Agenda packet — Safety and Communities Committee, May 8, 2023 (part 1 of 2)

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www.modestogov.com
AGENDA
City of Modesto

SAFETY AND COMMUNITIES COMMITTEE / COUNCIL

WORKSHOP
Room 2001-40 Del Puerto Room
Tenth Street Place, 1010 10th Street
Modesto, California
Monday, May 08, 2023 at 4:00 PM
Roll Call: Chris Ricci, Chair
Rosa Escutia-Braaton, Vice-Chair
Jeremiah Williams, Member
Alternates: Eric Alvarez, Sue Zwahlen, Nick Bavaro, David Wright “Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

THIS MEETING WILL BE PHYSICALLY OPEN TO THE PUBLIC AND BY ZOOM

VIDEO CONFERENCING AND TELEPHONE
Effective March 1, 2023, if a technical issue arises with Zoom or the phone dial-in option, the Committee meeting will continue unless the meeting is being held pursuant to the provisions of Assembly Bill 2449. Alternative viewing options are listed below and the meeting is physically open to the public.

You may observe a livestream of the meeting at http://media.modestogov.com. You may also participate in the meeting as indicated below.

PARTICIPATING IN CITY COUNCIL COMMITTEE MEETINGS
As a courtesy, the City of Modesto is providing alternatives to view Council Committee - 1 -
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meetings and provide public comments. If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:

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

VIRTUAL PARTICIPATION BY ZOOM VIDEO

CONFERENCING AND TELEPHONE
Joining the Committee meeting via Zoom
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Joining the Committee meeting via Telephone
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Providing Public Comment on Zoom and by Telephone
The Committee Chairman will request public comment during the Public Comment periods on the meeting agendas and during each Regular Calendar Item on the Committee Agenda. Once the Chairman has announced the public comment period, please do one of the following.

USING A COMPUTER OR SMART PHONE APP:
 Click on the “Raise Hand” feature in the webinar controls. This will notify City staff that you have raised your hand.
 City staff will unmute your microphone when it is your turn to provide public comment.
 A prompt will appear to confirm you would like to be unmuted and then - 2 -
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you will have three minutes to provide public comment.
 Once your public comment has ended, you will be muted again.

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

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

PUBLIC COMMENTS
Please refer to special public comment instructions above.

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

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

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

Any and all of the following agenda items are subject to action by the Modesto City Council. - 3 -
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This Agenda is on file in the City Clerk’s Office, Sixth Floor, 10th Street Place, Posting Board at entry of 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

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

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

Consent

1. Consider approving a Memorandum of Understanding (MOU) with Stanislaus County, Stanislaus Consolidated Fire Protection District, the Modesto Fire Department (MFD), City of Turlock and the City of Ceres to continue providing County-Wide Fire Investigation Services and forwarding to Council for approval. (Funding Source:

General Fund)
 Motion approving a Memorandum of Understanding (MOU) with Stanislaus County, Stanislaus Consolidated Fire Protection District, the Modesto Fire Department, City of Turlock and the City of Ceres to continue providing County-Wide Fire Investigation Services and forwarding to Council for approval.

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

2. Consider approving the application and issuance of a permit to operate as a NonEmergency Medical Transport Company to America West Medical Transportation, Inc in the City of Modesto, and forwarding to Council for approval (Funding Source:

General Fund)
 Motion approving the application and issuance of a permit to operate as a NonEmergency Medical Transport Company to America West Transportation, Inc. in the City of Modesto, and forwarding to Council for approval.

POLICE DEPARTMENT; Robert Reyna, 209-572-9500, [email protected] Consent

3. Consider approving the application and issuance of a permit to operate as a NonEmergency Medical Transport Company to Quality Care Transportation, Inc in the - 4 -
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City of Modesto, and forwarding to Council for approval. (Funding Source: General Fund)
 Motion approving the application and issuance of a permit to operate as a NonEmergency Medical Transport Company to Quality Care Transportation, Inc. in the City of Modesto, and forwarding to Council for approval.

POLICE DEPARTMENT; Robert Reyna, 209-572-9500, [email protected] Consent

4. Consider approving an Agreement with American Chiller Service, Inc. for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza for a total amount not to exceed $375,000 over five years; and forwarding to Council for approval. (Funding Source: Centre Plaza Fund)
 Motion approving the Agreement with American Chiller Inc. for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza for a twoyear Agreement with three one-year extension options, for an annual estimated amount of $75,000, and a total amount not to exceed $375,000 over five years; and forwarding to Council for approval.

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

5. Consider approving the First Amendment to the Lease Agreement with Del Rio CC Foundation, of Modesto, CA, for Lease of Property located on Roselawn Avenue (APNs 037-036-007 and 037-051-001) for Operation of Youth Programming and forwarding to Council for approval. (Funding Source: Not Applicable)  Motion approving the First Amendment to the Lease Agreement with Del Rio CC Foundation, of Modesto, CA, for Lease of Property located on Roselawn Avenue (APNs 037-036-007 and 037-051-001) for Operation of Youth Programming and forwarding to Council for approval.

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

6. Consider approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to Permitting and Construction Support for the Tuolumne River Regional Park (TRRP) Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive, for a new amount not to exceed $159,731 and forwarding to Council for approval. (Funding Source: Non-Motorized Boating Facilities Grant Program Funds and TRRP CIP Fund)
 Motion approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to Permitting and Construction Support for the TRRP Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive, increasing the Agreement amount by $15,000 from $144,731 to a new total amount of $159,731 and forwarding to Council for approval.

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

7. Consider approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to the preparation of construction documentation for the César E. Chavez Renovation Project for a new amount not to exceed $880,667 and forwarding to Council for approval. (Funding Source: Statewide Park Development and Community Revitalization Program - Proposition 68)
 Motion approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to the preparation of construction documentation for the César E. Chavez Renovation Project, increasing the Agreement amount by $80,950, for a new contract amount of $838,730, plus $41,937 in Additional Services (if needed) for a new total amount not to exceed $880,667 and forwarding to Council for approval.

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

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

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 08, 2023
Date: April 18, 2023
TO: Safety and Communities Committee
Chris Ricci, Chair
Rosa Escutia-Braaton, Vice-Chair
Jeremiah Williams, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Alan Ernst, Fire Chief
SUBJECT: Regional Fire Investigation Unit Memorandum of Understanding Amendment CONTACT: Alan Ernst, Fire Chief, [email protected], 209-572-9590 DESCRIPTION:

Consider approving a Memorandum of Understanding (MOU) with Stanislaus County, Stanislaus Consolidated Fire Protection District, the Modesto Fire Department (MFD), City of Turlock and the City of Ceres to continue providing County-Wide Fire Investigation Services and forwarding to Council for approval. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

Since its initiation, the Regional Fire Investigation Unit (FIU) has been a vital tool in the county for investigation of suspicious and criminal fires and ensuring all laws and best practices are adhered to. As arson cases go to trial, the law enforcement and prosecutorial knowledge as part of the investigation team has been critical. Each investigator is held to minimum training standards that ensure they are up-to-date on the latest investigation laws, procedures and best practices.

On June 12, 2018, by Resolution 2018-221, Council approved the current MOU that exists to support our model of regionalization of service with cooperating surrounding agencies. Since this adoption, MFD has expanded its coverage area by taking on contracts for service with the cities of Salida and Ceres necessitating additional needs to be addressed in this new MOU. #1..
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Safety & Communities Committee, May 08, 2023
Regional Fire Investigation Unit Memorandum Of Understanding Amendment

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DISCUSSION:

The FIU will be comprised of an FIU Supervisor, Criminal Investigator, Sheriff’s Detective, FIU Coordinator (40 hour), and three (3) full-time FIU Duty (Shift) Investigators, and one (1) part time investigator from Turlock.

Responsibility for the day-to-day conduct of the FIU operations is vested in the Modesto Fire Department or their designee.

The significant changes to the MOU this year include the following:
 Management will now be overseen by MFD with daily supervision by Stanislaus County District Attorney’s Office.
 The additional part-time investigator and reserve Investigator positions FISCAL IMPACT:

Per section V. C. 4. of the MOU, the City of Modesto Fire Department will provide resources equal to the Less-Than-County Wide Fire Tax funds contribution to the FIU. These resources to the FIU include associated costs for two Fire Investigator positions, related tools/materials/supplies, use of Station 8 and specific training and equipment for the FIU. The value of the resources contributed to the FIU will be compiled in a semi-annual memo billing along with documentation of the costs provided in support of fire incidents to the County.

These funds for MFD’s contributions to the FIU are fully budgeted in the current Fiscal Year 2022-23. The fire investigator positions and the operating budget have been entered with the proposed budget which will be adopted in June by the City Council.

Fund/Cost Center Description Account
General Fund/Fire Investigations 0100-18520
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving a Memorandum of Understanding (MOU) with Stanislaus County, Stanislaus Consolidated Fire Protection District, the Modesto Fire Department, City of Turlock and the City of Ceres to continue providing County-Wide Fire Investigation Services and forwarding to Council for approval.

Approved by:

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

1. Memorandum of Understanding
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Stanislaus Regional
Fire Investigation Unit
(FIU)
A Multi-Jurisdictional, Multi-Discipline, First Responder, Public Safety Program
TBD , 2023

MEMORANDUM OF UNDERSTANDING
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Regional FIU M.O.U. Page 1
Table of Contents
Preamble …………………………………………………………………………………….2
Parties To The Understanding……………..…………………………………………………….2 Article I Overview………………………………………………………………………….2
Article II Mission...………………………………………………………………………….2
Article III Objectives…………………………………………………………………………3
Article IV FIU Organization….………………………………………………………………4
Article V Fiscal Procedures………………………………………………………………….8
Article VI Liability…………………………………………………………………………..11
Article VII Office Space and Equipment……………………..……………………………...12 Article VIII Vehicles…………………………………………………………………………..12
Article IX Arson Task Force……………………………………………………………...…13 Article X Standard Operating Procedures………………………………………………..…14 Article XI Reporting…………………………………………………………………………14
Article XII Amendments to the Agreement or FIU SOP…………………………………….15 Article XIII Term of Agreement………………………………………………………………15 Article XIV Signatures………………………………………………………………………...16
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STANISLAUS REGIONAL FIRE INVESTIGATION UNIT
(FIU)
Memorandum of Understanding

PREAMBLE
Partiesto the Understanding:

This Memorandum of Understanding (MOU) is between Stanislaus County, including the Stanislaus Regional Fire Investigation Unit, herein referred to as “FIU”, the Stanislaus County District Attorney’s Office, the Stanislaus County Sheriff’s Office Operations, and Fire Warden’s Divisions, along with the Stanislaus Consolidated Fire Protection District, the Modesto Fire Department, City of Turlock and the City of Ceres, herein referred to as “Member Agencies.” The employees of the member agencies that are assigned to the FIU are herein referred to as “Members”.

By authority of the Stanislaus County Board of Supervisors (BOS) the Stanislaus County Fire Warden, in accordance with the adopted annual Stanislaus County Fire Authority Business Plan, intends to continue its partnership with law enforcement, fire and the DA to continue the operation of the Regional FIU. The purpose of this Memorandum is to identify the process by which the FIU Member Agencies will carry out the fire investigations portion of the adopted annual Stanislaus County Fire Authority Business Plan.

I. OVERVIEW
The Stanislaus Regional Fire Investigation Unit (FIU) was established in Fiscal Year 2015, under the leadership of the Stanislaus County District Attorney’s Office, the County Fire Chiefs via the Stanislaus County Regional Fire Authority, and the County Law Enforcement Executives via the Stanislaus LEX Committee, have developed a regional and collaborative approach to providing fire investigations services in Stanislaus County. The FIU consists of the Stanislaus County District Attorney’s Office, Stanislaus County Sheriff’s Office, Stanislaus Consolidated Fire Protection District, Modesto Fire Department, and the Stanislaus County Fire Wardens Office. These agencies have collaborated to properly investigate the origin and cause of all fires within their jurisdictions and to provide for the effective criminal investigation and prosecution of arson fires.

II. MISSION
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The goal of the FIU is the proper investigation of all fires and explosions within the jurisdictions while providing for the effective criminal investigation and prosecution of those incidents that are determined to be criminal acts. This will be accomplished by providing the proper training and leadership to the FIU members so that they can conduct thorough investigations consistent with current national standards, utilizing modern scientific methods to ensure accurate findings and ultimately the speedy apprehension and prosecution of criminals while protecting the rights of the accused.

III. OBJECTIVES
A. Carry out the adopted annual Stanislaus County Fire Authority Business Plan as adopted by the Stanislaus County Board of Supervisors.

B. Properly investigate fires and explosions consistent with the National Fire Protection Association (NFPA) guide 921, thereon referred to as NFPA, Guide for Fire and Explosion Investigations.

C. Provide Investigators who meet or exceed the qualifications specified in NFPA 1033, Standards for Professional Qualifications for Fire Investigators.

D. Ensure that the supervision of the unit is consistent with NFPA 1037, Standard for Professional Qualifications for Fire Marshals (who supervise Fire Investigators).

E. Attempt to decrease the number of arson related fires within Stanislaus County by identifying, arresting, and prosecuting serial arsonists.

F. Gather and analyze statistical data to identify arson trends in Stanislaus County and to deploy FIU resources accordingly with a primary focus on the serial/complex/large financial loss arson incidents.

G. Analyze the statistical data to ensure that the workload between the areas served by the Less Than County Wide Fire Service Tax and those served by the City of Modesto remain fair and equitable.

H. Provide aid to agencies for specific arson related problems within their respective jurisdictions and to provide a high level of investigative knowledge and expertise.

I. Provide training in the area of arson recognition, investigative techniques, evidence collection, and enforcement methods to allied agencies’ personnel.

J. Vigorously prosecute all fire and explosives related crimes as a deterrent for potential arsonists in the future.
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IV. FIU ORGANIZATION
The FIU will be a multi-agency, multi-discipline task force involving law enforcement and fire agencies. The FIU will be managed by the Modesto Fire Department, supervised daily by the SCDA, and will be coordinated by the Modesto Fire Department’s assigned 40-hour Fire Investigator, one (2) Criminal Investigators from the Stanislaus County District Attorney’s Office, and one (1) General Crimes Detective from the Stanislaus County Sheriff’s Office.

Full time FIU Fire Investigators will be assigned from the career fire agencies within the county based on training, experience, and agency willingness to participate. The FIU fire agency staffing consists of one (1) Investigator from the Stanislaus Consolidated Fire Protection District (SCFPD), (3) three Investigators from the Modesto Fire Department (MFD), and one part time Turlock Fire Department employee. In addition to the full-time members, the FIU will have one Reserve (1) Investigator from the Stanislaus Consolidated Fire Protection District (SCFPD), and one (1) reserve investigators from the Modesto Fire Department (MFD).

Responsibility for the day-to-day conduct of the FIU operations is vested in the Modesto Fire Department or designee. The FIU will be comprised of an FIU Supervisor, FIU Criminal Investigator, Sheriff’s Detective, FIU Coordinator (40 hour), three (3) FIU Duty (Shift) Investigators, and one (1) part time investigator.

A. FIU Supervisor

1. In recognition that the field of fire investigation is primarily a law enforcement function, the FIU Supervisor will be a Criminal Investigator designated by the Chief Investigator to act as a supervisor in accordance with county policies.

2. The FIU Supervisor will be responsible for the day-to-day operations of the FIU as well as the overall supervision of the FIU members. The FIU Supervisor will provide the direction of the FIU via the FIU Criminal Investigator and the FIU Coordinator. The FIU Supervisor will establish a projected yearly budget for the FIU and provide an accounting of money expenditures to the Sheriff’s County Fire Service Fund/Fire Warden’s Office fund manager which serves as the fiscal agent for the FIU.

3. The FIU Supervisor will conduct the review of all reports generated by FIU members. Compile relevant statistical fire data and conduct monthly reporting to the Stanislaus County Fire Chiefs Association, relevant Law Enforcement partner agencies, and quarterly reporting to the Regional Fire Authority.

4. The FIU Supervisor will serve as the liaison between the FIU and the member’s parent agencies as well as the county Fire Chiefs via the Stanislaus County Fire #1..
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Authority and the county Police Chiefs via the Stanislaus Law Enforcement Executives. The FIU Supervisor reports to a Lieutenant at the Stanislaus County District Attorney’s Office, Bureau of Investigation, who then reports directly to the Chief Investigator.

B. FIU Criminal Investigator

1. The FIU Criminal Investigator position will be at the rank of District Attorney’s Office, Bureau of Investigation, Criminal Investigator II, and will be responsible for the day-to-day criminal investigator follow-up generated from fire incidents. The FIU Criminal Investigator will serve as the primary law enforcement Investigator in the FIU and as such will be responsible for the initial criminal investigation of fires determined to be criminal acts and for the triage and assignment of follow up investigation as needed to other FIU member agencies. The FIU Criminal Investigator, at the direction of the FIU Supervisor, will liaison with the other law enforcement investigative units in the county and will coordinate the investigations that cross jurisdictional lines.

2. The FIU Criminal Investigator will work to package and submit criminal cases to the vertically assigned Arson Deputy District Attorney.

C. FIU Sheriff’s Detective

1. The FIU Sheriff’s Detective position will be at the rank of Stanislaus County Sheriff’s Office Detective, collaterally assigned to the FIU in a collateral Arson detective role, from the Stanislaus County Sheriff’s Department, General Crimes Bureau, and will be responsible for the dayto-day detective criminal investigation follow-up generated from fire incidents occurring in the unincorporated and contract city areas within Stanislaus County. The FIU Sheriff’s Detective will serve as a co-primary law enforcement Investigator in the FIU and as such will be responsible for the initial criminal investigation of fires determined to be criminal acts and for the triage and assignment of follow up investigation as needed to other FIU member agencies. The FIU Sheriff’s Detective, at the direction of the FIU Supervisor, will liaison with the other law enforcement investigative units in the county and will coordinate the investigations that cross jurisdictional lines.

D. FIU Coordinator

1. The FIU Coordinator position will be at the rank of Fire Investigator. The FIU Coordinator will work a forty (40) hour week. The coordinator will also #1..
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conduct technical and administrative reviews of the FIU reports. The coordinator will assist the FIU Supervisor, and FIU Criminal Investigator, and FIU Sheriff’s Detective in conducting follow up investigation, scheduling training, scheduling a monthly work schedule, acquiring equipment, and assist with maintaining the FIU statistics. The coordinator will assist the FIU Supervisor, FIU Criminal Supervisor Criminal Investigator, and FIU Sheriff’s Detective in making decisions related to fire investigation from a fire agency perspective.

2. The FIU Coordinator will be selected by FIU Supervisor and FIU Criminal Investigator based on qualifications and the needs of the FIU. The coordinator can be rotated among the FIU members at the discretion of the FIU Supervisor; however, the position will normally be staffed for a minimum of 3-5 year rotation.

E. FIU Duty (Shift) Investigators

1. The FIU Duty (Shift) Investigator’s position will be at the rank of Fire Investigator. The Duty Investigators will be assigned to A, B, or C shift and will work a 48 hour on, 96-hour off schedule. The Duty Investigator is responsible for the 24-hour monitoring of active fire responses within the Regional FIU area of operation. The FIU Duty Investigators will respond to, conduct, and properly document the origin and cause investigation for fire incidents consistent with the Standard Operating Procedures (SOP’s) for the FIU.

2. The FIU Duty Investigators will report directly to the FIU Supervisor and in his absence to the FIU Coordinator or District Attorney’s Office FIU Criminal Investigator. This will ensure the investigations are conducted in an appropriate manner consistent with NFPA 921.

3. One part time investigator is assigned to the FIU; this position is currently held by a Turlock City Fire Department employee. The part time FIU position will report directly to the FIU Supervisor or in his absence, the FIU Coordinator.

F. Seniority within the FIU

1. It is understood that members assigned to the FIU will have seniority within their own agency. That seniority and the benefits associated with it within their parent agency as dictated by their own collective bargaining MOU and agency policies will not be affected by assignment to the FIU. That agency seniority, however, will not carry over to the FIU. The seniority of members assigned to multi-agency units is normally determined by the date one begins service in the unit.

2. In recognition of seniority, for purposes of shift assignment, time off, vehicle/equipment assignment, training opportunities, or any other purpose #1..
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traditionally handled by seniority, the members of the FIU will either come to mutual agreement or the decision will be made by the FIU Supervisor and FIU Coordinator.

G. Selection

1. The FIU will be staffed by qualified members referred by the participating agencies. Due to the critical nature of the program and the stringent training requirements for Fire Investigators as established by NFPA 1033, Standard for Professional Qualifications for Fire Investigators, the final decision on which members will be assigned to the FIU will be with the District Attorney’s Office.

This will be based on training and qualifications, past job performance, investigative aptitude, willingness to learn, and ability to work well with others in a task force type assignment. Assignment to the FIU should normally be for a minimum of 3-5 years, or as specified in each job classification MOU, and may be extended upon mutual agreement.

H. Certification

1. It is recognized that the science used in fire investigation has changed tremendously in the past decade and will continue to evolve as the science improves. It is the intention of the Regional FIU to have highly trained and independently certified Investigators conducting fire investigations for the purpose of finding the truth, not simply to seek arrests and prosecutions. To that end, the FIU Investigators will be encouraged to seek independent and tested certification through one of the professional fire investigation organizations to include but not be limited to; The International Association of Arson Investigators (IAAI), the National Association of Fire Investigators (NAFI), or the California Conference of Arson Investigators (CCAI). The advanced certification should include but are not limited to IAAI-ECT (Evidence Collection Technician), IAA-FIT (Fire Investigation Technician), and IAAICFI (Certified Fire Investigator).

I. Discipline

1. Members assigned to the FIU but not meeting an acceptable level of performance or standards or refusing to comply with the FIU standard operating procedures, may be removed from the FIU and transferred back to their parent agency. If the FIU Supervisor has cause to remove an FIU member, he will discuss the issue with the parent agency. If the parent agency disagrees with the determination, the matter will be referred to the District Attorney who will confer with the parent agency executive but will retain the final authority. It is agreed that the resolution of operational issues at the lowest level is in the best interest of the FIU.
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2. In all cases where a violation of a policy or procedure is alleged, and formal discipline is being considered, the internal investigation and imposition of discipline (if any) will be handled by the FIU member’s parent agency. If the allegation involves a matter that is best investigated by a law enforcement agency or is determined to be law enforcement related, (i.e., excessive use of force, improper search and seizure, or similar), then the parent agency can request that the District Attorney’s Office conduct the investigation via the District Attorney’s Lieutenant, FIU Supervisor, and FIU Coordinator.

3. Any internal investigation would be conducted in accordance with the Firefighter Bill of Rights as specified in 3250-3262 of the California Government Code, and/or the Peace Officer Bill of Rights as specified in 3300- 3312 of the California Government Code. Upon completion of the internal investigation a recommendation would be forwarded to the parent agency which has sole discretion over whether a violation is sustained and whether to impose discipline. In any case, the District Attorney’s Office retains the right to transfer a member back to their parent agency as previously specified.

V. FISCAL PROCEDURES
A. Background of Fiscal Model

1. The FIU is a multi-jurisdictional team formed to improve fire investigations in Stanislaus County, leveraging financial support/contributions from all participating agencies.

2. Member agencies will provide staff and funding to support the model, remain responsible for their own home-agency funding requirements, and report financial/statistical data as needed for FIU accounting & budget performance analysis.

3. The Member Agencies accounting, and budget operations must provide for documentation of resources dedicated to the FIU for compliance with funding requirements of the Less-Than-Countywide Fire Tax (LTCW) funds, and upon request, be available for audit purposes.

B. Accounting & Budget Roles

1. Program Administration & Operations Management – The Modesto Fire Department will be the Lead Agency for FIU oversight and operations; this is the primary business contact for the FIU. Key functions include: review and verify member agency resource contributions to the FIU on a semi-annual basis; approve billings for payment by the Stanislaus Fire Warden, certifying resources provided to the FIU meet the requirements specific to the LTCW Fire Tax funding; compile and produce data/statistics related to FIU performance, including monthly/quarterly/annual fire incidents as outlined in the MOU and #1..
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Regional FIU M.O.U. Page 9
consistent with the adopted annual Stanislaus County Fire Authority Business Plan.

2. Fiscal Agent – The Stanislaus County Sheriff’s Office, Fire Warden Division will be the primary County Budget Entity. Key functions include: (1) receiving semi-annual billing statements and reports approved and certified by the DA’s office for reimbursement to participating member agencies; (2) if the conditions set forth in this Agreement are met, issuing payments to member agencies within 30 days of receipt of the approved/audited invoice from the DA’s office and consistent with MOU requirements; (3) if the conditions are not met, payment will be made when the necessary processing is completed; and (4) compiling annual reconciliation of total FIU costs, total fire incidents from the prior fiscal year, and documentation of compliance with requirements of the Less-Than-Countywide Fire Tax funding. The Fiscal Agent will not pay for unauthorized costs or services rendered by member agencies.

3. Fire Investigations Unit Member Agencies – City of Modesto Fire Department, Stanislaus Consolidated Fire Protection District, Stanislaus County District Attorney, Stanislaus County Sheriff’s Office, Stanislaus County Fire Warden, and the Turlock City Fire Department will participate in the FIU per the MOU.

Each member agency desiring assigned agency personnel reimbursement will prepare semi-annual billing statements/memo billing of resources contributed to the FIU and deliver documents to the Modesto Fire Department no later than the 5th of the month in January and July for submission to the Stanislaus Fire Warden by the 10th of each month following the end of the six-month period (January and July) as outlined above. Each member agency will provide certification of costs with back-up documentation for billing statements or in the case of memo billing, a certification statement to maintain records available for audit for five years from the end of each accounting period. Member agencies agree to share data/statistics budget information and actual costs as needed for FIU billing, reporting, audit and in support of government accounting standards, including requirements of the Less-Than-Countywide Fire Tax funding.

C. Accounting & Budget Model Requirements

1. Approximately half of the fire investigations that occur each year are in the City of Modesto, with the remaining half in the LTCW Fire jurisdiction. For simplicity, the Accounting & Budget Model will require reporting of all documented investigations to determine origin and cause, direct costs to the FIU Fiscal Agent for comparison and evaluation at year-end, to ensure that the total cost of all resources which could be attributed to the LTCW service area are equal to or greater than the percentage of incidents which occur in the LTCW jurisdiction on an annual basis.
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Regional FIU M.O.U. Page 10

2. While staff in the FIU will be assigned from agencies throughout the County, the combination of incidents and the full reporting of all entity’s costs associated with FIU, but not reimbursed by LTCW funds will likely “over-match” the LTCW funding at year-end.

3. LTCW funded member agencies accounting requirements include:
a. Semi-Annual invoice, with documentation/supporting records for actual personnel costs, along with direct charges for tools/materials/supplies.

An indirect cost rate/administrative overhead, not to exceed 10% of direct salaries and benefits may also be applied.
b. It is anticipated that the DA will have significant “in-kind” memo billings associated with dedicated investigations staff, supervision, management, and administrative costs.
c. All member agencies will bear the costs of overtime as “in-kind” support to the FIU unless funding is approved in the adopted annual Stanislaus County Fire Authority Business Plan.

4. In addition to the resources dedicated by the LTCW services/funds, the City of Modesto Fire Department will provide resources equal to the LTCW contribution to FIU. These resources to the FIU include associated costs for two Fire Investigator positions, related training/equipment/materials/supplies and the use of Modesto Fire Station 8. The value of the resources contributed to the FIU will be compiled in a semi-annual memo billing along with documentation of the costs provided in support of fire incidents in the County.

5. The DA will provide reporting of FIU performance to all member agencies, including incidents on a monthly/quarterly/annual basis as described in this MOU, and consistent with the adopted annual Stanislaus County Fire Authority Business Plan.

6. All member agencies understand and agree that the County shall not be obligated to make any payment hereunder except out of revenue from the LTCW Fire Tax. The County will not provide any additional compensation, nor will the member agencies be asked to provide any additional funding beyond the agreed upon staff/direct support specified in this MOU.

7. Member agencies shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this agreement for a minimum of five (5) years from the termination or completion of this agreement.

8. The Stanislaus County Sheriff’s Office, Fire Warden Division as the FIU Fiscal Agent, will store and maintain all fiscal records in accordance with Stanislaus #1..
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Regional FIU M.O.U. Page 11
County Records Retention policies and the Governmental Accounting Standards Board (GASB). The fiscal records may be accessed by any authorized representative of the Member Agencies, with reasonable advance notice, for the purpose of audit, evaluation, or examination.

9. In the event of an audit exception or exceptions, the member agency responsible for not meeting the program or funding requirement or requirements shall be responsible for the deficiency.

D. Year-End Analysis & FIU Performance Outcome

1. The Fiscal Agent will provide an annual reconciliation of total costs per fiscal year, and member agency’s resource contributions along with all incidents in the County.

2. It is anticipated that the incidents, from the prior fiscal year, in the LTCW jurisdiction will be equal to or less than the ratio of LTCW funds used in support of the total FIU.

3. It is anticipated that consistency of high-quality fire investigations and this shared model of leveraging member agency financial contributions will be costeffective and assist in future analysis of sustainable operations.

VI. LIABILITY
A. Each member agency shall be solely liable for the negligent or wrongful acts or omissions of its officers, representatives and employees occurring in the performance of this Memorandum. If any member agency becomes liable for damages caused by a member’s solely negligent or wrongful acts or omission, the negligent member agency shall pay such damages without contribution by the Regional FIU or by a party to this agreement.

B. In the event the Regional FIU is named as a defendant in an action and the member agency whose officers or employees are alleged to have committed the negligent or wrongful act is not so named, or if the identity of the officers or employees who are alleged to be at fault cannot be determined by the pleadings, the County of Stanislaus shall initiate the defense of the action of the Regional FIU. In every case, a member agency not named as a defendant in an action shall promptly take action to intervene in a pending action when it is or becomes apparent that one of its officers or employees is alleged to be at fault; provided, however, that failure of a member agency to become a defendant shall not relieve the member agency of its obligation to indemnify another member agency as provided herein.

C. Personnel assigned to the Regional FIU shall be deemed to be continuing under the employment of their respective jurisdictions and shall have the same powers, duties, #1..
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Regional FIU M.O.U. Page 12
privileges, responsibilities, and immunities as are conferred upon them as a peace officer and/or fire investigator in their own jurisdictions.

D. Each member agency shall be responsible for the acts of their respective members, as well as for any losses, damages, claims, demands, vehicle accidents, or other liabilities arising out of that member’s services and activities while participating in the Regional FIU. When a member drives a vehicle owned by another agency, the driver’s agency assumes all liability associated with the operation of such vehicle, except for the vehicle’s mechanical condition. Each member agency shall also be liable for all workers compensation benefits for their personnel injured in the course and scope of duty while assigned to the Regional FIU.

VII. OFFICE SPACE AND EQUIPMENT
A. The Modesto Fire Department has agreed to provide, without reimbursement, ongoing workspace for the Regional FIU at Modesto Fire Station 8 (“Station 8”), located at 737 Airport Way in Modesto, CA. If this office space becomes unavailable or the needs of the Regional FIU change, other locations may be considered. The member agencies shall provide office furniture and supplies.

Telephones and miscellaneous office equipment are currently in place and the Modesto Fire Department has authorized its use by the FIU without reimbursement.

B. The FIU agrees to maintain the Station 8 grounds. The FIU agrees to pay for all internet technology access and cyberspace business associated costs. It is recognized that the City of Modesto, Stanislaus County Sheriff and Stanislaus County District Attorney’s Office IT will maintain network access and capabilities within Station 8 for their respective member personnel’s access. The Modesto Fire Department agrees to continue to maintain the facility itself and pay for electricity, water, and sewer utility costs.

C. In the event funds or property are contributed to the Regional FIU by one or more of the parties or by an outside source or donation, the Regional FIU shall be strictly accountable for all such funds and property.

D. Disposition of Assets on Termination

1. At the termination of this Memorandum, all personal property which can be identified as having been contributed by a member agency shall be returned to that member agency. Property purchased from Regional FIU funds, contributed by the agency members, or funds granted by a non-party, and property given to the Regional FIU by a non-party, shall become the property of Stanislaus County or their designee. Supplies/assets purchased with LTCW funds, not fully utilized during this agreement will remain the property of Stanislaus County and will be dedicated for use in Fire Investigations and/or other programs/services approved for LTCW funds as administered by the Stanislaus County Sheriff’s Office, Fire Warden Division. #1..
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Regional FIU M.O.U. Page 13
VIII. VEHICLES
A. FIU Members will provide a vehicle from their parent member agency for their use.

This vehicle may be a take home vehicle as the investigators may be required to respond to fires while off duty. This agreement does not supersede any member agency policy or procedure related to take home vehicles. The member agency providing the vehicle for FIU use will be responsible for fuel and the continued maintenance of the vehicle. It is recognized that in certain hardship & exceptional circumstances the FIU will provide a pool vehicle from its maintained fleet to assigned personnel for duty purposes.

B. It is recognized that as a multi-agency unit, individual members may need to operate vehicles belonging to the other member’s agencies. Regardless of specific policies prohibiting non-employees from operating agency vehicles, it is agreed that Regional FIU members are authorized to operate other members’ agency vehicles to carry out the assignment of the FIU. As described in “Liability”, each member’s agency accepts liability for their member while driving a motor vehicle regardless of owner, except in the case of mechanical defect.

C. The Stanislaus County District Attorney’s Office has contributed three vehicles to the FIU (County ID 08-99, 11-34, and 15-78). The Stanislaus County Regional Fire Authority has contributed a dedicated FIU response truck (County ID 21-02) for larger incidents. It is agreed that any member of the FIU can drive these vehicles to accomplish the mission of the FIU. It is agreed that all Stanislaus County District Attorney’s Office policies and procedures related to vehicle use will be followed by any FIU members operating county vehicles.

D. It is recognized that responses to most fire incidents occur in a Code 3 (Lights and Siren) manner. Regional FIU members shall abide by their departments’ Code 3 policy and the California Vehicle Code when operating in this manner.

E. Pursuits involving unmarked vehicles shall be strongly discouraged. However, when Regional FIU members become involved in a pursuit, they shall abide by their departments’ pursuit policy established by their respective agency. If a member agency does not have a pursuit policy, they will default to the Stanislaus County District Attorney’s Office policy governing pursuits.

IX. ARSON TASK FORCE
A. The Stanislaus County Arson Task Force was established in 1981 in order to create a system of mutual aid for the suppression of arson fires and apprehension of arsonists. Pursuant to Stanislaus County Board of Supervisors Resolution 2000-360, the task force was reorganized in 2000 with a Joint Powers Agreement addressing the operation and goals of the task force.
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Regional FIU M.O.U. Page 14
B. In 2006 after the loss of many of the arson task force members through attrition, the City of Modesto was awarded a contract to provide fire investigation services throughout the county under resolution 2006-751. This contract essentially nullified the need for the arson task force; however, no action was ever taken to disband the task force, or its authority and the task force went inactive.

C. In 2011, the Stanislaus County District Attorney, who serves as the chairperson of the arson task force governing committee, reinstituted the arson task force for purposes of training and collaboration with the Fire Investigators in the county. A Stanislaus County District Attorney, Bureau of Investigation Lieutenant, who was also a Certified Fire and Explosives Investigator, was assigned as the coordinator of the arson task force to provide that training and collaboration. Currently, the task force members currently meet regularly as part of the Regional FIU.

D. It is the intention of the District Attorney to continue to use the Regional FIU as the vehicle to provide the training and collaboration formerly provided by the Stanislaus County Arson Task Force.

E. All fire and law enforcement agencies within Stanislaus County are encouraged to participate in the Regional FIU instead of the Arson Task Force. It is the intention of the regional FIU that the future full time, FIU Fire Investigators will come from the part time members who will be referred to as “Reserve” Investigators. These Investigators can also, upon certification, be available for filling overtime shifts created when full time, FIU investigators take approved time off of work. The level of certification necessary to be eligible to fill overtime shifts, and whether a Reserve Investigator meets that level of certification, will be determined by the FIU Supervisor.

X. STANDARD OPERATING PROCEDURES
The member agencies agree to develop standard operating procedures (SOP’s) which will be disseminated to all members. The SOP’s will include Reporting, Records Retention and Release requirements, which will be mutually agreed to by all member agencies. In any case where the SOP’s of the Regional FIU conflict with the policies or procedures of a member’s employing agency, the member shall abide by the directives of his or her own agency.

XI. REPORTING
The Regional FIU Supervisor will be responsible for implementing a reporting system for tracking FIU activity and resource utilization. This reporting system will serve as the basis for quarterly reports to the Fiscal Agent and Stanislaus County Fire Warden to ensure #1..
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Regional FIU M.O.U. Page 15
accountability of personnel and resources. The quarterly report will be filed with, fire incident data, semi-annual invoices, and in accordance with the adopted annual Stanislaus County Fire Authority Business Plan.

No later than the 15th of each month, the Regional FIU Supervisor will submit an electronic activity report to each Fire agency having jurisdiction as well as the Stanislaus County Fire Warden’s office providing status updates on all open and fiscal year-to-date investigations in their jurisdiction. This report will be provided prior to the following month’s Stanislaus County Fire Chiefs’ Association (SCFCA) meeting.

A. Report Review

1. In coordination with the San Joaquin County FIU, the Stanislaus Regional FIU has agreed to share resources as necessary for the effective investigation of fires and review of reports as required in NFPA 921. To that end, the Coordinator for the San Joaquin County FIU, or his approved designee, may be tasked with conducting administrative, technical, and peer reviews of Stanislaus Regional FIU reports, and in turn the Stanislaus Regional FIU Supervisor and Coordinator may review San Joaquin FIU reports.

XII. AMENDMENTS TO THE AGREEMENT OR FIU SOP’s
The member agencies agree that the Regional FIU will develop and implement standard operating procedures (SOP’s). As issues develop, new policies and procedures may need to be developed to address them. The member agencies agree to remain in communication regarding these changes and meet as necessary to confer prior to implementation.

XIII. TERM OF AGREEMENT
The term of this agreement is from May 23, 2023, and as consistent with an evergreen clause, will be agreed upon as ongoing unless renegotiated, announced agency withdrawal or removal, or significant changes are identified by the participating agencies.

The financial aspects of the agreement shall continue to be determined every year as part of the adopted annual Stanislaus County Fire Authority Business Plan.

Participating agencies may elect to leave the Regional FIU agreement at any time. Any agency wishing to do so shall indicate such intention in writing to the Stanislaus County District Attorney’s Office and the Stanislaus County Fire Warden’s Office. The termination of such membership shall be deemed to take effect not less than 180 days after receipt of the written notice or upon a date established by mutual agreement. #1..
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Regional FIU M.O.U. Page 16
XIV. SIGNATURES
The undersigned represent authority to execute this agreement on behalf of their respective agencies; and in signing this formal agreement, represent concurrence with and support of the Stanislaus County Regional FIU as set forth in this agreement and for the period and purposes as stated herein.
________________________ ________________________
Jody Hayes, Chief Executive Officer Joe Lopez, City Manager Stanislaus County City of Modesto
________________________ ________________________
Jeff Dirkse, Sheriff Alan Ernst, Fire Chief
Stanislaus County City of Modesto
________________________ ________________________
Jeff Laugero, District Attorney Jose Sanchez, City Attorney Stanislaus County City of Modesto (as to form)
________________________ ________________________
Thomas E. Boze, Assistant County Counsel Jonathan Goulding, President Stanislaus County (as to form) Stanislaus Consolidated Fire Prot.Dist ________________________ ________________________
Tim Tietjen, Fire Chief Christopher Diaz, Counsel
Stanislaus Consolidated Fire Prot. Dist. Stanislaus Consolidated Fire Prot. Dist ________________________
Richard Murdock, Fire Warden
Stanislaus County
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 8, 2023
Date: April 4, 2023
TO: Safety & Communities Committee
Chris Ricci, Chair
Rosa Escutia-Braaton, Vice-Chair
Jeremiah Williams, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Non-Emergency Transport Application for America West Medical Transportation, Inc.

CONTACT: Robert Reyna, Captain, [email protected], 209-572-9500 DESCRIPTION:

Consider approving the application and issuance of a permit to operate as a Non-Emergency Medical Transport Company to America West Medical Transportation, Inc in the City of Modesto, and forwarding to Council for approval. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

This item is related to the 2020-2025 Strategic Plan goal of improving community safety and quality of life through a combination of prevention and intervention efforts that address safety and its underlying issues. (Goal A of Quality of Life Goals and Strategies) BACKGROUND:

The City allows non-emergency medical transport companies to apply for a non-emergency transport permit. In addition to the application, the transport company is required to pay a filing fee of $1,000 and provide all the necessary documents and information as outlined in Modesto Municipal Code 3-9.01 to 3-9.20. Once the application, documentation, and necessary fees have been received by the Modesto Police Department (MPD), a background investigation must be completed by the department. Upon successful completion of the background investigation, and subsequent approval by Council, the permit will be issued by the Modesto Police Department.

Currently there are eight permitted ambulance companies in Modesto to provide non-emergency transport: Amwest Ambulance, Bay Medic Transportation, Citizens Medical Transport, Heavenly Medical Transport LLC, MacIntosh Transport LLC, Provident Senior Solutions Inc, Rose Medical Transportation and Star Nonemergent Transportation.
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Safety & Communities Committee, May 8, 2023
Non-Emergency Transport Application for America West Medical Transportation, Inc.

Page 2 of 2 ends

DISCUSSION:

America West Medical Transportation, Inc. applied to operate a non-emergency medical transportation service in the City of Modesto. America West Medical Transportation, Inc. has paid the $1,000 filing fee to cover administrative, investigative, and other incidental costs associated with the application and have provided all necessary information as outlined in Sections 3-9.01 to 3-9.20 of the Modesto Municipal Code. The MPD concluded the required background investigation of America West Medical Transportation, Inc. indicating the applicant has complied with the requirements contained in the Modesto Municipal Code 3-9.01 through 3-9.20 and recommended to proceed with obtaining Council approval to issue the operational permit.

FISCAL IMPACT:

America West Medical Transportation, Inc. will be required to obtain a City Business license and renew it annually – which currently costs $75 and includes a $4 fee to the State of California for Disability Act AB1379. Additionally, America West Medical Transportation, Inc. will be required to pay mill tax, which is currently at a rate of 0.002, on their gross receipts while operating in the City. Fees and mill tax paid to the City are revenue to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving the application and issuance of a permit to operate as a Non-Emergency Medical Transport Company to America West Transportation, Inc. in the City of Modesto, and forwarding to Council for approval.

Approved by:

Brandon Gillespie, Police Chief
Joseph P. Lopez, City Manager
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

CONTACT: Robert Reyna, Captain, [email protected], 209-572-9500 DESCRIPTION:

Consider approving the application and issuance of a permit to operate as a Non-Emergency Medical Transport Company to Quality Care Transportation, Inc in the City of Modesto, and forwarding to Council for approval. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

Currently there are eight permitted ambulance companies in Modesto to provide non-emergency transport: Amwest Ambulance, Bay Medic Transportation, Citizens Medical Transport, Heavenly Medical Transport LLC, MacIntosh Transport LLC, Provident Senior Solutions Inc, Rose Medical Transportation and Star Nonemergent Transportation.
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Safety & Communities Committee, May 8, 2023
Non-Emergency Transport Application for Quality Care Transportation Inc.

Page 2 of 2 ends

DISCUSSION:

Quality Care Transportation, Inc applied to operate a non-emergency medical transportation service in the City of Modesto. Quality Care Transportation, Inc has paid the $1,000 filing fee to cover administrative, investigative, and other incidental costs associated with the application and have provided all necessary information as outlined in Sections 3-9.01 to 3-9.20 of the Modesto Municipal Code. The MPD concluded the required background investigation for Quality Care Transportation, Inc., indicating the applicant has complied with the requirements contained in the Modesto Municipal Code 3-9.01 through 3-9.20 and recommend staff proceed with obtaining Council approval to issue the operational permit.

FISCAL IMPACT:

Quality Care Transportation, Inc. will be required to obtain a City Business license and renew it annually – which currently costs $75 and includes a $4 fee to the State of California for Disability Act AB1379. Additionally, Quality Care Transportation, Inc. will be required to pay mill tax, which is currently at a rate of 0.002, on their gross receipts while operating in the City. Fees and mill tax paid to the City are revenue to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving the application and issuance of a permit to operate as a Non-Emergency Medical Transport Company to Quality Care Transportation, Inc. in the City of Modesto, and forwarding to Council for approval.

Approved by:

Brandon Gillespie, Police Chief
Joseph P. Lopez, City Manager
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 8, 2023
Date: April 19, 2023
TO: Safety & Communities Committee
Chris Ricci, Chair
Rosa Escutia-Braaton, Vice Chair
Jeremiah Williams, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods SUBJECT: Agreement for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza
CONTACT: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods, [email protected], 209-577-5347
DESCRIPTION:

Consider approving an Agreement with American Chiller Service, Inc. for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza for a total amount not to exceed $375,000 over five years; and forwarding to Council for approval. (Funding Source: Centre Plaza Fund)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The Modesto Centre Plaza facility was constructed in 1988. At the time, a state-of-the-art heating, ventilation, and air conditioning system (HVAC) was installed by American Chiller, Inc. (American Chiller) to serve the 24,000 square foot, multi-level meeting and convention facility.

The system houses a climate control system utilizing two chillers (one large and one small).

In 2017, staff had American Chiller recondition and retrofit the chillers, which would prolong the life of the equipment for approximately ten years for a cost of approximately $65,000. In 2018, $49,668 was spent to upgrade the computer components to monitor and control the operating system.

In April 2018, by Resolution No 2018-175, Council approved $75,000 to fund a purchase Agreement with American Chiller to complete additional repairs and reinstate annual equipment #4..
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Safety & Communities Committee, May 8, 2023
Agreement for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza

Page 2 of 3 ends

service, funding for quarterly maintenance, and contingency funding for any emergency repairs for the balance of FY 17-18 and through FY 18-19. At that time, American Chiller was identified as the most capable provider for future service and repairs.

In June 2019, by Resolution No. 2019-284, Council approved an Agreement with American Chiller, Inc., for scheduled and emergency heating, ventilation, and air conditioning maintenance services for the Modesto Centre Plaza Facility for a four-year Agreement, for an annual cost not to exceed $75,000, and a total cost not to exceed $300,000 over four years.

DISCUSSION:

To maintain and prolong the life of the system, staff is proposing a two-year Agreement with three (3) one-year extensions with American Chiller. Although the retirement of the debt service bond for the facility occurs at the end of this year, a decision regarding the future of the property is yet to be decided. In the interim, the facility will continue to operate and will need a working HVAC system to do so.

The proposed Agreement is essential as it continues the necessary scheduled maintenance of the system and provides contingency funding for any emergency repairs, parts, and labor which may be needed over the term of the contract. The annual cost for the maintenance and emergency components is outlined in the table below:

Fiscal Year Annual Maintenance Emergency Repair
Contingency
Total
2023-24 $52,785 $22,215 $75,000
2024-25 $53,313 $21,687 $75,000
2025-26 $53,844 $21,156 $75,000
2026-27 $54,380 $20,620 $75,000
2027-28 $54,924 $20,076 $75,000
TOTAL $269,246 $105,754 $375,000
With its longstanding history, knowledge, expertise, and service on the units, American Chiller has been identified and confirmed as the most capable provider for future service and repairs.

Modesto Municipal Code Section 8-3.204 generally requires all purchases, in excess of fifty thousand dollars ($50,000) to follow formal bid procedures. However, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality. Here, American Chiller should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(d) due to the documented superior performance. Therefore, this purchase qualifies for exemption from the formal bidding procedures.

FISCAL IMPACT:

Funding is budgeted in proposed Fiscal Year 2023-2024 operating budget and will be budgeted annually for the remaining four years of the Agreement in the Centre Plaza Fund. #4..
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Safety & Communities Committee, May 8, 2023
Agreement for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza

Page 3 of 3 ends

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving the Agreement with American Chiller Inc. for HVAC Maintenance and Emergency Repairs for the Modesto Centre Plaza for a two-year Agreement with three one-year extension options, for an annual estimated amount of $75,000, and a total amount not to exceed $375,000 over five years; and forwarding to Council for approval.

Approved by:

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

1. Agreement

2. Exhibit B

3. Bid Waiver
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1 ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ______ day of __________ 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and American Chiller Service, Inc., hereinafter called CONTRACTOR.

W I T N E S S E T H :

WHEREAS, the Modesto City Council adopted Resolution No. 2023-_______, authorizing the Award of Proposal and agreement for ANNUAL MAINTENANCE, MONTHLY

MAINTENANCE, AND EMERGENCY REPAIRS TO THE HEATING, VENTILATION, AND AIR CONDITIONING UNITS AT THE MODESTO CENTRE PLAZA, attached hereto as Exhibit "A" and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY’s needs and shall enter into an agreement for ANNUAL MAINTENANCE,

MONTHLY MAINTENANCE, AND EMERGENCY REPAIRS TO THE HEATING,

VENTILATION, AND AIR CONDITIONING UNITS AT THE MODESTO CENTRE PLAZA, attached hereto as Exhibit “B”, and made a part hereof, and NOW, THEREFORE, the parties hereto mutually agree as follows:

1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. #4..
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2 c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount of $75,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $375,000. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Proposal attached hereto as Exhibit B.

AGREEMENT PRICING
Fiscal Year Program Cost Emergency Contingency
(not to exceed)
Total
2023-2024 $52,785 $22,215 $75,000
2024-2025 $53,313 $21,687 $75,000
2025-2026 $53,844 $21,156 $75,000
2026-2027 $54,380 $20,620 $75,000
2027-2028 $54,924 $20,076 $75,000

2. PREVAILING WAGES:

In accordance with California Labor Code section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “B” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “B” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published #4..
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3 by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “B”, including those set forth in Labor Code section 1770 et. seq.

DIR Project ID#: 461292

3. CITY REPRESENTATIVE:

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

4. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of two years, with three (3) one-year extension options at the sole discretion of CITY, for a total of up to five years.

Year 1: July l, 2023 through June 30, 2024
Year 2: July l, 2024 through June 30, 2025
Year 3: July 1, 2025 through June 30, 2026
Year 4: July 1, 2026 through June 30, 2027
Year 5: July 1, 2027 through June 30, 2028
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4 Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT. Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the City of Modesto West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

5. LIABILITY INSURANCE:

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

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

The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.

The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to #4..
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6 additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the CITY’s Risk Manager.

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

6. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
 This AGREEMENT NUMBER – 245323
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

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

8. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.

This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.

9. ATTORNEYS’ FEES:

If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be #4..
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8 entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No. 2023-______;
b. CONTRACTOR Proposal submittal;
c. CONTRACTOR’s City of Modesto business license

11. TERMINATION OF SERVICES:

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

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

Post-Termination Procedure:

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

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

12. COMPLIANCE WITH ALL LAWS:

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

13. FAILURE TO PERFORM SATISFACTORY WORK:

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

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

14. ASSIGNMENT OF RIGHTS:

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

15. CITY PROCESS/PROCEDURE APPROVALS:
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12 CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.

16. DIR REGISTRATION:

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

17. CONTRACTOR’S RESPONSIBILITY FOR DAMAGES:

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

18. NOTICES:

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

CONTRACTOR: Rudy Castano
American Chiller
931 Reno Avenue, Suite L
Modesto, CA 95351
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13 (209) 557-0111
[email protected]
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.

21. FUNDING:

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

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

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

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

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

26. FACILITIES AND EQUIPMENT:

Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B”, and only under the terms and conditions set forth herein. #4..
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16 27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

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

30. WAIVER:

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

31. HEADINGS NOT CONTROLLING:
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17 Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

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.
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18 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and ________________________________________ has caused this Agreement to be duly executed. #4..
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Large Tonnage Air
Conditioning Specialists
CA Lic. No. 605046
NV Lic. No. 0035255
ID Lic. No. HVC-C-10073
Sacramento 11328 Sunrise Gold Circle, Rancho Cordova CA 95742 Phone: (916)457-7800 Fax: (916)731-8100 Bay Area 743 Thornton Street San Leandro CA 94577 Phone: (510)686-1111 Fax: (510)686-1234 Modesto 931 Reno Ave., Suite L Modesto CA 95351 Phone: (209)557-0111 Fax: (209)557-0123 Reno / Tahoe 745 E. Greg Street, Suite 5 Sparks NV 89431 Phone: (775)322-9900 Fax: (775)322-9929 Mailing Address P.O. Box 1887 Rancho Cordova CA 95741-1887 Toll Free: (800)916-2445 Website: www.americanchiller.com E-Mail: [email protected] Contractors Licenses: CA: 605046 C-4/C-20/C-38/D-58 NV: 0035255 C-21 ID: HVC-C-10073 Payment to be made as follows: Net 30 Days All material is guaranteed to be as specified. All work to be completed in a professional manner according to standard practices. All work is covered by a one year parts and labor warranty unless otherwise specified. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delay beyond our control. American Chiller Service or Customer can terminate with one month written notice to the other party. Owner to carry fire and other necessary insurance. Our workers are fully covered by worker’s compensation insurance. Pricing is valid for 90 days fromdate of proposal.

March 10, 2023

HVAC SERVICE
City of Modesto
Modesto Centre Plaza
1000 L Street DIR# 1000000880
Modesto CA 95354 Phone: (209) 652-5949
Attn: Mr. Bob Quintilla Quote: 64350
Dear Mr. Quintilla:

Per your request we would like to offer our proposal for HVAC services at the Centre Plaza to include annual and monthly services for all mechanical equipment. Below are the full details of the proposed service; attached are the checklists we will use. All services are quoted for work during standard business hours, M-F.

Equipment Covered:
o Two Air Handlers and return fans
o Two Trane Water Cooled Chillers
o 35 VAV’s
o One BAC Cooling Tower
o One Hot Water Boiler
o Control System
o One Domestic Hot Water Boiler
o One Fountain Panel and Pump
o One Filter pump and panel
o Two Chilled Water Pumps
o Two Condenser Water Pumps
o Two Hot Water Pumps
o One Compressor and Air Dryer
o One Refrigerant Monitor
Proposed Program Term:
-Third Quarter 2023-Second Quarter 2028
Scope of Work:
• Provide labor and materials to perform annual/quarterly services per attached check lists. • Provide calibration of all pneumatic systems and check operation of building DDC system as part of control /VAV annual portion • Exhaust fan portion to include v-belt replacement.
• Quarterly service to all building components listed above. • Provide written reports at completion of each service.

Program Cost:
2023-2024: $ 52,785.00
2024-2025: $ 53,313.00
Total Program Cost: $106,098.00*
Additional Considerations:

Maintenance Renewal2025-2026: $ 53,844.00
2026-2027: $ 54,380.00
2027-2028: $ 54,924.00
Total Maintenance Renewal: $163,148.00**
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Note:
• *Pricing does not include belts for air handlers, or additional money that may be needed to perform repairs beyond scope of provided check sheets.
• **Acceptance of years 3-5 pending agreement by both parties. • Year 2023-2024 to be billed in 12 equal monthly payments of $4,398.75 • Year 2024-2025 to be billed in 12 equal monthly payments of $4,442.75 • Year 2025-2026 to be billed in 12 equal monthly payments of $4,487.00 • Year 2026-2027 to be billed in 12 equal monthly payments of $4,532.00 • Year 2027-2028 to be billed in 12 equal monthly payments of $4,577.00 Thank you for the opportunity to provide this proposal, we look forward to working with you on this project! Respectfully,
American Chiller Service, Inc. Approved By:
____________________________
Kyle Ferguson Modesto Centre Plaza
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American Chiller Service, Inc.

TERMS & CONDITIONS

1. This Standard Service Proposal or Maintenance Agreement (hereinafter sometimes referenced as “Agreement”), upon acceptance by the Customer, is made solely on the terms and conditions hereof, notwithstanding any additional or conflicting conditions that may be contained in any purchase order or other form of Customer, all of which additional or conflicting terms and conditions are hereby rejected by American Chiller Service. Further, you acknowledge and agree that any purchase order issued by you in accordance with this Agreement will only establish payment authority for your internal accounting purposes. Any such purchase order will not be considered by us to be a counteroffer, amendment, modification, or other revision to the terms of this agreement. No waiver, alteration or modification of the terms and conditions herein shall be valid unless made in writing and signed by an authorized representative of American Chiller Service.

2. This Maintenance Agreement or Standard Service Proposal is subject to acceptance by the Customer within 30 days from date shown on the quote, unless specified otherwise. Prices quoted are for services, labor, and material as specified in this Proposal. If acceptance of this Maintenance Agreement or Standard Service Proposal is delayed or modified, prices are subject to adjustment.

3. Terms of payment are subject at all times to prior approval of American Chiller Service’s credit department. Terms of payment are net 30 days upon receipt of invoice unless previously otherwise agreed in writing. Should payment become more than 30 days delinquent, American Chiller Service may stop all work under this Agreement or terminate this Agreement with five (5) days written notice to Customer. American Chiller Service reserves the right to add to any account outstanding more than 30 days interest at 1 ½ per month or the highest rate allowed by law. In the event of default in payment, Customer agrees to pay all costs of collection incurred by American Chiller Service including, but not limited to, collection agency fees, attorney fees and court costs. Additional services may be performed upon request at a price to be determined, subject to these Terms and Conditions.

4. In the event that American Chiller Service determines, during the first thirty (30) days of any Maintenance Agreement or upon seasonal start-up (discovery period) that any equipment covered under this Agreement in need of repair and/or replacement, American Chiller Service shall inform Customer of the equipment condition and remedy. American Chiller Service shall not be responsible for the present or future repair and/or replacement or operability of any specific equipment; until such time as the equipment is brought up to an acceptable condition or the Customer removes the unacceptable system(s), component(s), or part(s) from this contract.

5. Any Maintenance Agreement price is subject to adjustment once each calendar year, effective on the anniversary date, for changes in labor, subcontractor and material costs. The customer shall receive forty-five (45) days prior written notice of such adjustment unless specifically excluded otherwise in writing.

6. A Maintenance Agreement may be terminated: (i) by either party upon the anniversary date hereof; provided however, that written notice of such termination must be given to the non-terminating party at least thirty (30) days prior to the anniversary date; (ii) by American Chiller Service upon five (5) days prior written notice to Customer, in the event that any sums or monies due or payable pursuant to this Agreement are not paid when due or in the event that additions, alterations, repairs or adjustments are made to the system or equipment without American Chiller Service’s prior approval; (iii) by either party, in the event that the other party commits any other material breach of this Agreement and such breach remains uncured for ten (10) business days, after written notice thereof. If a Maintenance Agreement is terminated for any reason, other than a material breach by American Chiller Service, Customer shall pay, in addition to all sums currently due and owing, the entire remaining balance due for the term of the Maintenance Agreement, or an amount equal to time and materials expended for the year, whichever is less. Notices required hereunder shall be sent via Certified U.S. Mail, Return Receipt Requested and provided that such notice is postmarked by the required date, such notice shall be deemed properly given.

7. Unless Customer provides appropriate documentation of tax exemption, Customer shall pay American Chiller Service, in addition to the contract price, the amount of all excise, sales, use, privilege, occupation or other similar taxes imposed by the United States Government or any other National, State or Local Government, which American Chiller Service is required to pay in connection with the services or materials furnished hereunder. Customer shall promptly pay invoices within 30 days of receipt. Should payment become more than 30 days delinquent, American Chiller Service may stop all work under this Agreement or terminate this Agreement as provided in the next paragraph.

8. Any and all costs, fees and expenses arising from or incurred in anticipation of any federal, state, county, local or administrative statute, law, #4..
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9. The contract price stated herein is predicated on the fact that all work will be done during regular working hours of regular working days unless otherwise specified. If for any reason Customer requests that work be performed other than during regular working hours or outside the scope of services specified hereunder, Customer agrees to pay American Chiller Service any additional charges arising from such additional services, including but not limited to premium pay, special freight or other fees or costs associated therewith.

10. Customer shall be responsible for all costs, expenses, damages, fines, penalties, claims and liabilities associated with or incurred in connection with any hazardous materials or substances, including but not limited to asbestos, upon, beneath, about or inside Customer’s equipment or property.

Title to, ownership of, and legal responsibility and liability for any and all such hazardous materials or substances, shall at all times remain with Customer. Customer shall be responsible for the removal, handling and disposal of all hazardous materials and substances in accordance with all applicable Governmental Regulations. Customer shall defend, indemnify, reimburse and hold harmless American Chiller Service and its officers, directors, agents, and employees from and against any and all claims, damages, costs, expenses, liabilities, actions, suits, fines and penalties (including without limitation, attorneys’ fees and expenses) suffered or incurred by any such indemnified parties, based upon, arising out of or in any way relating to exposure to, handling of, or fees and expenses) suffered or incurred by any such indemnified parties, based upon, arising out of or in any way relating to exposure to, handling of, or disposal of any hazardous materials or substances, including but not limited to asbestos, in connection with the services performed hereunder. American Chiller Service shall have the right to suspend its work at no penalty to American Chiller Service until such products or materials and the resultant hazards are removed. The time for completion of the work shall be extended to the extent caused by the suspension and the contract price equitably adjusted. American Chiller Service reserves the right to engage others in a subcontractor status to perform the work hereunder.

11. Customer agrees to provide American Chiller Service personnel with the usual required utilities (water, electricity, compressed air, etc.) and special tools and equipment normally used for such services unless restricted specifically in the quote. Customer agrees to ensure that sufficient service access space is provided. American Chiller Service shall not be held liable for failure or damage to any equipment caused by power interruptions, single phasing, phase reversal, low voltage, or other deficiencies beyond the control of American Chiller Service.

12. This agreement does not include responsibility for design of the system (unless specifically included), obsolescence, electrical power failures, low voltage, burned-out main or branch fuses, low water pressure, vandalism, misuse or abuse of the system(s) by others (including the Customer), negligence of the system by others (including the Customer), failure of the Customer to properly operate the system(s), or other causes beyond the control of American Chiller Service.

13. In the event that American Chiller Service is required to make any repairs and/or replacements or emergency calls occasioned by the improper operation of the equipment covered hereby, or any cause beyond American Chiller Service’s control, Customer shall pay American Chiller Service for the charges incurred in making such repairs and/or replacements or emergency calls in accordance with the current established American Chiller Service rates for performing such services.

14. American Chiller Service shall not in any event be liable for failure to perform or for delay in performance due to fire, flood, strike or other labor difficulty, act of God, act of any Governmental Authority or of Customer, riot, war, embargo, fuel or energy shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials, or equipment from usual sources, or due to any cause beyond its reasonable control. In the event of delay in performance due to any such cause, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of such delay. If the materials or equipment included in this Proposal become temporarily or permanently unavailable for reasons beyond the control of American Chiller Service, American Chiller Service shall be excused from furnishing said materials or equipment and be reimbursed for the difference between cost of materials or equipment unavailable and the cost of an available reasonable substitute.

15. AMERICAN CHILLER SERVICE SHALL NOT IN ANY EVENT BY LIABLE TO THE CUSTOMER OR TO THIRD PARTIES FOR ANY

INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PRODUCTION, LOSS #4..
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OF USE OR LOSS OF PROFITS OR REVENUE ARISING FROM ANY CAUSE WHATSOEVER INCLUDING, BUT NOT LIMITED TO ANY DELAY, ACT, ERROR OR OMISSION OF AMERICAN CHILLER SERVICE. IN NO EVENT WILL AMERI CAN CHILLER SERVICE’S

LIABILITY FOR DIRECT OR COMPENSATORY DAMAGES EXCEED TWO TIMES THE PAYMENT RECEIVED BY AMERICAN CHILLER SERVICE FROM CUSTOMER UNDER THE INSTANT AGREEMENT.

16. American Chiller Service extends the manufacturer’s warranties on all parts and materials and warrants labor to meet industry standards for a period of thirty (30) days from the date performed, unless a longer duration is expressly stated elsewhere in this Agreement. American Chiller Service expressly limits its warranty on Customer’s Equipment to cover only that portion of Equipment which had specific service work done by American Chiller Service. These warranties do not extend to any Equipment or service which has been repaired by others, abused, altered, or misused, or which has not been properly maintained. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,

EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR SPECIFIC PURPOSE, WHICH ARE HEREBY SPECIFICALLY DISCLAIMED.

17. Each of us agrees that we are responsible for any injury, loss, or damage caused by any negligence or deliberate misconduct of our employees or employees of our subcontractors. If any of our employees or those of our subcontractors, cause any injury, loss or damage in connection with performing their duties under this agreement, the responsible party will pay for all costs, damages, and expenses, which arise. Each of us agrees to defend and hold harmless the other party, its officers, directors and employees, from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees and court costs, arising out of or resulting from the performance of work hereunder, to the extent that such claim, damage, loss, or expense is caused by an active or passive act or omission of the indemnifying party or anyone directly or indirectly employed by that party, or anyone for whose acts that party may be liable.

18. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors, assigns and affiliates. This Agreement is governed by and construed in accordance with the laws of the State of California. #4..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 8, 2023
Date: April 18, 2023
TO: Safety and Communities Committee
Chris Ricci, Chair
Rosa Escutia-Braaton, Vice-Chair
Jeremiah Williams, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: First Amendment to Lease Agreement with First Tee CONTACT: Laurie Smith, Director of Parks, Recreation and Neighborhoods, [email protected], 209-577-5347
DESCRIPTION:

Consider approving the First Amendment to the Lease Agreement with Del Rio CC Foundation, of Modesto, CA, for Lease of Property located on Roselawn Avenue (APNs 037-036-007 and 037-051-001) for Operation of Youth Programming and forwarding to Council for approval. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto’s 2020-2025 Strategic Plan to promote trust and engagement through collaborating with community and civic organizations.

BACKGROUND:

Del Rio CC Foundation, also known as First Tee – Central Valley (First Tee) is a youth development organization that enables kids to build strength of character by integrating the game of golf with a life skills curriculum designed to build inner strength, self-confidence, and resilience that kids can carry to everything they do. From 2003 through March 13, 2020, First Tee ran its programming at the City’s Muni Golf Course (Muni). In early 2020, by Resolution No. 2020-025, Council approved closing Muni and relocating First Tee to Dryden Golf Course (Dryden) prior to the end of the year. In March 2020, due to the pandemic, Muni was closed and not reopened. Later that year, First Tee began operating its programming at Dryden.

Similarly, the Boys and Girls Clubs of Stanislaus County’s mission is to impact the lives of young people by providing educational programs that enable young people to reach their full potential as productive, caring, and responsible adults. On January 26, 2016, the Boys and Girls Clubs of Stanislaus County (Club) entered into a Grant Agreement with the City for the provision of Community Development Block Grant funds to help finance the purchase and installation of a 3,600 sq. ft. custom modular building to house the West Modesto Boys and Girls Clubs. Council, by Resolution No. 2016-19, entered into a five-year lease with the Club to #5..
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Safety and Communities Committee, May 8, 2023
First Amendment to Lease Agreement with First Tee

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locate the modular in Martin Luther King Jr. Park (formerly Mellis Park). Although the lease expired on December 31, 2020, the City allowed the Club to keep the modular onsite while it worked with the City on relocating it to a new location.

In June 2020, the City identified two parcels (APNS 037-036-007 and 037-051-001) of Cityowned real property located adjacent to Dryden which could be developed for youth programming (Site). With the Club’s lease ending and the early closure of Muni, an alliance to offer youth programming on the proposed site appeared to be a viable option. Both organizations and City staff met over the two years and collectively agreed on a Memorandum of Understanding between both agencies, a phased development plan for the site, and secured $513,964 in Community Development Block Grant funds to complete Phase I of the development plan. This included the relocation and installation of a modular building to the Roselawn site, as well as grading, drainage, pedestrian access, utility connections and landscaping.

On May 3, 2022, by Resolution No. 2022-209, Council approved independent lease agreements with each organization. The general terms and conditions of the Lease Agreements for both organizations are summarized as follows:
 Term: Ten Years (May 3, 2022 through May 2, 2032) with two (2) ten-year options to extend (upon mutual agreement between all parties).  Site/Leased Premises:
o APN 037-036-007
o APN 037-051-001
o Access to APN 037-036-003 – for use of Dryden Golf Course parking lot.  Rent: $1.00/year.
 Tenant Responsibilities: business licenses, insurance, site repairs, maintenance, security, payment of utilities, taxes, and applicable applications and permits.  Development, Improvements, Alterations, & Additions:
o Plans shall be submitted to City for review and approval o Shall be funded by Club, First Tee, and their partners o Shall become the property of the City upon expiration or early termination thereof
 Upon expiration or termination of the Agreement, Club shall remove all temporary improvements made by the Club relative to the installation and erection of the modular building. Club shall restore the modular building site to the satisfaction of the City.

DISCUSSION:

At this time, Phase I development, with the exception of landscaping, has been completed.

Both organizations have moved their operations to the Roselawn Avenue site. In addition, both organizations continue their fundraising efforts for Phases II and III.  Phase II (Boys and Girls Clubs) - Installation of a multi-purpose turf sports field, mini basketball court, and playground area.
 Phase III (First Tee) - Installation of a putting green, chipping green, sand trap, and a three-hole golf course and practice area.

First Tee is planning to move forward with Phase III and has met with the City to clarify its rights and obligations related to water use and irrigation on the leased premises. With that, First Tee and the City have agreed to amend the lease agreement to specify First Tee’s responsibilities.

First, the amendment affirms the partners are collectively responsible for maintaining #5..
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Safety and Communities Committee, May 8, 2023
First Amendment to Lease Agreement with First Tee

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landscaping on the leased premises. Secondly, First Tee will be permitted to connect to the City’s well for irrigation of its landscaping and the greens. Before any watering, they are required to install an isolation valve from the Dryden’s system, submit an irrigation plan to the City for approval and provide a watering schedule which is combatable with Dryden schedule.

Any and all costs associated with the work and labor associated with the water well tie-in shall be borne by the Club.

The City may install a mechanical flow meter to monitor water usage of the well water. Any demands for additional water by First Tee will require written approval from the City. Should there be an adverse effect on Dryden’s course irrigation system or if the City is prohibited or restricted from using water for any reason due to government restrictions, the City has the right to immediately discontinue provision of well water. Adverse effects include such things as the declaration of drought conditions, malfunction to any well booster pump or pressure tank, vandalism, floods, earthquakes, fires, casualties, or acts of God.

FISCAL IMPACT:

This action has no fiscal impact to the City.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving the First Amendment to the Lease Agreement with Del Rio CC Foundation, of Modesto, CA, for Lease of Property located on Roselawn Avenue (APNs 037-036-007 and 037- 051-001) for Operation of Youth Programming and forwarding to Council for approval.

Approved by:

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

1. First Amendment to Lease Agreement

2. Lease Agreement
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1 FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (“First Amendment”), 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 called “the City,” and Del Rio CC Foundation, a California non-profit corporation, hereinafter called “the Club,” for the lease of real property located on 920 Roselawn Avenue, Modesto, CA (APN’S 037-036-007 and 037-051-001), herein referred to as “Leased Premises.” R E C I T A L S :

WHEREAS, the City owns real property located on Roselawn Avenue, known as APN 037-036-007 and APN 037-051-001; and
WHEREAS, the City desires the Club to continue to provide innovative and quality programs to serve the youth community in and around Stanislaus County; and WHEREAS, the Club and the Boys & Girls Clubs of Stanislaus County (“BGCSTAN”) have entered into a Memorandum of Understanding on January 27, 2022, forming a partnership to collectively move a portion of their operations to the Leased Premises; and WHEREAS, by Resolution 2022-209, the Council approved the Club and BGCSTAN to enter into independent agreements with the City for lease and use of the real property dated May 3, 2022 (“Agreement”); and
WHEREAS, the City would like to amend the Agreement to clarify various rights and obligations of the Club and the City related to water use and irrigation on the Leased Premises. #5..
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2 NOW, THEREFORE, the Parties hereto mutually agree as follows:

1. Section 17 of the Agreement is amended in its entirety to read as follows:
“ Club Obligations.
a. BGCSTAN agrees it will not assign, sell, mortgage, or sublet the modular building located on the Leased Premises except to the Club. b. Upon expiration or termination of the Agreement, whichever comes first, the Club shall have the option to remove all fixtures installed or erected by the Club on the Leased Premises. In the event that Club chooses to exercise the option to remove such fixtures, the Club shall, at its sole cost and expense, restore the area of the Leased Premises on which the fixtures are removed to the satisfaction of the City. c. Partners are responsible for maintaining landscaping on the Leased Premises in the same or better condition as of the Effective Date of this Agreement. d. Prior to applying water to the putting green addition, the Club shall submit a watering schedule to the City’s golf course superintendent at Dryden Golf Course.

No watering shall occur until such schedule is approved by the City’s golf course maintainer.
e. Prior to applying any water for irrigation, the Club must submit an irrigation plan for the well water tie-in to the City for approval. No irrigation may occur until Club receives written approval of the irrigation plan from the City. f. The connection point utilized for irrigation of the putting green addition shall be limited to the six (6) inch water well line shown in more detail in Attachment A and incorporated herein. The City, at its option, may install a mechanical flow #5..
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3 meter to monitor water usage of the well water. No additional water demand shall be used unless the Club obtains written approval from the City. g. Use of well water shall be limited to irrigation. Well water is prohibited for potable use.
h. The Club shall install an isolation valve at the connection point that results in isolation of the Dryden Golf Course irrigation system from the Club’s irrigation system.
i. Any and all costs associated with the work and labor described in this Section 17, including but not limited to, trenching, piping, equipment, labor, and costs to obtain and maintain permits, except related to the mechanical flow meter, shall be borne by the Club and not of the City.
j. The City shall have to right to immediately discontinue provision of well water or prohibit the use of well water from Dryden Golf Course if, at any time, in the sole discretion of the City, it is determined that there is an adverse effect on the Dryden Golf Course irrigation system or if the City is prohibited or restricted from using water for any reason due to any governmental restrictions. For purposes of this section, an “adverse effect” shall include, but not be limited to, the declaration of drought conditions, malfunction to any well booster pump or pressure tank, vandalism, floods, earthquakes, fires, casualties, or acts of god.”

2. All other Terms and Conditions of the original Lease Agreement shall remain the same and in full force and effect.
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4 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has caused this Lease Agreement to be executed in duplicate by its City Manager and attested by its City Clerk, under authority of Resolution No. 2023-____ adopted by the Council of the City of Modesto on the ____ day of _______________, 2023, and Del Rio CC Foundation has caused this Lease Agreement to be duly executed in duplicate as of the Effective Date. (SIGNATURES ON NEXT PAGE)
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1 LEASE AGREEMENT
This Agreement (“Agreement”), is made and entered into on this _________ day of _____2022 (“Effective Date”), between the City of Modesto (“City”) and Del Rio CC Foundation, a California non-profit corporation (“Club”) herein collectively referred to as “Parties”, for the lease of real property on Roselawn Avenue (APNS 037-036-007 and 037-051- 001), herein referred to as “Leased Premises”.

RECITALS
This Agreement is made with regard to the following Recitals:

WHEREAS, the City owns real property located on Roselawn Avenue, and known as APN 037-036-007 and APN 037-051-001; and
WHEREAS, the City desires Club to continue to provide innovative and quality programs to serve the youth community in and around Stanislaus County; and WHEREAS, Club and the Boys & Girls Clubs of Stanislaus County (“BGCSTAN”) have entered into a Memorandum of Understanding on January 27, 2022, forming a partnership to collectively move a portion of their operations to the Leased Premises; and WHEREAS, this Agreement does not affect the obligations and rights of the Club or City pursuant to the Memorandum of Understanding entered into on January 27, 2022, which remains in full force and effect; and
WHEREAS, Club and the BGCSTAN collectively desire to work towards a three-phased development plan, as shown in Exhibit B, on the Leased Premises to include:

Phase 1: The City shall be responsible for all costs and expenses associated with the Installation of BGCSTAN’s modular building, grading, and drainage, pedestrian access, utility connections, and landscaping. BGCSTAN shall be responsible for all costs and expenses associated with the installation and maintenance of: (1) irrigation system; (2) permanent fencing DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B 3rd
May
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2 surrounding the modular building; (3) interior flooring and outside modular building trim; and (4) landscaping in the vicinity of the modular building. BGCSTAN and First Tee shall be responsible for all costs and expenses associated with the design, installation, and maintenance of light poles and security cameras in the vicinity of the modular building.

Phase 2: Installation of a multi-purpose turf sports field, mini basketball court, and playground area by BGCSTAN.

Phase 3: Installation of putting green, chipping green, sand trap and a three-hole golf course and practice area on the property by First Tee as shown in Exhibit B; and
WHERAS, the timing of the completion of each phase will be determined by funding resources; and
WHEREAS, Five Hundred Thirteen Thousand Nine Hundred Sixty-Four Dollars ($513,964) in Community Development Block Grant (CDBG) funds have been awarded to be used in Phase 1; and
WHEREAS, Club and the BGCSTAN shall enter into independent agreements with the City for lease and use of the real property.

NOW, THEREFORE in consideration of this Agreement, and mutual promises, covenants and stipulation hereinafter contained, Club, in full partnership and cooperation with BGCSTAN, hereinafter referred to as “Partners” agrees as follows:

1. Statements True and Correct. Each of the factual statements set forth in the recitals is true and correct in its entirety.

2. Parties.
a. Del Rio CC Foundation (First Tee – Central Valley) (“Club”) is a non-profit public health benefit corporation and is not organized for the private gain of any person. Its DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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3 mission is to impact the lives of young people by providing educational programs that build character and instill life-enhancing values through the game of golf. b. City of Modesto – The City of Modesto owns real property located off of Roselawn Avenue adjacent to the Dryden Park Golf Course (APN 037-036-007 and APN 037- 051-001).

The City desires to lease real property to the Club and BGCSTAN, to be used to enhance the learning experience for the youth of Modesto. A pitch and putt golf course and golf practice area for youth shall be developed for this purpose.

3. Term.
a. The term of this Agreement commences on May 3, 2022 and shall remain in full force and effect until May 2, 2032 or until such time as this Agreement is terminated by either Party upon ninety (90) days' advance written notice to the City and its partners.

4. Options to Extend. Upon mutual agreement between the City and Partners, City may extend this Agreement for an additional two (2) ten-year terms.

5. Rent. Club agrees to pay City the amount of One and no 100ths dollar ($1.00) per year as consideration for the mutual covenants, promises, and obligations contained herein.

Payment shall be made on the Effective Date of the Agreement and on February 1st each year thereafter.

6. Site Conditions. Partners accept the Leased Premises, as well as the improvements located on the real property, in the present condition, and stipulate with the City that the Leased Premises and improvements are in a good, clean, and safe condition as of the Effective Date of this Agreement. Club acknowledges that neither City nor Club’s agent has made any representation or warranty as to the present or future sustainability of the Leased Premises for the conduct of the Club’s business.

7. Hazardous Materials Prohibited.

DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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4 a. Partners shall use the Leased Premises exclusively for the purposes stated in Section 2. Partners covenant that they will not generate, handle, transport, treat, release, use, store, or dispose of on the property “hazardous waste” or “hazardous substances, as “hazardous waste” or “hazardous substances” may now or in the future be defined by any federal, state, or local government body or agency.

Partners further agree periodically to furnish City with proof, satisfactory to City, that Partners are in such compliance.
b. With the exception of minor amounts of Hazardous Materials customarily and lawfully used in conjunction with the purposes stated in Section 1, Partners, their employees, contractors, agents, and any party acting on behalf of Partners, shall not store, uses, treat, generate, or dispose of “Hazardous Material(s)” at the Leased Premises or other property owned by the City. “Hazardous Material(s)” means any substance that, by itself or in combination with other materials, is either (i) generally regarded injurious to public health, safety, or the environment; or (ii) now or in the future regulated by any federal, state, or local governmental authority as potentially injurious to public health, safety, or the environment.

Partners, their employees, contractors, agents, and any party acting on behalf of the Partners shall comply, and shall keep the Lease Premises in compliance, with all laws and regulations relating to Hazardous Materials (“Environmental Laws”). c. Partners shall promptly provide City with copies of any document, correspondence, report or communication, written or oral, relating to Hazardous Materials at or affecting the Leased Premises to or from any regulatory body, or stating a basis for potential liability or responsibility of the Partners, City, or the Leased Premises; including all such documents, correspondence, reports or communications prepared by or on behalf of the Partners. In addition to the above, at City’s request, Partners shall provide copies of any and all records and communications.
d. Partners shall immediately notify City in the event of a suspected or confirmed release of a Hazardous Material or violation of Environmental Laws at or affecting the Leased Premises or other property owned by City and caused by or related to the operations of the Partners, their employees, contractors, agents, or DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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5 any party acting on behalf of the Partners, at the City’s satisfaction or reimburse City’s cost of remediation (including reasonable attorneys’ and consultants’ fees); and compensate City and/or third parties for all resultant damage. e. Partners shall permit city reasonable access to the Leased Premises for the purpose of conducting an environmental audit or testing, the cost of which shall be borne by the City unless the results indicate activity prohibited by Environmental Laws or hereunder.
f. Upon expiration or other termination of this Agreement, Partners shall remove all Hazardous Materials from the Leased Premises caused by the acts of omission of the Partners, its officers, agents, contractors, employees, or invitees, and at City’s option cause to be performed and provided to City an environmental audit of the Leased Premises, using a consultant reasonably acceptable to City, and correct at its expense, any deficiencies noted by the audit.
g. The obligations regarding Hazardous Materials shall survive the termination of this Agreement.

8. Maintenance and Repairs. The Leased Premises is leased to the Partners in an “as is” condition and all costs for adapting such facilities to the Club’s and BGCSTAN’s business purposes shall be borne by the Partners. Partners shall:
a. At no cost to the City, make ordinary repairs to the Leased Premises necessary to keep said Leased Premises in a tenantable condition. Such repairs shall be made promptly in a good and workmanlike manner, in compliance with all applicable laws of governmental authorities, and in a style and character conforming to the existing and new construction.
b. Report to City, in a timely manner, all damage, breakage, and notice of repairs to be made.
c. At no cost to the City, maintain the Leased Premises in a safe, clean, and sanitary manner, including the modular buildings, any ancillary buildings, and landscaping, and to keep the entire property reasonably free from noxious weeds and grasses. d. At no cost to the City, upon expiration of this Agreement, leave the Leased Premises in good order, condition, and repair, reasonable and ordinary wear, tear and damages by the elements or circumstances over which neither Partner has no control excepted.

DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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6 e. Acknowledge that Partners have conducted a full inspection of the Leased Premises and are therefore reasonably and actually aware of its condition and state of repair.
f. Acknowledge that the City is allowing use of the premises on an "as is with all faults" basis and that neither Partner is relying on any representations or warranties of any kind whatsoever, expressed or implied, from City as to any matters concerning the premises, including without limitation the compliance of the Leased Premises or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity. g. Acknowledges that the City is not providing any security for the Leased Premises, and it is the Partners’ responsibility to provide any security and maintain any fencing at the Leased Premises.

9. Developments, Improvements, Alterations, and Additions. a. Partners shall submit preliminary plans for any Phase II and III development, alternation, addition, or other improvement on or to the Leased Premises, to the City for review and approval in the form of a “Notice to Proceed”. If the City fails to affirmatively approve or disapprove the proposed Phase II and III development, alteration, addition, or other improvement on or to the Leased Premises shall be deemed disapproved.
b. For any Phase II and III development, alteration, addition, or other improvement on or to the Lease Premises, Partners shall obtain all necessary governmental permits and compliance with all applicable governmental laws, regulations, ordinances, and codes. c. Partners and the City will undertake the development of Phase I as described in Exhibit B.
d. City and Partners acknowledge the ownership of the modular building identified in Phase I is, and shall remain, the sole property of BGCSTAN. e. Except as otherwise provided in Section 17 of this Agreement, all improvements, infrastructure, and fixtures attached to the real property shall become the property of the City upon expiration or early termination of this Agreement.

DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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7 f. City may consent to any temporary or permanent alteration, addition, or improvement and determine whether such alteration, addition, or improvement is a public work under the City’s charter or municipal code. If such alteration, addition, or improvement is a public work, City may require, as a condition of its consent, that Partners adhere to all applicable bidding procedures relative to the construction and installation of such alteration, addition, or improvement, and ensure that prevailing wage requirements are met.
g. In the event that any temporary or permanent alteration, addition, or improvement is made by Partners in accordance with the provisions herein, Partners shall provide such faithful performance bonds, payment bonds and labor bonds as City may reasonably demand. The terms and provisions of the construction contract to accomplish any such action shall be subject to prior approval by the City.

10. Utilities. Partners agree to pay all utility bills, including, but not limited to, all bills for water, sewer, storm, and garbage and to pay same promptly when due, holding City harmless therefrom. Notwithstanding the previous sentence, Partners shall not be responsible for payment for use of well water used exclusively for irrigation purposes on the Leased Premises.

11. Taxes. Partners shall pay any real property taxes, taxes, assessments or fees assessed against the Leased Premises or any property of with the Partners are a part of at any time where such taxes result from the modular building that the Partners are obligated to pay.

12. Assignment. Neither this Agreement, nor any portion thereof, shall be subcontracted or assigned without the written consent of the City in each and every instance.

13. Parking. Partners and their participants shall have access to and use of the Dryden Golf Course parking lot located at 920 Sunset Avenue, Modesto, CA 95354.

14. Naming Rights. All naming rights and advertising done on the Leased Premises must be approved in writing by the City.

DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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8 15. Employees. No relationship of employer and employee is created by this Agreement.

City is not the agent, employee or employer of the Club in any capacity whatsoever and the Club is not the agent, employee or employer of City in any capacity whatsoever.

Neither Club nor any of its employees, contractors or agents, shall by virtue of this Agreement or by the performance of actions pursuant to this Agreement be an employee of City for any purpose whatsoever nor shall it or they be entitled to any of the rights, privileges, or benefits of Cityemployees.

16. Entry.
a. Club shall have full and unimpaired access to the Leased Premises at all time during the term of this Agreement.
b. The City, or its duly authorized representatives or agents, may upon giving Club forty-eight (48) hours written notice, enter upon the Leased Premises during the term of this Agreement for the purpose of determining whether Club is complying with the terms and conditions hereof, or for any other purpose incidental to the rights of the City, except in the case of responding to an emergency, in which no notice shall be required.

17. Club Obligations.
a. Upon expiration or termination of the Agreement, whichever comes first, Club shall have the option to remove all fixtures installed or erected by the Club on the Leased Premises. In the event that Club chooses to exercise the option to remove such fixtures, Club shall, at its sole cost and expense, restore the area of the Leased Premises on which the fixtures are removed to the satisfaction of the City. b. Partners are responsible for maintaining landscaping on the Leased Premises in the same or better condition as of the Effective Date of this Agreement.

18. Compliance with Laws. Club, at its sole cost and expense, shall comply with all applicable local, state and federal laws pertaining to the use, operation and management of the Leased Premises, including but not limited to, laws relating to Americans with DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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9 Disabilities Act. Club shall not itself use the Leased Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Leased Premises which would result in a nuisance or a violation of law. Club shall use its best efforts to not permit any permittees, Club guests or invitees to use the Leased Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Leased Premises which would result in a nuisance or a violation of law or any environmental contamination.

19. Termination of Agreement by City. City shall have the right to immediately terminate this Agreement, in whole or in part, on the occurrence of any of the following events:
a) Filing by or the final adjudication of Club of any petition in bankruptcy or the making of any transfer of general assignment for the benefit of creditors which has not been previously authorized by the City.
b) The failure of Club in the sole discretion of the City to perform substantially or keep or observe any of the terms, covenants and conditions which it is obligated to perform, keep or observe under this Agreement after the expiration of a thirty (30) day period of warning or ultimatum given in writing by the City to the Club to correct any such deficiency or default.
c) The abandonment of the Leased Premises or any portion thereof of discontinuance of the Club’s presence, or any potion thereof. Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures, or equipment abandoned, even though it may be necessary for the City to remove same from the Leased Premises for storage or disposal.
d) The default of the Agreement or any or any portion thereof. Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures, or equipment abandoned, even though it may be necessary for the City to remove same from the Leased Premises for storage or disposal.

20. Failure to Vacate Leased Premises. Club agrees to vacate the Leased Premises upon expiration or termination of this Agreement, whichever occurs first. If Club fails to vacate the Leased Premises, as provided herein, Club agrees that City, or its DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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10 authorized agents, may enter upon the Leased Premises and remove all personal property therefrom and destroy the same and in this event, Club waives any and all claims for damages against City, its agents or employees. Nothing herein shall be deemed a waiver of any rights of City to demand and obtain possession of Leased Premises in accordance with law in the event of a violation of the Club’s part of any of the terms or conditions hereof.

21. Not a Partnership. It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any away of creating or establishing a partnership between the City and the Club, or as constituting Club as agents or representatives of City for any purpose or in any manner whatsoever.

22. Force Majeure. Neither the City nor the Club shall be liable for any delay or default in the performance of all or any part of this Agreement if such delay or default is caused by conditions beyond its control, including but not limited to, acts of the elements, fires, floods, or other casualties, global pandemics, accidents, strikes, work stoppages and continuing domestic or international problems, such as war, riot, insurrection, revolution, acts of public enemy, sabotage, government instability, or changing government without the benefit of constitution. In such event, the party requesting excuse from performance shall notify the other party within five (5) business days of such an occurrence and the time for performance shall be extended for the length of any such delay.

23.Insurance. Club agrees to 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 of Modesto. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City of Modesto by certified mail, return receipt requested, for all of the following stated insurance policies. Club shall provide the City with separate endorsements evidencing proof of the City's additional DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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11 insured status as to the general liability policy and automobile liability policies. In addition, Club shall provide the City with a Worker's Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced below must include the applicable policy number.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury, personal 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 limit.

The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations as applicable.
b. Automobile Liability- insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage.
c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. This provision shall not apply upon written verification by Club that Club has no employees.

LIST THE FOLLOWING INFORMATION ON THE CERTIFICATE OF INSURANCE IN THE AREA TITLED "DESCRIPTION OF OPERATIONS" AND IN
ENDORSEMENTS.

Description: City of Modesto Lease Agreement – Club (APNs 037-036-007 and 037- 051-001)
Endorsement: "The City of Modesto, its Agents, Officers, Officials, Employees & Volunteers are named as additional insured per the attached endorsement." 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, Club shall promptly obtain a new policy, submit the same to Risk Manager for approval and DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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12 submit a certificate thereof as hereinabove provided.

Upon failure of Club 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 Club to obtain and/or maintain any required insurance shall not relieve Club from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of Club concerning indemnification. The City its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City of Modesto, its agents, officers, officials, employees, and volunteers for losses arising from work performed by Club.
21)Indemnification. Club shall hold the City, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of the Club or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement, including but not limited to Club's occupation and use of the Leased Premises.

Club's obligation to defend, indemnify, and hold the City, its agents, officers, and by any requirement in this Agreement for Club to procure and maintain a policy of insurance.

The City shall defend, indemnify and hold harmless Club free from 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 DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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13 of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission arising out of City's performance obligations under this Agreement.

The indemnification obligations provided in this section shall survive the term or termination of this Agreement.

22. City Business License. Club shall have and maintain a City of Modesto business license for the duration of the Term of this Agreement.

23. Non-Discrimination. Club shall not discriminate in any way against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to use or occupation of the Leased Premises.

24. Notices. All written notices and communication required to be given under the provisions of this Agreement shall be delivered personally or delivered by deposit in the United States mail, postage prepaid return receipt requested, and addressed as follows:

To City: City of Modesto
P.O. Box 642
Modesto, CA 95354
Attention: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods
To First Tee: First Tee of Central Valley
812 14th Street
Modesto, CA 95354
Attention: President & Chief Executive

25. General Terms.
a. Waiver. Any waiver by City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by City to take action on any breach or default of Club or to pursue any remedy allowed under this DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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14 Agreement or applicable law. Any extension of time granted to Club to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by City to any act or omission by Club shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for City's written consent to future waivers. b. Amendments. This Agreement, including any exhibits hereto, shall not be amended except in writing, signed by the Parties. Any amendment or addendum to this Agreement shall expressly refer to this Agreement.
c. Applicable Law. This Agreement shall be interpreted under and be governed by the laws of the State of California.
d. Severability. Every provision of this Agreement is intended to be severable. If any provision of this Agreement shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. e. Attorneys’ Fees. In the event that either party hereto shall commence any legal action or proceeding against the other by reason of the alleged failure of the other to perform any term, covenant, or condition of this Agreement by them to be performed or kept, the party prevailing in said action or proceeding shall be entitled to recover reasonable attorneys' fees to be fixed by the court, and such recovery shall include court costs and attorney’s fees on appeal if any. As used herein, “the party prevailing” means the party in whose favor final judgement is rendered and “legal action or proceeding” included arbitration.
f. Interpretation. This Agreement constitutes a fully-negotiated agreement among commercially sophisticated Parties, each assisted by legal counsel, and the terms of this Agreement shall not be construed or interpreted for or against any Party hereto because the Party or its legal representative drafted or prepared such provision. g. Rights. This Agreement does not create, and shall not be construed to create, any rights enforceable by any person, partnership, corporation, joint venture, limited liability company, or other form of organization or association of any kind that is not a Party to this Agreement.
h. Title of Parts and Sections. Any titles of the sections or subsections of this DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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15 Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement’s provisions.
i. Language Construction. The language of each and all paragraphs, terms and/or provisions of this Agreement, shall, in all cases and for any and all purposes, and in any way and all circumstances whatsoever, be construed as a whole, according to its fair meaning, and not for or against any party hereto and with no regard whatsoever to the identity or status of any person or persons who drafted all or any portion of this Agreement.
j. Discretion of City. City's execution of this Agreement in no way limits the discretion of City in the permit and approval process in connection with any improvements by the Club.
k. Entire Agreement. This Agreement and any exhibits attached hereto constitute the sole and entire Agreement of the parties hereto with respect to the matters herein and correctly sets forth the rights, duties, and obligations of each to the other as of the date first written above. There are no other agreements or understandings, written or oral, between the parties regarding this Agreement other than those set forth herein. All prior or contemporaneous negotiations, agreements, and understandings, oral or written, are revoked, cancelled, and rescinded, and are all merged herein and superseded hereby.
l. Authority of the Parties. Each individual executing this Agreement on behalf of the respective Parties represents and warrants that he/she is duly authorized to execute this Agreement on behalf of the respective Parties.
m. Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of City shall be personally liable to the Club in the event of any default or breach by City or for any amount which may become due to the Club or its successor or on any obligation under the terms of this Agreement. n. No Third Party Beneficiaries. No person or entity, other than Club shall be deemed to be a third party beneficiary hereof; and nothing in this Agreement (either expressed or implied) is intended to confer upon any person or entity, other than City and Club (and their respective officers, City’s, employees and agents providing services under this Agreement) any rights, remedies, obligations or liabilities or by reason of this DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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16 Agreement.

DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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17 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has caused this Lease Agreement to be executed in duplicate by its City Manager and attested by its City Clerk, under authority of Resolution No. 2022-____ adopted by the Council of the City of Modesto on the 3 rd day of May, 2022, and Del
Rio CC Foundation has caused this Lease Agreement to be duly executed in duplicate as of the Effective Date. 5092916.1
DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B 209
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________

DIANE NAYARES-PEREZ, CMC,
City Clerk
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:

BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:

BY: ____________________________
JOE F. RODRIGUEZ, Risk Manager
Federal ID # ___________
DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B Del Rio CC
Foundation
Board
President
Victoria
Gaffney
91-2143033
Executive
Director
John Griston
7/11/2022
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BOYS & GIRLS CLUB MODULAR BUILDING AT DRYDEN

CONCEPT MASTER PLAN

PARCEL MAP
Parks Planning and Development Division
July 2021 CP
ROSELAWN AVE.

MODULAR

BUILDING
PHASE 1
PHASE 3
A
(66) YARDS
(63) YARDS
(96) YARDS
PHASE 2
APN 037-036-003
APN 037-036-007
APN 037-036-003
APN 037-051-001
100 YR FLOOD ZONE
100 YR FLOOD ZONE
DocuSign Envelope ID: 93105170-B1D3-4354-81B7-EFEBF6E6164B #5..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 8, 2023
Date: April 18, 2023
TO: Safety and Communities Committee
Chris Ricci, Chair
Rosa Escutia-Braaton, Vice-Chair
Jeremiah Williams, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: First Amendment to the Agreement with O’Dell Engineering, Inc. for the TRRP Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to Permitting and Construction Support for the Tuolumne River Regional Park (TRRP) Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive, for a new amount not to exceed $159,731 and forwarding to Council for approval. (Funding Source: Non-Motorized Boating Facilities Grant Program Funds and TRRP CIP Fund) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The City and TRRP want to encourage safe recreational use of the Tuolumne River by local residents as well as establish an in-demand tourism destination. The removal of the remnant Dennett Dam in summer 2018 provided an opportunity to construct a Tuolumne River boating access facility which will offer regional residents water-based recreational programming, including canoe, kayak and rafting services; and improved emergency river access.

The Neece Drive construction site is identified in the TRRP Master Plan for a Boat Launch and the site’s topography, ease of highway access, river programming opportunities and availability of City-owned land presents favorable conditions for this site.

On March 13, 2018, by Resolution No. 2018-125 Council accepted $780,000 in grant funds from the California Division of Boating and Waterways (DBW) Recreational Boating and Facilities #6..
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Safety and Communities Committee, May 8, 2023
First Amendment to the Agreement with O’Dell Engineering, Inc. for TRRP Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive

Page 2 of 3 ends

with Public Access Grant Program to design and construct a public access non-motorized boat launch and river access facility on the Tuolumne River.

On February 26, 2019, by Resolution No. 2019-82, Council approved an Agreement with O’Dell Engineering Inc, for the preparation of construction documentation for the project.

DISCUSSION:

There have been unanticipated time delays, related to permitting agency requests for information and design changes, and multiple changes in permitting agency staffing. Because of these unanticipated delays, an amendment to the Agreement with O’Dell Engineering is required to compensate O’Dell Engineering to continue permitting support needed to obtain final permits, and to provide construction administration support.

The original Agreement amount with O’Dell Engineering is $131,574. Since the start of design in early 2019 there have been three additional services requests that were approved by the Department Director, as allowed in the Agreement, in an amount of $13,157. Following is a summary of the three additional services requests already approved:

1. Hydraulic Analysis Scour Report for Recommendations related to Rip Rap Protection for the Boat Launch - $4,000

2. Additional Permitting Support required by Army Corps - $8,656

3. Permitting Review, Response & Analysis for National Marine Fisheries - $501 On April 3, 2023, at the City’s request, O’Dell Engineering submitted to the City a budget augmentation for additional tasks in excess of the $144,731 authorized in the Original Agreement. The estimated additional tasks result in increased costs, totaling $15,000, to the following:

1. Additional Permitting Review, Response & Analysis required by National Marine Fisheries (NMFS) to obtain a permit for construction

2. Continued Permitting Support beyond was what anticipated in the original Agreement

3. Additional Construction Administration Support
Staff have reviewed the proposal and recommend approving a First Amendment to the Agreement with O’Dell Engineering, Inc. If approved, staff expects final permitting to be completed and construction to begin by late summer 2023 FISCAL IMPACT:

Funding for the First Amendment is budgeted in CIP Project 101071 – TRRP Neece Drive Boat Launch located in the TRRP Special Revenue Fund - CIP (6710).

ANTICIPATED AGREEMENT EXPENDITURES
Design Agreement – O’Dell Engineering, Inc. $ 131,574
10% Additional Services (already expended)
Proposed First Amendment to Agreement
$ 13,157
$ 15,000
TOTAL $ 159,731
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Safety and Communities Committee, May 8, 2023
First Amendment to the Agreement with O’Dell Engineering, Inc. for TRRP Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive

Page 3 of 3 ends

CEQA/NEPA REQUIREMENTS:

The TRRP Non-Motorized Boat Launch and River Access Facility Project is identified and included in the TRRP Master Plan, Environmental Impact Report adopted in 2007. Staff has prepared an Initial Study, Environmental Checklist No. EA 2018-005, which concludes that the project is within the scope of the General Plan Master EIR (SCH No. 2007072023) and the TRRP Masterplan EIR (SCH No. 2000022028), and that pursuant to Section 21157.1(b) of the CEQA Guidelines, no new environmental review is required.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to Permitting and Construction Support for the TRRP Non-Motorized Boat Launch and River Access Facility Project located at Neece Drive, increasing the Agreement amount by $15,000 from $144,731 to a new total amount of $159,731 and forwarding to Council for approval.

Approved by:

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

1. First Amendment to Agreement with O’Dell Engineering

2. Exhibits A&B

3. Original Agreement with O’Dell Engineering
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FIRST AMENDMENT TO AGREEMENT FOR CONSULTANT SERVICES WITH O’DELL ENGINEERING, INC. FOR THE TUOLUMNE RIVER REGIONAL PARK NON-MOTORIZED

BOAT LAUNCH AND RIVER ACCESS FACILITY DESIGN
This First Amendment to Agreement for Consultant Services (“First Amendment”) is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and O’DELL ENGINEERING, INC., a California Corporation (“Consultant”) entered into by the parties on the 26th day of February 2019, hereinafter referred to as the “Original Agreement”.

RECITALS
This First Amendment to Agreement for Consultant Services is made with regard to the following recitals:

A. The Original Agreement between City and Consultant was approved via Council Resolution No. 2019-82.

B. Paragraph no. 9 “AMENDMENTS” on page 7 of the Original Agreement for Design Services states “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”.

C. Paragraph no. 3 “COMPENSATION” on pages 2-4 of the Original Agreement for Consultant Services specifies the sum of ONE HUNDRED THIRTY ONE THOUSAND, FIVE HUNDRED SEVENTY FOUR AND 00/100 DOLLARS ($131,574) 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 #6..
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obligations required in the Original Agreement. Additional Services may be authorized by the Department Director in an amount up to, but not to exceed, THIRTEEN THOUSAND, ONE HUNDRED FIFTY SEVEN AND 00/100 DOLLARS ($13,157). In that event, the new total compensation shall not exceed ONE HUNDRED FORTY FOUR THOUSAND, SEVEN HUNDRED THIRTY ONE AND 00/100 DOLLARS ($144,731).

D. On or about April 3, 2023, at the City’s request, Consultant submitted to City a budget augmentation for additional tasks in excess of the $144,731 authorized in the Original Agreement, attached hereto as Exhibit “A-1” to this First Amendment to Agreement.

E. The estimated additional tasks result in increased costs as follows:

1. Permitting Review, Response & Analysis required by National Marine Fisheries (NMFS) to obtain a permit for construction: $5,000

2. Continued Permitting Support beyond was what anticipated in the original agreement: $6,500

3. Additional Construction Administration Support: $3,500 F. The aforementioned estimated additional tasks increase the amount of the Original Agreement by FIFTEEN THOUSAND AND 00/100 DOLLARS ($15,000). 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” on page 1 of the Original Agreement. #6..
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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” on pages 2-4 of the Original Agreement.

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.

All other terms and conditions contained in the Original Agreement remain the same.

NOW, THEREFORE, in consideration of this First Amendment to Agreement, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Consultant 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” on page 1 of the Original Agreement shall be deleted in its entirety 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 “A-1”.

The Consultant shall perform the services as described in the #6..
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aforementioned Exhibit “A” and Exhibit “A-1” in a manner compatible with the standards of its profession and shall produce a complete project as described in Exhibit “A” and Exhibit “A-1” that is acceptable to City.

3. Paragraph no. 3 entitled “COMPENSATION” on pages 2-4 of the Original Agreement between the parties shall be deleted in its entirety and the parties agree to and hereby do substitute the following in its place:

COMPENSATION.

Consultant agrees to accept a sum not to exceed ONE HUNDRED

FIFTY NINE THOUSAND, SEVEN HUNDRED THIRTY ONE
AND 00/100 DOLLARS ($159,731) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit “A” to the Original Agreement and in Exhibit “A-1” to this First Amendment to Agreement attached hereto as well as for performance by Consultant of all of its 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 times set forth below:

City shall pay Consultant on a time and materials basis for Consultant's actual costs for all work called for in Exhibit "A" to the Original Agreement and Exhibit “A-1” of this First Amendment to Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit "B-1" of this First Amendment to Agreement. Consultant shall submit monthly invoices to City which #6..
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include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.

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

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. #6..
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IN WITNESS WHEREOF, CITY OF MODESTO, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for Consultant Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. , adopted by the Council of the City of Modesto on the ___ day of ___________, 2023, and O’DELL ENGINEERING, INC., has caused this Agreement to be duly executed as of the Effective date.
#6..
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CONTRACT CHANGE ORDER
m:\_finance\36110 trrp neece drive boat launch pw\extra work\supportfiles\cco 004\cco 004 - 2023-04-03 -trrp neece drive boat launch-36110.docx

CHANGE ORDER
O’Dell Engineering
p:209.571.1765
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com Contract Change Order Number: 004
Original Contract Date: February 26, 2019
Client: City of Modesto
Nathan Houx, Jason Ortega
Project Number: 36110
Project Name: TRRP Neece Drive Boat Launch
Date/Time: April 03, 2023
Description of Change:

Due to unanticipated time delays, number of information and design requests from governing agencies, and changes in agency staffing, O’Dell Engineering respectfully requests additional compensation to continue permitting support for the remaining environmental permit coordination needed to obtain final permits, and to provide construction administration support. The original contract bidding and construction support phase budget is no longer adequate. Please see task descriptions in the scope below for anticipated additional efforts to support the City in completion of this project.

Task 1: Permitting Review, Response & Analysis
O’Dell Engineering and FlowWest will review and respond to additional comments provided by NMFS in the form of an electronic submittal shared with O’Dell and FlowWest on 03/07/2023. We assume the following approach to respond to NMFS comment items 3 and 4 below.

1. A description of avoidance and minimization measures to reduce impacts to listed species and critical habitat. Timing of the project was included in both technical memos as an avoidance and minimization measure. Other measures may include, spill prevention plans, biological monitors, exclusion screens on intake pumps, reducing the amount of trees being removed, etc.
• We will include a description of avoidance and minimization measures.

2. Mitigation for projects affecting ESA listed species or critical habitat is on a scale of 3:1 (mitigation: project impacts).

This is in regards to any form of mitigation including replanting trees, habitat created to offset project impacts, and credits purchased.
• We will update the mitigation discussion on the scale of 3:1.

Task Cost: $5,000
Assumes one (1) follow-up meeting with City of Modesto by both O’Dell Engineering & FlowWest regarding NMFS comments listed above. Meeting date: TBD.

DELIVERABLES:

One PDF updated biological assessment/ initiation package to address comments above, and one PDF comment response letter to address all four (4) comments above.

Task 2: Continued Permitting Support
O’Dell Engineering and FlowWest will provide continued permitting support to the City to aid in securing the remaining environmental permits needed for this project. Continued support items are expected to include permitting agency #6..
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m:\_finance\36110 trrp neece drive boat launch pw\extra work\supportfiles\cco 004\cco 004 - 2023-04-03 -trrp neece drive boat launch-36110.docx

CHANGE ORDER
O’Dell Engineering
p:209.571.1765
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com responses in the form of response to comment letters, updates to permitting documents and meetings with the City and permitting agencies when requested.

Task Cost: $6,500
Task 3: Additional Construction Administration Support
O’Dell Engineering will assist City staff with the following construction administration items expected:

1. Review of shop drawings and submittals as necessary.

2. Review and preparation of request for information (RFI) and change orders.

3. Up to two (2) site visits to review construction progress and prepare site observation reports.

4. Conduct final punch walk on site and prepare punch walk memorandum.

DELIVERABLES:

PDF responses to submittals/RFIs and observation reports Task Cost: $3,500
All other conditions remain per the original contract.

IMPACT ON SCHEDULE: IMPACT ON BUDGET:
_______________________________ _______________________________

CLIENT SIGNATURE AUTHORIZED SIGNATURE
CLIENT SIGNATURE WILL AMEND THE CONTRACT AS SHOWN AND AUTHORIZES THE WORK TO BE PERFORMED.

N/A Impact on Budget: $15,000
Proposed Contract Total: $159,731
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City of Modesto
Parks, Recreation and Neighborhoods Department
Parks Planning & Development Division
1010 Tenth Street, Suite 4400
P.O. Box 642, Modesto, CA 95353
P.O. Box 642, Modesto, CA 95353 www.modestogov.com Phone: (209) 577-5344 • Fax: (209) 579-5077 EXHIBIT ‘B-1’

AMENDED HOURLY RATES

CONSTRUCTION DOCUMENTATION

FOR THE TRRP NON-MOTORIZED BOAT LAUNCH AND RIVER ACCESS PROJECT The following hourly rates will be used for billable hours within this Agreement effective at the time of approval of the First Amendment to Agreement:

O’Dell Engineering
Landscape Engineer / Architect
Classification:

Principal $280.00
Senior Civil Engineer $215.00
Senior Engineer 2 $200.00
Senior Engineer 1 $185.00
Engineer 2 $180.00
Engineer 1 $170.00
Assistant Engineer 2 $145.00
Assistant Engineer 1 $130.00
Landscape Architect 2 $170.00
Landscape Architect I $160.00
Landscape Designer 3 $155.00
Landscape Designer 2 $145.00
Landscape Designer 1 $135.00
Dry Utility Project Manager 2 $170.00
Dry Utility Project Manager 1 $150.00
CADD Operator 2 $115.00
CADD Operator 1 $95.00
Surveyor Manager $205.00
Senior Surveyor 2 $190.00
Senior Surveyor 1 $170.00
Surveyor 2 $150.00
Surveyor 1 $140.00
Assistant Surveyor 2 $130.00
Assistant Surveyor 1 $115.00
Survey Crew 2-Man (Prevailing Wage) $396.00
Administrative $96.00
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Virginia Corridor – Phase 7
P.O. Box 642, Modesto, CA 95353 www.modestogov.com Phone: (209) 577-5344 • Fax: (209) 579-5077 Flow West
Permitting
Classification:

Principal Engineer Geomorphologist $303.88
Project Manager & Principal Engineer $273.49
Project Manager & Principal Geomorphologist $273.49
Senior Data Scientist / Analyst / Software Engineer $218.79 Project Data Analyst $200.56
Staff Data Analyst $185.22
Junior Data Scientist / Software Engineer $170.17
Junior Software Developer $170.17
Intern $103.32
Principal Engineer / Scientist / Planner $246.14
Senior Engineer $218.79
Senior Fisheries Biologist $218.79
Senior Environmental Planner $218.79
Project Engineer $200.56
Project Engineer $170.17
Staff Planner $170.17
Staff Engineer $151.94
Junior Engineer $151.94
Junior GIS Analyst $151.94
Business Operations Manager $121.55
Project Accountant $91.16
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Virginia Corridor – Phase 7
P.O. Box 642, Modesto, CA 95353 www.modestogov.com Phone: (209) 577-5344 • Fax: (209) 579-5077 Cornerstone Structural Engineering Group
Structural Engineering
Classification:

Principal $280.00
Senior Associate $250.00
Construction Manager $235.00
Associate $220.00
Structural Observer $220.00
Assistant Structural Observer $210.00
Project Administrator $180.00
Senior Engineer $200.00
Project Engineer $185.00
Staff Engineer $175.00
Structural Designer II $160.00
Structural Designer I $150.00
Junior Engineer $130.00
Senior Computer Drafter $150.00
Computer Drafter $140.00
Junior Computer Drafter $130.00
Accounting Assistant $140.00
Administrative Assistant II $125.00
Administrative Assistant I $115.00
Expert Witness Services $600.00
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Virginia Corridor – Phase 7
P.O. Box 642, Modesto, CA 95353 www.modestogov.com Phone: (209) 577-5344 • Fax: (209) 579-5077 Crawford & Associates
Geotechnical Engineering
Classification:

Principal $250.00
Supervisory Engineer/Geologist $180.00
Senior Project Manager $210.00
Project Manager $190.00
Senior Geologist / Environmental $170.00
Senior Engineer $170.00
Project Engineer II $150.00
Project Engineer I $140.00
Staff Engineer $135.00
Administrative Assistant $110.00
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Virginia Corridor – Phase 7
P.O. Box 642, Modesto, CA 95353 www.modestogov.com Phone: (209) 577-5344 • Fax: (209) 579-5077 Far Western Anthropological Research Group
Archaeologist
Classification: Rate Range
Principle Investigator $94.62-$242.67
Geoarchaeologist $89.88-$202.16
Principal Archaeobotanist $144.50-$164.50
Principal Paleontologist $153.61-$173.61
GIS Director $210.63-$230.63
GIS Supervisor $167.50-$187.50
GIS Senior Analyst $98.50-$118.50
GIS Analyst $75.50-$109.88
GIS Technician $66.88-$89.75
Lab Director $92.75-$144.38
Flotation Lab Director $101.38-$121.38
Senior Lab Scientist $92.75-$121.38
Lab Assistant $64.00-$101.25
Tribal Coordinator $75.01-$95.01
Art Director $139.12-$159.12
Production Director $109.71-$129.71
Asst. Production Director $94.19-$114.19
Production/Design Specialist $89.88-$109.88
Production Specialist $82.54-$107.26
Data Analyst $65.44-$92.63
Senior Archaeologist $82.54-$147.25
Staff Archaeologist/Asst. PM $84.13-$104.13
Staff Archaeologist $65.44-$117.06
Senior Paleontologist $85.56-$105.56
Asst. Project Manager $78.38-$120.66
Project Director $124.38-$144.38
Finance Manager $153.13-$173.13
Project Accountant $70.47-$127.13
Accounting Assistant $72.63-$92.63
Operations Supervisor $91.60-$111.60
Logistics Coordinator $75.01-$105.56
Safety Coordinator $100.66-$120.66
Human Resources $100.66-$120.66
Administrative Assistant $58.25-$78.25
Arch Field Technician A $75.50-$95.50
Arch Field Technician B $65.44-$85.44
Arch Field Technician C $52.50-$72.50
Arch Field Technician D $85.56-$105.56
Arch Field Technician E $70.47-$90.47
Arch Field Technician F $55.38-$75.38
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O'DELL ENGINEERINGS INC AND THE CITY OF MODESTO

AGREEMENT THE TUOLUMNE RIVER REGIONAL PARK NON-MOTORIZED

BOAT LAUNCH AND RIVER ACCESS FACILITY DESIGN
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this 26th day of February, 2019, ("Effective Date") by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and O'DELL ENGINEERING Inc., of Modesto CA, a California corporation, hereinafter referred to as "Consultant".

This Agreement is made with regard to the following recitals:

A. The City has determined that Construction Documents should be prepared; Permitting, Bidding and Construction Support are needed for the Tuolumne River Regional Park Neece Drive Non-Motorized Boat Launch and River Access Facility.

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

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

1. SCOPE OF SERVICES.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perfonn the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a complete project that is acceptable to City.
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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, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as "project" attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation ofthe project and agrees to complete the Conceptual Design Development and Construction Documents within 120 Calendar Days from the effective date of this agreement. Consultant shall diligently proceed with the Permitting, Bidding and Construction Support services of the Project until the completion of items shown in Exhibit "A".

3. COMPENSATION.

Consultant agrees to accept a sum not to exceed $131,574 (maximum , compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.

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

Reimbursable Expenses including all reproduction, delivery and travel expenses will be billed at cost. The total cost for all reimbursable expenses for the Project shall not exceed $2,000, and is included in the not exceed figure of$131,574. It is the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget.

Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due. ·3·
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Additional services may be authorized by the Department Director in an amount up to, but not to exceed 10% of the agreed maximum compensation, or $13,157. In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department Director, or designee, indicating the reason for additional work, scope and cost of such work. The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit "8" and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed $144,731. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.

4. OBLIGATIONS OF CONSULTANT.

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

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

Consultant has represented to the City that Mike Persak, PE - Project Manager, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that sixteen (16%) 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(s).

6. OWNERSHIP OF DOCUMENTSITITLE TO DATA.

Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall, following payment-in-full for services performed under this agreement, 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.
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7. NEWS AND INFORMATION RELEASE.

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

8. INTEREST OF CONTRACTOR.

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

Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the consultant; to solicit or secure this contract; and that he/she has not paid or agreed to pay any company or person other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award, or formation of this contract. For breach or violation of this warranty, City shall have the right to annul this contract without liability, or at its discretion; to deduct from the contract price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
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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 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 -7-
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responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement.

Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.

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

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

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

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. -8-
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11. ASSIGNMENT.

Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent ofthe 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 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: O'Dell Engineering
Address: 1165 Scenic Dr, Suite A
Modesto CA, 95350
Attention: Chad Kennedy, P.L.A.

Phone: (209) 571-1765
Facsimile: (209) 571-2466
Email: [email protected]
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FOR CITY: Name:

Address:

Attention:

Phone:

Facsimile:

City of Modesto
P.O. Box 642
Modesto, CA 95353
Nathan Houx
(209) 571-5526
(209) 579-5077

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 in the policy, notices of same shall be given to the Risk Manager of the City by 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 ofthe 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.
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(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1 ,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of$I,OOO,OOO for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and $2,000,000 policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If at any time any of said policies shall be unsatisfactory to the City or State of California, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City or State of California, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City or State of California, may be forthwith declared suspended or terminated. Failure of the Consultant to -11-
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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 c()ncerning indemnification. The City and State of California, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City and State of California, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City or State of California. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City or State of California; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

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

For any claims related to this project, the CONSULTANT'S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, -12-
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employees, or volunteers shall be excess ofthe 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 Ci1y for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action ofa 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:
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a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
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property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.

City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
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Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee's, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

16. CERTIFIED PAYROLL REQUIREMENT.

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

17. INDEMNITY.

The Consultant shall hold the City and State of California, its agents officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages resulting from this agreement, 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 wrongful act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
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Consultant's obligation to defend, indemnify, and hold the City and State of California, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance. The duty to defend obligation of the Consultant shall be limited to the proportionate percentage of any claim arising directly from the Services perform by the Consultant on a comparative fault basis as defined by the California Civil Code 2782.8.

18. DISPUTE RESOLUTION.

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

This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented -17-
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by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing ofthe written rejection by City to Consultant.

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

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

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

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

The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees ofthe 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. -18-
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Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party's actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator's powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.

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

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

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions ofthis Agreement shall be considered valid unless specifically agreed to in writing by all the parties. ·19·
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20. PARTIAL INVALIDITY.

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

21. WAIVER.

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

22. AUDIT.

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

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

23. GOVERNING LAW.

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

24. HEADINGS NOT CONTROLLING.

Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
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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. -21-
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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. 2019-~, adopted by the Council ofthe City of Modesto on the 26th day of February, 2019, and CONSULTANT has caused this agreement to be duly executed in duplicate as of the Effective Date.

CITY OF MODESTO,
a municipal corporation
ATTEST:

By C=::£
ADAM U. LINDGREN, City Att
APPROVED AS TO FORM:

CATHERINE TALONGW A, Risk Manager
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O'DELL ENGINEERING, INC,
a California corporation*
By~~~~/~·~~l~~ ____ _ RANDAL O'DELL, President
BY~~t
(Seal)
Consultant's FederallD #77-0416824
'" Corporations -signature altwa (2) officers
required or one (1) officer plus corporate seal
'" LLC - signature of two (2) officers required
Partnership - signature of a partner required
Sole Proprietorship - signature of proprietor
required
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MODESTO

CALIFORNIA
EXI-llBIT 'A'
City of Modesto
Parks Planning and Development Division
1010 Tenth St",t, Sliite 4400
Modesto, CA 95354

SCOPE OF WORK

CONSTRUCTION DOCUMENTATION

FOR THE TRRP NON-MOTORIZED BOAT LAUNCH AND RIVER ACCESS PROJECT PROJECT DESCRIPTION:

The Non-Motorized Boat Launch project will be located just west of the Highway 99 overpass, adjacent to Neece Drive. The project will continue to enhance the recreational opportunities within the TRRP. The project will provide for recreational river access for launching canoes, kayaks, rafts and shallow water rescue watercraft.

The Non-Motorized Boat Launch project will provide for an access road from Neece Drive to an approximate 16-ft. wide x 245-ft. long paved boat launch ramp into the Tuolumne River. There will also be a paved access road from Neece Drive to the boat launch, gravel paved parking lot, asphalt paved parking lot, paved loading and staging area and paved pedestrian access trail. This will also include solar lighting, post and cable fencing and native landscaping. In addition to recreational boat access, the new boat launch will need to provide for emergency response river access.

The work to be accomplished in this project consists of preparation of construction documentation and permitting support for a Non-Motorized Boat Launch Facility at Neece Drive in the Tuolumne River Regional Park in Modesto.

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

The consultant will need to be familiar with and plans and specifications shall conform with the most recent version of all applicable local building codes (City of Modesto), Stanislaus County Health Department codes, the TRRP Master Plan, TRRP MEIR, TRRP Gateway Precise Plan, Initial Study/Finding of Conformance for the TRRP Gateway Precise Plan, City of Modesto Standards and Caltrans Specifications and Department of Boating and Waterways' Layout, Design and Construction Handbook for Small Craft Boat Launching Facilities.

P.O. Box 642, Modesto, CA 95353 www.modertogtJl!.com PhD"" (209) 571·5344' Fax, (209) 579·5077 #6..
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The permitting will be comprehensive and will include some, if not all, the following items:
• Review of the current Initial Study/Finding of Conformance with the MEIR for this project and preparation of a Phase IIEnvironmental Site Assessment for this project. • Coordinate with all necessary Federal and State agencies to obtain permits for construction of this work. Consultant will be responsible to prepare applications and assist City staff in ensuring the permits are obtained prior to construction.
• Review and coordinate if any Archeologist work is required due to the location of the project being adjacent to the Tuolumne River.
• Review and complete a Biological Memo including: tree and plant species; and wildlife. • Review and complete a Geotechnical evaluation memo.

Funding Requirements
The project will be funded by the State of California Division of Boating and Waterways Non- Motorized Boating Facility Grant Funding Program. The consultant selected will need to be familiar with federal and state requirements and procedures related to the services being requested.

The consultant, sub-recipient or subcontractor shall not discriminate on the basis of race, color, national origin, gender or sexual orientation in the performance of this contract.

The Construction Documentation will be comprehensive and will include some, if not all, the following items:
• Sensitive Habitat protection plans and removal of non-native species. • Rough grading and Storm Water Pollution Prevention.
• Site preparation, finish grading and drainage.
• Construction Plans and Details for:
o Two-lane asphalt access road
o Single lane concrete v-grooved boat launch ramp (or City accepted alternate material) o Parking lot turnaround area and appropriate traffic circulation o Asphalt parking for single-vehicle(s) and vehicle-trailer(s), and overflow gravel parking area, including applicable paved parking and traffic painted linework and signage. o ADA path of travel between Neece Drive, portable restroom, ADA parking spaces, and the top of the ramp
o Five 22' solar lights
o Information kiosk
o Double hung entry gate
o Project entry signage
o Post and cable fence
• Landscaping to include continuation of Riparian Habitat development using native hydro-seed mix. • Irrigation drawings to establish irrigation point of connection for future use and 1" quick coupler only.

Based on the above, we have provided the following scope of services to be performed in chronological order.

P.O. Box 642, Modesto, CA 95353 wwwmoderlOJjU.COf)} Pholle: (209) 571·5344' Fax: (209) 579·5077 #6..
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Professional Services to Include:

Listed below are tasks and conditions that the consultant is expected to perform and meet on this project. It is not intended that the tasks shown are the only tasks required on this project. The consultant, based on their expertise, shall consider other tasks that are required to complete the intended project and make acijustments as necessary.

TASK #1- PERMITTING

1.1 Kick-off meeting with City Staffto confirm the project description/schedule, obtain information and data regarding the project and to advise the City of Modesto on the approach to be taken in preparing the Phase I!Environmental Site Assessment and Biological Assessment for this project. (Meeting in Modesto #1)

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

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

1.4 Conduct and prepare an Administrative Draft Phase I1Environmental Site Assessment as required by CEQA determinations and as directed by City of Modesto Staff.

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

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

I. 7 Provide the City with one (1) reproducible original and one (1) electronic copy of the above said document for reproduction and distribution.

1.8 Coordinate and prepare all necessary permit applications and additional information as required by the Department ofFish and Game, San Joaquin Valley Air Quality Control Board, California State Lands, Army Corps of Engineers, Regional Water Quality Control Board, Department of Water Resources, Bureau of Reclamation and any other agency as identified in the Initial Study or as identified by the City of Modesto.

P.O. Box 642, Modesto, CA 95353 www.mjJderfQfjJl!com Pholl" (209) 571-5344' Fax: (209) 579-5077 #6..
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TASK#2-CONSTRUCTIONDOCUMENTATION

2.1 Topographic survey to be provided by the Consultant. Incorporate survey into the construction documentation. The survey shall include existing grades, any above ground utility structures, utility lines, trees identifying size (dbh), type and condition, and all above ground structures.

2.2 Provide geotechnical memo of existing soils as warranted for pavements and minor grading. Finally, provide horticultural soils report for landscape soil preparation. Submit reports to City staff and incorporate recommendations into the 30% construction documents.

2.3 Based on the existing TRRP Master Plan and Exhibits' A, B, C and D', prepare preliminary 30% construction documents including print check plan set, base map with topographic and utility information, outline specifications and cost estimate. Deliver one (I) PDF copy of plans and specifications to City. City staffwill require a minimum of six (6) weeks for review of 30% construction documents.

The completed construction documents for the project will include, at a minimum (as applicable):
a. Title Sheet
b. Existing Conditions and Demolition Plan
c. Underground and Above-Ground Utilities Relocation Plan d. Grading and Drainage Plan (using I' contours, scaled at I "=40' minimum) e. Drainage Details
f. Storm Water Pollution Prevention Plan
g. Site Construction and Layout Plans
h. Layout Plan
I. Utilities Plan, with Irrigation Point of Connection
j. Solar Lighting Plan
k. Solar Lighting Details
l. Site Construction Staking Plan
m. Fencing Plan
n. Fencing Details
o. Planting Plan
p. Planting Details
q. Site & Construction Details
r. Technical Specifications (City will prepare boiler plate specifications) s. Bid form

2.4 Conduct an interdepartmental review session to review City comments. (Meeting in Modesto #3)

2.5 Based on comments received, prepare 60% construction documents including plans, specifications and refined cost estimate including status of permits, comments from outside agencies and preliminary estimate of costs associated with permitting the project. Deliver one (I) PDF copy of plans and specifications to City. Prepare detailed cost estimates for all improvements as per City recommendations. City staff will require a minimum of six (6) weeks for review of 60% construction documents.

P.O. Box 642, Modesto, C4 95353 WJ1JW. motfe.rtQfj)1! com Phone: (209) 571·5344' Fax: (209) 579·5077 #6..
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2.6 Conduct an interdepartmental review session to review City comments. (Meeting in Modesto #4)

2.7 Based on comments received, prepare 90% construction documents including plans, specifications and refined cost estimate, comments from outside agencies and preliminary estimate of costs associated with permitting the project. Deliver one (I) PDF and four (4) hardcopy sets of plans and specifications to City. Prepare detailed cost estimates for all improvements as per City recommendations. City staff will require a minimum of six (6) weeks for review of 90% construction documents.
2:8 Based on comments received, prepare 100% 'Bid Set' construction documents including plans, specifications and detailed estimate. In addition, provide a status of permits and final costs associated with permitting the project. Plans will be prepared to allow for deductive and additive alternates or phased construction as necessary. Deliver one (1) PDF copy of plans and specifications to City.

Present itemized final cost estimate for construction.

2.9 Final Product Due: Provide one (1) printed set of City accepted biddable set; 100% 'Bid Set' stamped/signed printed bond original plans and specifications for reproduction and one (1) digital set (PDF) signed copy of the "Bid Set" plan set, one (I) AutoCAD version 2015 compatible drawings file. Use "D" size plan sheet and City of Modesto Title Block and Standards for Construction Documentation. Use 8.5" x II" sheet, double sided prints for project specification. All final plans & specifications shall be stamped & signed by a registered professional (Landscape Architect or Engineer), as appropriate.

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

TASK #3 - BIDDING AND CONSTRUCTION SUPPORT
(HOURLY RATES WITH $2,000 ALLOWANCE)

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

3.2 Assist City Staff review of shop drawings and submittals as necessary, to be billed hourly per the rate schedule.

3.3 Provide site reviews and prepare reports on construction progress and quality with recommendations for correction of any deficiencies (approximately two (2) field meetings).

3.4 Assist City Staff in determining and processing requests for information and change orders, to be billed hourly per the rate schedule.

3.5 Make final review and report on completed project (one (I) field meeting).

P.O. Box 642, Modesto, CA 95353 ww/U, mode,rtQjJlY com Pholle: (209) 571-5344· Fax: (209) 579-5077 #6..
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PROJECT SCHEDULE:

MILESTONE
Award Design Contract
30% Base Map, Topo
60% Design Completion
90% Design Completion
100% Bid Set Design Completion
Project Close Out
PROPOSED COMPENSATION:

DATE
February 2019
April 2019
June 2019
August 2019
November 2019
November 2020
The following fees are based on the scope of work described previously in Exhibit "A". Payments will be made on a monthly basis when portions of the tasks are completed. The monthly billing should include billable work hours at the Hourly Rates included in Exhibit "B", any sub-consultant bills at the Hourly Rates included in Exhibit "B", and verifiable documentation on any reimbursable expenses incurred.

Task #1 - Permitting (not to exceed) $ 63,577.00
Task #2 - Construction Documentation (not to exceed) $ 65,997.00 Task #3 - Bidding and Construction Support Allowance $ 2,000.00 Total Contract Amount $ 131,574,00
Additional Services (not to exceed budget) $ 13.157.00
Grand Total $ 144,731.00
P.O. Box 642, Modesto, CA 95353 www.mgdertogp/J com Pholl" (209) 571·5344' Fax: (209) 579·5077 #6..
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CITY Of

MODESTO

CALIFORNIA
City of Modesto
Parks, Recreation and Neighborhoods Department
Parks Planning & Development Division
1010 Tenth Street, Suite 4400
P.o. Box 642, Modesto, CA 95353 ... ............ -.--.. ---=-:..::.;",;;:.:.::.:..:...;;:;~=:;;::....::::..:..=.::.::

EXHIBIT 'B'

HOURLY RATES

CONSTRUCTION DOCUMENTATION

FOR THE TRRP NON-MOTORIZED BOAT LAUNCH AND RIVER ACCESS PROJECT The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved:

O'Dell Engineering
Landscape Engineer / Architect
Classification:

Principal
Senior Civil Engineer
Senior Engineer II
Senior Engineer I
Assistant Engineer I
Landscape Architect II
Landscape Architect I
Dry Utility Project Manager
CADD Operator II
Senior Surveyor II
Surveyor II
Survey Crew 2-Man
P. O. Box 642, Modesto, CA 95353 www.modestogov.com
$210.00
$179.00
$168.00
$158.00
$100.00
$131.00
$121.00
$135.00
$89.00
$160.00
$130.00
$330.00
Phone: (209) 577·5344' Fax: (209) 579·5077
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Virginia Corridor - Phase 7
Flow West
Permitting
Classification:

Principal Engineer Geomorphologist
Project Manager & Principal Engineer
Project Manager & Principal Geomorphologist
Project Manager & Principal Planner
Senior Environmental Engineer
Staff Data Scientist
Staff Engineer / Modeler
Staff Data Scientist
Staff Planner
Staff Engineer
Administrative Support
Cornerstone Structural Engineering Group
Structural Engineering
Classification:

Principal
Associate
Construction Manager
Engineering Manager
Resident Engineer/Structure Representative
Assistant Structure Representative
Project Administrator
Senior Engineer
Project Engineer
Staff Engineer
Structural Designer II
Structural Designer I
Junior Engineer
Senior Computer Drafter
Computer Drafter
Junior Computer Drafter
Accounting Assistant
Administrative Assistant II
Administrative Assistant I
Expert Witness Services
P.O. Box 642, Modesto, CA 95353 www.modestogov.com
$225.00
$200.00
$200.00
$200.00
$175.00
$175.00
$150.00
$150.00
$150.00
$125.00
$100.00
$215.00
$200.00
$160.00
$160.00
$150.00
$140.00
$150.00
$145.00
$130.00
$115.00
$105.00
$100.00
$95.00
$105.00
$100.00
$85.00
$100.00
$80.00
$75.00
$300.00
Phone: (209) 577-5344· Fa,: (209) 579-5077
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Virginia Corridor - Phase 7
Crawford & Associates
Geotechnical Engineering
Classification:

Principal
Supervisory Engineer/Geologist
Senior Project Manager
Project Manager
Planner
Environmental Specialist
Senior Project Engineer / Geologist
Project Engineer II / Geologist II
Project Engineer I / Geologist I
Staff Engineer / Geologist
Drafting
Project Assistant
Technician Prevailing Wage
Technician - Non Prevailing Wage
Far Western Anthropological Research Group
Archaeologist
Classification:

Principle Investigator
Assistant Financial Analyst
Contract Administrator
Geoarchaeologist
GIS
GIS Assistant
Staff Archaeologist
Field Tech A
Production Director
Production Assistant
P.O. Box 642. Modesto. CA 95353 www.modestogov.com
$195.00
$180.00
$175.00
$170.00
$150.00
$145.00
$150.00
$140.00
$130.00
$110.00
$95.00
$68.00
$110.00
$95.00
$152.46
$62.32
$82.28
$87.12
$96.80
$63.55
$62.92
$58.08
$104.96
$60.50
Phone: (209) 577-5344· Fa,: (209) 579-5077
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

Chavez Park Renovation Project
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to the preparation of construction documentation for the César E.

Chavez Renovation Project for a new amount not to exceed $880,667 and forwarding to Council for approval. (Funding Source: Statewide Park Development and Community Revitalization Program - Proposition 68)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

César E. Chavez Park is a 6.23-acre City owned park site located in the heart of a diverse urban community in West Modesto. Within César E. Chavez Park is the existing Maddux Youth Center which has been open and available for public use since 1946. Exterior amenities of the park include open green spaces, basketball court, playground, restroom building and small historic monuments.

With community assistance, the Concept Master Plan for the César E. Chavez Park was developed and on November 5, 2019, by Resolution Nos. 2019-500 and 2019-501, Council approved the updated masterplan for César E. Chavez Park and determined that the scope of the project is within the scope of the Modesto Urban Area General Plan Master Environmental Impact Report (SCH No. 2014042081).
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Safety and Communities Committee, May 8, 2023
First Amendment to the Agreement with O’Dell Engineering, Inc. for the César E. Chavez Park Renovation Project

Page 2 of 3 ends

On November 10, 2020, by Resolution Nos. 2020-473 and 2020-474, Council accepted a Statewide Park Development and Community Revitalization Program - Round 3 Grant Award of $8,500,000 for the César E. Chavez Park Renovation Project and approved an Agreement with O’Dell Engineering, Inc. for the preparation of the construction documentation for the César E.

Chavez Park Renovation Project.

DISCUSSION:

The original Agreement amount with O’Dell Engineering is $757,780. Since the start of design in early 2021 there have been no additional services requests approved by the Department Director. Per the original Agreement, the Department Director has the authority to authorize additional services in an amount of $37,889, for a total not-to-exceed contract amount of $795,669. This first additional services request for $80,950 exceeds the Department Director’s authority and therefore staff is requesting Council approval of this additional services request.

Since the project design is approximately 75% complete at this time, staff is anticipating that there could be some minor additional services requests in the future. Therefore, staff is requesting that the Department Director retain the authority to approve future additional services requests in the amount of 5% of the new contract total ($838,730), a not to exceed additional services budget of $41,937, for a total not-to-exceed contract amount of $880,667. The design phase is expected to be completed by Fall 2023.

On March 20, 2023, at the City’s request, O’Dell Engineering submitted to the City a budget augmentation for additional tasks in excess of the $795,669 authorized in the Original Agreement. The estimated additional tasks resulted in increased costs, totaling $80,950, to the following:

1. Additional Aquatic Center design work to expand the scope of the pool to add a fourth lane, adjust the splash pad design and fully enclose the mechanical building for safety and vandalism purposes

2. Addition of a staff parking lot at the southern corner of the park due to the anticipated need for staff to have designated parking
Staff have reviewed the proposal and recommend approving a First Amendment to the Agreement with O’Dell Engineering, Inc.

FISCAL IMPACT:

Funding for the First Amendment is budgeted in CIP Project 101276 – César E. Chavez Park Renovation Project located in the Capital Grants – CIP Projects Fund (3140).

ANTICIPATED AGREEMENT EXPENDITURES WITH PROPOSED AMENDMENT Original Design Agreement – O’Dell Engineering, Inc. $ 757,780 First Amendment to the Agreement (this request) $ 80,950 5% Additional Services (if needed) $ 41,937
TOTAL $ 880,667
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Safety and Communities Committee, May 8, 2023
First Amendment to the Agreement with O’Dell Engineering, Inc. for the César E. Chavez Park Renovation Project

Page 3 of 3 ends

CEQA/NEPA REQUIREMENTS:

An Initial Study, Environmental Assessment No. EA/PRN 2019-06 found that the project is within the scope of the project covered by the Modesto Urban Area General Plan Master Environmental Impact Report (SCH No. 2014042081) and no new environmental document or Public Resources Code Section 21081 findings are required.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion approving a First Amendment to the Agreement with O’Dell Engineering, Inc. for additional tasks related to the preparation of construction documentation for the César E.

Chavez Renovation Project, increasing the Agreement amount by $80,950, for a new contract amount of $838,730, plus $41,937 in Additional Services (if needed) for a new total amount not to exceed $880,667 and forwarding to Council for approval.

Approved by:

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

1. First Amendment to Agreement with O’Dell Engineering

2. Exhibits A & B

3. Original Agreement with O’Dell Engineering
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FIRST AMENDMENT TO AGREEMENT FOR CONSULTANT SERVICES WITH O’DELL ENGINEERING, INC. FOR
CÉSAR E. CHAVEZ PARK RENOVATION PROJECT DESIGN SERVICES This First Amendment to Agreement for Consultant Services (“First Amendment”) is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and O’DELL ENGINEERING, INC., a California Corporation (“Consultant”) entered into by the parties on the 10th day of November 2020, hereinafter referred to as the “Original Agreement”.

RECITALS
This First Amendment to Agreement for Consultant Services is made with regard to the following recitals:

A. The Original Agreement between City and Consultant was approved via Council Resolution No. 2020-474.

B. Paragraph no. 9 “AMENDMENTS” on pages 6-7 of the Original Agreement for Design Services states “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”.

C. Paragraph no. 3 “COMPENSATION” on pages 2-4 of the Original Agreement for Consultant Services specifies the sum of SEVEN HUNDRED FIFTY SEVEN THOUSAND, SEVEN HUNDRED EIGHTY AND 00/100 DOLLARS ($757,780) 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 #7..
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obligations required in the Original Agreement. Additional Services may be authorized by the Department Director in an amount up to, but not to exceed, THIRTY SEVEN THOUSAND, EIGHT HUNDRED EIGHTY NINE AND 00/100 DOLLARS ($37,889). In that event, the new total compensation shall not exceed SEVEN HUNDRED NINETY FIVE THOUSAND, SIX HUNDRED SIXTY NINE AND 00/100 DOLLARS ($795,669).

D. On or about March 20, 2023, at the City’s request, Consultant submitted to City a budget augmentation for additional tasks in excess of the $795,669 authorized in the Original Agreement, attached hereto as Exhibit “A-1” to this First Amendment to Agreement.

E. The estimated additional tasks result in increased costs as follows:

1. Additional Aquatic Center design work to expand the scope of the pool to add a fourth lane, adjust the splash pad design and fully enclose the mechanical building for safety and vandalism purposes: $65,450

2. Addition of a staff parking lot at the southern corner of the park due to the anticipated need for staff to have designated parking: $15,500 F. The aforementioned estimated additional tasks increase the amount of the Original Agreement by EIGHTY THOUSAND, NINE HUNDRED FIFTY AND 00/100 DOLLARS ($80,950). 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” on page 1 of the Original Agreement. #7..
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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” on pages 2-4 of the Original Agreement.

All other terms and conditions contained in the Original Agreement remain the same.

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

2. Paragraph 1 entitled “SCOPE OF SERVICES” on page 1 of the Original Agreement shall be deleted in its entirety and the parties agree to and hereby do substitute the following in its place:

SCOPE OF SERVICES.

Consultant shall undertake and complete 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 scope of work as set forth and described in the documents attached to the First Amendment to Agreement and referred to herein as Exhibit “A-1”. The Consultant shall perform the services as described in the aforementioned Exhibit “A” and Exhibit “A- #7..
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1” in a manner consistent with the profession skill and care ordinarily provided by firms practicing in the same or similar locality under the same or similar circumstances (hereinafter the “Standard of Care”).

COMPENSATION.

Consultant agrees to accept a sum not to exceed EIGHT

HUNDRED THIRTY EIGHT THOUSAND, SEVEN HUNDRED
THIRTY AND 00/100 DOLLARS ($838,730) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials in accordance with Exhibit “A” to the Original Agreement and in Exhibit “A-1” to this First Amendment to Agreement attached hereto as well, for performance by Consultant of all of its duties and obligations under the Original Agreement and the First Amendment to Agreement, except that additional services may be compensated as described below.

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

Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.

Reimbursable Expenses including all reproduction, delivery and travel expenses will be billed at cost plus a maximum of 10%. The total cost for all reimbursable expenses for the Project shall not exceed $3,245.00, and is included in the not to exceed figure of $838,730. It is #7..
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the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget. Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due.

Additional services may be authorized by the Department Director in an amount up to, but not to exceed 5% of the revised agreed maximum compensation, or $41,937. In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department Director, or designee, indicating the reason for additional work, scope and cost of such work. The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B-1” to this First Amendment to Agreement and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed $880,667. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of the Original Agreement.
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IN WITNESS WHEREOF, CITY OF MODESTO, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for Consultant Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. , adopted by the Council of the City of Modesto on the ___ day of ___________, 2023, and O’DELL ENGINEERING, INC., has caused this Agreement to be duly executed as of the Effective date.
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CONTRACT CHANGE ORDER
m:\_finance\38490 cesar e chavez park renovation project pw\extra work\cco01-2023-03-20-cesar chavez-38490.docx

CHANGE ORDER
O’Dell Engineering
p:209.571.1765 | f:209.571.2466
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com Contract Change Order Number: 001
Original Contract Date: November 10, 2020
Client: City of Modesto
Project Number: 38490
Project Name: Cesar E Chavez Park Renovation
Date/Time: March 20, 2023
Description of Change:

As requested by the City via email on 02/09/23, the design team was asked to add a staff parking lot of approximately 14 stall capacity, redesign the aquatic center with a four lane pool, redesign the splash pad to function as a shallow pool (approximately 12’18” depth), and cover and enclose the pool mechanical building. Also included are services to review and coordinate level of magnitude costs for a separate kiddie pool and 6 lane pool upgrade. Anticipated additional design efforts include adjustments by several disciplines (architecture, aquatics, civil, landscape, electrical) and would include the following:

Aquatic Center Re-design
• Prepare conceptual revisions to the site plan for review and approval. • Revise construction documents including:
o Updated aquatics, architectural, and MEP plans
o Updated grading plans
o Updated costing opinion
Deliverables
• Revised site plan
• Revised construction drawings
Cost: $65,450
Parking Lot Design
• Prepare conceptual revisions to the site plan for review and approval. • Revision to geotechnical report to include a parking pavement recommendation • Revise construction documents including:
o Updated site features and horizontal control plans
o Update grading plans
o Updated planting and Irrigation plans
o Updated costing opinion
o Revised electrical plans to detail out card access infrastructure Deliverables
• Revised site plan
• Revised construction drawings
• Revised geotechnical report
Cost: $15,500
Total Cost:$80,950
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M:\_Finance\38490 Cesar E Chavez Park Renovation Project PW\Extra Work\CCO01-2023-03-20-Cesar Chavez-38490.docx

CHANGE ORDER
O’Dell Engineering
p:209.571.1765 | f:209.571.2466
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com 2 IMPACT ON SCHEDULE: IMPACT ON BUDGET:
_______________________________ _______________________________

CLIENT SIGNATURE CONSULTANT SIGNATURE
CLIENT SIGNATURE WILL AMEND THE CONTRACT AS SHOWN AND AUTHORIZES THE WORK TO BE PERFORMED. 3 months Impact on Budget: $80,950
Proposed Contract Total: $838,730
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EXHIBIT ‘B-1’

AMENDED HOURLY RATES

CONSTRUCTION DOCUMENTATION FOR
CÉSAR E. CHAVEZ PARK RENOVATION PROJECT
The following hourly rates will be used for billable hours within this Agreement effective at the time of approval of the First Amendment of Agreement:

O’Dell Engineering
Landscape Engineer / Architect
Classification: Regular Hourly Rate:

Principal $280
Senior Civil Engineer $215
Senior Engineer 2 $200
Senior Engineer 1 $185
Engineer 2 $180
Engineer 1 $170
Assistant Engineer 2 $145
Assistant Engineer 1 $130
Senior Landscape Architect 2 $200
Senior Landscape Architect 1 $180
Landscape Architect 2 $170
Landscape Architect 1 $160
Landscape Designer 3 $155
Landscape Designer 2 $145
Landscape Designer 1 $135
Dry Utility Project Manager 2 $170
Dry Utility Project Manager 1 $150
Utility Engineer $135
CADD Operator 2 $115
CADD Operator 1 $95
Survey Manager $205
Senior Land Surveyor $195
Senior Surveyor 2 $190
Senior Surveyor 1 $170
Surveyor 2 $150
Surveyor 1 $140
Assistant Surveyor 2 $130
Assistant Surveyor 1 $115
Survey Crew 2-man (Prevailing Wage) $396
Administrative $96
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Outside Services & Reproduction: Actual cost plus 10%
Cost of services and expenses charged to O’Dell Engineering by outside consultants, commercial printers, and professional or technical firms engaged in connection with the project.

Travel: Actual cost plus 10%
Mileage, per diem, and subsistence are not normally charged to the client unless specific prior authorization is negotiated between client and consultant.

Aquatic Design Group:

Aquatic Designer
Classification: Regular Hourly Rate:

Principal $235
Project Architect / Engineer $215
Project Manager $195
Designer $155
Clerical $100
Red Inc.

Building Architect
Classification: Regular Hourly Rate:

Principal Architect $190
Senior Project Manager $140
Project Manager $125
Job Captain $110
Project Designer $100
Project Draftsman $90
Project Administrator $80
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Spohn Ranch Skateparks
Skate Plaza Designer
Classification: Regular Hourly Rate:

Principal $200
Skatepark Designer $150
Project Manager $150
Drafter $90
Estimator $75
Civil Engineer $200
Structural Engineer $200
Rendering Artist $90
Administrative $65
Pezzoni Engineering
Electrical Engineer
Classification: Regular Hourly Rate:

Principal Engineer $240
Project Manager $210
Engineer $185
Senior Designer $165
Designer $135
CAD/BIM Specialist $105
Clerical $85
Crawford & Associates
Geotechnical Engineers
Classification: Regular Hourly Rate:

Principal $250
Senior Project Manager $210
Project Manager $190
Senior Engineer/Geologist $170
Project Engineer II $150
Project Engineer I $140
Staff Engineer $135
Administrative Assistant $110
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Justin W. Capp Engineering & Design
Structural Engineering
Classification: Regular Hourly Rate:

Designer $125
Staff Engineer $160
Senior Designer $160
Civil Engineer $190
Structural Engineer $205
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AGREEMENT

ODELL ENGINEERING, INC
CÉSAR E. CHAVEZ PARK RENOVATION PROJECT DESIGN SERVICES THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of ____, 2020, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and O’DELL ENGINEERING, INC, a California corporation, hereinafter referred to as "Consultant".

This Agreement is made with regard to the following recitals:

A. The City has determined that Construction Documents should be prepared; Permitting, Bidding and Construction Support are needed for the César E. Chavez Park Renovation Project.

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

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

1. SCOPE OF SERVICES.

Consultant shall undertake and complete the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner consistent with the professional skill and care ordinarily provided by firms practicing in the same or similar locality under the same or similar circumstances (hereinafter the “Standard of Care”).

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF 10th Day of November, 2020
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2. TERM OF AGREEMENT.

Consultant shall undertake and complete the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete the Conceptual Design Development and Construction Documents within 300 Calendar Days from the effective date of this agreement. Consultant shall diligently proceed with the Bidding and Construction Support services of the Project until the completion of items shown in Exhibit “A”.

3. COMPENSATION.

Consultant agrees to accept a sum not to exceed $757,780 (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.

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

City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.

Reimbursable Expenses including all reproduction, delivery and travel expenses will be billed at cost. The total cost for all reimbursable expenses for the Project shall not exceed $3,245.00, and is included in the not exceed figure of $757,780. It is the responsibility of the Consultant to manage reimbursable expenses to ensure that they do not exceed this budget.

Reimbursable expenses shall be invoiced to the City by monthly invoices and shall itemize the reimbursable expenses incurred during the preceding month and indicate the amount due.

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Additional services may be authorized by the Department Director in an amount up to, but not to exceed 5% of the agreed maximum compensation, or $37,889. In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department Manager, or designee, indicating the reason for additional work, scope and cost of such work.

The Department Manager, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the Department Manager. In that event, the new total compensation shall not exceed $795,669. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.

4. OBLIGATIONS OF CONSULTANT.

Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, and professional, permits, qualifications 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 agrees that it will follow the Standard of Care to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.

5. PERFORMANCE BY KEY EMPLOYEE.

Consultant has represented to City that Chad Kennedy, PLA , will be the person primarily responsible for the performance of the services referred to in this Agreement.

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that thirty-five percent (35%) 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
Upon payment of all outstanding invoices owing to Consultant under this Agreement, 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.

7. NEWS AND INFORMATION RELEASE.

Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Agreement, without first obtaining review and approval of said news releases from City through the City Manager.

8. INTEREST OF CONTRACTOR.

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 DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.

10. INDEPENDENT CONTRACTOR.

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

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.

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.

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.

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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12. PATENT/COPYRIGHT MATERIALS.

13. NOTICES.

Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:

FOR CONSULTANT: Name: O’Dell Engineering, Inc.

Attention: Chad Kennedy, PLA
Address: 1165 Scenic Dr, Suite A
Modesto, CA 95350
Phone: (209)681-9378
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Nathan Houx
Phone: (209) 571-5515
Email: [email protected]
DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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14. INSURANCE REQUIREMENTS.

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

In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work 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 DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and $2,000,000 policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If prior to signing this agreement the City shall notify the Consultant if any of said policies is found to be unsatisfactory to the City or State of California, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City or State of California, the Consultant shall promptly terminate this agreement or 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 or State of California, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, and the indemnification obligations under this Agreement shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant under workers’ or workmen’s DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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compensation acts, disability benefit acts or other employee benefit acts. The City and State of California, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City and State of California, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City or State of California. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City or State of California; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

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

For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and 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.

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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15. TERMINATION OF AGREEMENT.

The Consultant may terminate Services if the City breaches the payment or other provisions under this Agreement and fails to cure following seven (7) days written notice of termination.

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

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as 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;
DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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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.

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.

17. INDEMNITY.

The Consultant shall hold the City and State of California (to the extent it has an insurable interest in the project), officers, employees, and volunteers, harmless from and indemnify (but, for claims alleging professional liability, shall not defend) 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 DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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or intentional wrongful 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 and State of California, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance. The duty to defend obligation of the Consultant shall be limited to the proportionate percentage of any claim arising directly from the Services performed by the Consultant on a comparative fault basis as defined by the California Civil Code 2782.8.

18. DISPUTE RESOLUTION.

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 DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Association within ninety (90) days after mailing of the written rejection by City to Consultant.

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

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

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 DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.

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

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

19. ENTIRE AGREEMENT.

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

20. PARTIAL INVALIDITY.

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21. WAIVER.

22. AUDIT.

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

23. GOVERNING LAW.

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

24. HEADINGS NOT CONTROLLING.

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

25. COMPLIANCE WITH LAWS.

Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall exercise the Standard of Care to fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.

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26. CITY BUSINESS LICENSE.

Consultant will have a City of Modesto business license.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2020- , adopted by the Council of the City of Modesto on the ___day of _______, 2020, and ____________ has caused this agreement to be duly executed in duplicate as of the Effective Date.

CITY OF MODESTO, O’DELL ENGINEERING, INC,
a municipal corporation a California corporation*
By ___________________________ By ________________________________ JOSEPH P. LOPEZ, City Manager Randall O’Dell President

By ________________________________
Chad Kennedy Vice-President
ATTEST:
(Seal)
By ___________________________
STEPHANIE LOPEZ, City Clerk
Consultant’s Federal ID #77-0416824
APPROVED AS TO FORM:

JOSE M. SANCHEZ, City Attorney
By ________________________________
__________________, Special Counsel
APPROVED AS TO FORM:

By ________________________________
CHRISTINA ALGER, Acting Risk Manager
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal
* LLC - signature of two (2) officers required
Partnership - signature of a partner required
Sole Proprietorship - signature of proprietor
required
______________________
Randall O’Dell Pr
________________________
Chad Kennedy Vice
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474
O'Dell
Engineering, Inc.
_________________________________________
JILES SMITH, Risk Manager
10th
11/24/2020
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
1010 Tenth Street, Suite 4400
Modesto, California 95354
Modestogov.com
EXHIBIT ‘A’

SCOPE OF WORK

CONSTRUCTION DOCUMENTATION FOR
CÉSAR E. CHAVEZ PARK RENOVATION PROJECT
Project Background:

César E. Chavez Park is a (6.25) acre City owned park site located in the heart of a diverse urban community, in west Modesto. Within César E. Chavez Park is the existing Maddux Youth Center which has been open and available for public use since 1949. The Center includes an indoor basketball court, indoor weight room, boxing gym and computer lab. The Maddux Youth Center was most recently renovated in 2004.

Exterior amenities include open green space, basketball court, playground, restroom building and small historic monument(s).

The community aided in the development of a new Concept Master Plan for the César E. Chavez Park in 2019. The Concept Master Plan has been awarded Proposition 68 – California Statewide Park Program, Round 3 Funding.

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Project Description:

The César E. Chavez Park Renovation Project is the complete re-design of the existing park site, within the limits of the park ending at the back of curb. The necessary environmental documentation has been completed for the project.

The work to be accomplished for this project shall consist of preparation of construction documentation compliant with the César E. Chavez Park Concept Master Plan.

Emphasis on value engineering, simplicity, quality design and utilization of new and current energy and water saving technologies will be critical to the success of this project.

The Consultant shall evaluate the existing conditions and make recommendations to the City in a wide range of design services including but not limited to: structural engineering, civil engineering, electrical engineering, building architecture, aquatic design, landscape architectural and surveying and geotechnical specialists.

The Consultant shall be familiar with all applicable adopted local building codes (City of Modesto), City of Modesto Park Design Standards, the existing César E. Chavez Park Concept Master Plan, Design Development Report and Finding of Conformance with the Mitigated Negative Declaration for César E. Chavez Park, California Department of Industrial Relations (CAL-OSHA) Standards for Amusement Rides Approvals and Certification, Competition and Pool Measurement and Certification Standards as set by USA Swimming, and City of Modesto Standard Specifications.

Consultant shall coordinate with all necessary Federal and State agencies to obtain permits for construction of this work. Consultant is responsible to prepare applications and assist City staff in obtaining permits prior to construction.

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Professional Services to Include:

The Construction Documentation Package will be comprehensive and will include some, if not all, the following items:
x Rough grading and Storm Water Pollution Prevention of the park site. x Site preparation, grading and drainage of the project site. x Underground storm water system to collect surface water at various drainage inlet locations and redirect water to drainage bio-swale planters and larger bioswale drainage basin. Provide drainage overflow connections to the City’s existing stormwater drainage system.
x A 250-350 total persons Aquatic Center Splash Park with large multi-level aquatic play splash structure with water slide(s), a recreational pool, lounge seating area(s), picnic seating area(s), landscaping, include minimum 8’ tall perimeter barrier and safety fencing, drinking fountain(s) with bottle filler, and field installed buildings (restroom building, locker area/room and changing area/room, mechanical room, equipment storage room(s), concession area, ticketing office and lifeguard office).
o The concessions room will be designed to include space for counter-top equipment (such as food warmers/coolers, product dispensers, soft serve dispensers, soda fountain, etc.), a 3-bin wash sink, a food preparation sink, hand-washing sink, refrigerator(s), freezer(s) and display case(s). o The concessions room will be designed so as not to require a grease trap.

Equipment requiring a grease trap will not be included. o The pool will not be a competition level pool and will be approximately 32’ wide by 75’ long. It will not be heated.
o A simple speaker system will be installed for communication and light background music purposes.
o A perimeter fence up to 10’ tall will be included.
x Building expansion including field installed classroom/multi-purpose rooms to the existing Maddux Youth Center. Rooms to be suitable for exercise, aerobic, community classes and small event gatherings. The location of this classroom(s) expansion will be either attached to the existing building or be incorporated into the aquatics building; this decision must be determined prior to 30% drawings.

Changes in the location after the 30% submittal will incur additional cost. x An approximately 6,000-7,000 square foot skate plaza, with potential future expansion.

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x Concrete paving for pedestrians (ADA accessible, vehicle load rated for maintenance paths associated with the picnic pavilion, restroom building, mechanical room(s) and aquatic center), plazas, pads for benches and picnic pavilion, stage area, accent bands, mow bands and passenger loading zone. x Multi-use open natural turf area(s) for event gatherings and youth soccer field. x Repair and/or restoration to the existing youth playground to restore ADA accessibility.
x Prefabricated steel, minimum 30’ x 30’ Picnic Pavilion with picnic tables and prefabricated group BBQ.
x Full sized basketball court with 10’ perimeter chain link fencing and gates. x Security, area and pathway lighting. (lighting around basketball court, skate plaza, and aquatic center will be at recreational lighting levels - Estimated at 15 total fixtures
x Wired and wireless security camera monitoring system. (conduit only, the system components will be installed by City crews after project completion- Estimated 5 security cameras)
x Site furnishings and signage.
x Entry signage/plazas to the project.
x Minimum 42” park perimeter fencing with gate(s).
x Permanent and removable bollards.
x Flags and flag poles (lighted).
x Three outdoor fitness station areas.
x Utility connections for the project including electrical, gas, phone, sewer, water, storm drainage and others as appropriate. Utility connections will be made onsite when feasible. Connections in the road are the exception to limitations regarding off-site work.
x At least one new park drinking fountain with dog bowl and bottle filler with water and sewer connection as directed.
x New landscaping throughout the entire park site including use of water efficient, native and drought tolerant landscape plants and materials, and significant reduction in overall irrigated turf area.
x Complete replacement of the existing irrigation system with central control (electrical and phone connection) to provide coverage for the entire park site designed to connect to existing irrigation stub-outs.
x Addition of one free-standing play element to the playground x The park-side restroom building will be pre-manufactured and will include two unisex rooms.
x Relocation of the César E. Chavez monument.

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Scope of Services
Task 1: Site Analysis/Data Collection & Review / Design Development Progress Meetings with City Staff:

1.1 Kick-off Organization & Scoping Meeting (Meeting #1): A well-run organizational meeting at the beginning of the project will clear up any unexpected issues before they arise. A meeting will be held with staff, during which our proprietary client communication program is started and the following typical items are discussed:

1. Introduce staff and project partners to the design consulting team.

2. Review objectives of the project, scope of services, deliverable expectations, project schedule, and milestones.

3. Confirm project parameters and limits of work. (Conduct a site review and photo document site conditions.) City will provide full information regarding requirements for the project, including a program which will set forth design objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability, special equipment, systems and site requirements.

4. Collect available data and published material.

5. Establish meeting and presentation schedules, and communication channels with all parties involved.

6. Review and list all applicable design/planning standards, opportunities, and/or challenges anticipated.

7. Coordinate with agency departments, other agencies, and stakeholders.

8. Review project budget and billing requirements.

9. Complete custom client communications program.

1.2 Progress Meetings: After each submittal and subsequent staff review period, a progress meeting with the design team will be held. An agenda will be prepared prior to, and minutes will be provided after, each meeting. It is anticipated that there will be five total progress meetings to be held at the following stages:

1. Following the Preliminary Site Plan submittal

2. Following the Design Development submittal
Preliminary Investigation:

Research objectives will include a detailed review of project history and existing park site information including topographic surveys and soil studies. A site visit will be conducted and site photographs will be taken.

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1.3 Contextual Analysis: Analyze existing elements within the proposed site to guide design. Items such as prevailing winds, soil type, local demographics, as-built drawings, utilities, etc. will be reviewed.

1.4 Topographic Surveying & Mapping: Surveying services in support of this project will include topographic surveying of the existing site and adjacent street improvements, on-site and off-site utilities as needed for points of connection, and extensive detailing of critical features, including: trees, buildings, irrigation equipment, and existing features to remain. The topographic survey data will be collected using the City’s existing horizontal and vertical survey control and benchmarks. All information will be collected with the input and collaboration of both internal and external sub-consultant specialty disciplines to guarantee a focused, but well-rounded product that rises to meet the needs of each of the project’s objectives.

1. Establish horizontal survey control for the project based on the NAD83 horizontal datum using the City of Modesto GPS Control Network per Record of Survey filed in Book 22 of Surveys, at Page 51. Elevations will be based on the NAVD88 vertical datum using City of Modesto benchmarks.

2. Perform cross-section survey of adjoining roadway half-width at 50-foot intervals.

3. Perform topographic survey of all hardscape and softscape, including:
grade breaks, high points, low points. In flat areas, measure spot elevations in a grid pattern at 50-foot intervals.

4. Locate surface-visible utility features and improvements, such as: signs, fences, walls, buildings, striping, driveways, walkways, drainages, structures, lights, poles, bollards, general limits of vegetated or landscaped areas, USA markings, vaults, valves, meters, boxes, pedestals, cleanouts, manholes, drain inlets, catch basins, culverts, outfalls, and standpipes.

5. All trees will be located, including measurement of DBH and dripline.

Trees will be given unique identifiers to coordinate subsequent specialist identification and assessment.

6. At manholes and accessible structures measure invert elevation of all gravity storm drains and sewer pipes. Annotate topographic survey drawing with invert elevation, approximate diameter, and orientation of each pipe visible at the time of the survey. Where access is not practical, O’Dell Engineering shall indicate by notation on the mapping deliverable.

7. Prepare topographic map at a 1” = 20’ scale.

1.5 Geotechnical Investigation: Unusual soil conditions such as expansive soils, fill soils, soils with low bearing capacity (under 2,000 psf), and high water tables are not addressed in this proposal including piles, piers, and/or mat slabs, and dewatering systems.

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1. It is assumed that boring locations are accessible with a truck-mounted drill rig; rights-of-entry will be provided by others; and auger cuttings will be spread on-site.

2. To characterize the subsurface conditions and obtain soil samples for laboratory testing, five to seven soil borings throughout the proposed park to depths ranging from 10 to 50 feet will be drilled. In general, borings within the proposed structure locations will be deeper and shallower borings will be reserved for the planned grass and flatwork areas. Only one boring will be advanced to 50 ft below existing grade for liquefaction analysis.

3. An Engineer/Geologist will direct the sampling and log the boring. At a minimum, the drills will be sampled at 5-foot intervals. The samples will be delivered to the laboratory for evaluation and testing. The drilling contractor will advance the borings with a rubber-tired, truck-mounted drill rig using 6-to 8-inch-diameter hollow and solid stem augers. Standard Penetration Testing (SPT) and Standard California sampling will be performed within the borings to obtain samples and blow count information. The borings will be backfilled according to the County permit requirements.

4. Following the completion of subsurface exploration, boring logs will be reviewed to assess potential restrictive layers and perform infiltration rate testing at two to three locations within the planned ground water recharge basin. The infiltration rate depths will be determined based on the proposed site grades and the soil conditions encountered during our subsurface exploration. For this proposal, it is assumed that the infiltration rate tests will be located approximately 5 to 10 feet below existing grade.

An engineer or geologist will perform the infiltration rate tests in the field using the constant or falling-head test method.

5. Laboratory tests will be performed on representative soil samples obtained from the exploratory borings which may include: moisture content and dry density; grainsize analysis and plasticity index testing; expansion potential; unconfined compression; R-Value; and landscape suitability.

6. Engineering analysis will be prepared and a Geotechnical Report containing the following:

7. Project Description:
a) Summary of subsurface exploration and subsurface conditions; b) Infiltration rates;
c) Laboratory test results;
d) Landscape suitability (horticultural) tests and results e) CBC seismic design parameters for structures (non-site specific); f) Foundation recommendations for structures including minimum depth/width/diameter, allowable support, lateral soil resistance, skin friction, and settlement estimates;

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g) Recommendations for grading and construction, including ground preparation, materials excavation, stability and placement, compaction, trench backfill compaction, and OSHA soil types for use by the design team;
h) Pavement section recommendations;
i) Minimum unreinforced flatwork sections;
j) Risk management and limitations;
k) Vicinity Map;
l) Site Plan with current and previous boring and infiltration test locations; and
m) Boring logs with laboratory test results

1.6 Utility Investigation: A comprehensive utility investigation will be completed to determine what utilities are available, their locations, and utility depth within the project limits of work. Available as-built and original design drawings will be reviewed, utility request letters will be sent to all applicable utility companies, and site investigation will be used to make determinations.

Potholing will not be performed. Utility locations will be based on as-built drawings and information from utility departments and companies.

1.7 Playground Inspection: One of O’Dell’s Certified Playground Safety Inspectors, and Certified Accessibility Specialists will review the playground and determine any necessary upgrades, renovations, or replacements in order to bring the playground into conformance with current ASTM, Title 24, and Department of Justice codes and regulations.

1.8 Arborist Inspection: O’Dell’s International Society of Arboriculture Certified Arborist will review all trees on site and provide data to the team for inclusion of information into the Tree Protection Plan. The review will include tree species, size (diameter at breast height - DBH), general health condition, recommendation for removal or preservation, and any suggested mitigation.

The Arborist will also work with the team to determine appropriate protection measures and specification requirements during construction.

Deliverables:

1. Topographical Plan in PDF format

2. Resolved Boundary in PDF format

3. Record of Survey Map in PDF format

4. Draft Geotechnical Report in PDF format

5. Playground Audit Report in PDF format
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Design Development:

1.9 Public Outreach - Community Meetings (Meeting #2 and #3): The O’Dell team (including Spohn Ranch staff) will schedule two meetings with the public, prepare audio/visual presentations, provide design for meeting announcements, coordinate online announcements, and arrange venues for these meetings. Interactive real-time polling will be used at meetings to gather data from those who are too reserved to speak up, and online surveys will be conducted to solicit input from those who are unable to attend meetings. One meeting will occur prior to site plan development, and one meeting will be held after the conceptual plan has been submitted. This effort does not include postage, facility fees, or printing costs for outreach efforts.

1.10 Preliminary Site Plan Development: Following site analysis and public outreach efforts, the design team will prepare a revised site plan based off of the original master plan. Revisions will reflect changes based on site limitations and opportunities, community input, and conversations with City staff about specific design features. This is a crucial step to limit revisions later in the process and to avoid inefficient uses of time and resources. This site plan will be drawn with actual topographic data, to scale, and will be a black and white drawing depicting all proposed park features and amenities.

1.11 Design Development Report: A Design Development Report will be prepared for City staff to convey clearly the project and its many facets. This report will help identify, clarify, and simplify any major design decisions early in the process. The report at a minimum will include:

1. Preliminary cost estimate

2. References/catalog cut sheets for materials and equipment

3. Preliminary skate features and orientation

4. Proposed construction methods for structures and facilities

5. Cost benefit analysis

1.12 Design Development Drawings (35% PS&E): The Design Development Drawing package includes drawings to convey general engineering and design concepts. This service will include the following preliminary plan sheets at a minimum:

1. Cover sheet and project information

2. Site plan

3. Existing conditions plan

4. Tree protection plan (ISA Arborist reviewed)

5. Grading, drainage, and utilities plan

6. Site finishes and furnishings plans

7. Skate park pre-cast feature site plan

8. Aquatic Center Wet play & pool drawings
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9. Irrigation plans

10. Planting plan

11. Electrical plans

12. Major construction details

13. Building / Restroom/and other structure sections, and plans

14. Technical specifications table of contents
Deliverables:

1. Print-ready public meeting flyer in PDF format

2. Digital PowerPoint presentation for public meetings

3. Raw data from public meetings

4. Site plan in PDF format

5. Design Development Report in PDF or Word format

6. 35% drawings in PDF format and four hard copy full size drawing sets.

7. 35% estimates and quantities in PDF format

8. Technical specifications TOC in PDF and Word formats

9. Updated project schedule with critical path milestones Task 2: Construction Documentation

2.1 Progress Meetings: After each submittal and subsequent staff review period, a progress meeting with the design team will be held. An agenda will be prepared prior to, and minutes will be provided after, each meeting. It is anticipated that there will be five total progress meetings to be held at the following stages:

1. Following the 60% (Meeting #4), 90% (Meeting #5), and 100% PS&E submittals

2.2 Construction Documents (PS&E): Following the approval of a final site plan, the team will prepare final site improvement plans for permitting. Improvement plans include routine information normally required by governing agencies.

The scope of work will include three packages: 60% construction documents with draft specifications, 90% construction documents with updated specifications, and 100% documents including final specifications. This service will include the following tasks:

Improvement Plans - Plans may include the following sheets, but are subject to change as the parameters, needs, and existing conditions of the project formalize:

1. Cover sheet

2. Notes and conditions

3. Site plan

4. Existing conditions and demolition plan
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5. Tree protection plan (ISA Arborist reviewed)

6. Underground utilities plan

7. Grading and drainage plans

8. Erosion control plans

9. Horizontal control plan

10. Site finishes and furnishings plans

11. Enlargement plans (ex. playground, sport courts, fencing plans, etc.)

12. Irrigation plans and water use calculations

13. Planting plan

14. Electrical plans and Title 24 calculations

15. Construction details

16. Restroom/shade structure sections, plans, and details

17. Structural drawings /calculations for walls, footings, and details

18. Skate plaza design sheets

19. Building/structure drawings

20. Aquatic Center Wet play & pool drawings

21. As-built drawings as appropriate for reference

22. Updated construction quantities and estimates

23. Draft & final technical specifications (City will provide boilerplate specifications)

24. Draft & final storm water pollution prevention plan (SWPPP) & NPDES permit coordination

25. Stanislaus County Health Services Agency submittal package at 90% phase

2.3 Bid Package: Following the approval of the 100% PS&E drawings, the team will prepare a final bid package. The bid package will include:

1. Front end documents (provided by the City)

2. Stamped and signed cover sheet

3. Bid forms

4. Bid item descriptions

5. Final stamped and signed PS&E

6. Final stamped and signed technical specifications

7. Final cut sheets for important features and materials

8. Geotechnical Report

9. Structural package

10. Updated construction quantities and estimates
Deliverables:

1. Final Geotechnical Report in PDF format

2. Final structural design package in PDF format

3. 60%, 90%, & 100% drawings in PDF format and four hard copy full size drawing sets.

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5. Technical specifications TOC in PDF and Word formats

6. 60% & 90% updated project schedule with critical path milestones in PDF format

7. SWPPP document in PDF format

8. Final bid package in PDF format

9. Updated construction quantities and estimates
Task 3: Aquatic Center Branding & Promotional Materials

3.1 Marketing Campaign Development Meeting (Meeting #6): A meeting will be held between staff and the design team prior to completion of 90% PS&E to start the development of a marketing campaign to brand and promote the project. This meeting is crucial to determine what information should be included in the marketing campaign.

3.2 Marketing Campaign: The O’Dell team, led by a marketing professional, will develop a comprehensive marketing campaign designed to create interest in the project, build a client base, and generate revenue for the management and upkeep of the project. The campaign will be built on a model that provides a road map for existing City staff to implement and sustain the campaign. The campaign will include:

1. Targeted demographics

2. Strengths, Weaknesses, Opportunities, and Threats (SWOT) analysis

3. Similar project benchmarks

4. Schedules for roll-out

5. Project logo to tie all marketing materials together (and potentially for use on signs at the entry of the facility)

6. Recommendations and guidelines for digital media, printed media, and website media

3.3 Campaign Implementation: The O’Dell team will provide direction to staff on how to implement the campaign including a set of guidelines on optimal post scheduling (this should start before construction is complete to create interest in the community) for maximum exposure for each platform, methods for distribution of printed materials, and language for website updates. All marketing materials will be provided in Spanish & English (other languages also available if needed and upon request). The design team will not provide custom photography of the project, or custom images for the marketing toolkit. Any custom imagery, if desired, will be provided by the City. The following toolkit will be provided for staff to utilize during the implementation phase. Actual implementation phase of marketing campaign will not be provided (i.e. digital posting, distribution, etc.).

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1. 5.5” x 8.5” Digital file for printing of a grand opening flyer

2. Digital file for grand opening posting on social media sites

3. Digital file set for highlighting general information on social media sites

4. 5.5” x 8.5” Digital file for printing of a general informational flyer highlighting daytime uses of the Aquatic Center

5. 5.5” x 8.5” Digital file for printing of a general informational flyer highlighting birthday party and rental uses of the Aquatic Center

6. 5.5” x 8.5” Digital file for printing of a general informational flyer highlighting evening uses of the Aquatic Center
Deliverables:

1. Meeting agenda in PDF format

2. Meeting minutes in PDF format

3. Draft & final marketing campaign documents in PDF format

4. Campaign Toolkit
Task 4: Bidding / Construction Support
Bid Services & Project Management:

4.1 Bidding Support: O’Dell Engineering will perform bidding and contract award services to assist the City with selecting the appropriate contractors and product manufacturers. This task will be allowance based. Services up to the limits of the allowance may include the following:

1. Attend pre-bid meeting

2. Respond to RFIs

3. Prepare of Addenda and Transmittals (as needed)
Potential Deliverables:

1. Meeting agenda in PDF format

2. Meeting minutes in PDF format

3. RFI responses in PDF format

4. Plan revisions in PDF format

4.2 Construction Support: O’Dell Engineering will perform construction support services throughout the project’s completion utilizing the E-Builder platform.

This task will be allowance based. Services up to the limits of the allowance may include the following:

1. Attend pre-construction meeting (Meeting #7)

2. Review and approve Contractor’s schedule, RFIs, and submittals

3. Review change orders

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4. Playground safety audit by an in-house Certified Playground Safety Inspector

5. Review of damaged trees during construction and preparation of instructions for mitigation of damage

6. Review shop drawings and submittals

7. Prepare as-built drawings from contractor maintained field drawings

8. Construction observation site visits to review site finishes, at irrigation installation phase, for plant review and approval prior to planting, during playground installation, following structural installations but prior to final surface covering, a final punch list walk, etc. Includes the following site visits (Approximately six-(6) Meeting):
a) Skate plaza construction conformance site visits
b) Electrical construction conformance site visits
c) Architectural construction conformance site visits
d) Aquatic Center construction conformance site visits
e) Site progress visits to review rough grading, site finishes (concrete, sport surfacing, etc.), irrigation installation, for plant review and approval prior to planting, following playground retrofits, following structural installations but prior to final surface covering.

9. Make final review and report on completed projects (Meeting #14) Potential Deliverables:

1. Meeting minutes in PDF format

2. Submittal & RFI responses in PDF format

3. Site observation memos in PDF format

4. Supplemental instructions as needed in PDF

5. As-built drawings in PDF and AutoCAD format
Task 5: Reimbursables
O’Dell Engineering will request reimbursement for prints, posters, mileage and other reimbursable costs incurred.

Limitations and Understandings:

1. All governmental/regulatory fees to be provided by the City.

2. It is assumed that building permits for pre-manufactured structures will be deferred until construction and obtained by the contractor.

3. Does not include any adjustments to City standard details.

4. This scope does not include revisions to the plans due to site plan changes, and/or significant client requested changes at 90% submittal stage or later, including revisions due to bid results or resulting value engineering efforts.

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5. Does not include structural calculations for prefabricated structures, flag poles, walls less than 30” tall, or any related footings.

Project Schedule:

Anticipated milestones for this project are as follows:

Milestone Date
Award design contract November 2020
Design development (35%)
Design completion (60%)
Design completion (90%)
Design completion (100%)
Bid set submittal
February 2021
May 2021
July 2021
August 2021
September 2021
Proposed Compensation:

The following fees are based on the scope of work described previously in Exhibit “A”. Payments will be made on a monthly basis when portions of the tasks are completed. The monthly billing should include billable work hours at the Hourly Rates included in Exhibit “B”, any sub-consultant bills at the Hourly Rates included in Exhibit “B”, and verifiable documentation on any reimbursable expenses incurred.

Task #1 – Site Analysis/Data Collection & Review / $ 211,718.00 Design Development (not to exceed)

Task #2 – Construction Documentation (not to exceed) $ 459,178.00 Task #3 – Aquatic Center Branding & Promotional Materials $ 25,840.00 (not to exceed)
Task #4 – Bidding / Construction Support (not to exceed) $ 57,799.00 Task #5 – Reimbursables (not to exceed) $ 3,245.00
Total Contract Amount (not to exceed) $ 757,780.00
Additional Services (not to exceed) $ 37,889.00
Grand Total (not to exceed) $ 795,669.00
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EXHIBIT ‘B’

HOURLY RATES

CONSTRUCTION DOCUMENTATION FOR
CÉSAR E. CHAVEZ PARK RENOVATION PROJECT
The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved:

O’Dell Engineering
Landscape Engineer / Architect
Classification: Regular Hourly Rate:

Principal $215
Senior Civil Engineer $185
Senior Engineer 2 $175
Senior Engineer 1 $165
Engineer 2 $155
Engineer 1 $145
Assistant Engineer 2 $125
Assistant Engineer 1 $110
Senior Landscape Architect 2 $170
Senior Landscape Architect 1 $155
Landscape Architect 2 $135
Landscape Architect 1 $125
Landscape Designer 2 $115
Landscape Designer 1 $105
Dry Utility Project Manager 2 $150
Dry Utility Project Manager 1 $135
Utility Engineer $121
CADD Operator 2 $95
CADD Operator 1 $80
Senior Land Surveyor $180
Senior Surveyor 2 $165
Senior Surveyor 1 $150
Surveyor 2 $135
Surveyor 1 $125
Assistant Surveyor 2 $110
Assistant Surveyor 1 $100
Survey Crew 2-man (Prevailing Wage) $345
Administrative $90
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Outside Services & Reproduction: Actual cost plus 10%
Cost of services and expenses charged to O’Dell Engineering by outside consultants, commercial printers, and professional or technical firms engaged in connection with the project.

Travel: Actual cost plus 10%
Mileage, per diem, and subsistence are not normally charged to the client unless specific prior authorization is negotiated between client and consultant.

Aquatic Design Group:

Aquatic Designer
Classification: Regular Hourly Rate:

Principal $195
Project Architect / Engineer $175
Project Manager $155
Designer $110
Clerical $60
Red Inc.

Building Architect
Classification: Regular Hourly Rate:

Principal Architect $175
Senior Project Manager $125
Project Manager $110
Job Captain $95
Project Designer $85
Project Draftsman $75
Project Administrator $65
DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Spohn Ranch Skateparks
Skate Plaza Designer
Classification: Regular Hourly Rate:

Principal $150
Skatepark Designer $140
Project Manager $140
Drafter $90
Estimator $75
Civil Engineer $200
Structural Engineer $190
Rendering Artist $90
Administrative $65
Pezzoni Engineering
Electrical Engineer
Classification: Regular Hourly Rate:

Principal Engineer $210
Project Manager $180
Engineer $160
Senior Designer $140
Designer $110
CAD/BIM Specialist $90
Clerical $70
Crawford & Associates
Geotechnical Engineers
Classification: Regular Hourly Rate:

Principal $200
Project Manager $175
Senior Engineer/Geologist $155
Project Engineer II $145
Project Engineer I $135
Staff Engineer $115
Drafter $95
Project Assistant $70
DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Justin W. Capp Engineering & Design
Structural Engineering
Classification: Regular Hourly Rate:

Designer $125
Staff Engineer $145
Senior Designer $145
Structural Engineer $195

DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Attachment “A”
César E. Chavez Park Concept Master Plan

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CÉSAR E. CHAVEZ PARK, CONCEPT MASTER PLAN
PROPOSITION 68 GRANT APPLICATION Parks Planning and Development Division July 2019 MP

SOCCER FIELD
(U-12)
14,250 SQ. FT.

EXISTING MADDUX

YOUTH CENTER

SPLASH PARK/

AQUATIC CENTER

FITNESS

STATION

BASKETBALL
COURTS

SIERRA DRIVE

FITNESS

STATION

FITNESS

STATION

SKATE PLAZA POOL

EXISTING

PLAYGROUND
PICNIC

PAVILION

RESTROOM

DROP-OFF
ZONE
4TH STREET
3RD STREET

G STREET
N
STAGE
625 SQ. FT.

BUILDING

EXPANSION

EXCERISE WALKING PATHS

GROUNDWATER RECHARGE

BASIN, RAIN GARDEN

STREET-SIDE PARKING

STREET-SIDE PARKING
DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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Attachment “B”
Non-Discrimination Clause
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Non-Discrimination Clause
(To be included in Consultant Contract)

NON-DISCRIMINATION CLAUSE
During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.).

The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract.

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AGREEMENT TRANSMITTAL SHEET
Subject of Agreement:

Vendor Name: Division:

Contact Person: Extension:

Attorney Reviewer Name:

PINS Approval Business License
Council Agenda Report 700 Form (for Consultants)
Unsigned Resolution W-9
X
X - ON File N/A __ x
x
x
Frank Splendorio David Paladini 75339 O'Dell Engineering PRND, PPD Cesar E Chavez Park renovation Design Agreement DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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MODESTO CITY COUNCIL
RESOLUTION NO. 2020-474
RESOLUTION APPROVING AN AGREEMENT WITH O’DELL
ENGINEERING, INC., OF MODESTO, CA FOR THE PREPARATION OF CONSTRUCTION DOCUMENTATION (DESIGN) FOR CESAR E. CHAVEZ PARK RENOVATION PROJECT IN THE AMOUNT OF $757,780, PLUS $37,889

FOR ADDITIONAL SERVICES, IF NEEDED, FOR AN AGREEMENT TOTAL NOT TO EXCEED $795,669 AND AUTHORIZING THE CITY MANAGER, OR

HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the California State Department of Parks and Recreation received approximately $650 million in funding from Proposition 68 for this program and awarded grants totaling $250 Million in this round of funding toward park development and renovation, and
WHEREAS, on February 20, 2020,staff received notification from the California State Department of Parks and Recreation that the Cesar E. Chavez Park Renovation Project was selected for funding, and
WHEREAS, a Request for Proposals (RFP) for the project was issued on April 30, 2020, and proposals from 9 consultants were opened on June 10, 2020 pursuant to Administrative Directive 3.1, and
WHEREAS, the 4 most qualified firms were formally interviewed by a selection committee on June 18, 2020 and ranked by qualifications, and WHEREAS, based on the results of the RFP, staff recommends approval of an agreement with O’Dell Engineering Inc., of Modesto, CA to complete the Construction Documentation for the Construction Documentation (Design) for Cesar E. Chavez Park Renovation Project in the amount of $757,780, and
1 i /l0/2020/PRND,'NHoux/Item 15 1 2020-474
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WHEREAS, staff recommends a 10% additional services budget in the amount of $37,889 to allow for additional services change orders due to unforeseen conditions, delays or expenses for an agreement total not to exceed $795,669.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it approves an agreement with O’Dell Engineering, Inc., of Modesto, CA for the preparation of construction documentation (design) for Cesar E. Chavez Park Renovation Project in the amount of $757,780, plus $37,889 for additional services, if needed, for an agreement total not to exceed $795,669.

BE IT FURTHER RESOLVED, that the City Manager, or his designee, is authorized to execute the agreement in a form approved by the City Attorney. 11/10/2020/PRND/NHoux/Item 15 2 2020-474
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of November, 2020, by Councilmember Kenoyer, who moved its adoption, which motion being duly seconded by Councilmember Ridenour, was upon roll call carried and the resolution adopted by the following vote:

Councilmembers: Ah You, Grewal, Kenoyer, Madrigal, Ridenour, Zoslocki, Mayor Brandvold
AYES:

NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST:

STEPHANIE LOPEZ, City Clerk
(SEAL)
APPROVED AS TQsFORM:

BY:

SE M. SANCHEZ, CifyAttomey
11/10/2020/PRND/NHoux/Item 15 3 2020-474
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/

INFO CONTRACT NUMBER PROJECT NUMBER PROJECT NAME DEPARTMENT NAME PROJECT STATUS = e Cesar E Chavez Park Renovation Project Parks, Recreation and Neighborhoods General Liability
Manual Entry
06/21/2020 — 06/21/2021
Policy: PSB0003049
Insurer: RLI Indemnity Company
Automobile Liability
Manual Entry
06/21/2020 — 06/21/2021
Policy: PSA0002365
Insurer: RLI Indemnity Company
Excess
Manual Entry
06/21/2020 — 06/21/2021
Policy: PSE0001041
Insurer: RLI Indemnity Company
Workers Compensation
Manual Entry
09/01/2020 — 09/01/2021
Policy: PSW0001183
Insurer: RLI Indemnity Company
Professional/Liability
Manual Entry
06/21/2020 — 06/21/2021
Policy: PAAEP0112101
Insurer: Arch Insurance Company
Requirements Notes: 
Approved CariM 9/22/20
e O'Dell Engineering, Inc.

Overall Status: APPROVED

APPROVED 
Required Policies

Each Occurrence: $2,000,000
Fire Damage (any one fire): $1,000,000
Med.exp (any one person): $10,000
Personal/adv Injury: $2,000,000
General (Aggregate): $4,000,000
Products-comp/op Agg: $4,000,000
APPROVED 
Combined Single Limit (Ea Accident): $1,000,000
Bodily Injury (Per Person): $
Bodily Injury (Per Accident): $
Property: $
APPROVED 
Limit: $5,000,000
APPROVED 
E.L. Each Accident: $1,000,000
E.L. Disease - Ea Employee: $1,000,000
E.L. Disease - Policy Limit: $1,000,000
APPROVED 
Limit: $2,000,000
APPROVED 
Required Documents 
User Uploaded Documents 
Help
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Business License Confirmation 11.23.2020
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 10, 2020
Date: October 13, 2020
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods SUBJECT: Accept $8.5 Million in Proposition 68 Grant Funding, Approve Agreement with O’Dell Engineering for Design Services of César E. Chavez Park Renovation Project and amending the Fiscal Year 20/21 Capital Improvement Program Budget
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:

Consider accepting Proposition 68 Statewide Park Development and Community Revitalization Program - Round 3 Grant Award of $8,500,000; approving an Agreement with O’Dell Engineering, Inc., of Modesto, CA for the preparation of construction documentation (design) for César E. Chavez Park Renovation Project in the amount of $757,780, plus $37,889 for additional services, if needed, for an agreement total not to exceed $795,669; and amending the Fiscal Year 20/21 Capital Improvement Program Budget as outlined in Attachment A. (Funding Source: Statewide Park Development and Community Revitalization Program - Proposition 68) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

Proposition 68 (2018 Bond Act) originated as SB5, also known as The California Drought, Water, Parks, Climate, Coastal Protection, and Outdoor Access for All Act of 2018 and was passed by the voters in June of 2018. Proposition 68 authorized $4 billion in general obligation bonds for state and local parks, environmental protection and restoration projects, water infrastructure projects, and flood protection projects. The funding generated by the bonds was distributed to various state agencies to use or to administer grants to local agencies. One such program is the Statewide Park Development and Community Revitalization Program administered by California State Department of Parks and Recreation. This is a competitive program that focuses on creating new parks and recreation opportunities in critically underserved communities across California. The California State Department of Parks and DocuSign Envelope ID: 0CEB72C3-1D00-43BF-8241-67C777E16FFF #7..
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City Council, November 10, 2020
Accept $8.5 Million in Proposition 68 Grant Funding, Approve Agreement with O’Dell Engineering for Design Services of César E. Chavez Park Renovation Project and amending the Fiscal Year 20/21 Capital Improvement Program Budget

Page 2 of 4 ends

Safety and Communities CommitteeMay 8, 2023

Safety and Communities Committee
May 8, 2023