as a Self-Contained Appraisal Report. Appraisals for a total compensation of less than $150,000 may be reported as a Summary Appraisal Report, which includes all information necessary to arrive at the appraiser's conclusion. Appraisal Specifications 14, 16, 21, 23-25, and 28 shall be a narrative analysis regardless of the reporting format.
1. Title page with sufficient identification of appraisal assignment.
2. Letter of transmittal summarizing important assumptions and conclusions, value estimate, date of value and date of report.
3. Table of contents.
4. Assumptions and Limiting Conditions, Extraordinary Assumptions, and Hypothetical Conditions as needed.
5. Description of the scope of work, including the extent of data collection and limitations, if any, in obtaining relevant data.
6. Definition of Fair Market Value, as defined by California Code of Civil Procedure, § 1263.320.
7. Photographs of subject property and comparable data, including significant physical features and the interior of structural improvements, if applicable.
8. Copies of Tax Assessor's plat map with the subject marked along with all contiguous assessor's parcels that depict the ownership.
9. A legal description of the subject property, if available.
10. For large, remote or inaccessible parcels, provide aerial photographs or topographical maps depicting the subject boundaries.
11. Three (3) year subject property history, including sales, listings, leases, options, zoning, applications for permits, or other documents or facts that might indicate or affect use or value.
12. Discussion of any current Agreement of Sale, option, or listing of subject property. This issue required increased diligence since state agencies often utilize non-profit organizations to quickly acquire sensitive habitat parcels using Option Agreements. However, due to confidentiality clauses, the terms of the Option are often not disclosed to the State. If the appraiser discovers evidence of an Option or the possible existence of an Option, and the terms cannot be disclosed due to a confidentiality clause, then the appraiser is to cease work and contact the client.
13. Regional, area, and neighborhood analyses. This information may be presented in a summary format.
14. Market conditions and trends including identification of the relevant market area, a discussion of supply and demand within the relevant market area, and a discussion of the relevant market factors impacting demand for site acquisition and leasing within the relevant market area. This information may be presented in a summary format.
15. Discussion of subject land/site characteristics (size, topography, current use, elevations, zoning and land use issues, development entitlements, General Plan designation, utilities, offsite improvements, access, land features such as levees and creeks, offsite improvements, easements and DocuSign Envelope ID: F31656A3-5706-4029-8423-D38D98030EB0 #28..
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encumbrances, covenants, conditions and restrictions, flood and earthquake information, toxic hazards, water rights, mineral rights, toxic hazards, taxes and assessments, etc.).
16. Description of subject improvements including all structures, square footage, physical age, type of construction, quality of construction, condition of improvements and/or identification of any permanent plantings. Discussion of construction cost methodology, costs included and excluded, accrued depreciation from all causes, remaining economic life, items of deferred maintenance and cost to cure, and incurable items. Construction cost data shall include cost data source, date of estimate or date of publication of cost manual, section and page reference of cost manual, copies of cost estimate if provided from another source, replacement or reproduction cost method used, and supporting calculations including worksheets or spreadsheets.
17. Subject property leasing and operating cost history, including all items of income and expense.
18. Analysis and conclusion of the larger parcel for partial taking appraisals. For partial taking appraisals, Appraisal Specifications generally apply to the larger parcel rather than an ownership where the larger parcel is not the entire ownership.
19. Include a copy of a recent preliminary title report (within the past year) as an appraisal exhibit. Discuss the title exceptions and analyze the effect of title exceptions on fair market value.
20. For appraisals of partial takings or easements, a detailed description of the taking or easement area including surface features and topography, easements, encumbrances or improvements including levees within the subject partial take or easement, and whether the take area is characteristic of the larger parcel. Any characteristics of the taking area, including existing pre-project levees that render the take area different from the larger parcel shall be addressed in the valuation.
21. Opinion of highest and best use for the subject property, based on an in-depth analysis supporting the concluded use which includes the detail required by the complexity of the analysis. Such support typically requires a discussion of the four criteria of tests utilized to determine the highest and best use of a property. If alternative feasible uses exist, explain and support market, development, cash flow, and risk factors leading to an ultimate highest and best use decision.
22. All approaches to market value applicable to the property type and in the subject market. Explain and support the exclusion of any usual approaches to value.
23. Map(s) showing all comparable properties in relation to the subject property.
24. Photographs and plat maps of comparable properties.
25. In-depth discussion of comparable properties, similarities and differences compared to the subject property, adjustments to the comparable data, and discussion of the reliability and credibility of the data as it relates to the indicated subject property value. Improved comparable sales which are used to compare to vacant land subject properties shall include an allocation between land and improvements, using methodology similar to methodology used in item 16 above to estimate improvement value when possible, with an explanation of the methodology used.
26. Comparable data sheets.
a. For sales, include information on grantor/Grantee, sale/recordation dates, listed or asking price as of the date of sale, highest and best use, financing, conditions of sale, buyer motivation, sufficient location information (street address, post mile, and/or distance from local landmarks such as bridges, road intersections, structures, etc.), land/site characteristics, improvements, source of any allocation of sale price between land and improvements, and confirming source. b. For listings, also include marketing time from list date to effective date of the appraisal, original list price, changes in list price, broker feedback, if available.
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c. For leases, include significant information such as lessor/lessee, lease date and term, type of lease, rent and escalation, expenses, size of space leased, tenant improvement allowance, concessions, use restrictions, options, and confirming source. When comparing improved sales to a vacant land subject, the contributory value of the improvements shall be segregated from the land value.
27. For appraisals of easements, a before and after analysis of the burden of the easement on the fee, with attention to how the easement affects highest and best use in the after condition. An Easement Valuation Matrix or generalized easement valuation references may be used ONLY as a reference for a secondary basis of value.
28. For partial taking and easement appraisals, valuation of the remainder in the after condition and analysis and identification of any change in highest and best use or other characteristics in the after condition, to establish severance damages to the remainder in the after condition, and a discussion of special and general benefits, and cost to cure damages or construction contract work.
29. There are occasions where properties involve water rights, minerals, or salable timber that require separate valuations. If an appraisal assignment includes water rights, minerals, or merchantable timber that requires separate valuation, the valuation of the water rights, minerals, or merchantable timber shall be completed by a credentialed subject matter specialist.
30. For partial taking and easement appraisals, presentation of the valuation in California partial taking acquisition required format.
31. Implied dedication statement.
32. Reconciliation and final value estimate. Include analysis and comparison of the comparable sales to the subject, and explain and support conclusions reached.
33. Discussion of any departures taken in the development of the appraisal.
34. Signed Certification consistent with the language found in Uniform Standards of Professional Appraisal Practice.
35. If applicable, in addition to the above, appraisals of telecommunication sites shall also provide:
a. A discussion of market conditions and trends including identification of the relevant market, a discussion of supply and demand within the relevant market area and a discussion of the relevant market factors impacting demand for site acquisition and leasing within the relevant market area. b. An analysis of other leases comparable to subject property. Factors to be discussed in the analysis include the latitude, longitude, type of tower, tower height, number of rack spaces, number of racks occupied, placement of racks, power source and adequacy, back-up power, vault and site improvements description and location on site, other utilities; access, and road maintenance costs.
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EXHIBIT K
Grant Agreement No. 4600014796
INFORMATION NEEDED FOR ESCROW PROCESSING AND CLOSURE
The Grantee shall provide the following documents to the State Project Representative during the escrow process. Property acquisition escrow documents shall be submitted within the term of this Grant Agreement and after a qualified appraisal has been approved. • Name and Address of Title Company Handling the Escrow • Escrow Number
• Name of Escrow Officer
• Escrow Officer's Phone Number
• Dollar Amount Needed to Close Escrow
• Legal Description of Property Being Acquired
• Assessor's Parcel Number(s) of Property Being Acquired • Copy of Title Insurance Report
• Entity Taking Title as Named Insured on Title Insurance Policy • Copy of Escrow Instructions in Draft Form Prior to Recording for Review Purposes • Copy of Final Escrow Instructions
• Verification that all Encumbrances (i.e., Liens, Back Taxes, and Similar Obligations) have been Cleared Prior to Recording the Deed to Transfer Title
• Copy of Deed for Review Purposes Prior to Recording
• Copy of Deed as Recorded in County Recorder's Office
• Copy of Escrow Closure Notice
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EXHIBIT L
PROJECT MONITORING PLAN GUIDANCE
Introduction
Grant Agreement No. 4600014796
For each project contained in Exhibit A, please include a brief description of the project (maximum ~150 words) including project location, implementation elements, need for the project (what problem will the project address) and responds to the requirements listed below.
Project Monitoring Plan Requirements
The Project Monitoring Plan shall contain responses to the following questions:
• What are the anticipated project physical benefits?
• What are the corresponding numeric targets for each project benefit? • How will proposed numeric targets be measured?
• What are baseline conditions?
• When will the targets be met (e.g., upon project completion, five years after completion)? • How often will monitoring be undertaken (e.g., monthly, yearly). • Where are monitoring point locations (e.g., meter located at. .. , at stream mile ... )? Include relevant maps.
• How will the project be maintained (e.g., irrigation, pest management, weed abatement)? • What will be the frequency and duration of maintenance proposed activities? • Are there any special environmental considerations (e.g., resource agency requirements, permit requirements, CEQA/NEPA mitigation measures)?
• Who is responsible for collecting the samples (i.e., who is conducting monitoring and/or maintenance)?
• How, and to whom, will monitoring results be reported (e.g., paper reports, online databases, public meetings)?
• What adaptive management strategies will be employed if problems are encountered during routine monitoring or maintenance?
• What is the anticipated life of the project?
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EXHIBIT M
Grant Agreement No. 4600014796
INVOICE GUIDANCE FOR ADMINISTRATIVE AND OVERHEAD CHARGES The funds provided pursuant to this Agreement may only be used for costs that are directly related to the funded Project. The following provides a list of typical requirements for invoicing, specifically providing guidance on the appropriate methods for invoicing administrative and direct overhead charges.
Administration Charges
Indirect and General Overhead (i.e., indirect overhead) charges are not an allowable expense for reimbursement. However, administrative expenses that are apportioned directly to the project are eligible for reimbursement. Cost such as rent, office supplies, fringe benefits, etc. can be "Direct Costs" and are eligible expenses as long as:
• There is a consistent, articulated method for how the costs are allocated that is submitted and approved by the Grant Manager. The allocation method must be fully documented for auditors. • A "fully-burdened labor rate" can be used to capture allowable administrative costs. • The administrative/overhead costs can never include:
o Non-project specific personnel and accounting services performed within the Grantee or an LPS' organization
o Generic markup
o Tuition
o Conference fees
o Building and equipment depreciation or use allowances • Using a general overhead percentage is never allowed
Labor Rates
The Grantee must provide DWR with supporting documentation for personnel hours (see personnel billing rates letter in example invoice packet). The personnel rate letter should be submitted to the DWR Grant Manager prior to submittal of the first invoice. The supporting documentation must include, at a minimum, employee classifications that will reimbursed by grant funds and the corresponding hourly rate range. These rates should be "burdened"; the burdened rate must be consistent with the Grantee's/Local Project Sponsors standardized allocation methodology. The supporting documentation should also provide an explanation of what costs make up the burdened rate and how those costs were determined. This information will be used to compare against personnel hours summary table invoice back up documentation. Periodic updates may be needed during the life of the grant which would be handled through a revised billing rate letter.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 11, 2023
March 20, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects
CONTACT: Peter Kambel, Sr. Civil Engineer, [email protected], 209-577-5444 DESCRIPTION:
Consider approving three On-Call Agreements for Materials Testing and Special Inspection Services, with Krazan & Associates, Inc., BSK Associates, and Terracon Consultants, Inc., for a one-year Agreement with two one-year extension options, for an annual amount not to exceed $74,500 per consultant, and a total amount not to exceed $223,500 per consultant over three years. (Funding Source: Various Capital Improvement Program Projects) STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
During the course of construction, on-call firms for materials testing and special inspections will be needed to meet the City’s quality assurance requirements. On-Call services are performed by outside consultants because the City does not own and operate a certified facility capable of providing materials testing services, nor does staff have the required certifications to provide special inspection services. Retaining on-call agreements with consultants allows the Utilities Department to have timely access to certified material testers, labs, and special inspectors.
The current On-Call materials testing and special inspection agreements are with Krazan & Associates, Inc., BSK Associates, and Terracon Consultants, Inc., all agreements are set to expire in April 2023.
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City Council, April 11 2023
On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects
DISCUSSION:
In accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the formal bidding process and requirements.
Furthermore, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural & Engineering Services for Capital Projects, a Request for Qualification and Proposals (RFQ/RFP) was formally advertised through Planet Bids on February 8, 2023 for On-Call Special Inspection and Materials Testing Services.
Six firms submitted responses to the RFQ-RFP.
After careful review of the Statement of Qualifications-& Proposals, staff determined that Krazan & Associates, Inc., BSK Associates, and Terracon Consultants, Inc., were the three most qualified firms. Staff recommends that the City enter into on-call agreements with each firm for a for a one-year agreement with two one-year extension options, for an annual amount not to exceed $74,500 per consultant, and a total amount not to exceed $223,500 per consultant over three years.
Each of the three firms, Krazan, BSK, and Terracon, will be assigned to a Capital Improvement Project before construction begins and will be utilized throughout the duration of the project.
When services are required for a particular project, a specific scope of services is to be provided by the Consultant and shall be further defined and authorized by City through the issuance of a project-specific Task Order. Each specific Task Order will require a written scope outlining the specific services to be provided by the Consultant, the schedule for completion, and the proposed compensation amount and payment methodology to perform the specified services.
The City must authorize each Task Order in writing prior to commencement of services by the Consultant. The cumulative amount of all task orders for special inspection and materials testing services shall not exceed the approved agreement amount.
FISCAL IMPACT:
Costs for materials testing and special inspections will be based on unit prices and hourly rates agreed to in the contract. Costs will vary on a project-by-project basis and are billed respectively to each project. When construction projects are completed, staff includes these expenses with each staff report for project acceptance.
The funding source for the on-call services will be through various Capital Improvement Program project budgets.
COMMITTEE RECOMMENDATION:
This item was considered by the Economic Development Committee on April 3, 2023, and the Committee recommended forwarding the item to Council for approval. #29..
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City Council, April 11 2023
On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an On-Call Agreement with Krazan & Associates, Inc., for Materials Testing and Special Inspection Services, for a one-year Agreement with two one-year extension options, for an annual amount not to exceed $74,500, and a total amount not to exceed $223,500 over three years and authorizing the City Manager or his designee to execute the Agreement.
Resolution approving an On-Call Agreement with BSK Associates, for Materials Testing and Special Inspection Services, for a one-year Agreement with two one-year extension options, for an annual amount not to exceed $74,500, and a total amount not to exceed $223,500 over three years and authorizing the City Manager or his designee to execute the Agreement.
Resolution approving an On-Call Agreement with Terracon Consultants Inc., for Materials Testing and Special Inspection Services, for a one-year Agreement with two one-year extension options, for an annual amount not to exceed $74,500, and a total amount not to exceed $223,500 over three years 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. Resolutions (3)
2. Agreement and Exhibits Krazan & Associates, Inc.
3. Agreement and Exhibits BSK Associates
4. Agreement and Exhibits Terracon Consultants, Inc.
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING AN ON-CALL AGREEMENT WITH KRAZEN &
ASSOCIATES FOR MATERIALS TESTING AND SPECIAL INSPECTION
SERVICES, FOR A ONE-YEAR AGREEMENT WITH TWO ONE-YEAR
EXTENSION OPTIONS, FOR AN ANNUAL AMOUNT NOT TO EXCEED
$74,500, AND A TOTAL AMOUNT NOT TO EXCEED $223,500 OVER THREE
YEARS, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE THE AGREEMENT
WHEREAS, during the course of construction, on-call firms for materials testing and special inspections will be needed to meet the City’s quality assurance requirements, and
WHEREAS, On-Call services are performed by outside consultants because the City does not own and operate a certified facility capable of providing materials testing services, nor does staff have the required certifications to provide special inspection services, and
WHEREAS, retaining On-Call Agreements with consultants allows the Utilities Department to have timely access to certified material testers, labs, and special inspectors, and
WHEREAS, the current On-Call Materials Testing and Special Inspection Agreements are set to expire in April 2023, and
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the formal bidding process and requirement, and
WHEREAS, furthermore, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural & #29..
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2 2023-
Engineering Services for Capital Projects, a Request for Qualification and Proposals (RFQ/RFP) was formally advertised through Planet Bids on February 8, 2023 for On-Call Special Inspection and Materials Testing Services, and six firms submitted responses to the RFQ-RFP, and
WHEREAS, after careful review of the Statement of Qualifications-& Proposals, staff determined that Krazan & Associates, Inc., was one of three most qualified firms, and
WHEREAS, staff recommends that the City enter into On-Call Agreements with Krazan and Associates, Inc. for a one-year agreement with two one-year extension options, for an annual amount not to exceed $74,500 per consultant, and a total amount not to exceed $223,500 over three years.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an On-call Agreement with Krazan & Associates, Inc., for Materials Testing and Special Inspection Services, for a one-year agreement with two one-year extension options, for an annual cost not to exceed $74,500, and a total not to exceed amount of $223,500 over three years.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement in a form approved by the City Attorney. #29..
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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 11th day of April 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 APPROVING AN ON-CALL AGREEMENT WITH BSK
ASSOCIATES, FOR MATERIALS TESTING AND SPECIAL INSPECTION
SERVICES, FOR A ONE-YEAR AGREEMENT WITH TWO ONE-YEAR
EXTENSION OPTIONS, FOR AN ANNUAL AMOUNT NOT TO EXCEED
$74,500, AND A TOTAL AMOUNT NOT TO EXCEED $223,500 OVER THREE
YEARS, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE THE AGREEMENT
WHEREAS, during the course of construction, on-call firms for materials testing and special inspections will be needed to meet the City’s quality assurance requirements, and
WHEREAS, On-Call services are performed by outside consultants because the City does not own and operate a certified facility capable of providing materials testing services, nor does staff have the required certifications to provide special inspection services, and
WHEREAS, retaining On-Call Agreements with consultants allows the Utilities Department to have timely access to certified material testers, labs, and special inspectors, and
WHEREAS, the current On-Call Materials Testing and Special Inspection agreements are set to expire in April 2023, and
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the formal bidding process and requirement, and
WHEREAS, furthermore, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural & #29..
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2 2023-
Engineering Services for Capital Projects, a Request for Qualification and Proposals (RFQ/RFP) was formally advertised through Planet Bids on February 8, 2023 for On-Call Special Inspection and Materials Testing Services, and six firms submitted responses to the RFQ-RFP, and
WHEREAS, after careful review of the Statement of Qualifications-& Proposals, staff determined that was one of three most qualified firms, and WHEREAS, staff recommends that the City enter into On-Call Agreements with BSK Associates for a one-year agreement with two one-year extension options, for an annual amount not to exceed $74,500, and a total amount not to exceed $223,500 per consultant over three years.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an On-call Agreement with BSK Associates for Materials Testing and Special Inspection Services, for a one-year agreement with two one-year extension options, for an annual cost not to exceed $74,500, and a total not to exceed amount of $223,500 over three years.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement in a form approved by the City Attorney. #29..
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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 11th day of April 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
#29..
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING AN ON-CALL AGREEMENT WITH TERRACON CONSULTANTS INC., FOR MATERIALS TESTING AND SPECIAL
INSPECTION SERVICES, FOR A ONE-YEAR AGREEMENT WITH TWO ONEYEAR EXTENSION OPTIONS, FOR AN ANNUAL AMOUNT NOT TO EXCEED $74,500, AND A TOTAL AMOUNT NOT TO EXCEED $223,500 OVER THREE
YEARS, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE THE AGREEMENT
WHEREAS, during the course of construction, on-call firms for materials testing and special inspections will be needed to meet the City’s quality assurance requirements, and
WHEREAS, On-Call services are performed by outside consultants because the City does not own and operate a certified facility capable of providing materials testing services, nor does staff have the required certifications to provide special inspection services, and
WHEREAS, retaining on-call agreements with consultants allows the Utilities Department to have timely access to certified material testers, labs, and special inspectors, and
WHEREAS, the current On-Call Materials Testing and Special Inspection agreements are set to expire in April 2023, and
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a), “Exceptions to Formal Bidding Requirements,” agreements for professional services are exempt from the formal bidding process and requirement, and
WHEREAS, furthermore, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural & #29..
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2 2023-
Engineering Services for Capital Projects, a Request for Qualification and Proposals (RFQ/RFP) was formally advertised through Planet Bids on February 8, 2023 for On-Call Special Inspection and Materials Testing Services, and six firms submitted responses to the RFQ-RFP, and
WHEREAS, after careful review of the Statement of Qualifications-& Proposals, staff determined that was one of three most qualified firms, and WHEREAS, staff recommends that the City enter into On-Call Agreements with Terracon Consultants, Inc. for a one-year agreement with two one-year extension options, for an annual amount not to exceed $74,500 per consultant, and a total amount not to exceed $223,500 over three years.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an On-Call Agreement with Terracon Consultants, Inc. for Materials Testing and Special Inspection Services, for a one-year agreement with two one-year extension options, for an annual cost not to exceed $74,500, and a total not to exceed amount of $223,500 over three years.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement in a form approved by the City Attorney. #29..
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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 11th day of April 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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ON-CALL AGREEMENT FOR
ON-CALL MATERIALS TESTING AND SPECIAL INSPECTION SERVICES FOR
VARIOUS CAPITAL IMPROVEMENT PROJECTS
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 KRAZAN AND ASSOCIATES, INC., a California Corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. City has determined that there is a need for On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects.
B. Consultant represents that it is qualified, willing and able to provide the requested On-Call Materials Testing and Special Inspection 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.
Services to be provided by Consultant under this agreement shall generally fall under, but are not limited to, one or more of the categories as set forth and described in the documents attached hereto and referred to as Exhibit "A".
Specific scope(s) of services to be provided by Consultant shall be further defined by and authorized by City through the issuance of project-specific Task Orders. Each specific Task Order will require a written, scope outlining the specific services to be provided by Consultant, the schedule for completion, and the proposed compensation amount(s) and payment #29..
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methodology to perform the specified services. The City must authorize each Task Order in writing prior to commencement of services by the Consultant.
The Consultant shall perform the services, as described in Exhibit "A" to this Agreement and subsequent Task Orders, in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, or one (1) year from the above date, whichever occurs latter, with the possibility of two (2) one (1) year extension options, at the sole discretion of City, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
City hereby gives Consultant notice to proceed with the provision of services described in Exhibit "A" to this Agreement, as of the Effective Date of this agreement.
Consultant shall diligently proceed with the work and agrees to complete said specific scope(s) of services within the time period set forth in each respective Task Order.
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed SEVENTY FOUR THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($74,500) per year, and a sum not to exceed TWO HUNDRED TWENTY THREE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($223,500) over three years as of the Effective Date as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit "A”, and subsequent Task Orders, and for performance by Consultant of all of its duties and obligations under this Agreement.
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The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant for work performed as authorized by subsequent Task Orders. All work shall be billed: 1) on a time and materials basis, at the hourly rates set forth in Exhibit “B”, attached hereto, or; 2) on a lump sum, fixed fee basis, as authorized by City per specific Task Order(s). Lump sum fees shall generally be in accordance with approximate amounts as shown in Exhibit “B”. Unless otherwise approved by City, the hourly rates and lump sum fees shown in Exhibit “B” shall remain in effect for the entire term of the agreement, including all extensions.
Consultant shall submit monthly invoices to City which include a detailed description of completed tasks, hours worked, and billable rates or percentage complete (for lump sum tasks) for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this Project.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
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Consultant has represented to City that Shawn Baker 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 direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
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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.
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 #29..
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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.
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, #29..
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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.
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 #29..
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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: Krazan and Associates, Inc.
Address: 448 Mitchell Rd. Suite C
Modesto, CA 95354
Attention: Alex Collins
Phone: (209) 572-2200
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street, Suite 4600
Modesto, CA 95354
Attention: Pete Kambel
Phone: (209) 577-5348
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation #29..
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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 and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
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(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 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 #29..
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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.
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 #29..
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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 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; #29..
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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
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
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a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the 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.
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.
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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 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.
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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.
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 #29..
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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 arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded #29..
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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.
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.
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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.
Consultant will have a City of Modesto business license.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of , 2023, and KRAZAN AND ASSOCIATES, INC., has caused this agreement to be duly executed in duplicate as of the Effective Date. #29..
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ATTACHMENT 2: PRICE SCHEDULE (REVISED)
$385.00 231,000.00
$155.00 7,750.00
$250.00 1,000.00
$100.00 100.00
$125.00 250.00
$300.00 3,000.00
$350.00 700.00
$385.00 7,700.00
$400.00 400.00
$600.00 2,400.00
$420.00 420.00
$350.00 350.00
$100.00 100.00
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** The prices provided by the consultant will remain fixed for the one-year duration of the contract plus two (2) one year extensions (if awarded). $500.00 5,000.00
$475.00 4,750.00
$225.00 225.00
$225.00 225.00
$100.00
$150.00
4,500.00
6,750.00
276,000.00
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CALTRANS LABORATORY TESTING
Caltrans Test
Designation
Test Description Test Pricing
CT 216 Maximum density and optimum moisture
determination (Soils and Aggregates)
$235/Test
CT 216 Maximum density and optimum moisture single check point (Soils and Aggregates)
$125/Test
CT 226 Laboratory determined moisture content of Soils and Aggregates
$55/Test
CT 521 Concrete compressive strength – (set of 5 4”x8” or – 6”x12” including proper storage and cure)
$120/Set
CT 521 Concrete compressive strength – (additional test cylinder specimen including proper storage and cure)
$28/Specimen
CT 523 Flexural Strength of Concrete $125/Beam
CT 202 Sieve analysis of fine and coarse aggregates (not including hydrometer)
$185/Test
CT 217 Sand Equivalent $130/Test
CT 301 R-Value $285/Test
CT 309 Laboratory Test maximum density (LTMD or Pre-Mixed HMA)
$330/Test
CT 382 Asphalt content by ignition method (test results within 4 hours)
$225/Test
CT 366 Stability Value of Hot Mix Asphalt $225/Test
CT 308 Bulk specific gravity, density, and thickness of asphalt cores
$75/Test
CT 229 Durability index $205/Test
CT 211 Abrasion of coarse aggregate by use of a Los Angeles Rattler Machine
$245/Test
CT 227 Cleanness Value of coarse aggregates $145/Test
CT 205 Percent crushed particles $150/Test
CT 207 Specific Gravity of Fine Aggregate $135/Test
CT 206 Specific Gravity of Coarse Aggregate $135/Test
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ON-CALL AGREEMENT FOR
ON-CALL MATERIALS TESTING AND SPECIAL INSPECTION SERVICES FOR
VARIOUS CAPITAL IMPROVEMENT PROJECTS
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 BSK ASSOCIATES, a California Corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. City has determined that there is a need for On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects.
B. Consultant represents that it is qualified, willing and able to provide the requested On-Call Materials Testing and Special Inspection 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.
Services to be provided by Consultant under this agreement shall generally fall under, but are not limited to, one or more of the categories as set forth and described in the documents attached hereto and referred to as Exhibit "A".
Specific scope(s) of services to be provided by Consultant shall be further defined by and authorized by City through the issuance of project-specific Task Orders. Each specific Task Order will require a written, scope outlining the specific services to be provided by Consultant, the schedule for completion, and the proposed compensation amount(s) and payment #29..
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methodology to perform the specified services. The City must authorize each Task Order in writing prior to commencement of services by the Consultant.
The Consultant shall perform the services, as described in Exhibit "A" to this Agreement and subsequent Task Orders, in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, or one (1) year from the above date, whichever occurs latter, with the possibility of two (2) one (1) year extension options, at the sole discretion of City, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
City hereby gives Consultant notice to proceed with the provision of services described in Exhibit "A" to this Agreement, as of the Effective Date of this agreement.
Consultant shall diligently proceed with the work and agrees to complete said specific scope(s) of services within the time period set forth in each respective Task Order.
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed SEVENTY FOUR THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($74,500) per year, and a sum not to exceed TWO HUNDRED TWENTY THREE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($223,500) over three years as of the Effective Date as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit "A”, and subsequent Task Orders, and for performance by Consultant of all of its duties and obligations under this Agreement.
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The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant for work performed as authorized by subsequent Task Orders. All work shall be billed: 1) on a time and materials basis, at the hourly rates set forth in Exhibit “B”, attached hereto, or; 2) on a lump sum, fixed fee basis, as authorized by City per specific Task Order(s). Lump sum fees shall generally be in accordance with approximate amounts as shown in Exhibit “B”. Unless otherwise approved by City, the hourly rates and lump sum fees shown in Exhibit “B” shall remain in effect for the entire term of the agreement, including all extensions.
Consultant shall submit monthly invoices to City which include a detailed description of completed tasks, hours worked, and billable rates or percentage complete (for lump sum tasks) for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this Project.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant represents 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 represents that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
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Consultant has represented to City that Michael Kibbey 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 direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
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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 confirms 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 confirms 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.
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 #29..
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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.
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, #29..
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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.
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 #29..
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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: BSK Associates
Address: 399 Lindbergh Avenue
Livermore, CA 94551
Attention: Michael Kibbey
Phone: (925) 315-3151
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street, Suite 4600
Modesto, CA 95354
Attention: Pete Kambel
Phone: (209) 577-5348
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation #29..
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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 and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
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(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 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 #29..
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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.
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 #29..
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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 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; #29..
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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
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
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a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the 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.
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.
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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 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.
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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.
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 #29..
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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 arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded #29..
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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.
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.
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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.
Consultant will have a City of Modesto business license. #29..
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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 BSK ASSOCIATES, has caused this agreement to be duly executed in duplicate as of the Effective Date. #29..
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Statement of Qualifications 2023-01 BSK Proposal C00000553 Special Inspection and Materials Testing Services February 24, 2023 for Various Capital Improvement Projects
Modesto, California
APPENDIX C
PRICE SCHEDULE AND RATE SCHEDULE
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Number of
Notes tests* Price per test** Total
600 $ 299.00
50 $ 255.00
Gravities (CTM 105)
1 $ 196.00
2 $ 150.00
10 $ 183.00
2 $ 345.00
20 $ 299.00
1 $ 209.00
4 $ 4,378.00
1 $ 341.00
1 $ 86.00
1 $ 149.00
CTM 308
Method of Test for Determining Bulk Specific Gravity
and Density of Compacted Hot Mix Asphalt
$ 1,830.00
ATTACHMENT 2: PRICE SCHEDULE (REVISED)
SPECIAL INSPECTION AND MATERIALS TESTING SERVICES
8 CTM 375
Determining the In-Place Density and Relative
Compaction of Hot Mix Asphalt Pavement Using
Nuclear Gage
$ 5,980.00
9 CTM 366 Method of Test for Stabilometer Value For AC $ 209.00 13 ASTM D 4791
Standard Test Method for Flat Particles, Elongated
Particles, or Flat and Elongated Particles in Coarse
Aggregate
$ 149.00
10 CTM 367
Method of Test for Determining Optimum Bitumen
Content (OBC)
$ 17,512.00
11 CTM 211
Abrasion of Coarse Aggregate by Use of the Los
Angeles Abrasion Testing Machine
Also known as Los Angeles Rattler Test $ 341.00
12 AASHTO T304, Method A Uncompacted Void Content of Fine Aggregate $ 690.00
$ 86.00
4 CTM 205
Method of Test for Determining Percentage of Crushed
Particles
$ 196.00
5 CTM 217 Method of test for Sand Equivalent $ 300.00
7 CTM 382/ CTM 370
Determination of Asphalt Content of Bituminous
Mixtures by the Ignition Method (CTM 382).
Method of Test for Determining Moisture Content of
Bituminous Mixtures or Graded Mineral Aggregates Provide price assuming both tests are Using Microwave Ovens (CTM 370) going to be performed.
6 3
Method of Test for Sieve Analysis of Fine and Coarse
Aggregates (CTM 202).
CTM 202 modified by
CTM 105, when Calculations Pertaining to Gradings and Specific Provide price assuming both tests are applicable going to be performed.
$ 792.00 $ 198.00 4
2 Method of Test for Relative Compaction of Untreated Part II Max Wet Density and Percent CTM 216 and Treated Soils and Aggregates Relative Compaction $ 12,750.00 1 Nuclear Gage Testing with minimum of 3
Method of Test for Relative Compaction of Untreated nuclear shots per test including moisture CTM 231 and Treated Soils and Aggregates Using Nuclear Gage (road work) $ 179,400.00 Method
(California Test Method -
CTM, California Lab
Procedure, LP-2) Test #
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Method
(California Test Method -
CTM, California Lab Number of
Procedure, LP-2) Notes tests* Price per test** Total
CTM301 10 $ 472.00
Method of Test for Compressive Strength of Molded
Concrete Cylinders (CTM 521), Method of Test for
Sampling Fresh Concrete (CTM 539), Method of Test
for Making, Handling, and Storing Concrete
CTM 556, 533 1 $ 298.00
CTM 229 1 $ 298.00
45 $ 172.00
45 $ 194.00
Total
*Quantities shown are approximate number of tests needed during a two-year term. ** The prices provided by the consultant will remain fixed for the one-year duration of the contract plus two (2) one year extension (if awarded).
See attached page for Notes and General Requirements.
Testing must comply with Table 6-1.2 of the July 2019 Caltrans Construction Manual. Time Required for Materials Acceptance Tests, with the exception that the Consultant will not be responsible of reporting directly to the contractor. The consultant shall provide the testing results to the City's RPR, a day after the Normal Lab Time, as indicated in Table 6-1.2., has been completed.
262,121.00 $
17 Method of Test for Durability Index $ 298.00
One cylinder to be held in reserve.
16 Method of Test for Slump of Fresh Portland Cement
Concrete (CTM 556), Method of Test for Ball
Penetration in Fresh Portland Cement Concrete (CTM
533).
List pricing for both tests, but use higher of
the two test prices for the calculations.
$ 298.00
OVERTIME: ADDITIONAL COST ASSOCIATED WITH
ACQUIRING SAMPLES, AND PERFORMING TESTING
SERVICES DURING OVERTIME HOURS.
OT @ 1.5 times the normal rate (see notes
below)
$ 7,740.00
OT @ 2.0 times the normal rate (see notes
below)
$ 8,730.00
Note: Test cylinders are to be 6" dai. x 12" in
height. Each test shall consist of sampling,
making, handling, picking up and storing five (5)
concrete cylinders and providing compression
100 $ 20,100.00 $ 201.00
Test #
ATTACHMENT 2: PRICE SCHEDULE (REVISED)
SPECIAL INSPECTION AND MATERIALS TESTING SERVICES
CTM 521, CTM 539, CTM 540
Compressive Test Specimens in the Field (CTM 540).
tests at 7-day, 14-day and (2) at 28-day cures.
14 Method of Test for Determining the Resistance "R"
Value of Treated and Untreated Bases, Subbases and
Basement Soils by the Stabilometer
$ 4,720.00
15 #29..
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Local Assistance Procedures Manual Exhibit 10-H
LPP 15-01
January 2018
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant BSK Associates X Prime Consultant Subconsultant □ 2nd Tier Subconsultant Project No. RFQ 2023-1 Contract No. Participation Amount : TBD Date 2/23/23 For Combined Rate
Fringe Benefit % + General &Administrative % = 201.07% Combined ICR% OR
For Home Office Rate
Fringe Benefit % + General &Administrative % = 0 Home Office ICR% For Field Office Rate
Fringe Benefit % + General &Administrative % = 0 Field Office ICR% Fee = 10%
Name/Job Title/Classification1 Actual or Avg. % or $
Straight OT(1.5x) OT(2x) From To Hourly Rate3 increase
Various $185.53 $278.29 $371.05 8/1/22 6/30/23 $ 56.02
Group 1 Special Inspector $194.63 $291.95 $389.27 7/1/23 6/30/24 $ 58.77 Pre-Determined Non-Exempt $204.57 $306.85 $409.14 7/1/24 6/30/25 $ 61.77 Pre-Determined Prevailing Wage $204.57 $306.85 $409.14 7/1/25 6/30/26 $ 61.77 Various $178.90 $268.35 $357.80 8/1/22 6/30/23 $ 54.02
Group 2 Special Inspector $188.01 $282.01 $376.02 7/1/23 6/30/24 $ 56.77 Pre-Determined Non-Exempt $197.94 $296.92 $395.89 7/1/24 6/30/25 $ 59.77 Pre-Determined Prevailing Wage $197.94 $296.92 $395.89 7/1/25 6/30/26 $ 59.77 Various $155.02 $232.54 $310.05 8/1/22 6/30/23 $ 46.81
Group 3 Engineering Technician $164.13 $246.20 $328.26 7/1/23 6/30/24 $ 49.56 Pre-Determined Non-Exempt $174.07 $261.10 $348.13 7/1/24 6/30/25 $ 52.56 Pre-Determined Prevailing Wage $174.07 $261.10 $348.13 7/1/25 6/30/26 $ 52.56 Various $155.02 $232.54 $310.05 8/1/22 6/30/23 $ 46.81
Group 3 Engineering Technician $164.13 $246.20 $328.26 7/1/23 6/30/24 $ 49.56 Pre-Determined Non-Exempt $174.07 $261.10 $348.13 7/1/24 6/30/25 $ 52.56 Pre-Determined Prevailing Wage $174.07 $261.10 $348.13 7/1/25 6/30/26 $ 52.56 Various $ 61.27 $91.90 $122.54 8/1/22 6/30/23 $ 18.50
Courier $ 63.11 $94.66 $126.21 7/1/23 6/30/24 $ 19.06 3.00% Non-Exempt $ 65.00 $97.50 $130.00 7/1/24 6/30/25 $ 19.63 3.00% Non-Prevailing Wage $ 66.95 $100.42 $133.90 7/1/25 6/30/26 $ 20.22 3.00% Administrative Assistant $ 72.86 $109.29 $145.72 8/1/22 6/30/23 $ 22.00 $ 75.04 $112.57 $150.09 7/1/23 6/30/24 $ 22.66 3.00%
Non-Exempt $ 77.30 $115.94 $154.59 7/1/24 6/30/25 $ 23.34 3.00% Non-Prevailing Wage $ 79.61 $119.42 $159.23 7/1/25 6/30/26 $ 24.04 3.00% Principal $261.10 $391.65 $522.20 8/1/22 6/30/23 $ 78.84 $268.93 $403.40 $537.87 7/1/23 6/30/24 $ 81.21 3.00%
Exempt $277.00 $415.50 $554.00 7/1/24 6/30/25 $ 83.64 3.00% Non-Prevailing Wage $285.31 $427.97 $570.62 7/1/25 6/30/26 $ 86.15 3.00% Senior Professional $222.65 $333.98 $445.30 8/1/22 6/30/23 $ 67.23 $229.33 $343.99 $458.66 7/1/23 6/30/24 $ 69.25 3.00%
Exempt $236.21 $354.31 $472.42 7/1/24 6/30/25 $ 71.32 3.00% Non-Prevailing Wage $243.30 $364.94 $486.59 7/1/25 6/30/26 $ 73.46 3.00% Name $ - 1/1/21 12/31/21 $ -
Title $ - 1/1/22 12/31/22 $ - 3.00%
Classification
Name $ - 1/1/21 12/31/21 $ -
Title $ - 1/1/22 12/31/22 $ - 3.00%
Classification
Name $ - 1/1/21 12/31/21 $ -
Title $ - 1/1/22 12/31/22 $ - 3.00%
Classification
NOTES:
1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**).All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
2. The cost proposal format shall not be amended.
3. Billing rate = actual hourly rate * (1+ ICR) * (1+ Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.
4. For named employees and key personnel enter the actual hourly rate. For classifications only, enter the Average Hourly Rate for that classification.
Not Applicable
Not Applicable
Not Applicable
Not Applicable
Not Applicable
Not Applicable
$20.00 - $24.00
$73.55 - $84.13
$62.35 - $72.12
BILLING INFORMATION CALCULATION INFORMATION
Hourly Billing Rates2 Effective date of hourly rate Hourly range - for classifications only
COST PROPOSAL 2
SPECIFIC RATE OF COMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
Not Applicable
Not Applicable
Not Applicable
Not Applicable
$17.00 - $20.00
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Local Assistance Procedures Manual Exhibit 10-H
LPP 15-01
January 2018
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant BSK Associates X Prime Consultant Subconsultant Project No. RFQ No. 1758 Contract No. Date 2/23/23
Description of Item Quantity Unit Unit Cost Total
Mileage Costs mile $1
Materials Laboratory Tests Per attached Schedule
Equipment/Unit Costs Per attached Schedule
Other Misc. Field costs (as approved)
Subconsultant:
1. List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.
2. Proposed ODC items should be consistently billed regardless of client and contract type.
3. Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.
4. Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).
5. Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.
6. Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.
7. If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.
8. If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.
9. The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.
10. Add additional pages if necessary.
11. Subconsultants must provide their own cost proposals.
COST PROPOSAL 2
SPECIFIC RATE OF COMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
SCHEDULE OF OTHER DIRECT COST ITEMS
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Local Assistance Procedures Manual Exhibit 10-H
LPP 15-01
January 2018
Cost Proposal
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Prime Consultant or Subconsultant Certifying:
Name: Tim Rodriguez Title *: Chief Operating Offficer
Signature : Date of Certification (mm/dd/yyyy):
Email: [email protected] Phone Number: 209.914.7258 * An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providing under the proposed contract:
Materials Testing Services
COST PROPOSAL 2
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BSK Associates - Schedule of Fees - July 1, 2022 to June 30, 2023 (North Prevailing Wage) PROFESSIONAL STAFF TECHNICAL STAFF (North Prevailing Wage) Principal $ 270.00 Group 1 - Special inspector $ 160.00 Senior Professional $ 240.00 Group 2 - Special Inspector $ 155.00 Project Professional II $ 225.00 Group 3 - Engineering Technician $ 140.00 Project Professional I $ 190.00 Group 4 - Technician $ 125.00 Staff Professional II $ 170.00 Ground Penetrating Radar Scanning Technician $ 300.00 Staff Professional I $ 150.00 Core Drilling Technician $ 230.00 Seismic GIS $ 210.00 Floor Flatness Testing Technician $ 200.00 GIS Specialist $ 150.00 Sample Pickup / Transportation / Delivery $ 115.00 Information Specialist II $ 170.00 Laboratory Technician $ 125.00 Information Specialist I $ 150.00 Administrative Assistant / Clerical $ 95.00 CAD $ 110.00 Litigation support 1.5x standard rate
Project Administrator $ 105.00
BASIS OF CHARGES FOR FIELD TECHNICIAN SERVICES
REIMBURSABLES Field Work from 0 to 4 hours Bill 4 hours Mileage (Portal to Portal) $ 1.00 Field Work from 4 to 8 hours Bill 8 hours Per Diem (as required) $ 210.00 Field Work over 8 hours / Saturdays Bill time and a half Bridge Toll Cost + 15% Sundays, holidays and over 12 hours Bill double time Parking Fees Cost + 15% Second/Special/Multi-Shift Base Rate x 12.5% Subconsultant Services Cost + 15% Show-up time (no work performed) Bill 2 hours Project Administration Fees 7% of Invoice Sampling or cylinder pickup, minimum charge Bill 2 hours DIR Administration Fees 3% of Invoice
Project Setup (Project) $ 525.00 EQUIPMENT
Nuclear Gauge (Day) $ 67.00
ANALYSIS SOFTWARE USAGE FEES Ultrasonic Weld Equipment (Day) $ 67.00 gINT (Project) $ 62.00 Torque Wrench (Day) $ 67.00
LPile (Project) $ 62.00 Proof Load Equipment (Day) $ 67.00 APile (Project) $ 62.00 Rebar Locator / Pachometer $ 122.00 SHAFT (Project) $ 62.00 Hand Auger (Day) $ 244.00
GROUP (Project) $ 121.00 Water Meter (Day) $ 62.00
Cliq (Project) $ 62.00 Drilling Kit - Paint, stakes and lath - (Project) $ 32.00 LiquefyPro (Project) $ 62.00 Drilling Supplies - Reuse of tubes/caps (Project) $ 305.00 LiqIT (Project) $ 53.00 Manometer (Day) $ 235.00
NovoLIQ (Project) $ 62.00 Double Ring Infiltrometer (Day) $ 608.00 Slide (Project) $ 121.00
Settle3D (Project) $ 121.00 DIR/PREVAILING WAGE ADMINISTRATION FEES (MONTHLY) ArcGIS (Project) $ 62.00 Certified Payroll / DIR Upload $ 300.00 EZ-FRISK (Per Project Site / Site Class) $ 578.00 Non-Performance Certified Payroll / DIR Upload $ 100.00 Subcontractor Managemnet / Compliance Forms $ 100.00
Additional LCP Tracker or Other Compliance Software $ 200.00 Additional Special Forms, as required $ 150.00
Moisture Density Curves California Bearing Ratio (CBR)
Standard Proctor, 4" (ASTM/AASHTO) $ 282.00 CBR at 100% (ASTM D1883 or AASHTO T-180) $ 614.00 Modified Proctor, 4" Mold (ASTM/AASHTO) $ 282.00 CBR at 95% (ASTM D1883 or AASHTO T-180) $ 1,190.00 Modified Proctor, 6" mold (ASTM D1557) $ 300.00
Caltrans Maximum Wet Density (CT 216) $ 257.00 Permeability Tests Check Point $ 163.00 Rigid Wall Permeability (ASTM D2434) $ 338.00 Flexible Wall Permeability (ASTM D5084) $ 527.00
Particle Size Analysis Remolded Flexwall Perm (ASTM D5084) $ 670.00 Sieve Analysis w/ Wash (ASTM D422) $ 205.00
Minus #200 Wash, Soil (ASTM D1140) $ 100.00 Soil Corrosivity Tests Hydrometer Analysis (ASTM D422) $ 269.00 Minimum Resistivity of Soils (CT 643) $ 169.00 Double Hydrometer (ASTM D4221) $ 375.00 pH $ 79.00
Specific Gravity of Soil (ASTM D854) $ 192.00 Soluble Sulfate, Chloride and Sulfide $ 156.00 Visual Classification (ASTM D2488) $ 51.00
Sand Equivalent (ASTM D2419) $ 151.00 Soil Cement Tests % Organics in Soil (ASTM D2974) $ 164.00 Freeze Thaw Abrasion (ASTM D560) $ 751.00 Wetting-Drying Abrasion (ASTM D559) $ 713.00
Atterberg Limits / Swell Tests Preparation of Freeze-Thaw or Wetting-Drying Tests $ 902.00 Plasticity Index (ASTM D4318) $ 263.00 Soil Cement Compression (ASTM D1633) $ 289.00 Shrinkage Limits of Soils (ASTM D427) $ 245.00
Expansion Index of Soils (UBC No. 29) $ 282.00 Other
Sand Density Calibration (ASTM D1566) $ 112.00
Moisture Density Test
Tube Density $ 60.00 Unconfined Compression
Moisture Content of Soils (ASTM D2216) $ 51.00 Unconfined Compression (ASTM D2166) $ 151.00 "R" Value Determination Shear Tests
R-Value of Soils (CT 301) $ 477.00 Direct Shear, Undisturbed (ASTM D3080) $ 263.00 R-Value of Treated Materials (CT 301)) $ 527.00 Direct Shear, Remolded (ASTM D3080) $ 314.00 Triaxial Compression Testing QUOTE
Consolidation Tests
Consolidation (ASTM D2435) $ 502.00
Consolidation , Extra Points (ASTM D2435) $ 67.00
Collapse Potential of Soils (ASTM D2435) $ 245.00
Remolded Consolidation (ASTM D2435) $ 425.00
One-Dimen Swell of Soil (ASTM D4546) $ 156.00
PERSONNEL RATES
MATERIALS LABORATORY TESTS
SOILS
BSK Fee Schedule 2022-2-NPW Page 1 of 2
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BSK Associates - Schedule of Fees - July 1, 2022 to June 30, 2023 (North Prevailing Wage) Sieve Analysis Coarse or Fine (ASTM C136) $ 100.00 Cement Content Concrete (ASTM C1084) $ 453.00 Sieve Analysis w/ Fineness Modulus $ 107.00 Chemical Test (ASTM C150) QUOTE Minus 200 Wash, Aggregates (ASTM C117) $ 100.00 Set Times Cement-Vicat Needle (ASTM C191) $ 375.00 Specific Gravity/Absorption (ASTM C127) $ 192.00 Specific Gravity of Hydraulic Cement (ASTM C191) $ 181.00 Specific Gravity/Absorption (ASTM C128) $ 192.00 Lineal Shrinkage Set of 3 (ASTM C157) $ 477.00 Organic Impurities (ASTM C40) $ 100.00 Compression Test of Concrete - 1 (ASTM C39) $ 41.00 % Lumps/Friable Particles (ASTM C142) $ 97.00 Compression Test of Concrete - 4 (ASTM C39) $ 163.00 % Flat and Elongated (ASTM D4791) $ 151.00 Compression Test of Core (ASTM C42) $ 72.00 Fine Aggregate Angularity (AASHTO 304) $ 97.00 Preparation of Specimens, Sawing $ 82.00 Moisture Content (ASTM D2216) $ 51.00 Compressive Strength of Shotcrete Panel $ 382.00 Aggregate Wt., pcf Compacted (ASTM C29) $ 106.00 Proportion of Cement in Concrete (ASTM C85) $ 419.00 Aggregate Wt., pcf Loose (ASTM C29) $ 79.00 Flexural Test Per Beam (ASTM C78) $ 107.00 Abrasion by LA Rattler, Small Size (ASTM C131) $ 282.00 Splitting Tensile Strength of Concrete (ASTM C496) $ 107.00 Abrasion by LA Rattler, Large Size (ASTM C131) $ 343.00 Unit Weight Lt Wt Concrete (ASTM C567) $ 67.00 Sodium Sulfate Soundness, Per Sieve (ASTM C88) $ 131.00 "AZ" Test-Reinforced Concrete Pipe "Life Factor" $ 93.00 Sodium Sulfate Soundness, Min. Charge (ASTM C88) $ 419.00 9 Pt Core Measurements, Each (ASTM C174) $ 41.00 Sand Equivalent (ASTM D2419 OR CT 217-I) $ 151.00 Concrete Trial Batches QUOTE Durability Index (CT 229) $ 300.00 Unit Weight & Abs Concrete (ASTM D642) $ 151.00 Potential Reactivity of Aggregates QUOTE Accelerated Curing of Concrete (ASTM C684) $ 300.00 Cleanness Value of Aggregate (CT 227) $ 216.00 Cylinder Molds (each) $ 8.00 Hydrometer (ASTM D422 OR CT 205-E) $ 269.00 Storage of Concrete Cylinders for more than 45 Days $ 69.00 % Crushed particles (CT 205) $ 198.00 RH Probe $ 69.00
Lightweight Pieces (ASTM 123) $ 263.00 Calcium Chloride Kit $ 46.00 Mixing Water (pH, elec. conductance, chloride, sulfate) $ 119.00 HOT MIX ASPHALT Contact Soil (pH, elec. conductance, chloride, sulfate) $ 143.00 JMF Mix Design, HVEEM $ 3,719.00
JMF Mix Design, Marshall $ 4,407.00 MASONRY
JMF Mix Design, Superpave / Caltrans $ 10,737.00 Concrete Masonry Units Testing (ASTM C90) JMF Verification - HMA - Superpave / Caltrans $ 6,222.00 Compression Test Pavers, Single $ 92.00 JMF Production Startup - Superpave / Caltrans $ 5,789.00 Compression Test Composit CMU Prism $ 198.00 RAP Material Testing - Additional Fee $ 753.00 Specific Gravity and Unit Weight $ 138.00 Rubberized RHMA Material - Additional Fee $ 1,737.00 Moisture Content $ 64.00 Hamburg Wheel Track (AASHTO T324) $ 3,155.00 Compression Test, Masonry Units (ASTM C140) $ 125.00 Gyratory Compaction (AASHTO T312) $ 401.00 Absorption / Moisture Content (ASTM C140) $ 125.00 AC Content by Centrifuge (ASTM D2172) $ 344.00 Linear Shrinkage (ASTM C426) $ 483.00 AC Content-Ignition (ASTM D6307 / CT382 / AASHTO T308) $ 269.00 Masonry Core Shear Test (Title 24) $ 225.00 Superpave Ignition Oven Correction (AASHTO T308) $ 625.00 Masonry Core Compression/Shear Test (Title 24) $ 225.00 Moisture Content of Asphalt (CT 370) $ 79.00 Compression Test Brick, Each (ASTM C67) $ 93.00 Gradation/Extraction Aggregate (ASTM D5444) $ 163.00 Absorption/ Unit Wt. of Brick (ASTM C67) $ 93.00 Film Stripping $ 107.00 Compression Test Grout (Set of 3 or 4) $ 144.00 Compaction/Preparation of HMA Briquette (CT 304) $ 263.00 Compression Test Mortar (Set of 3 or 4) $ 131.00 Stabilometer Value (CT 366 / AASHTO T246) $ 211.00
AC Core Specific Gravity (ASTM D2726) $ 67.00 WELDING AND STRUCTURAL STEEL AC Core Specific Gravity - Paraffin Coated (AASHTO T275) $ 175.00 Welder Qualification Testing AC Max Density Rice Method (ASTM D2041) $ 300.00 Welder / Procedure Welder Qualification Testing QUOTE $ 289.00 Face Bend of Steel $ 72.00
Tensile Strength Ratio (AASHTO T283) $ 1,316.00 Root Bend of Weld Coupon $ 72.00 Moisture Vapor Susceptibility (CT 307) $ 245.00 Side Bend of Weld Coupon $ 72.00 AC Surface Abrasion (CT 360) $ 601.00 Tensile Test of Steel Coupon $ 100.00 Index Retained Strength (ASTM D1074-D1075) $ 538.00 Bend Test of Steel Coupon $ 86.00 AC Hveem Maximum Density (CT 375) $ 538.00 Machining Charges (Per Coupon) QUOTE Marshall Stability and Flow (ASTM D6927) $ 300.00 Brinell Hardness of Steel (ASTM E10) $ 119.00 Calculated AC Maximum Density (CT 367) $ 119.00 Rockwell Hardness of Steel (ASTM E18) $ 119.00 Marshall Maximum Density, 50 Blows (ASTM D6926) $ 350.00 Bolt Ultimate Load $ 159.00 Examination of AC Cores $ 41.00 Bolt Hardness (set of 3) $ 119.00 Thickness Determination of AC Cores $ 26.00 Nut Hardness (set of 3) $ 119.00 AC Tensile-Strength Premixed ASTM D4867 $ 777.00 Washer Hardness (set of 3) $ 119.00 AC Tensile-Strength Lab Mixed ASTM D4867 $ 1,316.00 Proof Loading, bolt or nut $ 169.00
REINFORCING STEEL
Tensile & Bend of Rebar, #3 - #8 $ 177.00 FIREPROOFING
Tensile & Bend of Rebar, #9 - #11 $ 177.00 Cohesion/Adhesion Fireproofing Materials $ 151.00 Bend Test of Rebar $ 69.00 Dry Density Fireproofing (ASTM E605) $ 113.00 Slip and Tensile Rebar Couplers (CT 670) $ 258.00
Tension Test of Welded Wire Fabric QUOTE
Bend Test of Welded Wire Fabric QUOTE
Weld Shear Test, Welded Wire Fabric QUOTE
PT Cable Tensile and Elongation (ASTM A416 or A421) $ 326.00 PT Cable Preparation QUOTE
Escalation: The prices noted above are subject to an increase of 5% annually, effective July 1 of each year following the initiation of a services agreement.
CIR/FDR Compressive Strength Testing (pre-copmpacted
specimen, includes conditioning) - CTM 371
MATERIALS LABORATORY TESTS
AGGREGATES CONCRETE
BSK Fee Schedule 2022-2-NPW Page 2 of 2
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ON-CALL AGREEMENT FOR
ON-CALL MATERIALS TESTING AND SPECIAL INSPECTION SERVICES FOR
VARIOUS CAPITAL IMPROVEMENT PROJECTS
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 TERRACON CONSULTANTS, INC., a California Corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. City has determined that there is a need for On-Call Materials Testing and Special Inspection Services for Various Capital Improvement Projects.
B. Consultant represents that it is qualified, willing and able to provide the requested On-Call Materials Testing and Special Inspection 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.
Services to be provided by Consultant under this agreement shall generally fall under, but are not limited to, one or more of the categories as set forth and described in the documents attached hereto and referred to as Exhibit "A".
Specific scope(s) of services to be provided by Consultant shall be further defined by and authorized by City through the issuance of project-specific Task Orders. Each specific Task Order will require a written, scope outlining the specific services to be provided by Consultant, the schedule for completion, and the proposed compensation amount(s) and payment #29..
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methodology to perform the specified services. The City must authorize each Task Order in writing prior to commencement of services by the Consultant.
The Consultant shall perform the services, as described in Exhibit "A" to this Agreement and subsequent Task Orders, in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, or one (1) year from the above date, whichever occurs latter, with the possibility of two (2) one (1) year extension options, at the sole discretion of City, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
City hereby gives Consultant notice to proceed with the provision of services described in Exhibit "A" to this Agreement, as of the Effective Date of this agreement.
Consultant shall diligently proceed with the work and agrees to complete said specific scope(s) of services within the time period set forth in each respective Task Order.
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed SEVENTY FOUR THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($74,500) per year, and a sum not to exceed TWO HUNDRED TWENTY THREE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($223,500) over three years as of the Effective Date as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit "A”, and subsequent Task Orders, and for performance by Consultant of all of its duties and obligations under this Agreement.
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The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant for work performed as authorized by subsequent Task Orders. All work shall be billed: 1) on a time and materials basis, at the hourly rates set forth in Exhibit “B”, attached hereto, or; 2) on a lump sum, fixed fee basis, as authorized by City per specific Task Order(s). Lump sum fees shall generally be in accordance with approximate amounts as shown in Exhibit “B”. Unless otherwise approved by City, the hourly rates and lump sum fees shown in Exhibit “B” shall remain in effect for the entire term of the agreement, including all extensions.
Consultant shall submit monthly invoices to City which include a detailed description of completed tasks, hours worked, and billable rates or percentage complete (for lump sum tasks) for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this Project.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
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Consultant has represented to City that Troy Schiess 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 direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
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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.
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 #29..
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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.
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, #29..
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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.
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 #29..
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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: Terracon Consultants, Inc.
Address: 902 Industrial Way
Lodi, CA 95240
Attention: Troy Shiess
Phone: (209) 367-3701
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street, Suite 4600
Modesto, CA 95354
Attention: Pete Kambel
Phone: (209) 577-5348
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation #29..
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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 and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
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(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 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 #29..
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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.
Termination by City for Convenience
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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 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; #29..
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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
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
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a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the 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.
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.
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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 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.
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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.
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 #29..
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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 arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded #29..
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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.
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.
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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.
Consultant will have a City of Modesto business license.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of , 2023, and TERRACON CONSULTANTS, INC., has caused this agreement to be duly executed in duplicate as of the Effective Date. #29..
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#
Method (California Test
Method - CTM,
California Lab
Procedure, LP-2)
Test Notes
Number
of tests*
Price per
test** Total
1 CTM 231 Method of Test for Rel. Compaction of Untreated & Treated Soils & Agg. Using Nuclear Gauge
Nuclear Gauge Testing w/ min. of 3 nuclear
shots per test including moisture (road
work)
600 120.00$ $ 72,000.00
2 CTM 216 Method of Test for Relative Compaction of Untreated and Treated Soils and Aggregates
Part II Max Wet Density & Percent Relative
Compaction 50 205.00$ $ 10,250.00
3 CTM 202 modified by
CTM 105, when
applicable
Method of Test for Sieve Analysis of Fine and Coarse
Aggregates (CTM 202)
Calculations Pertaining to Gradings and Specific
Gravities (CTM 105)
Provide price assuming both tests are going
to be performed 4 175.00$ $ 700.00
4 CTM 205 Method of Test for Determining Percentage of
Crushed Particles 1 150.00$ $ 150.00
5 CTM 217 Method of Test for Sand Equivalent 2 95.00$ $ 190.00 6 CTM 308 Method of Test for Determining Bulk Specific Gravity & Density of Compacted Hot Mix AC 10 25.00$ $ 250.00
7 CTM 382/CTM 370
Determination of Asphalt Content of Bituminous
Mixtures by the Ignition Method (CTM 382)
Method of Test for Determining Moisture Content of
Bituminous Mixtures or Graded Mineral Agg. Using
Microwave Ovens (CTM 370)
provide price assuming both tests are going
to be performed 2 160.00$ $ 320.00
8 CTM 375
Determining the In-Place Density & Relative
Compaction of Hot Mix Asphalt Pavement Using
Nuclear Gauge
20 120.00$ $ 2,400.00
9 CTM 366 Method of Test for Stabilometer Value For AC 1 315.00$ $ 315.00 10 CTM 367 Method of Test for Determining Optimum Bitumen Content (OBC) 4 650.00$ $ 2,600.00
11 CTM 211 Abrasion of Coarse Agg. By Use of the LA Abrasion Testing Machine Also known as LA Rattler Test 1 250.00$ $ 250.00 12 AASHTO T304, Meth. A Uncompacted Void Content of Fine Aggregate 1 175.00$ $ 175.00 13 ASTM D 4791
Standard Test Method for Flat Particles, Elongated
Particles, or Flat and Elongated Particles in Coarse
Aggregate
1 110.00$ $ 110.00
#
Method (California Test
Method - CTM,
California Lab
Procedure, LP-2)
Test Notes
Number
of tests*
Price per
test** Total
14 CTM 301
Method of Test for Determining the Resistance "R"
Value of Treated and Untreated Bases, Subbases and
Basement Soils by the Stabilometer
Nuclear Gauge Testing w/ min. of 3 nuclear
shots per test including moisture (road
work)
10 330.00$ $ 3,300.00
15 CTM 521, CTM 539,
CTM 540
Method of Test for Compressive Strength of Molded
Concrete Cylinders (CTM 521), Method of Test for
Sampling Fresh Concrete (CTM 539), Method of Test
for Making, Handling, and Storing Concrete
Compressive Test Specimens in the Field (CTM 540)
Note: Test cylinders are to b 6" dai. X 12"
height. Each test shall consist of sampling,
making, handling, picking up and storing
five (5) concrete cylinders and providing
compression tests at 7-day, 14-day and (2)
at 28-day cures. One cylinder to be held in
reserve
100 275.00$ $ 27,500.00
16 CTM 556, CTM 533
Method of Test for Slump of Fresh Portland Cement
Concrete (CTM 556), Method of Test for Ball
Penetration in Fresh Portland Cement Concrete (CTM
533)
List pricing for both tests, but use higher of
the two test prices for the calculations 1 125.00 125.00 $ 17 CTM 229 Method of Test for Durability Index 1 180.00$ $ 180.00 OT @ 1.5 times the normal rate (see notes
below) 45 30.00$ $ 1,350.00
OT @ 2.0 times the normal rate (see notes
below) 45 60.00$ $ 2,700.00
Total $ 124,865.00
ATTACHMENT B: PRICE SCHEDULE
SPECIAL INSPECTION AND MATERIALS TESTING SERVICES
ATTACHMENT B: PRICE SCHEDULE
SPECIAL INSPECTION AND MATERIALS TESTING SERVICES
OVERTIME: ADDITIONAL COST ASSOCIATED WITH
ACQUIRING SAMPLES, AND PERFORMING TESTING
SERVICES DURING OVERTIME HOURS
Terracon Assumptions:
1. Rows #1, #8 & #15 assumes 3 hours total time which includes round trip from Terracon office travel and onsite time, Terracon technician arrives, tests and leave site without standby time. If there is standby time required or total time is over 3 hours, Terracon assumes to be able to charge a 'standby' hourly fee of $115/hr over 3 hours.
2. Rows #1 & #8 Terracon assumes per test charge. For example, if three nuclear tests are performed, Terracon will charge $120 * 3 tests = $360 total * Quantities shown are approximate number of tests needed during a two-year term.
Testing must comply with Table 6-1.2 of the July 2019 Caltrans Construction Manual. Time required for Materials Acceptance Tests, with the exception that the Consultant will not be responsible of reporting directly to the contractor. The consultant shall provide the testing results to the City's RPR, a day after the Normal Lab Time, as indicated in Table 6-1.2, has been completed. ** The prices provided by the consultant will remain fixed for the two-year duration of the contract plus one year extension (if awarded).
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 11, 2023
Date: March 16, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: River Trunk Inspection and Assessment
Frist Amendment to Agreement with National Plant Service CONTACT: Robert Englent, Wastewater Collections Systems Superintendent [email protected], 209-577-6222
DESCRIPTION:
Consider approving a First Amendment to the Agreement with National Plant Services, Inc., of Hayward, CA, for Pipe Inspection and Assessment Services for the River Trunk Inspection and Assessment Project for a revised Agreement total not to exceed $510,300. (Funding Source: Wastewater Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.
BACKGROUND:
Originally constructed in the 1940s, the River Trunk is approximately five miles long, and it conveys flows from six major tributaries of the City’s collection system. Most segments of the River Trunk were constructed of unlined reinforced concrete pipe (RCP). The River Trunk begins near the intersection of Beard Avenue and Nathan Avenue and terminates at the Sutter Wastewater Treatment Plant. Pipeline sizes range from 24 to 66 inches in diameter. The hydraulic model indicates that the maximum full flow capacity of the River Trunk is approximately 25.3 million gallons per day (MGD).
Corrosion is present in the pipeline interior throughout its length. There are isolated sections that have recently failed or may be on the verge of failure. A segment of the River Trunk near the 9th Street bridge has recently failed (November 2021) and was replaced with ADS SaniTite polypropylene pipe (420 linear feet). Additionally, in 2017, due to high levels in the Tuolumne River, a portion of the River Trunk failed adjacent to John Thurman Field. This portion was also relined and portions replaced with High Density Polyethylene (HDPE) pipe (1,100 linear feet). #30..
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City Council, April 11, 2023
River Trunk Inspection and Assessment
Frist Amendment to Agreement with National Plant Service
DISCUSSION:
The original focus of this project was on the lower end of the River Trunk, from South Morton Boulevard (near Beard Brook Crossing) to the Sutter Wastewater Treatment Plant. This portion is approximately 14,600 linear feet.
Staff recommended the use of a consultant due to the specialized technical and operational requirements necessary to perform these tasks.
In accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, this agreement is for professional services and, therefore, exempt from the bid requirement. However, staff proceeded through an RFP process pursuant to Administrative Directive 3.1.
On January 18, 2022, Utilities Engineering issued a Request for Proposals (RFP) on PlanetBids for pipe inspection and assessment services for the River Trunk. Two proposals were received on February 22, 2022 and reviewed by staff. In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural & Engineering Services for Capital Projects, staff selected National Plant Services, Inc., of Hayward, CA, for pipe inspection and assessment services of the River Trunk.
Staff is proposing that this original agreement be amended to include an integrity and condition assessment of the two parallel outfall pipeline siphons that convey primary treated domestic and industrial wastewater from the Sutter Wastewater Treatment Plant to the Jennings Wastewater Treatment Plant for further processing. The siphons cross under the Tuolumne river between the Sutter Wastewater Treatment Plant and Hatch Road.
The City has entered into a lease for the land under the Tuolumne River with the California State Lands Commission (State) for a term of 20 years where the pipeline siphons reside. As part of the provisions of the new lease, the City is required to conduct an initial integrity and condition assessment due to the State in the Fall of 2023.
FISCAL IMPACT:
The following account has been created to track expenses associate with this project:
101399 – River Trunk Inspection
ANTICIPATED ENGINEERING EXPENDITURES:
Pipe Inspection and Assessment Services Agreement $163,000 Additional Services (10% if Needed) $16,300
First Amendment to Agreement $331,000
Engineering/Administration Support – City Staff $10,000 TOTAL: $520,300
A budget adjustment in the amount of $331,000 from Wastewater Fund Reserves will be necessary to fund the expanded scope of the River Trunk Inspection and Assessment Project.
COMMITTEE RECOMMENDATION:
This agreement was considered by the Economic Development Committee at the May 2, 2022 meeting where the Committee recommended forwarding this item to Council for approval. #30..
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City Council, April 11, 2023
River Trunk Inspection and Assessment
Frist Amendment to Agreement with National Plant Service
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a First Amendment to the Agreement with National Plant Services, Inc., Hayward, CA, for Pipe Inspection and Assessment Services for the River Trunk Inspection and Assessment Project in the amount of $331,000, for an Agreement total not to exceed $510,300; and authorizing the City Manager, or his designee, to execute the Amendment.
Resolution amending the Fiscal Year 2022/23 Multi-Year Program Budget in the amount of $331,000 to be transferred into the project from Wastewater Fund Reserves in order to fund the River Trunk Inspection and Assessment Project.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (2)
2. National Plant Services – Original Agreement & Exhibits
3. National Plant Services – First Amendment
4. National Plant Services – Exhibit 1
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1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?
RESOLUTION APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH NATIONAL PLANT SERVICES, INC., OF HAYWARD, CA, FOR PIPE
INSPECTION AND ASSESSMENT SERVICES FOR THE RIVER TRUNK
INSPECTION AND ASSESSMENT PROJECT IN THE AMOUNT OF $331,000, FOR AN AGREEMENT TOTAL NOT TO EXCEED $510,300; AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE AMENDMENT
WHEREAS, on June 7, 2022, per Resolution No. 2022-258, Council approved an agreement with National Plant Services, Inc. for Inspection and Assessment Services for the River Trunk Inspection and Assessment Project, in an amount not to exceed $179,300, and
WHEREAS, Staff is proposing that this original agreement be amended to include an integrity and condition assessment of the two parallel outfall pipeline siphons that convey primary treated domestic and industrial wastewater from the Sutter Wastewater Treatment Plant to the Jennings Wastewater Treatment Plant for further processing, and WHEREAS, the siphons cross under the Tuolumne river between the Sutter Wastewater Treatment Plant and Hatch Road, and
WHEREAS, the City has entered into a lease for the land under the Tuolumne River with the California State Lands Commission (State) for a term of 20 years where the pipeline siphons reside, and
WHEREAS, as part of the provisions of the new lease, the City is required to conduct an initial integrity and condition assessment due to the State in the Fall of 2023, and
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2 2023-
WHEREAS, staff is recommending a first amendment to the agreement with National Plant Services, Inc., in the amount of $331,000, and WHEREAS, in accordance with Modesto Municipal Code 8-3.2504(a) Exceptions to Formal Bidding Requirements, this amendment to the 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 a First Amendment to the Agreement with National Plant Services, Inc., for Inspection and Assessment Services in an amount not to exceed $331,000 for the identified scope of services, for a revised maximum total amount of $510,300.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the First Amendment to the Agreement in a form approved by the City Attorney.
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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 11th day of April 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 AMENDING THE FISCAL YEAR 2022/23 MULTI-YEAR
PROGRAM BUDGET IN THE AMOUNT OF $331,000 TO BE TRANSFERRED
INTO THE PROJECT FROM WASTEWATER FUND RESERVES IN ORDER
TO FUND THE RIVER TRUNK INSPECTION AND ASSESSMENT PROJECT WHEREAS, certain budgetary transactions are necessary in the amount of $331,000, in order to fund the River Trunk Inspection and Assessment 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 $331,000.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #30..
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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 11th of April 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-
FIRST AMENDMENT TO THE AGREEMENT FOR
PIPE INSPECTION AND ASSESSMENT SERVICES FOR THE
RIVER TRUNK INSPECTION PROJECT
This First Amendment to Agreement for Inspection and Assessment Services is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and NATIONAL PLANT SERVICES, INC., an Illinois corporation (“Consultant”), entered into by the parties on the 7th day of June, 2022, hereinafter referred to as “Original Agreement”.
This First Amendment to Agreement for Inspection and Assessment Services is made with regard to the following recitals:
A. The Original Agreement between City and Consultant was approved via Council Resolution No. 2022-258.
B. Paragraph no. 9 “AMENDMENTS” of the Original Agreement acknowledges the parties understand it may become desirable or necessary for City or Consultant to modify the scope of services provided for under the Agreement and any such modification must be in writing signed by both parties.
C. Paragraph no. 3 “COMPENSATION” of the Original Agreement for Consultant Services specifies the sum of ONE HUNDRED SIXTY-THREE THOUSAND AND 00/100 DOLLARS ($163,000) as the total compensation Consultant agrees to accept for performing all services and furnishing all staffing and materials for the project as well as performance by Consultant of all of its duties and obligations required in the Original Agreement.
D. On or about January 26, 2023 Consultant submitted to the City a budget augmentation for additional tasks requested by the City to be added to the Original Agreement for the completion of work related to the River Trunk Inspection Project, attached hereto as #30..
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Exhibit “1” and incorporated herein by this reference. Exhibit “1” identifies additional tasks to be performed by Consultant as well as Consultant’s costs for each additional task.
E. The estimated additional tasks result in increased costs as follows:
Quantity Description Unit Price Total
1 Mobilization $9,000 $9,000
26 Daily Crew Rate $12,000 $312,000
50 Engineering Services $200 $10,000
Total $331,000
F. The aforementioned estimated additional tasks increase the amount of the Original Agreement by THREE HUNDRED THIRTY-ONE THOUSAND AND 00/100 DOLLARS ($331,000). The amounts listed above are the estimated level of effort for each task.
In no case shall the total fee exceed the total contract amount under the Original Agreement and this First Amendment to Agreement without memorializing an additional written amendment to the original contract and must be signed by both parties.
G. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree that it is necessary to modify paragraph no. 1 entitled “SCOPE OF SERVICES” of the Original Agreement.
H. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree it is necessary to modify paragraph no. 3 entitled “COMPENSATION” of the Original Agreement.
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I. The parties to the Original Agreement and to this First Amendment to Agreement further understand and agree the Original Agreement is modified solely by the modifications contained in this First Amendment to Agreement and in no other way whatsoever.
NOW, THEREFORE, in consideration of this First Amendment to Agreement, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Inspection and Assessment Services and this First Amendment to Agreement, the parties agree as follows:
1. The parties agree that each of the recitals set out above is factually true and correct.
2. Paragraph 1 entitled “SCOPE OF SERVICES” of the Original Agreement shall be deleted and the parties agree to and hereby do substitute the following in its place:
SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the Original Agreement and referred to therein as Exhibit “A” or “Project”. In addition, Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the First Amendment to Agreement and referred to herein as Exhibit “1”. The Consultant shall perform the services as described in the aforementioned Exhibit “A” and Exhibit “1” in a manner compatible with the standards of its profession and shall produce a fully complete project as described in Exhibit “A” and Exhibit “1” acceptable to City.
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3. Paragraph no. 3 entitled “COMPENSATION” of the Original Agreement between the parties shall be deleted and the parties agree to and hereby do substitute the following in its place:
COMPENSATION.
Consultant agrees to perform the work on a time and materials basis not to exceed FIVE HUNDRED TEN THOUSAND THREE
HUNDRED AND 00/100 DOLLARS ($510,300) (maximum
compensation) for performing all services and furnishing all staffing and materials called for in Exhibits “A” and “B” to the Original Agreement and in Exhibit “1” to this First Amendment to Agreement as well as for performance by Consultant of all duties and obligations under the Original Agreement and the First Amendment to Agreement.
The compensation shall be paid pursuant to and in the manner and at the time set forth below:
Professional services received by the City under the Original Agreement and this First Amendment to Agreement shall be paid for on a “time and materials” basis with a “not to exceed” amount, as called for in Exhibits “A” and “B” of the Original Agreement and Exhibit “1” of the First Amendment to Agreement. Consultant shall prepare and City agrees to pay Consultant on time and materials for monthly billings, which include detailed tasks, hours worked, and billable rates for work completed. The local agency shall reimburse the CONSULTANT for actual costs (additional reimbursable expenses including, labor costs, employee benefits, overhead, sub-consultant travel expenses and other #30..
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direct costs) incurred by the CONSULTANT in performance of the work called for in Exhibits “A” and “B” of the Original Agreement and Exhibit “1” of this First Amendment to Agreement on the monthly billings, which include detailed receipts for actual costs paid by CONSULTANT in the interest of the project.
4. Except as herein amended or modified, the provisions of the Original Agreement are expressly reaffirmed and remain in full force and effect to the extent they are not in conflict with this First Amendment.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Agreement for Inspection and Assessment Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023 - ________, adopted by the Council of the City of Modesto on the _________ day of _______________, 2023, and NATIONAL PLANT SERVICES, INC. has caused this First Amendment to Agreement to be duly executed in duplicate. #30..
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
1 January 26, 2023
Ben Koehler
WQC Superintendent – Chief Plant Operator
City of Modesto – Wastewater Division
RE: Sutter Outfall Integrity Assessment
Dear Ben,
National Plant Services, Inc.(NPS) is pleased to provide this proposal to complete the integrity assessment of the Sutter Outfall.
BACKGROUND
The City of Modesto owns and operates two parallel 60” RCP outfall pipelines that convey primary treated wastewater (Domestic Outfall Pipeline) and cannery process water (Can Seg Outfall Pipeline) from the Sutter Treatment Plant (Sutter) to the Jennings Treatment Plant (Jennings) for further treatment. These pipelines cross under the Tuolumne River via siphon before the break to gravity and flow to the Jennings. The Domestic Outfall Pipeline siphon is roughly 2000 ft. long with access at manhole SS012670 (in plant, pre-siphon) and manhole SS012638 (on St. Salazar Ct., post-siphon). The Can Seg Outfall Pipeline siphon is roughly 600 ft. long with access at manhole SS012669 (in plant, pre-siphon) and manhole SS012668 (Hatch Rd., post-siphon).
The City of Modesto has entered into a lease for the land under the Tuolumne River from the California State Lands Commission with a term of 20 years. As part of the provisions of the new Lease, the City of Modesto is required to “conduct an integrity/condition assessment, certified by a California registered Civil/Structural Engineer” of the parallel outfall pipelines. A report will need to be submitted before 8/31/23 for State Lands Commission review, and every 5 years following the initial assessment.
SCOPE OF WORK
1. Project Management
1.1 Work Plan
NPS will submit a detailed work and safety plan and schedule for City review and approval at least two weeks in advance of any field work. The plan will describe the proposed sequence of work in detail for each day of work. A key aspect of the plan is that each proposed access to City facilities needs to be identified, including the date and time, and the series of steps proposed to perform the work including applicable safety measures. All of the field work must be completed before June 15, 2023, with the written draft report submitted by July 20, 2023, and finalized by August 20, 2023.
The work plan should assume that for each day’s inspection activity, NPS will be responsible to:
• Verify that isolation of the Outfall line and proper lock out of the appropriate Outfall line isolation valve has been completed, working with the City as needed. Flows will need to be diverted down the unused outfall line by City staff and appropriate lock-outs on crossover valve applied. • Perform dewatering and cleaning to the extent necessary to gain access to the pipe such that the NPS can assess the condition of the pipe and determine if it is suitable for continuous use. #30..
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
2 • Remove manhole covers, valves and air reliefs as necessary to gain access to the pipelines for inspection and/or cleaning.
• Provide and install any needed in-pipe isolation such as bladders. • Perform all inspections such as CCTV, sonar or other non-destructive testing methods. • Re-install manhole covers, valves and air reliefs at the end of each event. • Monitor odors and mitigate to prevent nuisance conditions for surrounding neighborhoods.
The City will operate its system to support the field work consistent with the work plan.
1.2 Other Project Management Activities
This task includes planning and coordination of work including invoicing and progress reporting.
Task 1 Deliverables
Work and safety plan, progress reports.
2. Field Investigations
All field investigations will be performed in compliance with operational restrictions as follows:
a. Access to each Outfall pipeline can only be permitted when the flow is diverted to outfall pipeline not currently being inspected.
b. Access to the Outfall pipelines cannot be permitted simultaneously. c. After one Outfall line is isolated, NPS will be responsible for dewatering the Outfall line and returning wastewater to the Primary Outfall pump station without a release of wastewater to the environment.
See site map for locations.
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
3 NPS will be responsible to perform all dewatering in compliance with constraints applicable to each dewatering point including the physical size of access openings, the need to support hoses properly to direct water to the approved discharge point while avoiding impacts to the treatment plant equipment and operations. Dewatering flow rates to the Primary Outfall pump station cannot cause flow exceedances above the capacity of the pumps and/or single outfall line.
Clean and CCTV Approach:
After flows to the siphon to be assessed are bypassed to the parallel siphon, NPS will attempt to thread the siphon using our combination jetter/vacuum truck. This tag line will be used to pull the dewatering and vacuum hoses down to the invert of the siphon. If debris levels are high, or there is a blockage, NPS will use our CCTV crawlers to pull the vacuum hose down into the siphon until the obstruction is removed and a tag line can be installed from the upstream to downstream manholes.
Dewatering will then proceed using one of our powerful vacuum trucks. Once most of the water is removed so that debris is visible, we will begin step cleaning of the siphon. In this process, the combination jetter/vacuum truck with bottom cleaning nozzle are used to pull debris toward the vacuum hose. This process will continue until all debris is removed. The trucks can be set up at either the upstream or downstream manhole as configuration allows. After cleaning, the Inspection crew will then perform a PACP- coded CCTV inspection of the siphon barrel.
Once the CCTV inspection is complete, that siphon will be put back in service, and the other siphon bypassed with the assistance of the City.
It is assumed that no external dewatering pumps will be required, and that all work can be performed with NPS’ vacuum and jetter trucks.
NPS will be responsible for all aspects of its work including site safety.
Task 2 Deliverables
• CCTV Videos
• PACP Database
• PACP Scoring Reports
3. Report of Findings
NPS will provide a detailed report based on the PACP scoring coded during the CCTV inspection, including but not limited to:
• General documentation of each inspection activity describing the location(s) of access, means and methods, etc.
• Photos of the interior and exterior of the access locations • CCTV or other video files
• Other data such as from sonar
• Log of observations, if applicable
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
4 • Discussion of the condition and integrity of each Outfall line and it’s suitability for continuous use. • If needed, recommended improvements to rehabilitate the pipelines to a condition suitable for continuous use.
The report will be certified by Michelle Beason, PE, Regional Manager for NPS, and a California registered Civil/Structural engineer.
Task 3 Deliverables
A report will be provided as a draft PDF for City review. After review by the City of Modesto, NPS will provide a final report, in both PDF as well as native file formats.
4. Post-Inspection Engineer’s Report
NPS will provide an engineer’s report detailing the requirements for recertification during the term of the lease.
NPS will highlight the minimum frequency of inspections required to certify the outfall pipelines for continuous use after the initial assessment, to include methods, level of effort and costs.
Engineers report should include:
• Schedule of reinspection
• Scope of services needed for recertification
• Method of reinspection
• Cost estimates
The report will be provided as a draft PDF for City review. After review by the City of Modesto, NPS will provide a final report, in both PDF as well as native file formats.
NPS’ QUALIFICATIONS
NPS is uniquely qualified to perform all work on this assessment project. NPS maintains a fleet of sophisticated inspection equipment, with trained operators who clean and inspect millions of feet of sewer siphons and mainlines each year.
Our operators are also trained in field repairs so that they can maintain our equipment on the job sites, such as cable repairs, tractor modifications, etc. This reduces down time as repairs can often be completed right in the field. If a truck cannot be repaired quickly, we have many other CCTV trucks that can be assigned to reduce downtime and keep to our project schedule. Our offices in Hayward and Long Beach, CA, will provide ready response in the deployment of personnel and equipment to maintain or accelerate the project schedule.
The Project Manager, and all CCTV operators, are PACP, MACP, and LACP Certified. NPS has inspected millions of feet of piping over the last few years alone. The operators are skilled in inspecting pipes under challenging conditions: siphons, low flow, high debris, fast turbulent sewers, deep water, etc. We have the experience and knowledge to make sure we complete inspections under most any situation, and have recently completed 72 siphons for the Inland Empire Utilities Agency.
NPS has the experience and the resources to perform the field work in a timely manner, and to manage and compile the data. We have 14 powerful jet vac trucks in our fleet that can efficiently clean debris from live sewers including our powerful 170 gpm units, and the environmentally friendly Recycling jet/vacs. Debris #30..
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
5 information (quantity and type of debris), number of passes to clean, etc., will be recorded during all work so that valuable information is captured.
A partial list of our
cleaning and inspection
equipment is in the table
to the right.
The requirements for sewer cleaning will be discussed fully with the City at the kickoff meeting. We will clean the siphons until cleaned to the satisfaction of the Agency, and then will be immediately inspected and PACP coded.
CCTV Inspection of Sewers and Siphons
NPS is prepared and highly experienced to complete PACP certified inspections of all siphons. The Project Team Leader, our technicians, and all our 16 CCTV Operators, are PACP, MACP, and LACP Certified. NPS has inspected millions of feet of piping over the last few years alone. We have a fleet of 14 CCTV trucks equipped with sophisticated and high-quality color cameras with rotational camera heads, PACP-certified software, 2,000 linear feet of cable, and tractors that can handle any pipe size or condition. We will bring various CCTV cameras/crawlers when we mobilize to the job so that we are prepared for any pipe size and conditions.
The inspections will follow all NASSCO CCTV Inspection guidelines and will not proceed faster than 30 feet per minute. Operators will stop at all defects and code using PACP coding system. If an obstruction or pipe configuration is encountered that prevents passage of the CCTV camera, the operators will relocate to the downstream manhole and provide a reverse inspection.
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
6 Sonar: In the event that the siphon cannot be dewatered due to sags in the invert or heavy infiltration, those portions of the siphon can be inspected with our Marine Electronics Sonar unit. We have various cages that we can mount the sonar head into, and pull the sonar through via a multi-conductor cable that is monitored back at the work truck.
REFERENCES:
Recent related siphon cleaning/inspection references include:
INLAND EMPIRE UTILITIES AGENCY (IEUA)
1. Sanitary Sewer Siphon Clean and Inspection Project
Date of Service: March 2021 - Present
2. Reference Names: Ryan Ward, Assistant Engineer, IEUA, [email protected], 909-519-3603
3. Scope of Work: Cleaning and CCTV inspection of 72 single, dual, and triple barrel sanitary sewer siphon assemblies from 6” to 48” diameter. Some flushing and Sonar inspections as well.
CITY OF SANTA ROSA
1. Sanitary Sewer Siphon Inspection Project
Date of Service: October – December 2020
2. Reference Names: Jason Roberts, Associate Civil Engineer, City of Santa Rosa, 707-543-3449, [email protected]
3. Scope of Work: Cleaning and CCTV inspection, or flushing and sonar inspections, of 28 single barrel sanitary sewer siphons from 6” to 36” diameter.
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NATIONAL PLANT SERVICES PROPOSAL FOR
CITY OF MODESTO SUTTER OUTFALL INTEGRITY ASSESSMENT
7 PRICING:
Since the quantity of debris within each siphon is unknown, NPS proposes to complete all work on a time and material basis at the following rates, similar to what we did for IEUA (see references above).
We have based our estimate on the assumption that the siphons each contain 3/8 full level of debris. If there is less debris than assumed, then only those days worked will be charged to the City. Pricing includes 4 crew personnel, a vacuum truck, a combination jetter/vacuum truck, a CCTV truck, and a support pickup.
TASK DESCRIPTION UNIT # UNITS PRICE PER
UNIT
TOTAL
Mobilization LS 1 $9,000 $9,000
Daily Crew Rate (9 hours of work) Day 26 $12,000 $312,000 Engineering Services (Work Plan and Final
Reports)
Hour 50 $200 $10,000
TOTAL $331,000
• NPS will dump all debris at the City’s WWTP at no charge to NPS • City to provide a nearby water source (recycled or potable) to NPS • City will only be charged for crew days worked, and the time incurred by Professional Civil Engineer, Michelle Beason.
We thank you for considering our proposal and we are excited to tackle the challenges of this project. I will be the proposal contact person and Project Engineer, and my information is below.
Sincerely,
Michelle Beason, PE
Regional Manager, National Plant Services Inc.
[email protected], 925-262-7366 cell, 510-291-3142 fax Bay Area Service Yard: 2159 National Avenue, Hayward, CA 94545 Mailing Address, Headquarters: 1461 Harbor Avenue, Long Beach, CA 90813 #30..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 11, 2023
Date: April 4, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Scott Conn, Chief Information Officer
SUBJECT: Cybersecurity Attack Response and Security Tool Vendors Agreements CONTACT: Scott Conn, Chief Information Officer
[email protected], 209-577-5229
DESCRIPTION:
Consider approving the Purchase and Agreements for the Cybersecurity Attack Responses for an amount of $548,266 plus 7% contingency in the amount of $38,379 for a total amount not to exceed $586,645 and approving Agreements with Security Tool Vendors in an amount of $462,210 plus 7% contingency in the amount of $34,790 for a total amount not to exceed $497,000. (Funding Sources: City Insurance Fund and Information Technology Fund) STRATEGIC PLAN ELEMENT:
This item is consistent with the City’s 2020-2025 Strategic Plan to improve community safety, ensure safe, efficient, and reliable infrastructure, and promote trust and engagement with the community and directly supports the Smart City Strategy adopted in 2021.
BACKGROUND:
On February 3, 2023, the City of Modesto experienced a cybersecurity attack on its Information Technology (IT) systems. The attack was quickly isolated by the IT department staff and primarily limited to a single department. Despite the attack, City services remained available to the residents of Modesto including the response to 911 calls by our Police and Fire departments. While services were mostly unencumbered, the attack did highlight technological areas where additional security detection and prevention tools may have deterred the attacker.
As the attack response vendors and security tool vendors provide such narrow, specialized services, identifying a vendor would necessarily identify a specific vulnerability since the City could only be hiring the vendor to provide one service or implement a single tool to securely protect one aspect of the overall information technology infrastructure. As such, the general terms “response vendors” and “security tools” are being referenced in this document in accordance with California Government #31..
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City Council, April 11, 2023
Cybersecurity Attack Response and Security Tool Vendors Agreements
Code Section 7929.210a1 which states “Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency.” An agency is defined as a city or other publicly funded entity. Also, specific agreements are not attached to this Staff Report in accordance with Section 7929.210a.
DISCUSSION:
As part of the City’s pre-planned response to any cybersecurity attack, the City immediately engaged its cybersecurity insurance vendor who promptly assigned a group of cyberattack response vendors - each possessing specific expertise as to how to block, analyze, and recover from such an attack. Each response vendor adhered to and successfully completed their assigned tasks and provided additional security recommendations which would help deter Threat Actors from conducting additional attacks. From start to finish, the recovery process for critical infrastructure lasted approximately 5 weeks elapsed time. Response vendors’ invoices require payment by the City and then submittal to the City’s cybersecurity insurance vendor for possible reimbursement less the City’s deductible of $100,000.
Prior to the cybersecurity attack occurring, the IT department was in the process of bringing a group of security tools to the City Council in April 2023 for purchase approval. These tools were identified and selected based upon multiple inputs including areas listed on a past security audit, tool products considered to be best in category by leading security experts and consulting firms, and specific recommendations either confirmed or made by our cybersecurity response vendors. The functional areas covered by the proposed security tool annual fees include: email inbound/outbound analysis and archiving, zero-trust network segmentation which helps in isolating one area of the City’s network infrastructure from another area (i.e., Finance segmented away from Human Resources), endpoint detection and response which monitors all activities taking place within the City network, identifies malicious behaviors and stops/blocks that behavior before it can do damage, and security incident event management that helps analyze and efficiently manage any event and contain its impact.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to be formally bid. However, Staff believes the approval for the response vendor agreements and the security tools should be exempt from the formal bidding process in accordance with Modesto Municipal Code 8-3.204(c) where the Purchasing Manager, in his or her discretion, determines that calling for bids on a competitive basis as set forth in Section 8-3.203 is undesirable due to exigent circumstances.
The circumstances involve the requirement for an immediate response to the ransomware attack along with several of the security tools originally planned for purchase being implemented on the City’s network by the response vendors to assist and speed up the City’s recovery process. As such, the request to purchase the security tools has been accelerated thus bypassing the usual review by the City’s Finance Committee to keep the superior protections in place rather than uninstall the tools once full recovery had been obtained.
FISCAL IMPACT:
1 2021 California Government Code – GOV, Title 1 – General, Division 10 – Access to Public Records, Part 5 – Specific types of Public Records, Chapter 17 – Security Measures and Related Matters, Section 7929.210. #31..
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City Council, April 11, 2023
Cybersecurity Attack Response and Security Tool Vendors Agreements
The cybersecurity attack response vendors figure was determined based on the original scope of work identified by each vendor plus any subsequent amendments in an amount not to exceed $586,645 including a 7% contingency amount. The not to exceed amount may be reimbursed to the City by our cybersecurity insurance vendor, less our $100,000 deductible, once the City has submitted all vendor invoices and they are deemed compliant with our insurance policy.
The deductible will be paid as well as any unapproved reimbursement submissions through the City’s Insurance Fund.
The 7% response vendors contingency in the amount of $38,379 is recommended as a safeguard to cover unanticipated vendor response services such as subsequent notification requirements, legal, and communication services.
The security tools all involve annual subscription fees in an amount not to exceed $497,000 including a 7% contingency amount. These fees will be spread to each department through the Internal Service Fund model allocation from our Information Technology Fund.
The 7% security tools contingency in the amount of $34,790 is recommended as a safeguard to cover unanticipated implementation costs such as integrated security requirements, software update requirements, training, and consulting services.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Purchase and Agreements for the Cybersecurity Attack Responses for an amount of $548,266 plus 7% contingency in the amount of $38,379 for a total amount not to exceed $586,645 and authorizing the City Manager, or his designee, to execute these Agreements.
Resolution approving the Agreements with Security Tool Vendors in an amount of $462,210 plus 7% contingency in the amount of $34,790 for a total amount not to exceed $497,000 and authorizing the City Manager, or his designee, to execute these Agreements.
Approved by:
Scott Conn, Chief Information Officer
Joseph P. Lopez, City Manager
Attachments:
1. Resolution (2)
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION APPROVING THE PURCHASE AND AGREEMENTS FOR THE CYBERSECURITY ATTACK RESPONSES FOR AN AMOUNT OF $548,266 PLUS 7% CONTINGENCY IN THE AMOUNT OF $38,379 FOR A TOTAL AMOUNT NOT TO EXCEED $586,645; AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE, TO EXECUTE AGREEMENTS
WHEREAS the City of Modesto experienced a ransomware attack on February 3, 2023, and
WHEREAS cybersecurity attack response vendors were assigned to the City of Modesto by its insurance company, and
WHEREAS the response vendors crafted and adhered to statements of work (SOW) in their respective areas of expertise to forensically analyze, clean, and restore information technology systems that were impacted by the attack, and WHEREAS many of the response vendors along with their associated agreements will not be identified in order to protect their specific area of expertise as allowed by California Government Code Section 7929.210a1 which states “Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency,” and
WHEREAS the City of Modesto agreement with its insurance company requires the response vendors to be paid by the City of Modesto, and 1 2021 California Government Code – GOV, Title 1 – General, Division 10 – Access to Public Records, Part 5 – Specific types of Public Records, Chapter 17 – Security Measures and Related Matters, Section 7929.210.
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WHEREAS the City of Modesto will submit all payments made to the response vendors to the insurance company for a policy compliance review and anticipated reimbursement less the policy’s $100,000 deductible, and WHEREAS Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to be formally bid, and
WHEREAS the approval for professional services rendered by the response vendors should be exempt from the formal bidding process in accordance with Modesto Municipal Code 8-3.204(c) where the Purchasing Manager, in his or her discretion, determines that calling for bids on a competitive basis as set forth in Section 8-3.203 is undesirable due to exigent circumstances, and
WHEREAS the circumstances involving the ransomware attack required an immediate response, and
WHEREAS, the service fees for these response vendors will be $548,266, and WHEREAS, there will be a 7% contingency in an amount of $38,379 to account for unanticipated vendor response services, and
WHEREAS, the total for these response vendor agreements will be $586,645.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the purchase and Agreements for the Cybersecurity Attack Responses for an amount of $548,266 plus 7% contingency in the amount of $38,379 for a total amount not to exceed $586,645.
BE IT FURTHER RESOLVED that the City Manager or his designee are hereby authorized to execute the agreements.
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of April 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION APPROVING THE AGREEMENTS WITH SECURITY TOOL
VENDORS IN AN AMOUNT OF $462,210 PLUS 7% CONTINGENCY IN THE AMOUNT OF $34,790 FOR A TOTAL AMOUNT NOT TO EXCEED $497,000;
AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
EXECUTE AGREEMENTS
WHEREAS the City of Modesto experienced a ransomware attack on February 3, 2023, and
WHEREAS cybersecurity attack response vendors were assigned to the City of Modesto by its insurance company, and
WHEREAS the response vendors installed multiple cybersecurity detection, protection and attack management/recovery tools and recommended other specific tools for an improved cybersecurity defense, and
WHEREAS the City of Modesto Information Technology Department was already in the process of bringing several of the recommended tools along with other tools designed to improve cybersecurity defense capabilities to City Council for approval prior to the ransomware attack occurring, and
WHEREAS the security tools being purchased along with their specific agreements will not be identified in order to protect their specific security function as allowed by California Government Code Section 7929.210a1 which states “Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities 1 2021 California Government Code – GOV, Title 1 – General, Division 10 – Access to Public Records, Part 5 – Specific types of Public Records, Chapter 17 – Security Measures and Related Matters, Section 7929.210.
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to, or otherwise increase the potential for an attack on, an information technology system of a public agency.”, and
WHEREAS Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to be formally bid, and
WHEREAS the approval for the security tools should be exempt from the formal bidding process in accordance with Modesto Municipal Code 8-3.204(c) where the Purchasing Manager, in his or her discretion, determines that calling for bids on a competitive basis as set forth in Section 8-3.203 is undesirable due to exigent circumstances, and
WHEREAS, the circumstances involving the ransomware attack required an immediate response where several of the security tools were implemented on the City’s network by the response vendors to assist and speed up the City’s recovery process, and WHEREAS, the subscription fee for all security tools associated with this resolution will be $462,210 annually, and
WHEREAS, there will be a 7% contingency in an amount of $34,790 in year 1 to account for implementation, upgrades and maintenance of the security tools, and WHEREAS, the annual agreements total for these security tools will be $497,000.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Agreements with security tool vendors in an amount of $462,210 plus 7% contingency in the amount of $34,790 for a total amount not to exceed $497,000.
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BE IT FURTHER RESOLVED that the City Manager or his designee are hereby authorized to execute the agreements.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of April 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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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 11, 2023
Date: March 21, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: Extension of the Letter of Credit with Bank of the West Supporting the Lease Revenue Bonds, Series 2008 (Bonds)
CONTACT: DeAnna Christensen, Director of Finance, [email protected], 209-577-5387
DESCRIPTION:
Consider approving a three-year extension of the irrevocable direct pay Letter of Credit (LOC) with BMO Harris Bank N.A. (formerly Bank of the West) supporting the Lease Revenue Bonds, Series 2008 (Bonds) authorizing the distribution of a Supplemental Official Statement, and authorizing certain other related actions to complete the three-year extension to the Lease Revenue Bonds LOC. (Funding Source: General Fund, Redevelopment Successor Agency and Various Funds)
STRATEGIC PLAN ELEMENT:
These items support the City of Modesto 2020-2025 Strategic Plan Focus of Governance and Service Delivery under goal H: Achieve Financial Sustainability.
BACKGROUND:
The Modesto Public Financing Authority (MPFA) is authorized under the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4, Chapter 5, Division 7, Title 1 (commencing with Section 6584) of the California Government Code, as amended (the “Act”), to lease and/or purchase real property and to issue bonds for the financing and refinancing of public capital improvements whenever there are significant public benefits.
These 2008 Bonds were issued by MPFA in the amount of $65,170,000 to refund the Series 1998 and Series 2007 Lease Revenue Bonds (referenced together as the “Prior Bonds”). The Prior Bonds were issued to assist in the financing of certain public capital improvements in the City which consist of the following: (i) the former Redevelopment Agency’s parking garage, (ii) the City’s one-half interest in the City-County Joint Power Agency’s administration building, (iii) the City’s police headquarters building and police operations building, (iv) certain miscellaneous City properties and (v) the City’s one-half undivided interest in the Communications Dispatch #32..
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City Council, April 11, 2023
Extension of the Letter of Credit with Bank of the West Supporting the Lease Revenue Bonds, Series 2008 (Bonds)
Center. The current obligation due on these bonds is $41,770,000 with a final maturity date of September 1, 2033.
The bonds are variable rate bonds, with the interest rate being reset every seven days. Due in part to this feature, the bondholders have a right to tender the bonds back for repurchase if the holder elects to sell its bonds. The Letter of Credit ensures that there is sufficient money to pay the purchase price if, due to a market disruption or other unusual circumstances, the City’s remarketing agent is unable to remarket the tendered bonds. Draws under the Letter of Credit, not City funds, pays the purchase price for unremarketed bonds. These Letter of Credit draws must subsequently be repaid, primarily by remarketing/reselling the bonds to new investors in exchange for cash or, if no new investors can be found after a specified number of weeks, repaid in annual installments from City funds to the Letter of Credit provider over a specified period of years (“term out” period).
In November 2018, the City solicited proposals through a Request for Proposals (RFP) process for banking services and the LOC for the Bonds. City staff recommended to award to Bank of the West, Monterey Park, CA. On May 7, 2019 under Resolution 2019-224, Council approved a Reimbursement Agreement with Bank of the West, the City of Modesto and Modesto Public Financing Authority to establish an irrevocable direct pay LOC. The current LOC agreement has a four-year term with an expiration date of June 13, 2023.
DISCUSSION:
On January 5, 2023, the City’s Municipal Advisor, PFM Financial Advisors LLC (PFM) submitted a Request for Proposals (RFP) for Letter of Credit services for the Bonds on behalf of the City.
The RFP was distributed to 26 financial bank institutions. Three (3) proposals were received offering three to five-year LOCs with a three to five-year term out period which included BMO Harris Bank N.A. (formerly Bank of the West1), Bank of America and JP Morgan.
All three proposals came from national financial banking institutions that have strong credit ratings. Based on the cost comparison, City staff is recommending to move forward with extending the LOC for a three-year term with BMO Harris Bank N.A. BMO Harris Bank N.A. has presented a reduction to their LOC fee from the current 37.5 to 34 basis points (bps) which is significantly lower compared to the other two proposals ranging from 50 to 77.5 bps. In addition, the three-year term is being recommended to ensure it aligns with the expiration date of the banking services agreement in May 2026.
All bond documents will also be reviewed by the City’s Bond Counsel, Norton Rose Fulbright US LLP to ensure all legal requirements are met under this bond transaction. On March 12, 2019 under Resolution 2019-111, Council approved the Third Amendment for outside Legal Bond Counsel for bond transactions in the amount not to exceed $415,000.
In addition to changing its liquidity provider, the MPFA also intends to change the remarketing agent of the Bonds from Raymond James to TD Securities. This will result in annual savings because TD Securities has offered a remarketing fee of 6 bps whereas Raymond James is currently charging 7 bps. Over the remaining life of the bonds, this change is estimated to result in $23,000 of remarketing fee savings.
1 https://www.bmo.com/en-us/main/bank-of-the-west-joins-bmo/ #32..
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City Council, April 11, 2023
Extension of the Letter of Credit with Bank of the West Supporting the Lease Revenue Bonds, Series 2008 (Bonds)
FISCAL IMPACT:
By lowering its LOC fee from 37.5 bps to 34 bps, the City will be reducing LOC costs by $11,000 to $14,000 annually. However, the process of extending the LOC comes with one-time upfront legal and consultant costs estimated at $45,000. Therefore, the net effect to the City will be a total cost that is $7,000 higher than if it had been able to continuing paying the 37.5 bps rate it is currently paying on its LOC for another 3 years; however, continuing to pay the 37.5 bps rate under the current LOC is not an option because the current LOC expires on June 13, 2023.
Fiscal
Year
LOC Fee Savings
(37.5bps vs. 34bps)
LOC Extension
One-time Costs
Net
Savings
2024 $14,002 ($45,000) ($30,998)
2025 12,919 - 12,919
2026 11,215 - 11,215
Total $38,137 ($45,000) ($6,863)
COMMITTEE RECOMMENDATION:
This item was presented at the March 20, 2023 Finance Committee and approved to move forward to Council.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution of the City Council of the City of Modesto relating to Modesto Public Financing Authority Lease Revenue Refunding Bonds Series 2008; approving Amendment No. 1 to Reimbursement Agreement among BMO Harris Bank N.A., City of Modesto and Modesto Public Financing Authority; Amendment No. 1 to Fee Letter Agreement; and a supplement to Official Statement; and authorizing certain other related actions.
Approved by:
DeAnna Christensen, Director of Finance
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. 2023 OS Supplement No. 4 LOC extension - Modesto LRBs 2008
3. Amendment No. 1 to Fee Letter Agreement - BMOHB - Modesto LRB 2008
4. Amendment No. 1 to Reimbursement Agreement - BMOHB - Modesto LRB 2008 #32..
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-___
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MODESTO RELATING
TO MODESTO PUBLIC FINANCING AUTHORITY LEASE REVENUE REFUNDING BONDS SERIES 2008; APPROVING AMENDMENT NO. 1 TO REIMBURSEMENT AGREEMENT AMONG BMO HARRIS BANK N.A., CITY OF MODESTO AND MODESTO PUBLIC FINANCING AUTHORITY; AMENDMENT NO. 1 TO FEE LETTER AGREEMENT; AND A SUPPLEMENT TO OFFICIAL STATEMENT; AND
AUTHORIZING CERTAIN OTHER RELATED ACTIONS
WHEREAS, the City of Modesto is a charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the “City”), and
WHEREAS, the Modesto Public Financing Authority (the “Authority”) is authorized under the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4, Chapter 5, Division 7, Title 1 (commencing with Section 6584) of the California Government Code, as amended (the “Act”), to lease and/or purchase real property and to issue bonds for the financing and refinancing of public capital improvements whenever there are significant public benefits, and
WHEREAS, the Authority previously issued its $65,170,000 original aggregate principal amount of Modesto Public Financing Authority Lease Revenue Refunding Bonds Series 2008 (the “2008 Bonds”), and
WHEREAS, Bank of America, N.A., as Credit Facility Provider, issued its Irrevocable Transferable Letter of Credit dated August 28, 2008 (the “Initial Credit Facility”) to provide credit support for the 2008 Bonds, and
WHEREAS, on June 13, 2019, the City replaced the Initial Credit Facility with a replacement letter of credit (the “Current Credit Facility”) by BMO Harris Bank N.A. (successor in interest to Bank of the West) (the “Bank”); and
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04/11/2023/FIN/DChristensen/Item XX 2023-XX
WHEREAS, in connection with the issuance of the Current Credit Facility, the City, the Authority and the Bank entered into a Reimbursement Agreement and related Fee Letter Agreement; and
WHEREAS, the Current Credit Facility has a stated expiration date of June 13, 2023; and WHEREAS, prior to the expiration date thereof, the City wishes to extend the Current Credit Facility; and
WHEREAS, in connection with the extension of the Current Credit Facility, the City, the Authority and the Bank will enter into an Amendment No. 1 to Reimbursement Agreement (the “Reimbursement Agreement Amendment”) and related Amendment No. 1 to Fee Letter Agreement (the “Fee Letter Amendment”), and
WHEREAS, staff recommends TD Securities (USA) LLC replace Raymond James & Associates, Inc. as the remarketing agent for the 2008 Bonds, and WHEREAS, in connection with the extension of the Current Credit Facility, the City and the Authority will prepare a supplement to the Official Statement for the 2008 Bonds describing certain material information regarding the Bank, the Current Credit Facility and the Reimbursement Agreement (as amended by the Reimbursement Agreement Amendment) (the “Supplement to Official Statement”), and
WHEREAS, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such transactions for the purpose, in the manner and upon the terms herein provided, #32..
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04/11/2023/FIN/DChristensen/Item XX 2023-XX
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Modesto, as follows:
Section 1. Findings. The City Council hereby specifically finds and determines that the actions authorized hereby constitute and are with respect to the public affairs of the City and that the statements, findings and determinations of the City set forth above and in the preambles of the documents approved herein are true and correct and that the consummation of the transactions contemplated therein shall result in significant public benefits to the City.
Section 2. Approval of the Reimbursement Agreement Amendment and Fee Letter Amendment. The City Council hereby approves the extension of the Stated Expiration Date of the Current Credit Facility. The Reimbursement Agreement Amendment and related Fee Letter Amendment proposed to be executed and entered into by the City, in the forms presented at this meeting and on file with the City Clerk, are hereby approved, and each of the City Manager and the Finance Director, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Reimbursement Agreement Amendment and Fee Letter Amendment in substantially said forms, with such changes therein as such officer executing the Reimbursement Agreement Amendment and Fee Letter Amendment may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 3. Approval of the Supplement to Official Statement. The Supplement to Official Statement proposed to be executed and delivered by the City, in the form presented at this meeting and on file with the City Clerk, is hereby approved, and each of the City Manager and the Finance Director, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Supplement to Official Statement in substantially said form, with such changes therein as such officer executing the Supplement to #32..
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04/11/2023/FIN/DChristensen/Item XX 2023-XX
Official Statement may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 4. Attestations. The City Clerk is hereby authorized and directed to attest the signature of the City Manager and the Finance Director and to affix and attest the seal of the City, as may be required or appropriate in connection with the documents approved by this Resolution.
Section 5. Other Actions. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or desirable in order to consummate the transactions authorized hereby and to carry out, give effect to and comply with the terms and intent of this Resolution, the Reimbursement Agreement Amendment, the Fee Letter Amendment and the Supplement to Official Statement; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved.
Section 6. Effective Date. This Resolution shall take effect immediately upon its passage.
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04/11/2023/FIN/DChristensen/Item XX 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of April, 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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Norton Rose Fulbright US LLP draft of 3/21/23
SUPPLEMENT NO. 4, DATED _________, 2023, TO OFFICIAL STATEMENT, DATED AUGUST 26, 2008 NOT A NEW ISSUE RATINGS:
See “RATINGS” herein
$65,170,000
MODESTO PUBLIC FINANCING AUTHORITY
LEASE REVENUE REFUNDING BONDS
SERIES 2008
Dated: Date of Original Delivery Price: 100% CUSIP† 607796BU2 Due: September 1, 2033 (August 28, 2008)
This Supplement No. 4 to Official Statement (this “Supplement”) sets forth certain information supplementary to that information contained in the Official Statement dated August 26, 2008, as supplemented on February 25, 2014, June 22, 2016, and June 4, 2019 (together, the “Original Official Statement”), relating to the Modesto Public Financing Authority Lease Revenue Refunding Bonds Series 2008 (the “2008 Bonds”). The 2008 Bonds were issued pursuant to an Indenture, dated as of August 1, 2008, by and between the Modesto Public Financing Authority (the “Authority”) and The Bank of New York Mellon Trust Company, N.A., as Trustee, in order to provide funds to (i) refund certain bonds previously issued by the Authority, (ii) fund the Reserve Fund for the 2008 Bonds and (iii) pay the costs of issuance of the 2008 Bonds.
Information with respect to the 2008 Bonds is contained in the Original Official Statement, as supplemented by this Supplement. This Supplement should be read together with the Original Official Statement (a copy of which is attached hereto as Appendix A and incorporated herein by reference). To the extent that the information in this Supplement conflicts with the information in the Original Official Statement, this Supplement shall govern. No attempt has been made to update the Original Official Statement except as specifically set forth in this Supplement. Unless otherwise defined in this Supplement, all terms used herein shall have the same meanings as those terms in the Original Official Statement.
The 2008 Bonds were issued in and are currently in a Weekly Mode, and interest on the 2008 Bonds accrues at the Weekly Rate. Regularly scheduled payments of the principal of and interest on the 2008 Bonds is supported by an irrevocable, direct-pay letter of credit (the “Letter of Credit”) issued by BMO Harris Bank N.A. (the “Bank”), successor in interest to Bank of the West, pursuant to the terms of a Reimbursement Agreement, dated as of June 1, 2019, by and among the Authority, the City of Modesto (the “City”) and the Bank, upon which Letter of Credit the Trustee is instructed to draw whenever any such amount is payable on the 2008 Bonds. The Trustee may also draw funds under the Letter of Credit to pay the purchase price of 2008 Bonds tendered for payment and not remarketed to the extent other moneys are not available therefor. The Letter of Credit with respect to the 2008 Bonds had an original stated expiration date of June 13, 2023. The Authority has requested the Bank to extend the stated expiration date to June __, 2026, and the Bank intends to do so. See “CREDIT FACILITY” and “INFORMATION CONCERNING THE BANK” herein.
TD Securities (USA) LLC currently serves as remarketing agent for the 2008 Bonds (the “Remarketing Agent”).
Certain legal matters in connection with the extension of the stated expiration date of the Letter of Credit will be passed upon for the City by Norton Rose Fulbright US LLP, San Francisco, California, Bond Counsel. Certain legal matters will be passed upon for the City and the Authority by the City Attorney of the City and for the Bank by Hawkins Delafield & Wood LLP, Los Angeles, California.
[TD Securities (USA) LLC Logo]
__________________
† CUSIP® is a registered trademark of the American Bankers Association. CUSIP data herein are provided by CUSIP Global Services, managed by FactSet Research Systems Inc. on behalf of the American Bankers Association. CUSIP numbers have been assigned by an independent company not affiliated with the Authority, the City, its Municipal Advisor or the Remarketing Agent is responsible for the selection or use of these CUSIP numbers and no representation is made as to their correctness on the 2008 Bonds or as indicated above. The CUSIP number for a specific bond is subject to being changed after the issuance of the bonds as a result of various subsequent actions including, but not limited to, a refunding in whole or in part of such maturity or as a result of the procurement of secondary market portfolio insurance or other similar enhancement by investors that is applicable to all or a portion of such bonds.
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i
TABLE OF CONTENTS
Page
INTRODUCTION .........................................................................................................................................1 CREDIT FACILITY ......................................................................................................................................3 INFORMATION CONCERNING THE BANK ...........................................................................................6 RATINGS ......................................................................................................................................................6 MISCELLANEOUS ......................................................................................................................................7 APPENDIX A – COPY OF OFFICIAL STATEMENT, DATED AUGUST 26, 2008, AS SUPPLEMENTED ON FEBRUARY 25, 2014, JUNE 22, 2016 AND JUNE 4, 2019 A-1 #32..
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1 SUPPLEMENT NO. 4, DATED ____, 2023, TO OFFICIAL STATEMENT, DATED AUGUST 26, 2008
RELATING TO
$65,170,000
MODESTO PUBLIC FINANCING AUTHORITY
LEASE REVENUE REFUNDING BONDS
SERIES 2008
INTRODUCTION
The purpose of this Supplement No. 4 to Official Statement (this “Supplement”) is to supplement the Official Statement dated August 26, 2008, as supplemented on February 25, 2014, June 22, 2016, and June 4, 2019 (together, the “Original Official Statement”), relating to the $65,170,000 original principal amount of Modesto Public Financing Authority Lease Revenue Refunding Bonds, Series 2008 (the “2008 Bonds”). The 2008 Bonds are currently outstanding in the aggregate principal amount of $[______]. This Supplement provides information concerning the extension to June __, 2026 of the stated expiration date of the irrevocable direct-pay letter of credit (the “Letter of Credit”) issued by BMO Harris Bank N.A. (the “Bank”), successor in interest to Bank of the West, pursuant to the terms of a Reimbursement Agreement, dated as of June 1, 2019 (the “Original Reimbursement Agreement”), by and among the Bank, the Modesto Public Financing Authority (the “Authority”) and the City of Modesto (the “City”), to provide for the payment of principal, purchase price and optional and mandatory sinking fund redemption price of and interest on the 2008 Bonds. The Letter of Credit currently has a stated expiration date of June 13, 2023.
The 2008 Bonds were issued pursuant to an Indenture, dated as of August 1, 2008, by and between the Authority and The Bank of New York Mellon Trust Company, N.A., as Trustee, in order to provide funds to (i) refund certain bonds previously issued by the Authority, (ii) fund the Reserve Fund for the 2008 Bonds and (iii) pay the costs of issuance of the 2008 Bonds.
In connection with the extension of the Letter of Credit’s stated expiration date by the Bank, the Original Reimbursement Agreement will be amended pursuant to an Amendment No. 1 to Reimbursement Agreement (the “Amendment No. 1” and the Reimbursement Agreement, as amended by Amendment No. 1, the “Reimbursement Agreement”). See “CREDIT FACILITY” herein.
This Supplement also provides information about the Bank, which has been provided by the Bank.
See “INFORMATION CONCERNING THE BANK” below.
The Bank has provided only the information related to itself set forth under the heading “INFORMATION CONCERNING THE BANK” for inclusion in this Supplement and has not provided any other information for this Supplement. No representation is made herein as to the accuracy or adequacy of such information or as to the absence of material adverse changes in such information subsequent to the date hereof, or that the information given below or incorporated herein by reference is correct as of any time subsequent to its date. The Bank has not (i) independently verified or reviewed, (ii) made any representation regarding, nor (iii) accepted any responsibility for the accuracy or completeness of, this Supplement or the Original Official Statement or any information or disclosure contained herein or therein, other than solely with respect to the information with respect to itself set forth in this Supplement under the heading “INFORMATION CONCERNING THE BANK.”
Information with respect to the 2008 Bonds is contained in the Original Official Statement, as supplemented by this Supplement. This Supplement should be read together with the Original Official Statement (a copy of which is attached hereto as Appendix A and incorporated herein by reference). To #32..
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2 the extent that the information in this Supplement conflicts with the information in the Original Official Statement, this Supplement shall govern. No attempt has been made to update the Original Official Statement except as specifically set forth in this Supplement. Unless otherwise defined in this Supplement, all terms used herein shall have the same meanings as those terms in the Original Official Statement. #32..
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3 CREDIT FACILITY
POTENTIAL PURCHASERS OF THE 2008 BONDS SHOULD BASE ANY DECISION WITH RESPECT TO THE PURCHASE, HOLDING OR TENDER OF SUCH 2008 BONDS SOLELY UPON THE CREDIT OF THE BANK AND NOT THE CITY OR THE AUTHORITY.
NEITHER THE CITY NOR THE AUTHORITY HAS OBLIGATED ITSELF TO PURCHASE THE 2008 BONDS IN THE EVENT OF A MANDATORY OR OPTIONAL TENDER. CERTAIN
INFORMATION INCLUDED IN THIS SUPPLEMENT WITH RESPECT TO THE CITY AND THE AUTHORITY IS FOR INFORMATIONAL PURPOSES ONLY.
Reference is made to each of the Letter of Credit and the Reimbursement Agreement in its entirety for the detailed provisions thereof, copies of which are available for inspection from the Trustee.
Credit Facility
The Bank has established, at the request and for the account of the City, the Letter of Credit in favor of the Trustee. The Letter of Credit authorizes the Trustee to draw on the Letter of Credit in an aggregate amount not exceeding [$42,236,909.00] (as reduced or reinstated from time to time in accordance with the provisions of the Letter of Credit, the “Stated Amount”) of which an amount not exceeding [$41,770,000.00] (as reduced or reinstated from time to time in accordance with the provisions of the Letter of Credit, the “Principal Portion”) may be drawn with respect to payment of the unpaid principal of or the portion of the purchase price corresponding to the unpaid principal of the 2008 Bonds and an amount not exceeding [$466,909.00] (as reduced or reinstated from time to time in accordance with the provisions of the Letter of Credit, the “Interest Portion”) may be drawn upon with respect to payment of interest actually accrued and unpaid on, or the portion of the purchase price corresponding to interest actually accrued and unpaid on, the 2008 Bonds on or prior to their stated maturity date, but in no event more than interest accrued and unpaid on the 2008 Bonds calculated at a maximum interest rate of 12% per annum (based on a year of 365 days) for the 34 days immediately preceding any drawing. The Stated Amount is comprised of the Principal Portion and the Interest Portion, as they may vary from time to time. The Letter of Credit is only available to be drawn upon with respect to 2008 Bonds bearing interest at a Daily Rate or Weekly Rate pursuant to the Indenture.
Drawings by the Trustee under the Letter of Credit and presentation of a reduction certificate by the Trustee to the Bank will reduce the Stated Amount available for subsequent drawings under the Letter of Credit, subject to reinstatement as provided in the Letter of Credit.
Upon extension, the Letter of Credit will expire at 4:00 p.m. (California time) on the date (the “Expiration Date”) which is the earliest of: (i) June [__], 2026, unless extended by the Bank in its sole discretion (the “Stated Expiration Date”), (ii) the date on which the Bank honors a drawing which when added to all other drawings honored hereunder and not subject to reinstatement in the aggregate equals the Stated Amount, (iii) the first (1st) Business Day which is five (5) days after the date of the Bank’s receipt of a specified certificate from the Trustee stating that (x) the conditions precedent to the acceptance of an Alternate Credit Facility set forth in the Indenture have been satisfied and the Trustee has accepted an Alternate Credit Facility, or (y) no 2008 Bonds remain outstanding under the Indenture or all 2008 Bonds remaining outstanding under the Indenture have been converted to bear interest at a Fixed Rate, Flexible Rate or Term Rate, (iv) the day the Bank delivers to the Trustee a specified certificate stating that an event of default under the Reimbursement Agreement has occurred and that the Letter of Credit has expired, or (v) the date when the Trustee surrenders the Letter of Credit to the Bank for cancellation. The Trustee has agreed in the Letter of Credit to surrender the Letter of Credit to the Bank, and not to make any drawing after (a) the Expiration Date, or (b) the date on which there are no 2008 Bonds outstanding under the Indenture. Funds under the Letter of Credit will be paid with the Bank’s own funds. #32..
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4 Reimbursement Agreement
General. The following summarizes certain provisions of the Reimbursement Agreement. The Reimbursement Agreement, among other things, sets the terms and conditions whereby the Authority and the City are required to repay to the Bank any amounts drawn by the Trustee under the Letter of Credit.
Among other things, the Reimbursement Agreement also provides for the payment or reimbursement to the Bank of certain specified fees, costs and expenses, affirmative and negative covenants to be observed on the part of the Authority and the City and certain indemnification obligations on the part of the Authority and the City. The Reimbursement Agreement will not secure the Trustee, the holders of the 2008 Bonds, or the 2008 Bonds.
For purposes of this summary, “Bankruptcy Law” shall mean Title 11, U.S. Code, as amended or supplemented, any successor statute thereto, or any similar Federal, state, or foreign law for the relief of debtors.
For purposes of this summary, “Related Documents” shall mean the Reimbursement Agreement, the related fee letter agreement, the Letter of Credit, the 2008 Bonds, the Indenture, the Lease Agreement, the Facilities Leases, the Remarketing Agreement, the Official Statement and the other documents, certificates and opinions executed and delivered in connection with issuance of the 2008 Bonds.
For purposes of this summary, “Successor Agency” means the City as the successor agency for the Redevelopment Agency of the City of Modesto as designated under Section 34173 of the California Health & Safety Code.
Events of Default. If any of the following events shall occur and be continuing, each such event shall be an “Event of Default” under the Reimbursement Agreement:
(a) The Authority or the City (by payment of Base Rental Payments or Additional Payments under the Lease Agreement) shall fail to pay when due any amount payable to the Bank under the Reimbursement Agreement or under the Lease Agreement (including any Base Rental Payment or Additional Payment) or under any of the Related Documents; or (b) Any provision of the 2008 Bonds or any other Related Document ceases to be valid and binding against the Authority, the City, the Successor Agency or the Financing Agency (as the case may be) or shall be declared null and void or the Authority, the City, the Successor Agency or the Financing Agency repudiates its obligations under the Reimbursement Agreement or any of the Related Documents or the pledge and assignment pursuant to the Reimbursement Agreement and pursuant to the Indenture shall for any reason cease to be fully enforceable with the priority required under the Reimbursement Agreement and under the Indenture; or
(c) The Authority, the City, the Successor Agency or the Financing Agency shall either (i) become insolvent or generally fail to pay, or admit in writing its inability to pay, its debts as they become due; or (ii) voluntarily commence any proceeding or file any petition under the Bankruptcy Law or similar law seeking dissolution or reorganization or the appointment of a receiver, trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business; or (iii) take any action for the purpose of effectuating any of the foregoing; or
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5 (d) Involuntary proceedings or an involuntary petition shall be commenced or filed against the Authority, the City, the Successor Agency or the Financing Agency under the Bankruptcy Law or similar law seeking the dissolution or reorganization of the Authority, the City, the Successor Agency or the Financing Agency or the appointment of a receiver, trustee, custodian or liquidator for the Authority, the City, the Successor Agency or the Financing Agency or of a substantial part of the property, assets or business of the Authority, the City, the Successor Agency or the Financing Agency, or any writ, judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of the property, assets or business of the Authority, the City, the Successor Agency or the Financing Agency, and such proceedings or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within thirty (30) days after commencement, filing or levy, as the case may be; or
(e) Any judgments or arbitration awards are entered against the City, or the City enters into any settlement agreements with respect to any litigation or arbitration, in an aggregate amount of $500,000 or more in excess of any insurance coverage, provided that the insurer has issued a letter of responsibility for payment up to the amount of insurance coverage; or
(f) The City shall fail to make a payment on any debt to any person or entity payable from the City’s general fund in excess of $500,000 (measured in the case of any Swap, by the amount of any settlement amount that would be payable by the City if such Swap were terminated as of such date), or in connection with any credit the City has obtained from the Bank regardless of amount, or any interest or premium thereon when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to such debt, or the City shall fail to perform or observe any term, covenant or condition in any agreement or instrument relating to any debt to any person or entity in excess of $500,000 (measured in the case of any Swap, by the amount of any settlement amount that would be payable by the City if such Swap were terminated as of such date) when required to be performed or observed, if the effect of such failure to perform or observe results in the acceleration, or ability to accelerate, the maturity of such debt (or, with respect to any Swap, which results in such Swap being terminated early or being capable of being terminated early); or
(g) Any default occurs under the Lease Agreement or any other Related Document, in each case after the passage of any notice and cure periods; or (h) The City or the Authority fails to meet the conditions of, or fails to perform (i) any term, covenant, condition or agreement on its part to be performed or observed under certain affirmative covenants set forth in the Reimbursement Agreement, or (ii) any term, covenant, condition or agreement on its part to be performed or observed not specifically referred to in any of the Events of Default, and such default (solely in the case of clause (ii)) is not cured within thirty (30) days after the Bank has given the City or the Authority, as applicable, written notice of such default; or (i) Any of the City’s or the Authority’s representations or warranties made in the Reimbursement Agreement or in any statement or certificate at any time made or deemed made by or on behalf of the City or the Authority pursuant thereto or in connection therewith, and/or in any of the other Related Documents, is false or misleading in any material respect when made or deemed made; or (j) The ratings assigned to any long term, unenhanced general fund obligation of the City shall be withdrawn or suspended or otherwise unavailable for credit-related reasons or reduced below Baa1 by Moody’s Investors Service, Inc., BBB+ by S&P Global Ratings or BBB+ by Fitch Ratings, Inc. In the event of split ratings, the default will be determined by reference to the lowest rating; or #32..
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6 (k) The leasehold interest of the Authority under either of the Parking Garage Facilities Lease or the City – County Administration Facilities Lease shall terminate; or (l) A moratorium shall have been declared with respect to the payment of the debts of the Authority or the City; or
(m) Any of the funds or accounts established pursuant to the Indenture or the Lease Agreement or any funds or accounts on deposit, or otherwise to the credit of, such funds or accounts shall become subject to any stay, writ, judgment, warrant of attachment, execution or similar process by any of the creditors of the City or the Authority and such stay, writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or stayed within thirty (30) days after its issue or levy; or (n) An event shall have occurred that in the opinion of the Bank has a material adverse effect on the financial condition, operations or prospects of the City or its ability to perform its obligations under the Reimbursement Agreement or any Related Document.
Remedies. If an Event of Default under the Reimbursement Agreement shall have occurred and be continuing, the Bank may (i) give notice to the Trustee under the Indenture of the Bank’s election to cause a mandatory tender of the 2008 Bonds because of the occurrence and continuance of an Event of Default under the Reimbursement Agreement, (ii) declare all unpaid amounts drawn under the Letter of Credit and the corresponding Bank Bonds, together with all interest accrued and unpaid thereon and all other amounts payable to the Bank under the Reimbursement Agreement to be immediately due and payable, without presentment, demand, protest or any notice of any kind, but subject to certain limitations on repayment set forth in the Reimbursement Agreement or (iii) exercise any and all rights and remedies available to the Bank under the Reimbursement Agreement or the Indenture, at law or in equity; provided, that the Bank may not cause the acceleration of Base Rental Payments under the Lease Agreement. In the event of the occurrence of an Event of Default described in paragraphs (c) or (d) above, all unpaid amounts drawn under the Letter of Credit and the corresponding Bank Bonds, together with all interest accrued thereon and all other amounts payable to the Bank under the Reimbursement Agreement shall be immediately due and payable, without notice to the City or the Authority and without presentment, demand, protest or further notice of any kind, but subject to certain limitations on repayment set forth in the Reimbursement Agreement.
INFORMATION CONCERNING THE BANK
Except for the contents under this subheading, BMO Harris Bank N.A. did not participate in the preparation of, or in any way verify the information in, any other part of this Supplement and assumes no responsibility for the nature, contents, accuracy or completeness of the information set forth in this Supplement.
BMO Harris Bank N.A. (“BMOHB”), with executive offices in Chicago, Illinois, is a whollyowned subsidiary and the principal asset of BMO Financial Corp., a Delaware corporation (“BFC”). BFC is a wholly-owned subsidiary of the Bank of Montreal. BMOHB is a commercial and retail bank offering a wide range of banking and trust services to customers located throughout the United States and around the world.
Each quarter, BMOHB files quarterly reports called “Consolidated Reports of Condition and Income for a Bank with Domestic and Foreign Offices” (“BMOHB Call Reports”). Each BMOHB Call Report may be obtained from the FDIC on its website at http://www.fdic.gov. The financial information referenced in this paragraph is not incorporated by reference into the information under this subheading. #32..
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7 The above information has been supplied by BMOHB. The delivery of the information under this subheading shall not create any implication that there has been no change in the affairs of BMOHB since the date such information was provided by BMOHB, or that the information contained or referred to under this subheading is correct as of any time subsequent to the date it was provided by BMOHB.
Neither BMOHB nor its affiliates make any representations as to the contents of this Supplement (except as to the information under this subheading), the suitability of the 2008 Bonds for any investor, the feasibility or performance of any project or compliance with any securities or tax laws and regulations.
RATINGS
Fitch and S&P have assigned the 2008 Bonds the ratings of “[AA-/F1+]” and “[A+/A-1]”, respectively, based on the Bank’s Letter of Credit supporting the 2008 Bonds. Generally, rating agencies base their ratings on information and material furnished directly to them and on investigations, studies and assumptions made by them. The ratings reflect only the views of such organizations and an explanation of the significance of such ratings may be obtained from Fitch Ratings, 33 Whitehall Street, New York, New York 10004 and Standard & Poor’s Ratings Services, 55 Water Street, New York, New York 10041.
Neither the Authority nor the City makes any representation as to the appropriateness of the ratings. There is no assurance that the ratings will continue for any given period of time or that they will not be revised downward or withdrawn entirely by such rating agencies, if, in the judgment of such rating agencies, circumstances so warrant. Any such downward revision or withdrawal of such ratings may have an adverse effect on the market price of the 2008 Bonds.
MISCELLANEOUS
This Supplement is not to be construed as a contract or agreement between the Authority or the City and the purchasers or holders of any of the 2008 Bonds. Any statements made in this Supplement involving matters of opinion, whether or not expressly so stated, are intended merely as an opinion and not as representations of fact. The information and expressions of opinion herein are subject to change without notice and neither the delivery of this Supplement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the Authority, the City or the Bank since the date hereof.
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This Supplement has been duly approved, executed and delivered by the City and the Authority.
CITY OF MODESTO, CALIFORNIA
By: /s/ DeAnna Christensen
Director of Finance
MODESTO PUBLIC FINANCING AUTHORITY
By: /s/ DeAnna Christensen
Auditor and Treasurer
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APPENDIX A
COPY OF OFFICIAL STATEMENT, DATED AUGUST 26, 2008,
AS SUPPLEMENTED AS OF FEBRUARY 25, 2014, JUNE 22, 2016, AND JUNE 4, 2019 #32..
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AMENDMENT NO. 1 TO FEE LETTER AGREEMENT
May [__], 2023
City of Modesto
1010 Tenth Street, Suite 5200
Modesto, California 95354
Modesto Public Financing Authority
c/o City of Modesto
1010 Tenth Street, Suite 5200
Modesto, California 95354
Re: Modesto Public Financing Authority Lease Revenue Refunding Bonds, Series 2008
Ladies and Gentlemen:
This Amendment No. 1 to Fee Letter, dated May [__], 2023 (this “Fee Letter Agreement Amendment No. 1”), by and among BMO Harris Bank N.A., as successor in interest to Bank of the West (the “Bank”), the Modesto Public Financing Authority (the “Authority”) and the City of Modesto (the “City”), amends that certain Fee Letter Agreement, dated June 13, 2019, by and among Bank of the West, the Authority and the City (the “Original Fee Letter Agreement”, and as amended by this Fee Letter Agreement Amendment No. 1 and as it may be further amended and supplemented from time to time, the “Fee Letter Agreement”). Reference is hereby made to that certain Reimbursement Agreement, dated as of June 1, 2019 (the “Original Reimbursement Agreement”), among the City of Modesto (the “City”), the Modesto Public Financing Authority (the “Authority”), and Bank of the West, as amended by that certain Amendment No.1 to Reimbursement Agreement, dated May [__], 2023 (the “Reimbursement Agreement Amendment No. 1” and the Original Reimbursement Agreement, as amended by the Reimbursement Agreement Amendment No. 1 and as the same may be further amended or supplemented from time to time, the “Agreement”), among the City, the Authority and the Bank, pursuant to which Bank of the West issued its Irrevocable Transferable Letter of Credit No. MB60517199, as amended from time to time including as amended by that certain Amendment No. 1 to Irrevocable Transferable Letter of Credit No. MB60517199 dated May [__], 2023 (the “Letter of Credit Amendment No. 1”) issued by the Bank, supporting the above-referenced Bonds (as so amended and as it may be further amended and supplemented from time to time, the “Letter of Credit”). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement.
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Section 1. Authority and Definitions.
(a) This Fee Letter Agreement Amendment No. 1 is entered into pursuant to Section 2.1 of the Original Fee Letter Agreement.
(b) This Fee Letter Agreement Amendment No. 1 amends the Original Fee Letter Agreement.
(c) Capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement.
(d) This Fee Letter Agreement Amendment No. 1 shall become effective upon the execution and delivery hereof by the Authority, the City and the Bank on May [__], 2023. (e) The provisions of this Fee Letter Agreement Amendment No. 1 shall supersede and prevail over any conflicting provisions of the Original Fee Letter Agreement. If there is any conflict between the terms, conditions and provisions of this Fee Letter Agreement Amendment No. 1 and those of any of the Related Documents, the terms, conditions and provisions of this Fee Letter Agreement Amendment No. 1, as applicable, shall prevail. Save and except as expressly amended hereby, all of the terms and provisions of the Original Fee Letter Agreement continue in full force and effect and are applicable to the provisions of this Fee Letter Agreement Amendment No. 1 and the obligations of the parties hereunder. Reference to this specific Fee Letter Agreement Amendment No. 1 need not be made in any note, document, agreement, letter, certificate, the Reimbursement Agreement or any communication issued or made subsequent to, or with respect to, the Reimbursement Agreement, it being hereby agreed that any reference to the Reimbursement Agreement shall be sufficient to refer to the Original Fee Letter Agreement as hereby amended. The parties hereto expressly agree that this Fee Letter Agreement Amendment No. 1 shall constitute a modification of the Original Fee Letter Agreement and does not constitute a novation or substitution with respect to the Original Fee Letter Agreement.
Section 2. Amendment of the Original Fee Letter Agreement. (a) Except for any references to Bank of the West as the Bank as of the Closing Date through and including January 31, 2023, all references to the Bank in the Original Fee Letter Agreement shall be amended to refer to BMO Harris Bank N.A. instead. (b) Section 1.1 of the Original Fee Letter Agreement is hereby deleted in its entirety and the following substituted therefor:
Section 1.1. Letter of Credit Fee. For the period from the Closing Date through but not including May [__], 2023, the Letter of Credit Fee shall be as set forth in the Fee Letter Agreement, dated June 13, 2019 (the “Original Fee Letter”), by and among the Bank, the Authority and the City (which provision, for #32..
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purposes of determining the Letter of Credit Fee in effect for the period from the Closing Date through but not including May [__], 2023, was incorporated by reference into the Agreement). For the period from and after May [__], 2023, the Authority and the City (by payment of Additional Payments under the Lease Agreement) hereby agree to pay or cause to be paid to the Bank a nonrefundable letter of credit fee (the “Letter of Credit Fee”), payable semiannually in arrears for each semiannual period from and after May [__], 2023 (or, in the case of the first semiannual period from and after May [__], 2023, the semiannual period from May [__], 2023 through September 30, 2023), equal to (i) the Letter of Credit Fee Rate multiplied by (ii) the Stated Amount of the Letter of Credit, for each day during such semiannual period commencing on the first day of such semiannual period (or, in the case of the first semiannual period from and after May [__], 2023, May [__], 2023) and ending on the last calendar day of such semiannual period. As used above, “Letter of Credit Fee Rate” shall mean __% per annum, increased one time per level by the percentage points indicated below for each level below the A2/A/A level through or to which the current rating assigned to any long term, unenhanced general fund obligation of the City by Moody’s Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. falls:
Rating
(Moody’s/S&P/Fitch)
Percentage Point
Increase
A2/A/A or higher ____%
A3/A-/A- ____%
Baa1/BBB+/BBB+ ____%
In the event that (x) the ratings assigned to any long term, unenhanced general fund obligation of the City shall be withdrawn or suspended or otherwise unavailable for credit-related reasons or reduced below Baa1 by Moody’s Investors Service, Inc., BBB+ by S&P Global Ratings or BBB+ by Fitch Ratings, Inc. or (y) upon the occurrence of an Event of Default, the then current Letter of Credit Fee Rate based on the table above will be increased by an additional 1.50% per annum. In the event of split ratings, the Letter of Credit Rate will be based on the level that includes the lowest such rating. All such fee increases shall be cumulative.
(c) Section 1.2 of the Original Fee Letter Agreement is hereby deleted in its entirety and the following substituted therefor:
Section 1.2. Payment Dates. For the period from the Closing Date through but not including May [__], 2023, the Letter of Credit Fee shall be paid on the dates as set forth in the Original Fee Letter. For the period from and after May [__], 2023, the Letter of Credit Fee shall be paid semiannually in arrears for the preceding semiannual period on the first Business Day of each April and October, commencing on October 1, 2023 (such payment to include the Letter of Credit Fee for both the calendar quarter commencing on April 1, 2023 and ending on #32..
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May [__], 2023, as set forth in the Original Fee Letter and the Letter of Credit Fee for the first semiannual period commencing on May [__], 2023 and ending on September 30, 2023, as set forth in Section 1.1 hereof) and on the Expiration Date. (d) The last sentence of Section 1.3 of the Original Fee Letter Agreement is hereby deleted in its entirety and the following substituted therefor:
For the period from the Closing Date through but not including May [__], 2023, the Authority and City (by payment of Additional Payments under the Lease Agreement) shall pay to Bank in connection with Drawings under the Letter of Credit, a non-refundable annual administration fee in the amount of $1,500, payable in advance on the Closing Date and on each anniversary of the Closing Date occurring thereafter. No annual administration fee shall be payable for the period from and after May [__], 2023, but any annual administration fee previously paid for such period shall be nonrefundable. (e) Section 1.6 of the Original Fee Letter Agreement is hereby deleted in its entirety and the following substituted therefor:
Section 1.6. Reimbursement Account. “Reimbursement Account” shall mean the following account of the Bank, or such other account as may be subsequently designated by the Bank in writing to the City, the Authority and the Trustee:
[Insert]
(f) Article II of the Original Fee Letter Agreement is hereby deleted in its entirety and the following substituted therefor:
Address where notices to the Bank are to be sent:
If with respect to draws under the Letter of Credit, to:
BMO Harris Bank N.A.
[__________]
[__________]
Attention: [__________]
Telephone: ([___]) [___]-[____]
Facsimile: ([___]) [___]-[____]
Email: [__________]
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with a copy to:
BMO Harris Bank N.A.
[__________]
[__________]
Attention: [__________]
Telephone: ([___]) [___]-[____]
Facsimile: ([___]) [___]-[____]
Email: [__________]
If with respect to the Agreement, to:
BMO Harris Bank N.A.
[__________]
[__________]
Attention: [__________]
Telephone: ([___]) [___]-[____]
Facsimile: ([___]) [___]-[____]
Email: [__________]
Section 3. Miscellaneous.
(a) Governing Law. This Fee Letter Agreement Amendment No. 1 shall be governed by, and construed in accordance with, the laws of the State of California. (b) Counterparts. This Fee Letter Agreement Amendment No. 1 may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement. This Fee Letter Agreement Amendment No. 1 may be delivered by the exchange of signed signature pages by facsimile transmission or by attaching a pdf copy to an email, and any printed or copied version of any signature page so delivered shall have the same force and effect as an originally signed version of such signature page.
(c) Severability. Any provision of this Fee Letter Agreement Amendment No. 1 which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, by ineffective to the extent of such prohibition, unenforceability or nonauthorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provisions in any other jurisdiction. (d) One Agreement. Taken together with the Original Fee Letter Agreement and the other instruments and documents delivered in compliance herewith, this Fee Letter Agreement Amendment No. 1 and any related security or other agreements required by this Fee Letter #32..
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Agreement Amendment No. 1, collectively: (i) represent the sum of the understandings and agreements among the Authority, the Bank and the City concerning this credit; (ii) replace any prior oral or written agreements between or among the Bank and the Authority and/or the City concerning this credit; and(iii) are intended by the Bank, the Authority and the City as the final, complete and exclusive statement of the terms agreed to by them. In the event of any conflict between this Fee Letter Agreement Amendment No. 1 and any other agreements required by this Fee Letter Agreement Amendment No. 1, this Fee Letter Agreement Amendment No. 1 will prevail.
[The remainder of this page intentionally left blank]
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If the foregoing accurately reflects our agreement, please indicate the same by signing in the space provided below.
Very truly yours,
BMO HARRIS BANK N.A., as successor in
interest to Bank of the West
By ____________________________________
Its __________________________________
Accepted and Agreed to:
CITY OF MODESTO
By _________________________________
Its_______________________________
Attest:
By _________________________________
Its City Clerk
Approved as to Form:
By _________________________________
Its_______________________________
MODESTO PUBLIC FINANCING
AUTHORITY
By _________________________________
Its_______________________________
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AMENDMENT NO. 1 TO
REIMBURSEMENT AGREEMENT
among
BMO HARRIS BANK N.A.
and
CITY OF MODESTO
and
MODESTO PUBLIC FINANCING AUTHORITY
Dated May [__], 2023
Relating to the
$65,170,000 original aggregate principal amount of
MODESTO PUBLIC FINANCING AUTHORITY
LEASE REVENUE REFUNDING BONDS
SERIES 2008
Amending that certain Reimbursement Agreement, dated as of June 1, 2019, by and among Bank of the West, the City of Modesto and the Modesto Public Financing Authority #32..
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AMENDMENT NO. 1 TO
REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO REIMBURSEMENT AGREEMENT (this
“Amendment No. 1”), dated May [__], 2023 by and among BMO HARRIS BANK N.A., a national banking association, as successor in interest to Bank of the West (the “Bank”), the MODESTO PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California (the “Authority”) and the CITY OF MODESTO, a charter city and municipal corporation duly organized and existing under laws of the State of California (the “City”), amending that certain Reimbursement Agreement, dated as of June 1, 2019 (the “Original Reimbursement Agreement”), by and among the Bank, the Authority and the City. The Original Reimbursement Agreement, as amended by this Amendment No. 1 and as it may be further amended and supplemented from time to time, is hereinafter referred to as the “Reimbursement Agreement.” WITNESSETH:
A. Bank of the West, the Authority and the City entered into the Original Reimbursement Agreement pursuant to which Bank of the West issued the Letter of Credit (as more particularly defined in the Reimbursement Agreement) to the Trustee for the account of the City.
B. Effective February 1, 2023, the Letter of Credit became an obligation of the Bank.
C. The City has applied to the Bank for the extension by the Bank of the Stated Expiration Date of the Letter of Credit to June [__], 2026 and an amendment of certain provisions of the Original Reimbursement Agreement and certain provisions of the Original Fee Letter Agreement.
D. The Bank has agreed to extend the Stated Expiration Date of the Letter of Credit to June [__], 2026 and amend such provisions of the Original Reimbursement Agreement and the Original Fee Letter Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the undertakings herein set forth and intending to be legally bound, the Authority, the City and the Bank hereby agree as follows:
Section 1. Authority and Definitions.
(a) This Amendment No. 1 is entered into pursuant to Section 7.1 of the Original Reimbursement Agreement.
(b) This Amendment No. 1 amends the Original Reimbursement Agreement. (c) Capitalized terms used herein without definition shall have the meanings set forth in the Original Reimbursement Agreement.
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(d) Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, this Amendment No. 1 shall become effective, a letter of credit amendment substantially in the form of Exhibit A attached hereto (the “Letter of Credit Amendment No. 1”) shall be delivered to the Trustee by the Bank, and the Amendment No. 1 to Fee Letter Agreement, dated May [__], 2023, by and among the City, the Authority and the Bank (the “Fee Letter Amendment No. 1”) shall be executed and delivered by the Bank, upon the execution and delivery hereof by the Authority, the City and the Bank on May [__], 2023 (the “Extension Closing Date”).
(e) The provisions of this Amendment No. 1 shall supersede and prevail over any conflicting provisions of the Original Reimbursement Agreement. If there is any conflict between the terms, conditions and provisions of this Amendment No. 1 and those of any of the Related Documents, the terms, conditions and provisions of this Amendment No. 1, as applicable, shall prevail. Save and except as expressly amended hereby, all of the terms and provisions of the Original Reimbursement Agreement continue in full force and effect and are applicable to the provisions of this Amendment No. 1 and the obligations of the parties hereunder. Reference to this specific Amendment No. 1 need not be made in any note, document, agreement, letter, certificate, the Reimbursement Agreement or any communication issued or made subsequent to, or with respect to, the Reimbursement Agreement, it being hereby agreed that any reference to the Reimbursement Agreement shall be sufficient to refer to the Original Reimbursement Agreement as hereby amended. The parties hereto expressly agree that this Amendment No. 1 shall constitute a modification of the Original Reimbursement Agreement and does not constitute a novation or substitution with respect to the Original Reimbursement Agreement.
Section 2. Amendment of the Original Reimbursement Agreement. (a) Except for any references to Bank of the West as the Bank as of the Closing Date through and including January 31, 2023, all references to the Bank in the Original Reimbursement Agreement shall be amended to refer to BMO Harris Bank N.A. instead. (b) The definitions of “Agreement,” “Bank” and “Fee Letter Agreement” Section 1.1 of the Original Reimbursement Agreement are hereby deleted in their entirety and the following substituted therefor:
“Agreement” shall mean this Reimbursement Agreement, dated as of June 1, 2019, by and among the Bank, the Authority and the City, as amended by the Amendment No. 1 to Reimbursement Agreement, dated as of May [__], 2023, by and among the Bank, the Authority and the City, and as the same may from time to time be further amended, supplemented or otherwise modified in accordance with its terms.
“Bank” means (i) as of the Closing Date through and including January 31, 2023, Bank of the West and its successors and assigns and (ii) from and after February 1, 2023, BMO Harris Bank N.A. and its successors and assigns.
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“Fee Letter Agreement” shall mean the Fee Letter Agreement dated June 13, 2019 among the City, the Authority and the Bank, as amended by the Amendment No. 1 to Fee Letter Agreement, dated May [__], 2023, by and among the City, the Authority and the Bank, and as the same may be further amended or supplemented from time to time.
Section 3. Conditions Precedent to Execution and Delivery and Effectiveness of this Amendment No. 1 and the Fee Letter Amendment No. 1 and Issuance of the Letter of Credit Amendment No. 1. The obligation of the Bank to execute and deliver this Amendment No. 1 and the Fee Letter Amendment No. 1 and to issue the Letter of Credit Amendment No. 1 shall be subject to the fulfillment of the following conditions precedent on or before the Extension Closing Date, in a manner satisfactory to the Bank and its counsel:
(a) the Bank shall have received an opinion of the City Attorney, in form and substance satisfactory to the Bank and its counsel dated the Extension Closing Date; (b) the Bank shall have received an opinion of the counsel to the Authority, in form and substance satisfactory to the Bank and its counsel dated the Extension Closing Date; (c) the Bank shall have received on the Extension Closing Date executed originals of this Amendment No. 1 and the Fee Letter Amendment No. 1 and any other documents which the Bank may reasonably request evidencing that all necessary action (including, without limitation, adoption of resolutions) required to be taken by the Authority and the City in connection with the authorization, execution, issuance, delivery and performance of such documents and any other document required to be delivered by the City pursuant to or in connection with this Amendment No. 1 and the Fee Letter Amendment No. 1 or the transactions contemplated hereby or thereby, has been taken;
(d) the Bank shall have received a certificate signed by an Authorized Representative of the City dated the Extension Closing Date stating that on such date:
(i) the representations and warranties set forth in this Amendment No. 1 and in any other certificate, letter, writing or instrument delivered by the City to the Bank pursuant hereto or in connection herewith, shall be true and correct as of the Extension Closing Date;
(ii) no material adverse change shall have occurred in the condition (financial or otherwise) of the City prior to the Extension Closing Date; (iii) on the Extension Closing Date no Event of Default or no event, act or omission which with notice, lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing; (iv) there is no lawsuit, tax claim or other dispute pending or threatened against the City which, if lost, would impair the City’s financial condition or ability to repay the unreimbursed Drawings, except as have been disclosed in writing to the Bank;
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(v) the City is in compliance with the terms and conditions of Reimbursement Agreement and has performed or complied with all of its Obligations, agreements and covenants to be performed or complied with pursuant to the Reimbursement Agreement on or prior to the Extension Closing Date;
(vi) all information, documents, statements and certificates provided to the Bank by or on behalf of the City in connection with the Letter of Credit Amendment No. 1 are true and correct on and as of the date hereof and were provided in expectation of the Bank’s reliance thereon in issuing the Letter of Credit Amendment No. 1; and
(vii) the City has delivered to the Bank true, correct and complete copies of the Related Documents and such documents were duly issued, adopted or executed and delivered, have not been modified, amended or rescinded and are in full force and effect on and as of the Extension Closing Date and the Title Insurance Policy has not been modified, amended or rescinded and is in full force and effect on and as of the Extension Closing Date;
(e) the Bank shall have received copies of resolutions of the City Council of the City, certified as of the Extension Closing Date by the City Clerk, authorizing, among other things, the execution, delivery and performance by the City of this Amendment No. 1, the Fee Letter Agreement Amendment No. 1 and any other documents to be delivered by it hereunder; (f) the Bank shall have received a certificate of an Authorized Representative of the City dated the Extension Closing Date certifying as to the authority, incumbency and specimen signatures of the Authorized Representative of the City authorized to sign this Amendment No. 1, the Fee Letter Agreement Amendment No. 1 and any other documents to be delivered by it hereunder and who will be authorized to represent the City in connection with the Letter of Credit, the Reimbursement Agreement and the Fee Letter Agreement, upon which the Bank may rely until it receives a new such certificate; (a) the Bank shall have received a certificate signed by an Authorized Representative of the Authority dated the Extension Closing Date stating that on such date:
(i) the representations and warranties set forth in this Amendment No. 1 and in any other certificate, letter, writing or instrument delivered by the Authority to the Bank pursuant hereto or in connection herewith, shall be true and correct as of the Extension Closing Date;
(ii) no material adverse change shall have occurred in the condition (financial or otherwise) of the Authority prior to the Extension Closing Date; (iii) on the Extension Closing Date no Event of Default or no event, act or omission which with notice, lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing; #32..
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(iv) there is no lawsuit, tax claim or other dispute pending or threatened against the Authority which, if lost, would impair the Authority’s financial condition or ability to repay the unreimbursed Drawings, except as have been disclosed in writing to the Bank;
(v) the Authority is in compliance with the terms and conditions of the Reimbursement Agreement and has performed or complied with all of its Obligations, agreements and covenants to be performed or complied with pursuant to the Reimbursement Agreement on or prior to the Extension Closing Date;
(vi) all information, documents, statements and certificates provided to the Bank by or on behalf of the Authority in connection with the Letter of Credit Amendment No. 1 are true and correct on and as of the date hereof and were provided in expectation of the Bank’s reliance thereon in issuing the Letter of Credit Amendment No. 1; and
(vii) the Authority has delivered to the Bank true, correct and complete copies of the Related Documents and such documents were duly issued, adopted or executed and delivered, have not been modified, amended or rescinded and are in full force and effect on and as of the Extension Closing Date; (g) the Bank shall have received copies of resolutions of the governing board of the Authority, certified as of the Extension Closing Date by the secretary of such governing board, authorizing, among other things, execution, delivery and performance by the Authority of this Amendment No. 1, the Fee Letter Agreement Amendment No. 1 and any documents to be delivered by it hereunder;
(h) the Bank shall have received a certificate of an Authorized Representative of the Authority dated the Extension Closing Date certifying as to the authority, incumbency and specimen signatures of the Authorized Representative of the Authority authorized to sign this Amendment No. 1, the Fee Letter Agreement Amendment No. 1 and any other documents to be delivered by it hereunder and who will be authorized to represent the Authority in connection with the Letter of Credit, the Reimbursement Agreement and the Fee Letter Agreement, upon which the Bank may rely until it receives a new such certificate; (i) the representations and warranties set forth in Section 4 hereof shall be true and correct on and as of the Extension Closing Date and no Event of Default or event, act or omission which with notice, lapse of time or both, would constitute such an Event of Default shall have occurred and be continuing;
(j) payment to the Bank of (or the Bank shall be reasonably satisfied that payment will be made promptly after demand therefor after the Extension Closing Date of) all fees and expenses payable by the City pursuant to Section 5 hereof; and (k) all other legal matters pertaining to the execution and delivery of this Amendment No. 1 and the Fee Letter Amendment No. 1 and the issuance of the Letter of Credit Amendment No. 1 shall be reasonably satisfactory to the Bank and its counsel. #32..
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Section 4. Representations and Warranties.
(a) The City hereby represents and warrants as of the Extension Closing Date that: (i) the representations and warranties of the City set forth in Article 4.1 of the Original Reimbursement Agreement and in any and all documents delivered to the Bank in connection therewith are true and correct on and as of the Extension Closing Date, as if made on and as of such date; (ii) no Event of Default or event, act or omission which with notice, lapse of time or both, would constitute such an Event of Default has occurred and is continuing; (iii) no default has occurred and is continuing under any of the Related Documents; (iv) the City is in compliance with the terms and conditions of the Original Reimbursement Agreement and has performed or complied with all of its obligations, agreements and covenants to be performed or complied with pursuant to the Reimbursement Agreement on or prior to the Extension Closing Date; (v) no material adverse change in the financial condition, operations or prospects of the City or laws, rules or regulations (or their interpretation or administration) shall have occurred as of the Extension Closing Date that, in any case, may adversely affect the consummation of the transaction, as determined in the sole discretion of the Bank; (vi) this Amendment No. 1 has been duly authorized, executed and delivered by the City; and (vii) all information, documents, statements and certificates provided to the Bank by or on behalf of the City in connection with the transactions contemplated by this Amendment No. 1 are true and correct as of the date thereof and were provided in expectation of the Bank’s reliance thereon in executing this Amendment No. 1.
(b) The Authority hereby represents and warrants as of the Extension Closing Date that: (i) the representations and warranties of the Authority set forth in Article 4.2 of the Reimbursement Agreement and in any and all documents delivered to the Bank in connection therewith are true and correct on and as of the Extension Closing Date, as if made on and as of such date; (ii) no Default or event, act or omission which with notice, lapse of time or both, would constitute such an Event of Default has occurred and is continuing; (iii) no default has occurred and is continuing under any of the Related Documents; (iv) the Authority is in compliance with the terms and conditions of the Reimbursement Agreement and has performed or complied with all of its obligations, agreements and covenants to be performed or complied with pursuant to the Reimbursement Agreement on or prior to the Extension Closing Date; (v) this Amendment No. 1 has been duly authorized, executed and delivered by the Authority; and (vi) all information, documents, statements and certificates provided to the Bank by or on behalf of the Authority in connection with the transactions contemplated by this Amendment No. 1 are true and correct as of the date thereof and were provided in expectation of the Bank’s reliance thereon in executing this Amendment No. 1.
Section 5. Costs and Expenses. The City shall pay (by payment of Additional Payments under the Lease Agreement) to the Bank any and all reasonable fees, charges and expenses, payable or incurred by the Bank in connection with the execution and delivery of this Amendment No. 1, the Fee Letter Amendment No. 1 and the Letter of Credit Amendment No. 1, including without limitation, the fees and expenses of counsel to the Bank. The City hereby agrees that such fees, charges and expenses are included as obligations under the Original Reimbursement Agreement.
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7 3764265.1 043292 AGMT
Section 6. Miscellaneous.
(a) No Waiver. The Authority and the City each acknowledge and agree that, if and to the extent that the Bank has not heretofore required strict compliance with the performance by the Authority and the City of the covenants, agreements and obligations of the Authority and the City under the Reimbursement Agreement or the Related Documents, such action or inaction shall not constitute a waiver of, or otherwise affect in any manner, the Bank’s rights and remedies under the Reimbursement Agreement or the Related Documents, as amended hereby, including the right to require performance of such covenants, agreements and obligations strictly in accordance with the terms and provisions thereof. (b) Counterparts. This Amendment No. 1 may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement. This Amendment No. 1 may be delivered by the exchange of signed signature pages by facsimile transmission or by attaching a pdf copy to an email, and any printed or copied version of any signature page so delivered shall have the same force and effect as an originally signed version of such signature page. (c) Severability. Any provision of this Amendment No. 1 which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, by ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provisions in any other jurisdiction.
(d) One Agreement. Taken together with the Original Reimbursement Agreement and the other instruments and documents delivered in compliance herewith, this Amendment No. 1 and any related security or other agreements required by this Amendment No. 1, collectively: (i) represent the sum of the understandings and agreements among the Authority, the Bank and the City concerning this credit; (ii) replace any prior oral or written agreements between or among the Bank and the Authority and/or the City concerning this credit; and(iii) are intended by the Bank, the Authority and the City as the final, complete and exclusive statement of the terms agreed to by them. In the event of any conflict between this Amendment No. 1 and any other agreements required by this Amendment No. 1, this Amendment No. 1 will prevail.
(e) Governing Law. This Amendment No. 1 shall be governed by, and construed in accordance with, the laws of the State of California. [The remainder of this page intentionally left blank]
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S-1
3764265.1 043292 AGMT
This Amendment No. 1 to Reimbursement Agreement is executed as of the date stated on the first page.
BMO HARRIS BANK N.A.,
as successor in interest to Bank of the West
By:
Typed Name:
Title:
CITY OF MODESTO
By:
Typed Name:
Title:
ATTEST:
By:
Typed Name:
City Clerk
APPROVED AS TO FORM:
By:
Typed Name:
Title:
MODESTO PUBLIC FINANCING
AUTHORITY
By:
Typed Name:
Title:
Federal law requires the Bank to provide the following notice. This notice is not part of the foregoing agreement or instrument and may not be altered. Please read the notice carefully.
USA PATRIOT ACT NOTICE. Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account or obtains a loan. The Bank will ask for the Authority’s and the City’s legal name, address, tax ID number or social security number and other identifying information. The Bank may also ask for additional information or documentation or take other actions reasonably necessary to verify the identity of the Authority, the City, guarantors or other related persons. #32..
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Exhibit A-1
3764265.1 043292 AGMT
Exhibit A
Form of Letter of Credit Amendment No. 1
Irrevocable Transferable Letter of Credit No. MB60517199 Amendment No. 1
[Letterhead of BMO Harris Bank N.A.]
[Date]
[The Bank of New York Mellon Trust Company], N.A.
400 South Hope Street, Suite 500
Los Angeles, California 90071
Attention: Global Corporate Trust Services
Ladies and Gentlemen:
Pursuant to Section 2.1 of the Reimbursement Agreement dated as of June 1, 2019 (the “Original Reimbursement Agreement”), by and among the City of Modesto (the “City”), the Modesto Public Financing Authority (the “Authority”) and Bank of the West, as amended by the Amendment No. 1 to Reimbursement Agreement, dated May [__], 2023 (the “Reimbursement Agreement Amendment No. 1”), by and among the City, the Authority and BMO Harris Bank N.A., as successor in interest to Bank of the West (the “Bank”), the Bank has approved an extension of Irrevocable Transferable Letter of Credit No. MB60517199 (the “Letter of Credit”), dated June 13, 2019.
The Letter of Credit is hereby amended as follows:
1. The Stated Expiration Date of the Letter of Credit shall be extended to June [__], 2026.
2. Except for any references to Bank of the West as the Bank as of the Closing Date through and including January 31, 2023, all references to the Bank in the Letter of Credit shall be amended to refer to BMO Harris Bank N.A. instead.
3. The Bank hereby designates the following address for delivery in writing of all demands for payment and certificates to be presented to the Bank under the Letter of Credit, as set forth in Paragraph 9 of the Letter of Credit:
[Insert]
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Exhibit A-2
3764265.1 043292 AGMT
4. The address of the Bank set forth in Annexes I and K shall be amended to refer to the following address:
[Insert]
You are hereby authorized to attach this Amendment No. 1 to the Letter of Credit and to treat this Amendment No. 1 as an amendment to the Letter of Credit.
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Original Reimbursement Agreement, as amended by the Reimbursement Agreement Amendment No. 1 and as it may be further amended or supplemented from time to time (the “Reimbursement Agreement”) or the Letter of Credit.
Very truly yours,
BMO HARRIS BANK N.A.
By: ________________________________________
Name: ______________________________________
Title:________________________________________
By: ________________________________________
Name: ______________________________________
Title:________________________________________
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 11, 2023
Date: March 21, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: Standby Certificate Purchase Agreement Supporting the Water Refunding Revenue Certificates of Participation, Series 2008A
CONTACT: DeAnna Christensen, Director of Finance, [email protected], 209-577-5387
DESCRIPTION:
Consider approving a three-year Standby Certificate Purchase Agreement (SCPA) with BMO Harris Bank N.A. (formerly Bank of the West) supporting the Water Refunding Revenue Certificates of Participation, Series 2008A (Water Bonds) authorizing certain other related actions to substitute the Agreement for the existing Letter of Credit (LOC). (Funding Source:
Water Fund)
STRATEGIC PLAN ELEMENT:
This item advances the City of Modesto 2020-2025 Strategic Plan Area: Governance and Service Delivery: “build community trust in City government through responsive, transparent and efficient service delivery”; Goal J: “build a high-performance organization”.
BACKGROUND:
The Water Bonds had an original outstanding par amount of $47,625,000. The Water Bonds are variable rate bonds that reset on a weekly basis and require a liquidity facility. The current obligations due on these bonds is $42,390,000 with a final maturity date of October 1, 2036.
The bonds are variable rate bonds, with interest rate being reset every seven days. Due in part to this feature, the bondholders have a right to tender the bonds back for repurchase if the holder elects to sell its bonds. The liquidity facility ensures that there is sufficient money to pay the purchase price if, due to a market disruption or other unusual circumstances, the City’s remarketing agent is unable to remarket the tendered bonds. Draws under the liquidity facility, not City funds, pay the purchase price for unremarketed bonds. These liquidity facility draws must subsequently be repaid, primarily by remarketing/reselling the bonds to new investors in exchange for cash or, if no new investors can be found after a specified number of weeks, repaid in annual installments from City funds to the liquidity facility provider over a specified period of years (“term out” period).
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City Council, April 11, 2023
Standby Certificate Purchase Agreement Supporting the Water Refunding Revenue Certificates of Participation, Series 2008A