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:
The Project was advertised for bids on May 18, 2023. Bids were publicly opened on June 13, 2023, pursuant to City Charter Section 1307, and three bids were received. In accordance with Section 2.02.B of the City’s General Provisions, in order to ensure impartiality when selecting bid alternates, each bidder was assigned an identification letter for their submitted bid form by the City Clerk. The bidder's names associated with the bid packages received were not disclosed to the Parks, Recreation and Neighborhoods Department until they decided which bid alternates would be awarded.
Harris Builders, Inc, of Hilmar, CA, was determined to be the responsible bidder with the lowest responsive bid. The bid tabulation is attached and was based on the base bid plus the alternates selected (Alternate #1 and #3) in accordance with state law.
The bid analysis is:
Number of bids received 3
Number of bids within 10% of engineer’s estimate 0
Number of bids above the engineer’s estimate 3
Number of bids below the engineer’s estimate 0
Percent low bid is above the engineer’s estimate 122.89% Harris Builders, Inc., of Hilmar, CA, was 122.89% above the engineer’s estimate. The next lowest bid was 132.61% above the engineer’s estimate. All three of the bids were significantly above the engineer’s estimate. There were zero bids below the engineer’s estimate. The highest bid was 158.92% above the engineer’s estimate.
Bidder competition and participation was evident as the City received three bids and the bids were all close in value. Though all of the bids are significantly above the engineer’s estimate it is not unexpected since construction adjacent to the river has a high degree of uncertainty and is very difficult to accurately estimate. It is evident that the construction documents had a well-defined scope as the second lowest bid was less than 5% from the low bid. In addition, the high bid was only 16% from the lowest bid.
This is a very important project to the continued development of TRRP as a recreation destination and construction during the summer months is critical.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to be formally bid.
The award of contract for the construction of the TRRP Non-Motorized Boat Launch Project to Harris Builders Inc., of Hilmar, CA, conforms to Modesto Municipal Code, 8-
3.203. Therefore, staff recommends awarding the contract to Harris Builders Inc., of Hilmar, CA.
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, established a contract change order authority of 8% for construction contracts greater than #23..
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City Council, July 11, 2023
Construction Contract for the TRRP Non-Motorized Boat Launch Project located at Neece Drive
$1,000,000 but less than $10,000,000. Therefore, staff is requesting the Director’s Authority to issue change orders of 8% ($132,716) of the construction contract amount.
While the contingency policy is utilized for each construction contract awarded by the City, it is not written into each contract, nor is it a guaranteed amount included in the final compensation to the contractor. Prior to bidding a project, staff works diligently to ensure that all projects and bid packages contain well-defined scopes of work and that all projects stay within budget.
The permitting for the project requires the City to mitigate for the loss of 0.04 acres of critical fish habitat. Mitigation is required at a 3:1 ratio. The City is required to purchase
0.12 acres of In-Lieu Credits from the National Fish and Wildlife Foundation’s Sacramento District California In-Lieu Fee Program. The estimated cost of said mitigation is not expected to exceed $70,000. Staff is recommending approval of an estimated payment not to exceed $70,000 to the National Fish and Wildlife Foundation to mitigate for the loss of critical fish habitat due to the construction of the TRRP NonMotorized Boat Launch Project and authorization for the City Manager, or his designee, to sign all necessary documentation to secure the permits for the construction of this project.
FISCAL IMPACT:
Funding for this project is budgeted in the Capital Improvement Program account #101071 (TRRP Neece Drive Boat Launch). The project will require a budget adjustment allocating an additional $640,000 of TRRP Capital Improvement Plan (CIP) Funding and $800,000 of Parks and Air Quality Capital Facilities Fees (CFF) Funding to the project. The project’s revenue and expense budget shall be as outlined below:
Funding Sources for the project are outlined below:
Non-Motorized Boating Facilities Grant $ 780,000
TRRP CIP Fund $ 665,000
Parks & Air Quality CFF $ 800,000
PROJECT FUNDING SOURCES $2,245,000
Project Budget
Construction $1,658,955
Construction Administration – City Staff (8%) $ 132,716 Contingency (8%) $ 132,716
Purchase of In-Lieu Mitigation Credits $ 70,000
Additional Design Support – City Staff / Water Fees (2.2%) $ 37,040 Engineering/Design/Admin (previously spent/committed) $ 213,573 TOTAL ESTIMATED PROJECT COST $2,245,000
COMMITTEE RECOMMENDATION:
On April 4, 2022, this project was one of several CIPs presented to the Economic Development Committee for consideration in order to minimize the time between bidding and Council award.
CEQA/NEPA REQUIREMENTS:
The Neece Drive Boat Launch is identified and included in the TRRP Master Plan, Environmental Impact Report (EIR) adopted in 2007. Staff has prepared an Initial Study, #23..
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City Council, July 11, 2023
Construction Contract for the TRRP Non-Motorized Boat Launch Project located at Neece Drive
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 COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Plans and Specifications for the Tuolumne River Regional Park (TRRP) Non-Motorized Boat Launch Project located at Neece Drive, accepting the Bid and approving a Construction Contract with Harris Builders, Inc. of Hilmar, CA., in the amount of $1,658,955 plus $132,716 in contingency (if needed), for a total amount not to exceed $1,791,671 and authorizing the City Manager, or his designee, to execute the Contract.
Resolution approving a payment not to exceed $70,000, to the National Fish and Wildlife Foundation to mitigate for the loss of critical fish habitat due to the construction of the TRRP Non-Motorized Boat Launch Project and authorizing for the City Manager, or his designee, to sign all necessary documentation to secure the permits for the construction of this project.
Resolution amending the Fiscal Year 2023-2024 Capital Improvement Program Budget to fund Project #101071 (TRRP Neece Drive Boat Launch) in an amount not to exceed $1,440,000 in transfers, revenue, and to budget expenditures to fully fund the project, and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.
Approved by:
Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:
1. Resolution for Construction Contract – Machado & Sons Construction Inc.
2. Resolution for Purchase of In-Lieu Credits for loss of Critical Fish Habitat.
3. Resolution amending budget for FY23/24 for project #101071
4. Agreement – Harris Builders, Inc.
5. Bid Tabulation
6. Financial Interest Disclosure Form
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07/11/2023/PRN/NHoux/Item XX 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE PLANS AND SPECIFICATIONS FOR THE
TUOLUMNE RIVER REGIONAL PARK (TRRP) NON-MOTORIZED BOAT
LAUNCH PROJECT LOCATED AT NEECE DRIVE, ACCEPTING THE BID
AND APPROVING A CONSTRUCTION CONTRACT WITH HARRIS
BUILDERS, INC. OF HILMAR, CA., IN THE AMOUNT OF $1,658,955 PLUS $132,716 IN CONTINGENCY (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $1,791,671 AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE THE CONTRACT
WHEREAS, 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; and
WHERAS, 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; and WHEREAS, the Neece Drive 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; and
WHEREAS, 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 with Public Access Grant Program to design and construct a public access non-motorized boat launch and river access facility on the Tuolumne River; and
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07/11/2023/PRN/NHoux/Item XX 2 2023-XX
Whereas, 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; and
WHEREAS, the project was advertised for bids on May 18, 2023, bids were publicly opened on June 13, 2023, pursuant to City Charter Section 1307, and three bids were received; and
WHEREAS, bidder competition and participation were evident as the City received three bids and the bids were all close in value; and WHEREAS, it is evident that the construction documents had a well-defined scope as the second lowest bid was less than 5% from the low bid and the high bid was only 16% from the lowest bid; and
WHEREAS, Harris Builders, Inc., of Hilmar, CA, was determined to be the responsible bidder with the lowest responsive bid; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid; and
WHEREAS, the award of contract for the construction of Tuolumne River Regional Park (TRRP) Non-Motorized Boat Launch Project to Harris Builders Inc., of Hilmar, CA, conforms to Modesto Municipal Code, 8-3.203; and WHEREAS, staff recommends awarding the Contract to Harris Builders, Inc., of Hilmar, CA.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Plans and Specifications for the Tuolumne River Regional #23..
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07/11/2023/PRN/NHoux/Item XX 3 2023-XX
Park (TRRP) Non-Motorized Boat Launch Project located at Neece Drive, accepting the Bid and approving a Construction Contract with Harris Builders, Inc. of Hilmar, CA., in the amount of $1,658,955 plus $132,716 in contingency (if needed), for a total amount not to exceed $1,791,671.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the contract, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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07/11/23/PRN/NHoux/Item XX 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING A PAYMENT NOT TO EXCEED $70,000, TO THE
NATIONAL FISH AND WILDLIFE FOUNDATION TO MITIGATE FOR THE
LOSS OF CRITICAL FISH HABITAT DUE TO THE CONSTRUCTION OF THE
TRRP NON-MOTORIZED BOAT LAUNCH PROJECT AND AUTHORIZING
FOR THE CITY MANAGER, OR HIS DESIGNEE, TO SIGN ALL NECESSARY
DOCUMENTATION TO SECURE THE PERMITS FOR THE CONSTRUCTION
OF THIS PROJECT
WHEREAS, the City and TRRP want to encourage safe recreational use of the Tuolumne River by residents as well as establish an in-demand tourism destination; and WHERAS, 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; and WHEREAS, the Neece Drive 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; and
WHEREAS, the permitting for the project requires the City to mitigate for the loss of 0.04 acres of critical fish habitat and mitigation is required at a 3:1 ratio; and WHEREAS, the City is required to purchase 0.12 acres of In-Lieu Credits from the National Fish and Wildlife Foundation’s Sacramento District California In-Lieu Fee Program; and
WHEREAS, the estimated cost of said mitigation is not expected to exceed $70,000; and
WHEREAS, staff is recommending approval of an estimated payment not to #23..
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07/11/23/PRN/NHoux/Item XX 2 2023-XX
exceed $70,000 to the National Fish and Wildlife Foundation to mitigate for the loss of critical fish habitat due to the construction of the TRRP Non-Motorized Boat Launch Project.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a payment not to exceed $70,000, to the National Fish and Wildlife Foundation to mitigate for the loss of critical fish habitat due to the construction of the TRRP Non-Motorized Boat Launch Project.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to sign all necessary documentation to secure the permits for the construction of this project.
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07/11/23/PRN/NHoux/Item XX 3 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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07/11/2023/PRN/NHoux/Item XX 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2023-2024 CAPITAL
IMPROVEMENT PROGRAM BUDGET TO FUND PROJECT #101071 (TRRP NEECE DRIVE BOAT LAUNCH) IN AN AMOUNT NOT TO EXCEED $1,440,000
IN TRANSFERS, REVENUE, AND TO BUDGET EXPENDITURES TO FULLY
FUND THE PROJECT, AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO IMPLEMENT THE PROVISIONS OF THIS RESOLUTION WHEREAS, additional TRRP CIP funding of $640,000 must be allocated to fund a portion of the project; and
WHEREAS, Parks CFF funding of $800,000 must be allocated to fund a portion of the project; and
WHEREAS, the Fiscal Year 2023-2024 Capital Improvement Budget must be amended to increase Project 101071 – TRRP Neece Drive Boat Launch in a total amount of $1,440,000 to establish transfers, recognize revenue, and increase expenditures.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendments of the Fiscal Year 2023-2024 Capital Improvement Program Budget to fund project 101071 (TRRP Neece Drive Boat Launch) in an amount not to exceed $1,440,000 in transfers, revenue and to budget expenditures to fund the projects.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to take the necessary steps to implement the provisions of this resolution. #23..
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07/11/2023/PRN/NHoux/Item XX 2 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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Bid Tabulation Tuesday, June 20, 2023
Project Title: Tuolumne River Regional Park Non-Motorized Boat Launch Project
Project ID #: 2023-014
Vault ID #: 19-D-0374
Account #: 101071
Bid Opening: 6/13/2023 at 11:00 AM
Basis of Award: By Blind Bid Designer: O'Dell Engineering Design Manager: Jason Ortega
Project Description: The construction project will provide an accessible paved area to the proposed concrete boat launch ramp into the Tuolumne River.
Item # Item Description Units Quantity Unit Price Extension Low Bidder
Harris Builders, Inc.
(209) 664-9486 18736 Bloss Avenue, Hilmar, CA 95324
Base Bid
1 Mobilization and Demobilization LS 1 $58,500.00 $58,500.00 2 SWPPP Preparation, Implementation and LS 1 $15,960.00 $15,960.00 Maintenance (Erosion Control)
3 Temporary Construction Fence LF 2200 $2.20 $4,840.00
4 Temporary Tree Protection Fencing LF 500 $3.60 $1,800.00 5 Protecting Existing Underground Utilities LS 1 $600.00 $600.00 6 Earth Moving SF 101750 $3.09 $314,407.50
7 Excavation Support and Protection LS 1 $3,600.00 $3,600.00 8 Temporary Cofferdam (Installation and LS 1 $48,000.00 $48,000.00 Removal)
9 Temporary Pumping LS 1 $2,400.00 $2,400.00
10 Removal of Existing Concrete Driveway, LS 1 $7,891.20 $7,891.20 Gate & Bollards
11 Tree Removal EA 3 $1,753.60 $5,260.80
12 Clear and Grub SF 101750 $0.30 $30,525.00
13 Geosynthetics (RSP Fabric) SY 3000 $2.64 $7,920.00
14 Rock Slope Protection CY 435 $272.99 $118,750.65
15 Reinforcement Bars LB 17325 $0.50 $8,662.50
16 Articulated Concrete Mat LS 1 $30,000.00 $30,000.00
17 Aggregate Base Rock CY 560 $166.21 $93,077.60
18 Asphalt Paving TON 730 $330.00 $240,900.00
19 Concrete Sidewalk Pavement SF 2500 $11.39 $28,475.00 20 Concrete Vehicular Pavement SF 1745 $13.31 $23,225.95 21 Gravel Parking Lot SF 11955 $4.82 $57,623.10
22 16' Wide Concrete Boat Launch CY 110 $709.09 $77,999.90 23 12" Aggregate Base (Boat Launch) CY 94 $234.00 $21,996.00 24 ADA Concrete Ramps EA 5 $3,012.00 $15,060.00
25 Asphalt Edging LF 2070 $9.00 $18,630.00
26 6" Vertical Curb LF 373 $60.32 $22,499.36
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27 Valley Gutter Curb SF 205 $25.17 $5,159.85
28 Parking Bumpers EA 2 $1,380.00 $2,760.00
29 Pavement Marking and Signage LS 1 $12,043.20 $12,043.20 30 Entry Gate LS 1 $23,520.00 $23,520.00
31 Single Head Solar Light Fixture LS 1 $24,000.00 $24,000.00 32 Dual Head Solar Light Fixture LS 1 $26,400.00 $26,400.00 33 Park Monument Sign LS 1 $25,000.00 $25,000.00
34 Water Safety Information Kiosk LS 1 $37,827.41 $37,827.41 35 Revegetation with Native Seedling SF 31970 $0.54 $17,263.80 36 15 Gallon Trees EA 11 $492.00 $5,412.00
37 Irrigation System LS 1 $15,734.40 $15,734.40
38 Establishment and Maintenance - Three (3) EA 3 $2,160.00 $6,480.00 Months
39 Regulatory Requirements LS 1 $5,000.00 $5,000.00
40 Photo Documentation LS 1 $1,500.00 $1,500.00
41 Biological Monitoring LS 1 $8,640.00 $8,640.00
42 Archeological Monitoring LS 1 $6,000.00 $6,000.00
Subtotal: $1,481,345.22
Bid Alternate 1
101 Single Head Solar Light Fixture EA 4 $19,800.00 $79,200.00 Subtotal: $79,200.00
Bid Alternate 3
301 Railing and Barriers LF 2010 $48.96 $98,409.60
Subtotal: $98,409.60
Total: $1,658,954.82
Percent From Engineer's Estimate: 122.89%
B&M Builders Inc.
(916) 638-8626 11330 Sunrise Park Dr, Ste. C, Rancho Cordova, CA 95670 Base Bid
1 Mobilization and Demobilization LS 1 $50,000.00 $50,000.00 2 SWPPP Preparation, Implementation and LS 1 $25,000.00 $25,000.00 Maintenance (Erosion Control)
3 Temporary Construction Fence LF 2200 $5.00 $11,000.00 4 Temporary Tree Protection Fencing LF 500 $3.00 $1,500.00 5 Protecting Existing Underground Utilities LS 1 $5,000.00 $5,000.00 6 Earth Moving SF 101750 $2.00 $203,500.00
7 Excavation Support and Protection LS 1 $25,000.00 $25,000.00 8 Temporary Cofferdam (Installation and LS 1 $60,000.00 $60,000.00 Removal)
9 Temporary Pumping LS 1 $12,500.00 $12,500.00
10 Removal of Existing Concrete Driveway, LS 1 $10,000.00 $10,000.00 Gate & Bollards
11 Tree Removal EA 3 $3,300.00 $9,900.00
12 Clear and Grub SF 101750 $0.75 $76,312.50
13 Geosynthetics (RSP Fabric) SY 3000 $4.50 $13,500.00
14 Rock Slope Protection CY 435 $175.00 $76,125.00
15 Reinforcement Bars LB 17325 $3.00 $51,975.00
16 Articulated Concrete Mat LS 1 $10,000.00 $10,000.00
17 Aggregate Base Rock CY 560 $140.00 $78,400.00
18 Asphalt Paving TON 730 $140.00 $102,200.00
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19 Concrete Sidewalk Pavement SF 2500 $15.00 $37,500.00 20 Concrete Vehicular Pavement SF 1745 $18.00 $31,410.00 21 Gravel Parking Lot SF 11955 $3.00 $35,865.00
22 16' Wide Concrete Boat Launch CY 110 $1,200.00 $132,000.00 23 12" Aggregate Base (Boat Launch) CY 94 $150.00 $14,100.00 24 ADA Concrete Ramps EA 5 $4,500.00 $22,500.00
25 Asphalt Edging LF 2070 $10.00 $20,700.00
26 6" Vertical Curb LF 373 $38.00 $14,174.00
27 Valley Gutter Curb SF 205 $40.00 $8,200.00
28 Parking Bumpers EA 2 $175.00 $350.00
29 Pavement Marking and Signage LS 1 $35,000.00 $35,000.00 30 Entry Gate LS 1 $30,000.00 $30,000.00
31 Single Head Solar Light Fixture LS 1 $25,000.00 $25,000.00 32 Dual Head Solar Light Fixture LS 1 $27,500.00 $27,500.00 33 Park Monument Sign LS 1 $25,000.00 $25,000.00
34 Water Safety Information Kiosk LS 1 $45,000.00 $45,000.00 35 Revegetation with Native Seedling SF 31970 $0.50 $15,985.00 36 15 Gallon Trees EA 11 $250.00 $2,750.00
37 Irrigation System LS 1 $42,000.00 $42,000.00
38 Establishment and Maintenance - Three (3) EA 3 $2,500.00 $7,500.00 Months
39 Regulatory Requirements LS 1 $20,000.00 $20,000.00
40 Photo Documentation LS 1 $5,000.00 $5,000.00
41 Biological Monitoring LS 1 $30,000.00 $30,000.00
42 Archeological Monitoring LS 1 $25,000.00 $25,000.00
Subtotal: $1,474,446.50
Bid Alternate 1
101 Single Head Solar Light Fixture EA 4 $20,500.00 $82,000.00 Subtotal: $82,000.00
Bid Alternate 3
301 Railing and Barriers LF 2010 $87.00 $174,870.00
Subtotal: $174,870.00
Total: $1,731,316.50
Percent From Engineer's Estimate: 132.61%
Sinclair General Engineering Construction, Inc.
(209) 847-6100 P.O. Box 1453, Oakdale, CA 95361
Base Bid
1 Mobilization and Demobilization LS 1 $43,050.43 $43,050.43 2 SWPPP Preparation, Implementation and LS 1 $41,266.64 $41,266.64 Maintenance (Erosion Control)
3 Temporary Construction Fence LF 2200 $7.02 $15,444.00 4 Temporary Tree Protection Fencing LF 500 $5.57 $2,785.00 5 Protecting Existing Underground Utilities LS 1 $8,089.63 $8,089.63 6 Earth Moving SF 101750 $1.51 $153,642.50
7 Excavation Support and Protection LS 1 $13,884.45 $13,884.45 8 Temporary Cofferdam (Installation and LS 1 $195,084.82 $195,084.82 Removal)
9 Temporary Pumping LS 1 $119,793.24 $119,793.24
10 Removal of Existing Concrete Driveway, LS 1 $2,786.93 $2,786.93 Gate & Bollards
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11 Tree Removal EA 3 $3,143.65 $9,430.95
12 Clear and Grub SF 101750 $0.77 $78,347.50
13 Geosynthetics (RSP Fabric) SY 3000 $17.71 $53,130.00 14 Rock Slope Protection CY 435 $190.26 $82,763.10
15 Reinforcement Bars LB 17325 $2.25 $38,981.25
16 Articulated Concrete Mat LS 1 $57,364.52 $57,364.52
17 Aggregate Base Rock CY 560 $129.98 $72,788.80
18 Asphalt Paving TON 730 $127.74 $93,250.20
19 Concrete Sidewalk Pavement SF 2500 $13.06 $32,650.00 20 Concrete Vehicular Pavement SF 1745 $21.71 $37,883.95 21 Gravel Parking Lot SF 11955 $2.74 $32,756.70
22 16' Wide Concrete Boat Launch CY 110 $1,495.06 $164,456.60 23 12" Aggregate Base (Boat Launch) CY 94 $214.32 $20,146.08 24 ADA Concrete Ramps EA 5 $6,223.54 $31,117.70
25 Asphalt Edging LF 2070 $6.95 $14,386.50
26 6" Vertical Curb LF 373 $53.29 $19,877.17
27 Valley Gutter Curb SF 205 $67.16 $13,767.80
28 Parking Bumpers EA 2 $167.22 $334.44
29 Pavement Marking and Signage LS 1 $11,187.84 $11,187.84 30 Entry Gate LS 1 $26,576.13 $26,576.13
31 Single Head Solar Light Fixture LS 1 $22,295.41 $22,295.41 32 Dual Head Solar Light Fixture LS 1 $24,524.95 $24,524.95 33 Park Monument Sign LS 1 $14,722.68 $14,722.68
34 Water Safety Information Kiosk LS 1 $11,751.49 $11,751.49 35 Revegetation with Native Seedling SF 31970 $0.50 $15,985.00 36 15 Gallon Trees EA 11 $457.06 $5,027.66
37 Irrigation System LS 1 $14,616.87 $14,616.87
38 Establishment and Maintenance - Three (3) EA 3 $2,006.59 $6,019.77 Months
39 Regulatory Requirements LS 1 $9,475.55 $9,475.55
40 Photo Documentation LS 1 $8,531.23 $8,531.23
41 Biological Monitoring LS 1 $31,213.57 $31,213.57
42 Archeological Monitoring LS 1 $22,295.41 $22,295.41
Subtotal: $1,673,484.46
Bid Alternate 1
101 Single Head Solar Light Fixture EA 4 $18,393.71 $73,574.84 Subtotal: $73,574.84
Bid Alternate 3
301 Railing and Barriers LF 2010 $89.58 $180,055.80
Subtotal: $180,055.80
Total: $1,927,115.10
Percent From Engineer's Estimate: 158.92%
Engineer's Estimate
Base Bid
1 Mobilization and Demobilization LS 1 $19,000.00 $19,000.00 2 SWPPP Preparation, Implementation and LS 1 $15,000.00 $15,000.00 Maintenance (Erosion Control)
3 Temporary Construction Fence LF 2200 $3.00 $6,600.00
4 Temporary Tree Protection Fencing LF 500 $2.50 $1,250.00 5 Protecting Existing Underground Utilities LS 1 $1,500.00 $1,500.00 #23..
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6 Earth Moving SF 101750 $0.30 $30,525.00
7 Excavation Support and Protection LS 1 $10,175.00 $10,175.00 8 Temporary Cofferdam (Installation and LS 1 $50,000.00 $50,000.00 Removal)
9 Temporary Pumping LS 1 $30,000.00 $30,000.00
10 Removal of Existing Concrete Driveway, LS 1 $3,000.00 $3,000.00 Gate & Bollards
11 Tree Removal EA 3 $1,200.00 $3,600.00
12 Clear and Grub SF 101750 $0.15 $15,262.50
13 Geosynthetics (RSP Fabric) SY 3000 $5.00 $15,000.00
14 Rock Slope Protection CY 435 $75.00 $32,625.00
15 Reinforcement Bars LB 17325 $1.75 $30,318.75
16 Articulated Concrete Mat LS 1 $5,000.00 $5,000.00
17 Aggregate Base Rock CY 560 $55.00 $30,800.00
18 Asphalt Paving TON 730 $95.00 $69,350.00
19 Concrete Sidewalk Pavement SF 2500 $13.00 $32,500.00 20 Concrete Vehicular Pavement SF 1745 $17.50 $30,537.50 21 Gravel Parking Lot SF 11955 $1.50 $17,932.50
22 16' Wide Concrete Boat Launch CY 110 $600.00 $66,000.00 23 12" Aggregate Base (Boat Launch) CY 94 $55.00 $5,170.00 24 ADA Concrete Ramps EA 5 $2,000.00 $10,000.00
25 Asphalt Edging LF 2070 $2.00 $4,140.00
26 6" Vertical Curb LF 373 $25.00 $9,325.00
27 Valley Gutter Curb SF 205 $30.00 $6,150.00
28 Parking Bumpers EA 2 $200.00 $400.00
29 Pavement Marking and Signage LS 1 $8,000.00 $8,000.00 30 Entry Gate LS 1 $10,000.00 $10,000.00
31 Single Head Solar Light Fixture LS 1 $9,500.00 $9,500.00 32 Dual Head Solar Light Fixture LS 1 $10,500.00 $10,500.00 33 Park Monument Sign LS 1 $10,000.00 $10,000.00
34 Water Safety Information Kiosk LS 1 $5,000.00 $5,000.00 35 Revegetation with Native Seedling SF 31970 $0.24 $7,672.80 36 15 Gallon Trees EA 11 $230.00 $2,530.00
37 Irrigation System LS 1 $14,500.00 $14,500.00
38 Establishment and Maintenance - Three (3) EA 3 $750.00 $2,250.00 Months
39 Regulatory Requirements LS 1 $12,000.00 $12,000.00
40 Photo Documentation LS 1 $2,000.00 $2,000.00
41 Biological Monitoring LS 1 $5,000.00 $5,000.00
42 Archeological Monitoring LS 1 $4,000.00 $4,000.00
Subtotal: $654,114.05
Bid Alternate 1
101 Single Head Solar Light Fixture EA 4 $10,000.00 $40,000.00 Subtotal: $40,000.00
Bid Alternate 3
301 Railing and Barriers LF 2010 $24.97 $50,189.70
Subtotal: $50,189.70
Total: $744,303.75
#23..
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#23..
- 1351 -
#23..
- 1352 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 27, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Revised Spending Plan for Phase 1 ARPA funding allocated to the Tuolumne River Regional Park
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider approving the Parks, Recreation and Neighborhoods Department revised spending plan for the use of Phase 1 American Rescue Plan Act (ARPA) funds in the amount of $750,000 for Park Improvements in Tuolumne River Regional Park (TRRP). (Funding Source: American Rescue Plan Act Funding)
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:
In April 2021, President Biden signed into law the American Rescue Plan Act (ARPA), a $1.9 trillion emergency relief measure intended to address the economic hardships and negative impacts caused by the COVID-19 pandemic. The bill provides $45,897,056 available to the City of Modesto to help address the local impact of COVID-19. On May 25, 2021, by Resolution 2021-194, Council approved the Pandemic Recovery Strategy, Modesto Forward, and the associated spending plan for the first allocation of ARPA funding.
Based on the Final Rule released by the Treasury Department in January 2022, the Parks, Recreation and Neighborhoods Department evaluated the previously allocated funding and prepared a revised spending plan. On July 12, 2022, by Resolution 2022-307, said plan was approved by Council.
Included in the approved revised spending plan was $105,000 for Vegetation Management along Legion Park Drive, $175,000 for an update to the TRRP Master Plan, $120,000 for Parks Security Cameras in TRRP and $350,000 for the American Legion Hall Parking Lot Replacement Project. The Vegetation Management, TRRP Master Plan Update and Security Cameras in TRRP are either complete or on their way toward completion and are recommended #24..
- 1353 -
City Council, July 11, 2023
Revised Spending Plan for Phase 1 ARPA funding allocated to the Tuolumne River Regional Park
to remain as budgeted at this time. Unfortunately, on July 21, 2022, the American Legion Hall was heavily damaged by fire and the building was deemed a total loss. Since the building was in the floodway of the Tuolumne River, rebuilding it was not a feasible option and the building was demolished in January 2023.
DISCUSSION:
Since the $350,000 is allocated for a project located in the Tuolumne River Regional Park (TRRP), staff has reviewed the list of priority needs in TRRP and recommends the funds be reallocated to the renovation of the Picnic Area and Restroom Building in TRRP B which will encourage positive use of the park.
The TRRP Citizens Advisory Committee (CAC) and Commission considered the reallocation of ARPA funds and approved the new use of funds on January 25, 2023, and February 8, 2023, respectively.
FISCAL IMPACT:
Funding for the TRRP B Improvements is allocated to Capital Improvement Program (CIP) project #101432 – TRRP B – Picnic and Restroom EC. 2.22, in the TRRP Special Revenue Fund 6720.
CEQA/NEPA REQUIREMENTS:
City staff prepared a Notice of Exemption No. EA/PR&N 2022-01 and determined the project is categorically exempt from CEQA due to the fact that it is a replacement of an existing facility which has substantially the same purpose, is located at the same site and is not anticipated to significantly increase the use of the park. As well, ARPA Funded projects are not subject to NEPA review per the Treasury Department’s guidelines for use of these funds.
COMMITTEE RECOMMENDATION:
This item was reviewed by the Finance Committee on June 26, 2023, and recommended the item be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Parks, Recreation and Neighborhoods revised spending plan for the use of American Rescue Plan Act (ARPA) funds in the amount of $750,000 for Park Improvements in Tuolumne River Regional Park (TRRP) and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of this Resolution.
Approved by:
Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
#24..
- 1354 -
City Council, July 11, 2023
Revised Spending Plan for Phase 1 ARPA funding allocated to the Tuolumne River Regional Park
Attachments:
1. Resolution accepting revised spending plan
2. ARPA Phase 1 Revised Spending Plan for TRRP Projects #24..
- 1355 -
07/11/2023/PRN/NHoux/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE PARKS, RECREATION AND
NEIGHBORHOODS REVISED SPENDING PLAN FOR THE USE OF
AMERICAN RESCUE PLAN ACT (ARPA) FUNDS IN THE AMOUNT OF
$750,000 FOR PARK IMPROVEMENTS IN TUOLUMNE RIVER REGIONAL
PARK (TRRP) AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO TAKE THE NECESSARY STEPS TO IMPLEMENT THE
PROVISIONS OF THIS RESOLUTION
WHEREAS, in April 2021, President Biden signed into law the American Rescue Plan Act (ARPA) a $1.9 trillion emergency relief measure intended to address the economic hardships and negative impacts caused by the COVID-19 pandemic; and WHERAS, the bill provides $45,897,056 available to the City of Modesto to help address the local impact of COVID-19; and
WHERAS, on May 25, 2021, by Resolution 2021-194, Council approved the Pandemic Recovery Strategy, Modesto Forward, and the associated spending plan for the first allocation of ARPA funding; and
WHEREAS, based on the Final Rule released by the Treasury Department in January 2022, the Parks, Recreation and Neighborhoods Department evaluated the previously allocated funding and prepared a revised spending plan that was approved by Council on July 12, 2022, by Resolution 2022-307; and
WHEREAS, included in the approved revised spending plan was $105,000 for Vegetation Management along Legion Park Drive, $175,000 for an update to the TRRP Master Plan, $120,000 for Parks Security Cameras in TRRP and $350,000 for the American Legion Hall Parking Lot Replacement Project; and #24..
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07/11/2023/PRN/NHoux/Item X 2 2023-XX
WHEREAS, unfortunately, on July 21, 2022, the American Legion Hall was heavily damaged by fire and the building was deemed a total loss and demolished in January 2023; and
WHEREAS, the $350,000 is allocated for a project located in the Tuolumne River Regional Park (TRRP), staff has reviewed the list of priority needs in TRRP and recommends the funds be reallocated to the renovation of the Picnic Area and Restroom Building in TRRP B which will encourage positive use of the park; and WHEREAS, the TRRP Citizens Advisory Committee (CAC) and Commission considered the reallocation of ARPA funds and approved the new use of funds on January 25, 2023, and February 8, 2023, respectively; and WHEREAS, this item was considered by the Finance Committee on Monday, June 26, 2023 and was approved to be forwarded to Council for consideration.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the Parks, Recreation and Neighborhoods revised spending plan for the use of American Rescue Plan Act (ARPA) funds in the amount of $750,000 for park improvements in Tuolumne River Regional Park (TRRP).
BE IT FURTHER RESOLVED, that the City Manager, or his designee, are hereby authorized to carry out the necessary steps to implement the provisions of this resolution.
#24..
- 1357 -
07/11/2023/PRN/NHoux/Item X 3 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ,
CMC,
City Clerk
APPROVED AS TO FORM:
BY: ___________________________
JOSE M. SANCHEZ, City Attorney
#24..
- 1358 -
ARPA State and Local Fiscal Recovery Funds (SLFRF) Phase 1 Spending Plan for TRRP Improvements Park Improvement Description
Original
Allocation
Revised
Allocation
Timeline for
Completion ARPA Funding Category
TRRP
TRRP Master Plan Update / Economic
Development Strategy Plan $175,000 $175,000 Summer 2024 General ARPA Funds TRRP - Legion Park Area Vegetation Management in TRRP Legion Park Area
$105,000 $105,000 Complete
2. Negative Economic Impacts -Strong
Healthy Communities: Demolition and
Rehabilitation of
Properties (EC 2.23) - Backlogged
Maintenance to a Park in a Qualified
Census Tract
TRRP - Throughout 10 Park Security Cameras in TRRP $120,000 $120,000 Fall 2023
2. Negative Economic Impacts - Strong
Healthy Communities: Neighborhood
Features that Promote
Health and Safety (EC 2.22) - Capital
Expenditure to a Park in a Qualified
Census Tract
TRRP - Legion Hall
American Legion Hall Parking Lot Replacement
(approximately 40,000 SF parking area) and
Outdoor Improvements
$350,000 $0 Fall 2023
2. Negative Economic Impacts - Strong
Healthy Communities: Neighborhood
Features that Promote
Health and Safety (EC 2.22) - Capital
Expenditure to a Park in a Qualified
Census Tract
Renovation of TRRP Picnic Area B and
associated restroom building $0 $350,000 Summer 2024
2. Negative Economic Impacts - Strong
Healthy Communities: Neighborhood
Features that Promote
Health and Safety (EC 2.22) - Capital
Expenditure to a Park in a Qualified
Census Tract
Subtotal $750,000 $750,000
Tuolumne River - Economic Development Strategy intended to help improve the vitality of the River ($750,000 Total) TRRP - B Picnic Area
#24..
- 1359 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 27, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Playground Equipment Purchase for The Awesome Spot Playground CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider approving the purchase of playground equipment for The Awesome Spot Playground from Landscape Structures, Inc., of Delano, MN, for a total amount not to exceed $226,786. (Funding Source: American Rescue Plan Act Funding (ARPA)) 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:
In 2015, the community rallied together in support of designing an all-inclusive playground at Beyer Park. The desire was to build a playground that would be the first of its kind in the region, providing accessibility to people of all ages with a wide range of physical abilities to be able to play together side-by-side. Since that time, the project has been officially titled “The Awesome Spot Playground” (TASP) and construction documents were completed with the help of local design professionals.
TASP was born through the efforts of a group of residents who approached City staff regarding the development of an inclusive playground in Modesto. These residents organized into the TASP Team and have been working to raise funds for the project. On June 5, 2018, by Resolution No. 2018-191 Council approved a fiscal sponsorship agreement with Valley Mountain Regional Center (VMRC) to act as the non-profit sponsor of the project. VMRC is assisting TASP Team by allowing the use of their 501(c)3 status to pursue grants and receive charitable donations to support the development and long-term maintenance of the project.
On September 27, 2022, by Resolution No. 2022-397, Council approved the purchase of a Sensory Wall from Park Planet at a cost not to exceed $172,400. It was noted at the time that there would be future playground equipment purchases necessary to complete Phase 1 of the #25..
- 1360 -
City Council, July 11, 2023
Playground Equipment Purchase for The Awesome Spot Playground
project. This request is one of those future purchases and there will be additional requests from other manufacturers at a future date.
DISCUSSION:
The total estimated project budget is approximately $5.7 Million. To date, the TASP Team has received donations or pledges totaling approximately $2.3 Million. On July 14, 2022, the TASP team held a groundbreaking event for Phase 1 of the construction. Site demolition and grading began in July 2022, and the TASP team asked the City of Modesto to purchase play equipment elements for phase 1 of the playground. This purchase is for a portion of the play equipment with additional play equipment purchases necessary in the future.
On, May 25, 2023, the City Manager authorized the Purchasing Manager to solicit the procurement for the purchase of Playground Equipment for TASP. On November 10, 2020, Sourcewell issued Request for Proposals (RFP) # 010521 under Contract NO.010521-LSI for playground and water play equipment with related accessories and services advertised on the Sourcewell website,1 USA Today2, The Oregon Daily Journal3, The Public Group4, The state media company5, The New York state contract reporter6, Alberta Purchasing Connection7, and The Salt Lake Tribune8. On January 5, 2021, proposals were electronically opened, and the list of all Proposers was made publicly available in the Sourcewell Procurement Portal. Twenty-five (25) proposals were received and based on the Sourcewell Proposal review committee and criteria outlined in the RFP, six (6) contracts were awarded9 for this commodity which includes a portion of the playground equipment for TASP. Based on the responsive and responsible proposer offering the play equipment necessary for this project10, City staff recommends award to Landscape Structures, Delano, MN., to purchase playground equipment for an amount not to exceed $226,786.
Sourcewell is a cooperative agency which streamlines the procurement process by developing RFB’s or RFP’s for national competitive solicitations that meet or exceed local requirements. The competitive process is continually refined to best meet agency needs and allows Sourcewell to offer exceptional products from nationally acclaimed vendors.
Landscape Structures, Inc. was awarded contract #4-23-02-1051 effective February 23, 2023, through February 17, 2025. Through this contract, Landscape Structures has provided a quote for playground equipment for The Awesome Spot in the amount of $206,169.
In addition, due to fluctuating material cost, staff recommends Council approve a 10% contingency budget in the amount of $20,617 for a total cost not to exceed $226,786. 1 www.proportal.sourcewell-mn.gov
2 USA
3 The Oregon Daily Journal
4 www.publicpurchase.com
5 The state media company newspaper
6 The New York State Contract Reporter
7 www.rmalberta.com
8 Utah Media Group, The Salt Lake Tribune
9 BCI Burke Co, LLC, Landscape Structures, Play Power, Raindrop Products, LLC., Softsurfaces Inc and Waterplay Solutions.
10 Conformance to RFP Requirements, Financial Viability and Marketplace Success, Ability to Sell and Deliver Service, Marketing Plan, Value Added Attributes, Warranty, Depth and Breadth of Offered Equipment, Products, or Services, and Pricing.
#25..
- 1361 -
City Council, July 11, 2023
Playground Equipment Purchase for The Awesome Spot Playground
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services, to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set for in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality.” In addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California and other units of government in cooperative purchasing plans when the best cost savings interest of the City could be served. Both requirements were met based on the Competitive Bidding Process selected by Sourcewell/CMAS.
The installation of the play equipment is not included in the purchase price. The installation will be completed at no cost to the City by Harris Builders, Inc., a local contractor who has volunteered their time to serve as the general contractor for TASP. A memorandum of understanding was executed on July 18, 2022, which provides permission for Harris Builders, Inc. to act as the general contractor and construct TASP at Beyer Community Park.
FISCAL IMPACT:
Funding for this project is budgeted in the Capital Improvement Project #100984 (Awesome Spot Playground).
ESTIMATED CITY EXPENSES:
Playground Equipment $ 206,169
10% Contingency $ 20,617
Total Cost $ 226,786
COMMITTEE RECOMMENDATION:
This item was reviewed by the Finance Committee on June 26, 2023, and recommended the item be forwarded to Council for approval.
CEQA/NEPA REQUIREMENTS:
City staff prepared a Notice of Exemption No. EA/PR&N 2022-01 and determined the project is categorically exempt from CEQA due to the fact that it is a replacement of an existing facility which has substantially the same purpose, is located at the same site and is not anticipated to significantly increase the use of the park. As well, ARPA Funded projects are not subject to NEPA review per the Treasury Department’s guidelines for use of these funds.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Competitive Bidding Process from Sourcewell (formerly National Joint Powers Alliance) who completed the bid and the State of California Multiple Award Schedule (CMAS) with Landscape Structures, Inc. for the Purchase and Delivery of playground equipment for The Awesome Spot Playground at Beyer Community Park, for a total amount not to exceed $226,786, and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
#25..
- 1362 -
City Council, July 11, 2023
Playground Equipment Purchase for The Awesome Spot Playground
Approved by:
Laurie A. Smith, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Landscape Structures Purchasing Agreement, 4-23-02-1051
3. Landscape Structures, Inc. Quote
4. Scoring Abstract
#25..
- 1363 -
07/11/23/PRN/NHoux/Item X 1 2023-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE COMPETITIVE BIDDING PROCESS FROM
SOURCEWELL (FORMERLY NATIONAL JOINT POWERS ALLIANCE) WHO
COMPLETED THE BID AND THE STATE OF CALIFORNIA MULTIPLE
AWARD SCHEDULE (CMAS) WITH LANDSCAPE STRUCTURES, INC. FOR
THE PURCHASE AND DELIVERY OF PLAYGROUND EQUIPMENT FOR
THE AWESOME SPOT PLAYGROUND AT BEYER COMMUNITY PARK, FOR A TOTAL AMOUNT NOT TO EXCEED $226,786, AND AUTHORIZING THE
PURCHASING MANAGER, OR HER DESIGNEE, TO ISSUE THE PURCHASE ORDER
WHEREAS, in 2015, the community rallied together in support of designing an allinclusive playground at Beyer Park with the desire to build a playground that would be the first of its kind in the region, providing accessibility to people of all ages with a wide range of physical abilities to be able to play together side-by-side; and WHEREAS, since that time, the project has been officially titled “The Awesome Spot Playground” (TASP) and construction documents have been completed with the help of local design professionals; and
WHEREAS, on June 5, 2018, by Resolution No. 2018-191 Council approved a fiscal sponsorship agreement with Valley Mountain Regional Center (VMRC) to act as the non-profit sponsor of the project; and
WHEREAS, on September 27, 2022, by Resolution No. 2022-397, Council approved the purchase of a Sensory Wall from Park Planet at a cost not to exceed $172,400 and it was noted at the time that there would be future playground equipment purchases necessary to complete Phase 1 of the project; and
WHEREAS, this request is one of those future purchases and there will be additional requests from other manufacturers at a future date; and #25..
- 1364 -
07/11/23/PRN/NHoux/Item X 2 2023-XXX
WHEREAS, on, May 25, 2023, the City Manager authorized the Purchasing Manager to solicit the procurement for the purchase of Playground Equipment for TASP; and WHERAS, on November 10, 2020, Sourcewell issued Request for Proposals (RFP) # 010521 under Contract NO.010521-LSI for playground and water play equipment with related accessories and services advertised on the Sourcewell website, USA Today, The Oregon Daily Journal, The Public Group, The state media company, The New York state contract reporter, Alberta Purchasing Connection, and The Salt Lake Tribune; and WHEREAS, on January 5, 2021, proposals were electronically opened, and the list of all Proposers was made publicly available in the Sourcewell Procurement Portal; and WHERRAS, twenty-five (25) proposals were received and based on the Sourcewell Proposal review committee and criteria outlined in the RFP, six (6) contracts were awarded for this commodity which includes a portion of the playground equipment for TASP; and WHEREAS, based on the responsive and responsible proposer offering the play equipment necessary for this project, City staff recommends award to Landscape Structures, Delano, MN., to purchase playground equipment for an amount not to exceed $226,786; and WHEREAS, Landscape Structures, Inc. was awarded contract #4-23-02-1051 effective February 23, 2023, through February 17, 2025; and
WHEREAS, through this contract, Landscape Structures has provided a quote for playground equipment for The Awesome Spot in the amount of $206,169; and WHEREAS, in addition, due to fluctuating material cost, staff recommends Council approve a 10% contingency budget in the amount of $20,617 for a total cost not to exceed $226,786; and
#25..
- 1365 -
07/11/23/PRN/NHoux/Item X 3 2023-XXX
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid; however, exceptions to the formal bidding process are granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set for in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality”; and
WHEREAS, in addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California and other units of government in cooperative purchasing plans when the best cost savings interest of the City could be served and both requirements were met based on the Competitive Bidding Process selected by Sourcewell/CMAS.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the Competitive Bidding Process from Sourcewell (formerly National Joint Powers Alliance) who completed the bid and the State of California Multiple Award Schedule (CMAS) with Landscape Structures, Inc. for the Purchase and Delivery of playground equipment for The Awesome Spot Playground at Beyer Community Park, for a total amount not to exceed $226,786.
BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the purchase order.
#25..
- 1366 -
07/11/23/PRN/NHoux/Item X 4 2023-XXX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ,
CMC, City Clerk
APPROVED AS TO FORM:
BY: ___________________________
JOSE M. SANCHEZ, City Attorney
#25..
- 1367 -
Procurement Division
707 Third Street, 2nd Floor, MS #2-202
West Sacramento, CA 95605-2811
State of California
MULTIPLE AWARD SCHEDULE
NON-MANDATORY
Landscape Structures Inc. Categories Information
CMAS NUMBER: 4-23-02-1051
CMAS TERM DATES: 02/23/2023 through 02/17/2025
EFFECTIVE DATE: 02/23/2023
CMAS CATEGORY: Non-Information Technology Commodities
APPLICABLE CMAS
TERMS & CONDITIONS: January 20, 2022
MAXIMUM ORDER LIMIT:
State Agencies: See Purchasing Authority
Dollar Threshold provision
Local Government Agencies: Unlimited
FOR USE BY: State & Local Government Agencies
BASE SOURCEWELL #: 010521-LSI
BASE SOURCEWELL HOLDER: Landscape Structures Inc.
PROGRAM ANALYST Katelynne Leisenring
[email protected]
This California Multiple Award Schedule (CMAS) provides for the purchase, warranty, and installation of playground, shade, and splash play equipment for parks. (See page 3 for the restrictions applicable to this CMAS.) NOTICE: Products and/or services on this CMAS may be available on a Mandatory State Contract.
If this is the case, the use of this CMAS is restricted unless the State agency has an approved exemption as explained in the State Contract User Instructions. Information regarding State Contracts can be obtained at the: State Contracts Index Listing. This requirement is not applicable to local government agencies.
Any reference to a specific manufacturer’s or publisher’s warranty or terms and conditions as shown in the base contract are not applicable to this CMAS.
The services provided under this CMAS are only available in support of the products covered by this CMAS.
#25..
- 1368 -
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 2 State agencies cannot use this CMAS to purchase products available through the California Prison Industry Authority (CALPIA) without a one-time exemption from CALPIA. Agencies may request an exemption at the CALPIA website. A copy of the approved exemption must be kept with the purchase order in the procurement file for audit purposes.
The most current Ordering Instructions and Special Provisions, CMAS Terms and Conditions, and products and/or services are included herein. All purchase orders issued by State agencies shall incorporate these Ordering Instructions and Special Provisions and CMAS Terms and Conditions.
Agency non-compliance with the requirements may result in the loss of CMAS program delegated purchasing authority.
CMAS contractor non-compliance with the requirements may result in termination. #25..
- 1369 -
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 3
CMAS PRODUCT & SERVICE CODES
Product & Service Codes listed below are for marketing purposes only. Review the base contract for the products and/or services available.
Brand-Landscape Structures
Floor Cov-Sport Flooring
Floor Cov-Synthetic Turf
Outdoor-Benches
Outdoor-Bike Stand
Outdoor-Picnic Table
Outdoor-Waste Receptacle
Playground-Equip
Playground-Equip Shade
Playground-Surface Rubberized
Service-Equipment Installation
AVAILABLE PRODUCTS AND/OR SERVICES
This CMAS provides for the purchase, warranty, and installation of playground, shade, and splash play equipment for parks.
The ordering agency must verify all products and services are currently available on the base Sourcewell contract. To obtain the pricing for the contract, email Heidi Murray ([email protected]) or Joram Manka ([email protected]) and request the most up-to-date pricelist.
EXCLUDED PRODUCTS AND/OR SERVICES
Public works services for State Agencies, Landscape Structures custom quoted products, engineered drawings/structural calculations, and other miscellaneous related products and services are not available under this CMAS.
ISSUE PURCHASE ORDER TO
Agency purchase orders must be sent to the following:
Landscape Structures Inc.
601 7th Street South
Delano, MN 55328
Attn: Elaine Harkess
E-mail: [email protected]
#25..
- 1370 -
CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 4 Agencies with questions regarding products and/or services may contact the CMAS contractor as follows:
Contact: Elaine Harkess
Phone: (763) 972-5243
E-mail: [email protected]
Website: https://www.playlsi.com/
TOP 500 DELINQUENT TAXPAYERS
In accordance with Public Contract Code (PCC) 10295.4, and prior to placing an order for non-IT goods and/or services, agencies must verify with the Franchise Tax Board and the California Department of Tax and Fee Administration that this CMAS contractor’s name does not appear on either list of the 500 largest tax delinquencies pursuant to Revenue and Taxation Code 7063 or 19195. The Franchise Tax Board’s list of Top 500 Delinquent Taxpayers is available at their website. The California Department of Tax and Fee Administration’s list of Top 500 Sales & Use Tax Delinquencies in California is available at their website.
CALIFORNIA SELLER’S PERMIT
The CMAS contractor’s California Seller’s Permit Number is 030655800. Prior to placing an order with this company, agencies must verify that this permit is still valid at the California Department of Tax and Fee Administration website.
MINIMUM ORDER LIMITATION
There is no minimum dollar value limitation on orders placed under this CMAS.
CMAS PRICES
The maximum prices allowed for the products and/or services available are those set forth in the base contract.
The ordering agency is encouraged to seek prices lower than those in the base contract. When responding to an agency’s Request for Offer (RFO), the CMAS contractor can offer lower prices to be competitive.
PRICE DISCOUNTS
This CMAS contains significant price discounts off the manufacturer’s list price and dollar volume discounts. See the base contract for the specific discount percentage. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 5 EXECUTIVE ORDER N-6-22 – RUSSIA SANCTIONS
On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide Contractor advance written notice of such termination, allowing Contractor at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State.
DARFUR CONTRACTING ACT
This CMAS contractor has certified compliance with the Darfur Contracting Act, per PCC 10475. It is the agency’s responsibility to verify that the contractor has a Darfur Contracting Act Certification on file.
IRAN CERTIFICATION
This CMAS contractor has certified compliance with the Iran Contracting Act, per PCC 2001-2008.
It is the agency’s responsibility to verify that the contractor has an Iran Contracting Act Certification on file.
CALIFORNIA CIVIL RIGHTS LAW CERTIFICATION
Pursuant to PCC 2010 applicants must certify their compliance with the California Civil Rights laws and Employer Discriminatory Policies (Civil Code 51, GC 12960). It is the agency’s responsibility to verify that the contractor has a California Civil Rights Law Certification on file.
WARRANTY
For warranties, see the base contract and the CMAS Warranty provision in the CMAS Terms and Conditions/General Provisions.
DELIVERY
As negotiated between agency and CMAS contractor and included in the purchase order.
LIQUIDATED DAMAGES FOR LATE DELIVERY
The value of the liquidated damages cannot be a penalty, must be mutually agreed upon by agency and contractor and included in the purchase order to be applicable. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 6
SHIPPING INSTRUCTIONS
F.O.B. (Free On Board) Destination. Seller pays the freight charges.
PURCHASING AUTHORITY DOLLAR THRESHOLD
Order limits for the purchase of goods and/or services is determined by the individual agency purchasing authority threshold.
No CMAS order may be executed by a State agency that exceeds that agency’s purchasing authority threshold, unless an exemption is granted by the Department of General Services (DGS) Purchasing Authority Unit (PAU). State agencies with approved purchasing authority, along with their dollar thresholds can be obtained at the List of State Departments with Approved Purchasing Authority website.
HOW TO USE CMAS
State agencies must adhere to the requirements in the State Contracting Manual (SCM) Volume 2, Chapter 1600 and CMAS Ordering Instructions and Special Provisions when using CMAS. • Develop an RFO, which includes a Scope of Work (SOW) and Bidder Declaration form. For information on the Bidder Declaration requirements see SCM, Volume 2, Sections 305 and 1202.
• Clearly defined Tasks (what needs to be done) and Deliverables (outcome of each task, i.e., reports, procedures manual, etc.) must be included in the State’s SOW. • For Consulting or Personal services, do not include any labor categories/job titles or number of hours limit in RFO Requirements or the SOW. The CMAS Contractor provides this information in their Attachment B Cost Worksheet. The State does not have the expertise to make this decision (GC 19130(b)).
• Search for potential CMAS contractors on the CMAS website and select “Find a CMAS Contractor.”
• Request offers from a minimum of 3 CMAS contractors including one small business (SB) and/or Disabled Veteran Business Enterprise (DVBE), if available, who are authorized to sell the products and/or able to perform the services needed. (Government Code 14846(b)). • A valid attempt must be made to secure offers from viable CMAS contractors who are able to supply the goods and/or provide the services. Neither a lack of sufficient CMAS contractors nor the use of restrictive requirements meets the intent for obtaining offers (SCM Volume 2, Section 1670.2).
• If requesting offers from a certified DVBE, include the Disabled Veteran Business Enterprise Declarations form (Standard 843) in the RFO. This declaration must be completed by the DVBE prime contractor and/or any DVBE subcontractors and submitted with the offer (SCM Volume 2, Section 1201).
• This is not a bid transaction, so the small business preference, DVBE incentives, protest language, intent to award, evaluation criteria, advertising, Administrative and Technical Requirements, etc. are not applicable. (SCM Volume 2, Section 1603). #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 7 • If less than 3 offers are received, State agencies must document their file with the reasons why the other suppliers did not respond with an offer. The reason must come from the CMAS contractor.
• Assess the offers received using best value criteria including cost as one of the criteria (SCM Volume 2, Section 1603).
• Issue a Purchase Order to the selected CMAS contractor. • For CMAS transactions under $10,000, only one offer is required if the State agency can establish and document that the price is fair and reasonable. The fair and reasonable method can only be used for non-customizable purchases. See SCM Volume 2, Section 1510 for Fair and Reason criteria.
Local agencies must follow their own procurement regulations. For more information see the Local Agency packet available online.
AGENCY RESPONSIBILITY
Each agency is responsible for its own contracting program and purchasing decisions, including use of the CMAS program and associated outcomes. This responsibility includes, but is not limited to, ensuring the necessity of the services, securing appropriate funding, complying with laws and policies, preparing the purchase order in a manner that safeguards the State’s best interests, obtaining required approvals, and documenting compliance with GC 19130.b(3) for outsourcing services.
It is the responsibility of each agency to consult with their legal staff and contracting offices for advice depending upon the scope or complexity of the purchase order. If legal services are not available within your agency, DGS Office of Legal Services is available to provide services.
CONFLICT OF INTEREST
Agencies must evaluate the proposed purchase order to determine if there are any potential conflict of interest issues. See the CMAS Terms and Conditions, Conflict of Interest, for more information.
SPLITTING ORDERS
Splitting orders to avoid any monetary limitations is prohibited. Do not circumvent normal procurement methods by splitting purchases into a series of delegated purchase orders per PCC 10329. Splitting a project into small projects to avoid either fiscal or procedural controls is prohibited per State Administrative Manual (SAM) 4819.34.
This provision does not apply to local government agencies. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 8
ORDERING PROCEDURES
1. Purchase Orders
All Ordering Agency purchase order documents executed under this CMAS must contain the applicable CMAS number as show on page 1.
a. State Departments:
Standard 65 Purchase Documents – State departments not transacting in FISCal must use the Purchasing Authority Purchase Order (Standard 65) for purchase execution. An electronic version of the Standard 65 is available at the Department of General Services (DGS), Procurement Division (PD) website, select Standard (STD) Forms.
FISCAL Purchase Documents – State departments transacting in FISCal will follow the FISCal procurement and contracting procedures.
b. Local Government Agencies:
Local government agencies may use their own purchase order document for purchase execution.
The agency is required to complete and distribute the purchase order. For services, the agency shall modify the information contained on the order to include the service period (start and end date), the monthly cost (or other intermittent cost), and any other information pertinent to the services. The cost for each line item must be included in the order, not just system totals.
The contractor must immediately reject purchase orders that are not accurate. Discrepancies are to be negotiated and incorporated into the purchase order prior to product delivery and service implementation.
2. Service and Delivery after CMAS Expiration
The purchase order must be issued before the CMAS expires. However, delivery of the products or completion of the services may be after the CMAS expires (unless otherwise specifically stated in the purchase order). Amending the purchase order to add quantity, time, or money is not possible if the CMAS expired.
3. Multiple CMAS Agreements on a Single Purchase Order
State agencies wishing to include multiple CMAS agreements on a single FISCal purchase order must adhere to the following guidelines:
• All CMAS must be for the same CMAS contractor.
• The purchase order must go to one contractor location. • Enter the word “CMAS” in the space reserved for the Leveraged Procurement Agreement (LPA) number. The word “CMAS” signifies that the purchase order contains items from multiple CMAS agreements. The purchasing agency may only use one bill code. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 9 • For each individual CMAS, the agency must identify and group together the CMAS number with the line items and subtotal per CMAS number (do not include tax in the subtotal), and sequentially identify each individual CMAS as Sub #1, Sub #2, Sub #3, etc. This facilitates accurate billing of administrative fees by the Procurement Division. • The total of all items on the purchase order must not exceed the State agency’s purchasing authority dollar threshold granted by DGS PAU.
• Do not combine items from IT and non-IT CMAS agreements. An Information Technology CMAS begins with the number “3” and a non-IT CMAS begins with the number “4.” The purchase order limits are different for these CMAS agreements.
4. Amendments to State Agency's Purchase Orders
Agency purchase orders cannot be amended if the CMAS has expired.
SCM, Volume 2, Section 1605 provides the following directions regarding amendments to all types of LPA purchase orders:
Original orders, which include options for changes (e.g., quantity or time), that were assessed and considered in the selection for award during the RFO process, may be amended consistent with the terms of the original order, provided that the original order allowed for amendments. If the original order did not evaluate options, then amendments are not allowed unless an Non-Competitively Bid is approved for those amendments.
Amendments unique to Non-IT Services:
If the original contract permitted amendments, but did not specify the changes, (e.g., quantity or time), it may be amended. Per PCC 10335 (d)(1), a contract may only be amended once under this exemption. The time shall not exceed one year, or add not more than 30 percent of the original order value and may not exceed $250,000. If the original contract did not have language permitting amendments, the Non-Competitively Bid process must be followed.
CMAS CONTRACTOR OWNERSHIP INFORMATION
The CMAS contractor is a large business enterprise.
SMALL BUSINESS MUST BE CONSIDERED
Prior to placing orders under the CMAS program, State agencies must first consider offers from small businesses that have established CMAS agreements (GC 14846(b)). NOTE: DGS auditors will request substantiation of compliance with this requirement when agency files are reviewed.
CMAS Small Business and Disabled Veteran Partners can be found on the CMAS website by selecting “Find a CMAS Contractor”.
In response to our commitment to increase participation by small businesses, the Department of General Services waives the administrative fee (charged to customer agencies to support the CMAS program) for orders to California certified small business enterprises. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 10
SMALL BUSINESS/DVBE - TRACKING
State agencies are able to claim subcontracting dollars towards their SB or DVBE goals whenever the CMAS contractor subcontracts a commercially useful function to a certified SB or DVBE. The CMAS contractor will provide the ordering agency with the name of the SB or DVBE used and the dollar amount the ordering agency can apply towards its SB or DVBE goal.
SMALL BUSINESS/DVBE - SUBCONTRACTING
1. The amount an ordering agency can claim towards achieving its SB or DVBE goals is the dollar amount of the subcontract award made by the CMAS contractor to each SB or DVBE.
2. The CMAS contractor will provide an ordering agency with the following information at the time the order is quoted:
a. The CMAS contractor will state that, as the prime contractor, it shall be responsible for the overall execution of the fulfillment of the order.
b. The CMAS contractor will indicate to the ordering agency how the order meets the SB or DVBE goal, as follows:
i. List the name of each company that is certified by the Office of Small Business and DVBE Services that it intends to subcontract a commercially useful function to; and ii. Include the SB or DVBE certification number of each company listed and attach a copy of each certification; and
iii. Indicate the dollar amount of each subcontract with a SB or DVBE that may be claimed by the ordering agency towards the SB or DVBE goal; and iv. Indicate what commercially useful function the SB or DVBE subcontractor will be providing towards fulfillment of the order.
3. The ordering agency’s purchase order must be addressed to the prime contractor, and the purchase order must reference the information provided by the prime contractor as outlined above.
CONTRACTORS ACTING AS FISCAL AGENTS ARE PROHIBITED
When a subcontractor ultimately provides all of the products or performs all of the services that a CMAS contractor has agreed to provide, and the prime contractor only handles the invoicing of expenditures, then the prime contractor's role becomes that of a fiscal agent because it is merely administrative in nature and does not provide a Commercially Useful Function. It is unacceptable to use fiscal agents in this manner because the agency is paying unnecessary administrative costs.
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 11 WITHHOLD LANGUAGE (SB588)
Upon delivery or completion of ordered goods or services for which the Contractor committed to DVBE subcontractor participation, state departments must require the Contractor to certify all the following:
1. The amount and percentage of work the Contractor committed to provide to one or more DVBEs under the requirements of the contract and the amount each DVBE received from the Contractor.
2. That all payments under the contract have been made to the DVBE. Upon request, the Contractor must provide proof of payment for the work.
In accordance with the Military and Veterans Code 999.7, state departments shall withhold $10,000 from the final payment, or the full final payment if less than $10,000, if the Contractor fails to meet the certification requirements identified above. State departments shall notify the Contractor of their failure to meet the certification requirements and give the Contractor an opportunity to comply with the certification requirements. If after 30 calendar days from the date of notice, the Contractor refuses to comply with the certification requirements, the state department shall permanently deduct $10,000 from the final payment or the full payment if less than $10,000.
PRODUCT SUBSTITUTIONS
Substitution of Deliverables may not be tendered without advance written consent of the Buyer.
The Contractor must offer an equivalent or newer model of the product from the same manufacturer at the same or lower price. Contractor cannot use any specification in lieu of those contained in the Contract without written consent from the Buyer.
NEW EQUIPMENT REQUIRED
The State will procure new equipment. All equipment must be new (or warranted as newly manufactured) and the latest model in current production. Used, shopworn, demonstrator, prototype, or discontinued models are not acceptable.
Where Federal Energy Management Program (FEMP) standards are available, all State agencies shall purchase only those products that meet the recommended standards. All products displaying the Energy Star label meet the FEMP standards.
SPECIAL MANUFACTURED GOODS
Any CMAS for goods to be manufactured by the CMAS contractor specifically for the State and not suitable for sale to others may require progress payments.
For a Non-IT goods CMAS, see the CMAS Non-IT Commodities Terms and Conditions, Provision 69, Progress Payments.
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 12
TRADE-IN EQUIPMENT
Trade-ins at open market price may be considered. The product description and trade-in allowance must be identified on the purchase order.
Agencies are required to adhere to SAM 3520 through 3520.6, Disposal of Personal Property and Surplus Personal Property, as applicable, when trade-ins are considered. A Property Survey Report, Standard 152, must be submitted for approval prior to disposition of any State owned personal property, including general office furniture regardless of the acquisition value, or if the property was recorded or capitalized for accounting purposes.
STATE AGENCY BUY RECYCLED CAMPAIGN
State ordering agencies are required to report purchases made within the eleven product categories in the California Department of Resources Recycling and Recovery’s State Agency Buy Recycled Campaign per PCC 12200 through 12217.
Contractor will be required to complete and return a Recycled-Content Certification form upon request by the state ordering agency.
ACCEPTANCE TESTING CRITERIA
If the agency wants to include acceptance testing for all newly installed technology systems, individual equipment, and machines which are added or field modified (modification of a machine from one model to another) after a successful performance period, the test criteria must be included in the purchase order to be applicable.
PRODUCT INSTALLATION
The CMAS contractor is fully responsible for all installation services performed under the CMAS.
Product installations must be performed by manufacturer authorized personnel and meet manufacturer documented specifications.
The prime contractor, as well as any subcontractors, must hold any certifications and/or licenses required for the project.
PUBLIC WORKS (INSTALLATION SERVICES ONLY)
A public works contract is defined as an agreement for “the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind” in accordance with PCC 1101. State agencies planning these types of projects need to review SCM, Volume 1, Chapters 10 and 11 for applicable guidelines and regulations. Visit the DGS, Real Estate Services Division (RESD) website if you have questions about public works transactions.
Local Agency CMAS purchase orders may allow for public works installation only when it is in support of the products covered by this CMAS.
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 13 Agencies are to ensure that the applicable laws and codes pertaining to the contractor and subcontractor licensing, prevailing wage rates, bonding, labor code requirements, etc. are adhered to by the prime contractor as well as any subcontractor during performance under the CMAS purchase order.
The bond amount for public works is not less than 100% of the purchase order price.
NOTE: In accordance with Labor Code (LC) 1773.2, the ordering agency is responsible for determining the appropriate craft, classification or type of worker needed for any contract for public works. Also, the agency is to specify the applicable prevailing wage rates as determined by the Director of the Department of Industrial Relations (DIR). In lieu of specifying the prevailing wage rates, the agency may include a statement on the order that the prevailing wage rates are on file at the agency’s office and will be made available upon request. The prevailing wage rates are available from DIR at www.dir.ca.gov (select Statistics & Research).
Bonds: For guidelines, see CMAS, General Terms and Conditions, Public Works Requirements.
State Contractor’s License: Public works services can be obtained through CMAS only if incidental to the overall purchase order. If incidental public works services are included in the purchase order, prior to issuing the order agencies should visit the State Contractor’s License Board website to verify that the Contractor’s License shown below is still active and in good standing.
The CMAS contractor’s California Contractor's License number is 840892. This is a Class A General Engineering, B General Building, D-12 Synthetic Products, and D-34 Prefabricated Equipment (Furniture) license that is valid through 06/30/2024.
NOT SPECIFICALLY PRICED ITEMS
The only time that open market/incidental, non-schedule items may be included in a CMAS order is when they fall under the parameters of the Not Specifically Priced (NSP) Items provision.
CMAS contractors must be authorized providers of the hardware, software and/or services they offer under the NSP Items provision.
Agency and CMAS contractor use of the NSP provision is subject to the following requirements:
1. Purchase orders containing only NSP items are prohibited.
2. A purchase order containing NSP items may be issued only if it results in the lowest overall alternative to the State.
3. NSP items shall be clearly identified in the order. Any product or service already specifically priced and included in the base contract may not be identified as an NSP item. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 14
4. NSP Installation Services: The CMAS contractor is fully responsible for all installation services performed under the CMAS. Product installations must be performed by manufacturer authorized personnel and meet manufacturer documented specifications. The prime contractor, as well as any subcontractors, must hold any certifications and/or licenses required for the project. The total dollar value of all installation services included in the purchase order cannot exceed the dollar value of the products included in the purchase order, nor can they exceed the NSP Maximum Order Limitation.
5. Maximum Order Limitation: For orders $250,000, or less, the total dollar value of all NSP items included in a purchase order shall not exceed $5,000. For orders exceeding $250,000, and at the option of the contractor, the total dollar value of all NSP items in a purchase order shall not exceed 5% of the total cost of the order or $25,000 whichever is lower.
6. An NSP item included in an order issued against this CMAS is subject to all of the terms and conditions set forth in the CMAS.
7. Trade-ins, upgrades, involving the swapping of boards, are permissible, where the contract makes specific provisions for this action. In those instances, where it is permitted, the purchase order must include the replacement item and a notation that the purchase involves the swapping of a board.
The following NSP items are specifically excluded from any order issued under this CMAS:
1. Items not intended for use in direct support of the priced items included in the same order.
An NSP item must be subordinate to the specifically priced item that it is supporting. For example, a cable, which is not otherwise specifically priced in the base contract, is subordinate to a specifically priced printer and is eligible to be an NSP item subject to that cable meeting the remaining NSP requirements. However, a printer that is not otherwise specifically priced in the base contract, is not subordinate to a specifically priced cable and is not eligible to be an NSP item.
2. Supply type items, except for the minimum amount necessary to provide initial support to the priced items included in the same order.
3. Items that do not meet the Productive Use Requirements for information technology products, per Statewide Information Management Manual Section 195.
4. Any other item or class of items specifically excluded from the scope of this CMAS.
5. Public Works and other services NOT in support of the products covered by this CMAS.
6. Products or services the CMAS contractor is NOT factory authorized or otherwise certified or trained to provide.
7. Follow-on consultant services that were previously recommended or suggested by the same CMAS contractor.
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 15 The CMAS contractor is required to reject purchase orders containing NSP items that do not comply with the above requirements. The CMAS contractor will promptly notify the agency issuing the noncompliant order of its rejection and the reasons for its rejection.
STATE AND LOCAL GOVERNMENTS CAN USE CMAS
State and local government agency use of CMAS is optional. A local government is any city, county, city and county, district, or other local governmental body or corporation, including Universities of California, California State Universities, K-12 schools, and community colleges empowered to expend public funds. While the State makes this CMAS available, each local government agency should make its own determination whether the CMAS program is consistent with its procurement policies and regulations.
PCC 10298 allows any city, county, city and county, district, or other local governmental body or corporation empowered to expend public funds to contract with suppliers awarded CMAS without further competitive bidding. See complete PCC 10298 language at the California Legislative Information website.
PCC 10299 allows any school district empowered to expend public funds to utilize CMAS without further competitive bidding. See complete PCC 10299 language at the California Legislative Information website.
SELF-DELETING BASE CONTRACT TERMS AND CONDITIONS
Instructions or terms and conditions that appear in the Special Items or other provisions of the base contract and apply to the purchase, license, or rental (as applicable) of products or services by the US Government in the United States and/or to any overseas location shall be self-deleting. (Example: "Examinations of Records" provision).
Federal regulations and standards, such as Federal Acquisition Regulation, Federal Information Resources Management Regulation, Federal Information Processing Standards, General Services Administration Regulation, or Federal Installment Payment Agreement shall be self-deleting.
Federal blanket orders and small order procedures are not applicable.
ORDER OF PRECEDENCE
The CMAS Terms and Conditions take precedence if there is a conflict between the terms and conditions of the contractor's base contract, packaging, invoices, catalogs, brochures, technical data sheets, or other documents (see CMAS Terms and Conditions, CONFLICT OF TERMS).
APPLICABLE CODES, POLICIES AND GUIDELINES
All California codes, policies, and guidelines are applicable. The use of CMAS does not relieve state agencies of their responsibility to meet statewide requirements regarding contracting or the procurement of goods or services. Most procurement and contract codes, policies, and guidelines are incorporated into CMAS agreements; however, there is no guarantee that every requirement that pertains to all State processes has been included. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 16
PAYMENTS AND INVOICES
1. Payment Terms
Payment terms for this CMAS are net 45 days.
Payment will be made in accordance with the provisions of the California Prompt Payment Act, GC 927. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than 45 days after (1) the date of acceptance of goods or performance of services; or (2) receipt of an undisputed invoice, whichever is later.
2. Payee Data Record (Standard 204)
State Agencies must obtain a copy of the Payee Data Record (Standard 204) in order to process payments. State Ordering Agencies must forward a copy of the Standard 204 to their accounting offices. Without the Standard 204, payment may be unnecessarily delayed. State Agencies should contact the CMAS contractor for copies of the Payee Data Record.
3. DGS Administrative and Incentive Fees
Orders from State Agencies:
DGS will bill each State agency directly an administrative fee for use of CMAS. The administrative fee should NOT be included in the order total or remitted before an invoice is received from DGS. This administrative fee is waived for CMAS purchase orders issued to California certified small businesses.
Orders from Local Government Agencies:
CMAS contractors, who are not California certified small businesses, are required to remit to DGS an incentive fee equal to a percentage of the total of all local government agency orders (excluding sales tax and shipping) placed against their CMAS.
The incentive fee is waived for CMAS purchase orders issued to California certified small businesses.
For more information on the incentive fees see the CMAS Management Guide. #25..
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 17
4. Contractor Invoices
Unless otherwise stipulated, the CMAS contractor must send their invoices to the agency address set forth in the purchase order. Invoices shall be submitted in triplicate and shall include the following:
• CMAS number
• Agency purchase order number
• Agency Bill Code (State Only)
• Line item number
• Unit price
• Extended line item price
• Invoice total
State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.
The company name on the CMAS, purchase order and invoice must match, or the State Controller’s Office will not approve payment.
5. Advance Payments
Advance payment is allowed for services only under limited, narrowly defined circumstances, i.e., between specific departments and certain types of non-profit organizations, or when paying another government agency (GC 11256 through 11263 and 11019).
It is NOT acceptable to pay in advance, except software maintenance and license fees, which are considered a subscription and may be paid in advance if a provision addressing payment in advance is included in the purchase order.
Software warranty upgrades and extensions may also be paid for in advance, one time.
6. Credit Card
The CMAS contractor does not accept the State of California credit card (VISA CAL-Card).
7. Leasing/Financing
California State Agencies should use the Golden State Financial Marketplace (GS SMart) program for all financing and leasing needs. California Local Government Agencies (counties, cities, K-12 school districts, community colleges, California State Universities, Universities of California, etc.) may utilize the GS SMart program for financing and leasing according to PCC 14937. The minimum dollar amount for Local Government Agency financing and leasing is $100,000.
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CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
LANDSCAPE STRUCTURES INC.
CMAS NUMBER 4-23-02-1051
December 09, 2022 Ordering Instructions and Special Provisions 18
8. Lease/Purchase Analysis
California State agencies must complete a Lease/Purchase Analysis (LPA) to determine best value when contemplating a lease/rental and retain a copy for future audit purposes (SAM 3710).
For short-term rental equipment, the lease/purchase analysis must be approved by DGS Office of Legal Services.
The lease/purchase analysis for all other purchases must be approved by the Department of General Services, GS SMart State Financial Marketplace. Buyers may contact the GS SMart Unit via e-mail at [email protected] for further information.
9. Leasing
The State reserves the right to select the form of payment for all procurements, whether it is an outright purchase with payment rendered directly by the State, or a financing/lease-purchase or operating lease via the State Financial Marketplace (GS SMart and/or Lease SMart). If payment is via the financial marketplace, the CMAS contractor will invoice the State and the State will approve the invoice. The selected Lender/Lessor for all product listed on the State’s procurement document will pay the supplier on behalf of the State. Buyers may contact the GS SMart Unit via e-mail at [email protected] for further information.
OBTAINING COPY OF CMAS
A copy of this CMAS can be obtained at Cal eProcure. Links to the CMAS terms and conditions and base contract are available on the front page of this CMAS agreement.
It is important for the agency to confirm that the required products, services, and prices are included in the CMAS and are at or below base contract rates. To streamline verification that the needed items are in the base contract, the agencies should ask the CMAS contractor to identify the specific location in the base contract that include the required products, services, and prices.
Once verified, agencies should save the information for their file documentation.
FEDERAL DEBARMENT
When federal funds are expended, the agency is required to obtain (retain in file) a signed “Federal Debarment” certification from the CMAS contractor before the purchase order is issued. This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, 29 CFR Part 98, Section 98.510, Participants; responsibilities. The regulations were published as Part VII of the May 26, 1988 Federal Register (pages 19160-19211).
CONTRACTOR TRAVEL
The Travel provision is not applicable to this CMAS.
AMERICANS WITH DISABILITY ACT
To view the DGS Accessibility Policy, please visit the DGS website. #25..
- 1385 -
Est Lead Time Check with Sales Rep
Quote Exp Date 5/31/2023
Quote Date 5/10/2023
Modesto, California
United States
Ship To
Ship To Name Awesome Spot Playground
ALL PURCHASE ORDERS, CONTRACTS, AND
CHECKS TO BE MADE OUT TO:
LANDSCAPE STRUCTURES, INC.
601 7TH STREET SOUTH
DELANO, MN 55328 U.S.A.
763-972-3391 800-328-0035
Fax: 763-972-3185
Quote Name Awesome Spot 2-5 Play Area
Quote Number 00040365
City of Modesto Finance
Atten: Accounts Payable
P.O. Box 642
Modesto, California 95353-0642
United States
Bill To
Bill To Name City of Modesto
CMAS Contract #4-23-02-1051
CMAS Proposal
$206,168.89
[email protected]
707.736.6897
00040365
Ross Recreation Equipment, Inc.
Alex Hailey
Thank you for the opportunity to quote your
upcoming project. PLEASE NOTE: Quote does
SIGNATURE BELOW ACCEPTING THIS PROPOSAL WILL
CONSTITUTE A PURCHASE ORDER ONLY UPON APPROVAL BY
Total $206,168.89
Freight Amount $24,555.41
Labor Amount $1,080.00
Tax Amount $14,716.28
Materials Amount $165,817.20
Quantity Product Product Description Sales
Price Total Price
1.00 Independents-LSI Landscape Structures Freestanding Welcome Sign for Ages 2-5 (without LSI logo) $670.00 $670.00
2.00 Custom LSI
Independents Landscape Structures Antelope Spring Rider $2,925.00 $5,850.00
1.00 Custom LSI
Independents Landscape Structures 80" Hillside Rollerslide $26,086.00 $26,086.00
1.00 Custom LSI
Independents Landscape Structures 80" Custom Hillside Double Stainless Steel Slide $29,260.00 $29,260.00
1.00 158106A Landscape Structures Chatter Noodle Talk Tube $2,660.00 $2,660.00
1.00 Custom LSI
Independents
Landscape Structures Custom 86" Hillside Stainless Steel Tunnel Slide w/ View Tube Window $31,125.00 $31,125.00
1.00 LSI Skyways Landscape Structures Skyways Joined Sails Design w/ 10 columns + 8 HDPE Fabric tops, entries 8'-20' $84,585.00 $84,585.00
1.00 Engineering Fees
Structural Engineering Calculations for Skyways Joined Sail Shade only. May take 4-6 weeks to complete engineering. Soils report is helpful if available, but not required.
Customer must approve before fabrication can begin. Revisions to engineering calculations may require a change order. Lead time for equipment/materials will not begin until receipt of approved engineering to ensure proper manufacturing per engineering specifications.
$1,080.00 $1,080.00
1.00 CMAS LSI
Discount
CMAS LSI Discount
CMAS Contract #4-23-02-1051 -$5,407.05 -$5,407.05
1.00 CMAS Ross
Discount CMAS Ross Discount -$9,011.75 -$9,011.75
Notes to Customer
#25..
- 1386 -
Est Lead Time Check with Sales Rep
Quote Exp Date 5/31/2023
Quote Date 5/10/2023
Modesto, California
United States
Ship To
Ship To Name Awesome Spot Playground
ALL PURCHASE ORDERS, CONTRACTS, AND
CHECKS TO BE MADE OUT TO:
LANDSCAPE STRUCTURES, INC.
601 7TH STREET SOUTH
DELANO, MN 55328 U.S.A.
763-972-3391 800-328-0035
Fax: 763-972-3185
Quote Name Awesome Spot 2-5 Play Area
Quote Number 00040365
City of Modesto Finance
Atten: Accounts Payable
P.O. Box 642
Modesto, California 95353-0642
United States
Bill To
Bill To Name City of Modesto
CMAS Contract #4-23-02-1051
CMAS Proposal
$206,168.89
[email protected]
707.736.6897
00040365
Ross Recreation Equipment, Inc.
Alex Hailey
not include installation, offload, payment and
performance bonds, engineering calculations,
security, storage, permits, inspection or safety
surfacing, unless otherwise noted. Unless noted,
freight costs are based on semi-truck access and
do not include a lift-gate.
Deposits may be required before an order can
be placed depending on customer credit terms.
Your purchase is subject to the terms and
conditions of this quote. Approval of this quote
agrees to those terms.
If ordering materials after the quoted expiration
date, please contact your sales representative
for current pricing. Due to material cost
increases and a fluid pricing environment, Ross
Recreation cannot hold pricing past the stated
Expiration Date on this quote. To secure current
pricing, Ross Recreation will require the
following:
- PO, signed quote or contract with approval for
the order.
- Deposit if required by credit terms.
- Color selections and/or approved submittals.
- Acceptance of delivery when materials or
equipment is ready to ship. Products cannot be
held nor stored.
Sales tax will be based on the current rate at the
time of shipping, not the order date. Customer
will be expected to cover these, or any changes,
to sales taxes.
Signature _________________________________
Name ____________________________________
Title _____________________________________
Date _____________________________________
LANDSCAPE STRUCTURES, INC. CUSTOMER RECEIPT OF AN
ORDER ACKNOWLEDGEMENT CONSTITUTES SUCH
APPROVAL.
#25..
- 1387 -
ABC WATER PRODUCTS
INC AquaWorx, Inc. BCI Burke Company, LLC
Berliner Seilfabrik Play
Equipment Corporation
Columbia Cascade
Company CXT Inc Ecore International
Henderson Recreation
Equipment Limited Industrial Shadeports Inc.
Keystone Ridge Designs,
Inc. Landscape Structures Inc. North West Rubber PlayPower Possible Points
Conformance to RFP
Requirements 50 32 39 42 37 37 35 37 41 35 43 44 41 43
Pricing 400 322 335 329 278 308 344 323 322 334 336 330 325 342Financial Viability andMarketplace Success 75 49 54 66 54 51 61 60 57 52 62 66 56 68Ability to Sell and Deliver Service 100 69 81 83 71 65 78 78 78 65 81 83 80 87
Marketing Plan 50 36 42 43 35 37 39 38 37 38 42 43 37 44Value Added Attributes 75 45 59 65 57 57 63 60 61 62 63 67 56 67Warranty 50 42 43 44 42 39 38 40 44 43 42 42 41 43Depth and Breadth of Offered Equipment,Products, or Services 200 156 155 166 147 148 123 141 154 135 144 177 138 178 Total Points 1,000 751 808 838 721 742 781 777 794 764 813 852 774 872Rank Order 20 10 5 23 22 14.5 16 13 19 8 2 17 1 Prophet Corp.
Public Restroom
Company Raindrop Products LLC Rubbercycle LLC RyͲLecia Corp Saris Cycling Group SofSurfaces, Inc The Fountain People The Recreational Group TLMV Inc dba American
Fence Company Vortex USA Waterplay Solutions
Possible Points
Conformance to RFP
Requirements 50 42 38 41 37 36 36 43 36 41 37 41 44
Pricing 400 332 316 343 330 259 328 333 311 346 307 299 341 Financial Viability and
Marketplace Success 75 58 62 64 60 51 56 62 60 57 49 64 64 Ability to Sell and Deliver
Service 100 78 73 83 80 60 74 85 76 76 62 84 82
Marketing Plan 50 44 43 45 36 30 40 44 40 42 37 43 43
Value Added Attributes 75 62 61 66 60 34 60 65 58 58 52 62 67 Warranty 50 45 43 43 43 37 41 46 43 42 42 40 42
Depth and Breadth of
Offered Equipment,Products, or Services 200 158 130 166 151 136 115 148 157 147 134 166 164 Total Points 1,000 819 766 851 797 643 750 826 781 809 720 799 847 Rank Order 7 18 3 12 25 21 6 14.5 9 24 11 4
Kim Austin, MBA, CPPB, Procurement Lead Analyst Michael Muñoz, CPPB, Procurement Analyst Carol Jackson, Procurement Analyst Beverly Hoemberg, Procurement Analyst Proposal Evaluation
Playground and Water Play Equipment with Related Accessories and Services RFP #010521
#25..
- 1388 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 21, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Second Amendment for On-Call Vegetation Management Services with West Coast Arborists, Inc.
CONTACT: Nathan Houx, Parks Planning and Development Manager, [email protected], 209-571-5526
DESCRIPTION:
Consider approving a Second Amendment to the Annual Agreement with West Coast Arborists, Inc., of Anaheim, CA for the Furnishing of On-Call Vegetation Management Services for the Parks, Recreation and Neighborhoods Department and Public Works Department for a one-time increase of $600,000 to year two of the Agreement for a year two total of $1,200,000, and for a total revised amount not to exceed $2,200,000 over the term of the Agreement. (Funding Source:
Measure H)
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:
In 2020, the Parks, Recreation and Neighborhoods Department, working in conjunction with other departments, identified a citywide need to establish a comprehensive on-call vegetation management agreement with a professional service provider. The establishment of an On-Call Vegetation Management Services Agreement enables the City to better manage vegetation throughout the park system, increase efficiency in response to weather related damage, reduce the risks of vegetation fires and increase public safety throughout the City.
On September 28, 2021, by Resolution 2021-379, Council approved the award of bid to West Coast Arborists, Inc., of Anaheim, CA as the primary contractor for the furnishing of On-Call Vegetation Management Services for an estimated annual amount of $250,000, a total amount not to exceed $1,250,000 over five-years.
On April 11, 2023, by Resolution 2023-172, Council approved a first amendment to the agreement with West Coast Arborists, Inc., of Anaheim, CA for a one-time increase of $350,000 to year two of the agreement, for a year two total of $600,000, and for a total revised amount not to exceed $1,600,000 over the term of the agreement.
#26..
- 1389 -
City Council, July 11, 2023
Second Amendment for On-Call Vegetation Management Services with West Coast Arborists, Inc.
DISCUSSION:
Since the approval of the first amendment, Council approved the budget for fiscal year 2023-2024 (June 6, 2023, per Council Resolution 2023-266). Included in the budget is $1,500,000 in Measure H funding for tree trimming. Half of this funding was allocated to address deferred tree trimming of street trees and the other half was allocated to address deferred tree trimming in City parks.
Staff anticipates it will take about four (4) months to prepare, advertise and award a tree trimming agreement for both the street tree and parks deferred tree trimming. As a result, staff requests a one-time increase of $600,000 to year two of the current agreement with West Coast Arborists, Inc. for On-Call Vegetation Management Services. This will allow staff the ability to immediately begin addressing the deferred tree trimming throughout the City while at the same time preparing a tree trimming contract to specifically address this need. The addition of $600,000 will increase year two of the agreement to $1,200,000 and will increase the five-year total for the agreement to a new not to exceed amount of $2,200,000.
It is anticipated that $250,000 will be used to focus on the highest priority street trees in the City with a focus on the La Loma Neighborhood and the Modesto Junior College Neighborhood which had the highest branch failure in Modesto over the past year. The remaining $350,000 will be used to focus on the highest priority park trees which are mostly in central and northwest Modesto parks.
FISCAL IMPACT:
The one-time increase of $600,000 to the agreement will be funded by Measure H funds (0160- 56041-53300) and will be expended as outlined below:
Deferred Street Tree Trimming $250,000
Deferred Park Tree Trimming $350,000
$600,000
The remaining $900,000 of Measure H funding approved by the City Council in the Fiscal Year 2023-2024 budget and any future funding approved for deferred tree trimming will be expended using a new tree trimming agreement. This new agreement is anticipated to come before the City Council for approval in fall 2023. No additional funding beyond what is currently budgeted is requested at this time.
COMMITTEE RECOMMENDATION:
This item was not presented to a Council Committee.
CEQA/NEPA REQUIREMENTS:
The project is exempt from CEQA since it is maintenance of existing trees.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a Second Amendment to the Annual Agreement with West Coast Arborists, Inc., of Anaheim, CA for the Furnishing of On-Call Vegetation Management Services for the Parks, Recreation and Neighborhoods Department and Public Works Department for a one-time #26..
- 1390 -
City Council, July 11, 2023
Second Amendment for On-Call Vegetation Management Services with West Coast Arborists, Inc.
increase of $600,000 to year two of the Agreement for a year two total of $1,200,000, and for a total revised amount not to exceed $2,200,000 over the term of the Agreement and authorizing the City Manager, or his designee, to execute the Amendment.
Approved by:
Laurie A. Smith, Director
Parks, Recreation & Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Second Amendment to the West Coast Arborists, Inc. Agreement
3. First Amendment to the West Coast Arborists, Inc. Agreement
4. Original Agreement with West Coast Arborists, Inc.
#26..
- 1391 -
07/11/2023/PRN/NHoux/Item XX 1 2023-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING A SECOND AMENDMENT TO THE ANNUAL
AGREEMENT WITH WEST COAST ARBORISTS, INC., OF ANAHEIM, CA
FOR THE FURNISHING OF ON-CALL VEGETATION MANAGEMENT
SERVICES FOR THE PARKS, RECREATION AND NEIGHBORHOODS
DEPARTMENT AND PUBLIC WORKS DEPARTMENT FOR A ONE-TIME
INCREASE OF $600,000 TO YEAR TWO OF THE AGREEMENT FOR A YEAR TWO TOTAL OF $1,200,000, AND FOR A TOTAL REVISED AMOUNT NOT TO EXCEED $2,200,000 OVER THE TERM OF THE AGREEMENT AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE AMENDMENT
WHEREAS, in 2020, the Parks, Recreation and Neighborhoods Department, working in conjunction with other departments, identified a citywide need to establish a comprehensive on-call vegetation management agreement with a professional service provider; and
WHEREAS, on September 28, 2021, by Resolution 2021-379, Council approved the award of bid to West Coast Arborists, Inc., of Anaheim, CA as the primary contractor for the furnishing of On-Call Vegetation Management Services for an estimated annual amount of $250,000, a total amount not to exceed $1,250,000 over five-years; and WHEREAS, on April 11, 2023, by Resolution 2023-172, Council approved a first amendment to the agreement with West Coast Arborists, Inc., of Anaheim, CA for a onetime increase of $350,000 to year two of the agreement, for a year two total of $600,000, and for a total revised amount not to exceed $1,600,000 over the term of the agreement; and
WHEREAS, since the approval of the first amendment, on June 6, 2023, per Council Resolution 2023-266, Council approved the fiscal year 2023-2024 budget which included $1,500,000 in Measure H funding for tree trimming; and #26..
- 1392 -
07/11/2023/PRN/NHoux/Item XX 2 2023-XX
WHEREAS, Staff anticipates it will take about four (4) months to prepare, advertise and award a tree trimming agreement for both the street tree and parks deferred tree trimming; and
WHEREAS, as a result, staff requests a one-time increase of $600,000 to year two of the current agreement with West Coast Arborists, Inc. for On-Call Vegetation Management Services; and
WHEREAS, this will allow staff the ability to immediately begin addressing the deferred tree trimming throughout the City while at the same time preparing a tree trimming contract to specifically address this need; and WHEREAS, it is anticipated that $250,000 will be used to focus on the highest priority street trees in the City with a focus on the La Loma Neighborhood and the Modesto Junior College Neighborhood which had the highest branch failure in Modesto over the past year; and
WHEREAS, the remaining $350,000 will be used to focus on the highest priority park trees which are mostly in central and northwest Modesto parks.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves a second amendment to the Annual Agreement with West Coast Arborists, Inc., of Anaheim, CA for the furnishing of on-call vegetation management services for the Parks, Recreation and Neighborhoods Department and Public Works Department for a one-time increase of $600,000 to year two of the agreement for a year two total of $1,200,000, and for a total revised amount not to exceed $2,200,000 over the term of the Agreement.
#26..
- 1393 -
07/11/2023/PRN/NHoux/Item XX 3 2023-XX
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the Amendment, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
#26..
- 1394 -
1 SECOND AMENDMENT TO ANNUAL AGREEMENT FOR ON-CALL VEGETATION
MANAGEMENT SERVICES
THIS SECOND AMENDMENT to the ANNUAL AGREEMENT FOR ON-CALL VEGETATION MANAGEMENT SERVICES (“SECOND AMENDMENT”), made and entered into in the City of Modesto, County of Stanislaus, State of California, this _____ day of , 2023, by and between the CITY OF MODESTO, a
municipal corporation of the State of California ("CITY") and WEST COAST ARBORISTS, INC., Anaheim, CA, hereinafter collectively referred to as "CONTRACTOR".
This SECOND AMENDMENT to AGREEMENT is made with reference to the following recitals:
A. An Annual Agreement for On-Call Vegetation Management Services (“AGREEMENT”) was entered into by and between CITY and CONTRACTOR on the 28TH day of September 2021.
B. A First Amendment to AGREEMENT was entered into by and between CITY and CONTRACTOR on the 11th day of April 2023 to increase the annual total maximum compensation for year two from $250,000 to $600,000 and a total not to exceed amount of $1,600,000, to cover additional vegetation management services.
C. CITY and CONTRACTOR desire to once again amend the provisions of the AGREEMENT to increase the annual total maximum compensation for year two from $600,000 to $1,200,000 and a total not to exceed amount of $2,200,000 over five-years, to cover additional vegetation management services.
NOW, THEREFORE, the parties hereto mutually agree to the following:
1. The first sentence of Section 1 (f), “Scope of Work” of the AGREEMENT is deleted and #26..
- 1395 -
2 replaced in its entirety to read as follows:
“CONTRACTOR shall furnish said services at the following agreement rates, estimated amount of $250,000 annually, except in year two which will be at the estimated amount of $1,200,000, for a total not to exceed $2,200,000 over five-years.
2. Except as modified and amended by this SECOND AMENDMENT, all other provisions of the AGREEMENT, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the CITY, a Municipal Corporation, has authorized the execution of this SECOND AMENDMENT to AGREEMENT 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 WEST COAST ARBORISTS, INC., has caused this Second Amendment to Agreement to be duly executed. #26..
- 1396 -
1 FIRST AMENDMENT TO ANNUAL AGREEMENT FOR ON-CALL VEGETATION
MANAGEMENT SERVICES
THIS FIRST AMENDMENT to the ANNUAL AGREEMENT FOR ON-CALL VEGETATION MANAGEMENT SERVICES (“FIRST AMENDMENT”), made and entered into in the City of Modesto, County of Stanislaus, State of California, this _____ day of , 2023, by and between the CITY OF MODESTO, a
municipal corporation of the State of California ("CITY") and WEST COAST ARBORISTS, INC., Anaheim, CA, hereinafter collectively referred to as "CONTRACTOR".
This FIRST AMENDMENT to AGREEMENT is made with reference to the following recitals:
A. An Annual Agreement for On-Call Vegetation Management Services (“AGREEMENT”) was entered into by and between CITY and CONTRACTOR on the 28TH day of September 2021.
B. CITY and CONTRACTOR desire to amend the provision of the AGREEMENT to increase the annual total maximum compensation for year two from $250,000 to $600,000 and a total not to exceed amount of $1,600,000, to cover additional landscaping.
NOW, THEREFORE, the parties hereto mutually agree to the following:
1. The first sentence of Section 1 (f), “Scope of Work” of the Agreement is deleted and replaced in its entirety to read as follows:
“CONTRACTOR shall furnish said services at the following agreement rates, estimated amount of $250,000 annually, except in year two which will be at the estimated amount of $600,000, for a total not to exceed $1,600,000 over five-years.
2. Except as modified and amended by this FIRST AMENDMENT, all other provisions of the
#26..
- 1397 -
2 AGREEMENT, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the CITY, a Municipal Corporation, has authorized the execution of this FIRST AMENDMENT to AGREEMENT 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 WEST COAST AROBORISTS, INC., has caused this First Amendment to Agreement to be duly executed.
#26..
- 1398 -
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 # ___________
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#26..
- 1399 -
1 ANNUAL AGREEMENT
WEST COAST ARBORIST INC.
FOR ON-CALL VEGETATION MANAGEMENT SERVICES
This Agreement, made and entered into in the City of Modesto, State of California, This 28TH day of September, 2021, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and West Coast Arborists, Inc. hereinafter called CONTRACTOR, W I T N E S S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2021- authorizing the award of bid and agreement for the ON-CALL VEGETATION MANAGEMENT SERVICES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible bid submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the ON-CALL VEGETATION MANAGEMENT SERVICES as described in RFB PPD20-07RB, attached hereto as Exhibit “C” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. SCOPE OF 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 and workmanlike manner under the direction of and to the satisfaction of the City Representative. c. CONTRACTOR shall perform its duties under this agreement in accordance with the standard(s) of care prevailing in its industry.
d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the agreement.
e. CONTRACTOR shall maintain a CITY business license for the duration of the agreement.
f. CONTRACTOR shall furnish said services at the following agreement rates, estimated amount of $250,000 annually and a total amount not to exceed $1,250,000 over five-years.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D 379
#26..
- 1400 -
2 AGREEMENT PRICING
ITEM DESCRIPTION UNIT OF
ISSUE
Payment of Prevailing Wages
Required
UNIT PRICE
1 Hourly Rate Tree Trimming Climber HOUR $95.00____
2 Hourly Rate Tree Trimming Ground Level HOUR $95.00
3 Hourly Rate General HOUR $95.00
4 Hourly Rate Herbicide Application HOUR $95.00
5 Certified Equipment Operator HOUR $95.00
6 Chain Link Fencing, Temporary Tree
Protection Installed LF $20.00
7 Snow Fencing with T-Stakes, Temporary
Tree Protection Installed LF $10.00
8 Tree Removal (dia. <12”) EA $200.00
9 Tree Removal (dia. 12” – 24”) EA $600.00
10 Tree Removal (dia. 24” – 36”) EA $1,500.00
11 Tree Removal (dia. 36” – 48”) EA $2,400.00
12 Tree Removal (dia. 48” – 60”) EA $2,400.00
13 Tree Removal (dia. >60”) EA $2,400.00
14 Tree Stump Grinding (dia. <12”) EA $200.00
15 Tree Stump Grinding (dia. 12” – 24”) EA $400.00
16 Tree Stump Grinding (dia. 24” – 36”) EA $600.00
17 Tree Stump Grinding (dia. 36” – 48”) EA $800.00
18 Tree Stump Grinding (dia. 48” – 60”) EA $800.00
19 Tree Stump Grinding (dia. >60”) EA $800.00
20 Wood Debris Chipping HOUR $190.00
21 Haul-Off Disposal HOUR $95.00
22 Green Waste 30-Yard Bin w/Haul-Off
Disposal EA $250.00
23 Brush Grinding HOUR $200.00
24 Field Mowing ACRE $200.00
25 Field Disking ACRE $200.00
26 Arborist Tree Evaluation (1) Single Tree EA $500.00
27 Arborist Tree Evaluation (5-9) Total Trees EA $400.00 DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
- 1401 -
3 28
Arborist Tree Evaluation (10-19) Total
Trees EA $300.00
29 Arborist Tree Evaluation (20+) Total Trees EA $200.00 ADDITIONAL SERVICE(S):
30 Emergency Response Service – Fixed Rate EA $600.00
31 Overtime Rate – Emergency Service work HOUR $150.00
32 Double-time Rate – Emergency Service work HOUR $175.00
2. PREVAILING WAGES:
The payment of prevailing wages is required for maintenance under this agreement and all provisions of Section 7.04 of the General Provisions contained with the City standards shall apply.
DIR Project ID#: 385715
3. CITY REPRESENTATIVE:
City Representative: Nathan Houx, Parks Planning and Development Manager, (209)571-5526 Purchasing Contact: Carol Wattle, Buyer (209) 577-5406
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 (2) years, with three (3) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.
Year 1: October 5, 2021 through October 4, 2022
Year 2: October 5, 2022 through October 4, 2023
Year 3: October 5, 2023 through October 4, 2024
Year 4: October 5, 2024 through October 4, 2025
Year 5: October 5, 2025 through October 4, 2026
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the agreement.
Price increases for subsequent agreement years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one agreement year, and shall be negotiated DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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4 through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (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, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a) General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and a $2,000,000 aggregate. 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 CONTRACTOR’S and subcontractors; products and completed operations.
b) 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.
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.
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 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.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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5 The CONTRACTOR’S insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
For any claims related to this project, the CONTRACTOR’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 Provider’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY at a minimum of a monthly basis. All invoices shall be paid in full within thirty (30) days after completion and acceptance of the services by the CITY, and receipt of a properly prepared invoice, subject to cash discounts allowed and stated in this bid document. 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:
Reference Annual Agreement #: 207810
CITY department/division name and address
Billing period
Service hours worked day and week
Service Location
Unit price, extended price, sales tax and total
7. INDEMNITY:
The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this agreement.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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6 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. ARBITRATION:
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, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One arbitrator shall be selected using AAA procedures. The arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.
9. GOVERNING LAW:
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.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proof of insurance (approved by Risk Management); and
Business License; and
Executed Agreement and all exhibits thereto.
11. TERMINATION OF SERVICES:
Termination by CITY for Default of CONTRACTOR
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7 Should CONTRACTOR 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 CONTRACTOR. 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 CONTRACTOR, dishonesty or theft.
Termination by CITY for Convenience
The CITY may also terminate the CONTRACTOR’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 day’s written notice of its intent to terminate the agreement for convenience, and shall endeavor to provide the CONTRACTOR 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 CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and 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 subcontractors but in no event shall recovery by any CONTRACTOR or subcontractor 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 CONTRACTOR in performing the DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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8 work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the work and/or property related to the work;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’S work on the project.
i. The 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 CITY as of the termination date.
CITY will pay CONTRACTOR an amount based on the percentage of satisfactory work 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 work such as subcontractor 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 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.
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 CONTRACTOR to appeal the City Manager, or his/her designee’s, decision to the City Council. The CONTRACTOR shall appeal by notifying the City Clerk in writing within ten (10) calendar days after 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.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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9 12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and shown upon the plans herein referred to, 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. AGREEMENT DOCUMENTS:
The complete agreement between the parties hereto consists of this agreement and the following documents which are incorporated herein by this reference:
a. Exhibit “A” Resolution No. 2021-_______;
b. Exhibit “B” Bid Submittal;
c. Exhibit “C” RFB PPD20-07RB
d. Insurance Certificates,
e. Business License
These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division. All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.
14. 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: Patrick Mahoney
West Coast Arborists, Inc.
3625 E. Stevenson Avenue
Stockton, CA 95205
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.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D 379
#26..
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10 15. SIGNATOR (IES) FOR CONTRACTOR:
The undersigned signature (ies) for CONTRACTOR warrant(s) and represent(s) those he/she/they is/are legally competent to execute the agreement and has/have full authority to execute this agreement.
16. 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.
17. 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.
18. HEADINGS NOT CONTROLLING:
Headings used in the agreement are for reference purposes only and shall not be considered in construing this agreement.
19. MISCELLANEOUS:
Time is of the essence in every provision of this agreement.
20. 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 proposal are controlling and are deemed accepted by CONTRACTOR by shipment of any article or other commencement of performance hereunder. 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 all the parties.
21. 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.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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11 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. 2021-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2021 and _____________________has caused this agreement to be duly executed.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D September West Coast Arborist
379 28th
#26..
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09/28/2021/PRN/NHoux/Item 16 1 2021-379
MODESTO CITY COUNCIL
RESOLUTION NO. 2021-379
RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT WITH WEST COAST ARBORISTS, INC., OF ANAHEIM, CA AS THE PRIMARY
CONTRACTOR FOR THE FURNISHING OF ON-CALL VEGETATION
MANAGEMENT SERVICES FOR THE PARKS, RECREATION AND
NEIGHBORHOODS DEPARTMENT FOR AN ESTIMATED ANNUAL
AMOUNT OF $250,000 AND AN AGREEMENT WITH GROVER LANDSCAPE SERVICES, INC., OF MODESTO, CA AS THE SECONDARY CONTRACTOR FOR AN ESTIMATED ANNUAL AMOUNT OF $25,000, FOR AN ESTIMATED COMBINED ANNUAL AMOUNT OF $275,000 AND AUTHORIZING THE
DIRECTOR OF FINANCE, OR DESIGNEE, TO ADJUST THE FINANCIAL
AMOUNTS BETWEEN BOTH PROVIDERS WITH A TOTAL COMBINED
AMOUNT NOT TO EXCEED $1,375,000 OVER FIVE-YEARS AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE AGREEMENTS
WHEREAS, in recent years, the demand for vegetation management services within the City’s park system has exceeded the City Forestry Division’s available time and resources; and
WHEREAS, the City does not currently have an on-call vegetation management agreement available that provides tree trimming, tree removal, stump grinding, temporary tree protection fencing, herbicide application, wood chipping, vegetation haul-off and disposal, brush grinding, field mowing, field disking, arborist tree evaluations, and emergency service response; and
WHEREAS, in 2020, the Parks, Recreation and Neighborhoods Department, working in conjunction with other departments, identified a citywide need to establish a comprehensive on-call vegetation management agreement with a professional service provider; and
WHEREAS, the establishment of On-Call Vegetation Management Services Agreements will enable the City to better manage vegetation throughout the park system, DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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09/28/2021/PRN/NHoux/Item 16 2 2021-379
increase efficiency in response to weather related damage, reduce the risks of vegetation fires, and increase public safety throughout the City; and WHEREAS, on June 8, 2021, the Purchasing Division issued RFB No. PPD20- 07RB for On-Call Vegetation Management Services, on Planet Bids via the City’s website under various commodity codes and twenty-one (21) companies downloaded the RFB; and
WHEREAS, on June 29, 2021, bids were formally opened by the City Clerk and broadcast via Microsoft Teams Livestream, and three (3) companies responded, of which one (1) was a local vendor; and
WHEREAS, on the basis of providing the lowest responsive and responsible bid, staff recommends awarding the On-Call Vegetation Management Services agreement to West Coast Arborists, Inc., Anaheim, CA, as the primary contractor for an estimated annual amount of $250,000; and
WHEREAS, additionally, staff recommends awarding a secondary agreement to Grover Landscaping Services, Inc., Modesto, CA, for an estimated annual amount of $25,000; and
WHEREAS these two agreements have a combined estimated annual total amount of $275,000 and a five-year not to exceed total of $1,375,000.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it approves the award of bid and agreement with West Coast Arborists, Inc., of Anaheim, CA as the primary contractor for the furnishing of On-Call Vegetation Management Services for the Parks, Recreation and Neighborhoods Department for an estimated annual amount of $250,000 and an agreement with Grover Landscape Services, DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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Exhibit B
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1 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
FOR
ON-CALL VEGETATION MANAGEMENT SERVICES
THE PAYMENT OF PREVAILING WAGE IS REQUIRED
BID OPENING: JUNE 29, 2021 at 11:00 A.M.
CITY OF MODESTO CONTACT: Carol Wattle, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5406
Exhibit C
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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2 CITY OF MODESTO
REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
TABLE OF CONTENTS
Page
. Notice to Bidders ................................................................................................................ 3 . City Contacts ....................................................................................................................... 4 . Calendar of Events .............................................................................................................. 4 . Offer and Acceptance ......................................................................................................... 4 . Covid-19 Response ............................................................................................................. 5 . Submittal Checklist ............................................................................................................. 6 FORMS
. Bid Acknowledgement (Signature Form) ........................................................................ 7 . Pricing Schedule (Signature Form) ............................................................................ 8-10 . Exceptions, Clarifications, Amendments (if applicable) .................................................. 11 . References ................................................................................................................... 12-13 . Financial Interest Disclosure (Signature Form) ...................................................... 14-16 . Support of Local Vendors (if applicable) ......................................................................... 17 . Company History Statement ............................................................................................ 18 . Addenda Acknowledgement Page (if applicable) ........................................................... 19
TECHNICAL REQUIREMENTS
. Scope of Work .................................................................................................................. 20 . General Specifications ................................................................................................ 20-22 . Contractor Responsibilities ......................................................................................... 22-25 . Required Licenses ............................................................................................................. 27 . Insurance ..................................................................................................................... 27-28
GENERAL REQUIREMENTS
. Bid Submittal .................................................................................................................... 29 . Acceptance/Rejection of Irregular Bids ........................................................................... 29 . Complete Bid Document .................................................................................................. 29 . Compliance/Non-Compliance .......................................................................................... 30 . Prevailing Wages .............................................................................................................. 30 . Pricing Format................................................................................................................... 30 . Pricing Schedule ............................................................................................................... 30 . Award of Bid ............................................................................................................... 30-31 . Term of Agreement ........................................................................................................... 31 . Termination of Services .............................................................................................. 31-32 . Quantities .......................................................................................................................... 32 . Funding ............................................................................................................................. 32 . Other Government/Publicly Funded Agencies ................................................................. 32 . Protest and Appeal Procedures ................................................................................... 34-37 . Payment ............................................................................................................................. 38 . Sample Annual Agreement ........................................................................................ 39-49 DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California, will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed bids for the furnishing of On-Call Vegetation Management Services for the City of Modesto, Parks, Recreation and Neighborhoods Department.
All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto. Bidders are highly recommended to download all documents from the City’s Purchasing website at http://www.modestogov.com/257/Contracting-Bid-Opportunities; such bids shall include all necessary specifications.
Each bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, June 29, 2021 at 11:00 A.M., at which time bids will be opened, read and recorded.
All bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.
Bids will be received only at the address shown above, and prior to the time indicated. Any bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the bidder unopened.
All bids, whether delivered by an employee of the bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated. The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of bids.
The City of Modesto assumes no responsibility for delay in the delivery of the bid.
On the outside of the bid envelope and courier envelope, if any, the bidder shall indicate the following:
NAME AND ADDRESS OF BIDDER
SPECIFICATION NUMBER PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
BID OPENING DATE: JUNE 29, 2021 AT 11:00 A.M.
MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK
CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET, SUITE 6600
MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all bids or to waive any informalities or minor irregularities in a bid.
No bidder may withdraw his/her bid for a period of ninety (90) days after the date set for the opening thereof.
Note: Deliver or mail bids to the referenced address, only, as indicated in the Notice to Bidders.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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4 CITY CONTACTS
All questions regarding these specifications, terms, and conditions shall be submitted in writing to Carol Wattle, Buyer, via email at: [email protected]
All contact during the bid process shall be through the Purchasing Division. Attempts by the bidder to contact department representatives may result in disqualification of the bidder from the bid process.
CALENDAR OF EVENTS
Event Date
Bid Issued June 8, 2021
Written Questions Due June 15, 2021
Addendum Issued (if required) June 22, 2021 (approximate date) Bid Opening PRIOR 11:00 A.M. on Tuesday, June 29, 2021
Bid Award Approximately October 2021
It is the responsibility of each bidder to be familiar with all of the specifications, terms and conditions and the site condition (if applicable). The bidder agrees and acknowledges all RFB specifications, terms, and conditions and indicates the ability to perform by submission of a bid. By the submission of a bid, the bidder certifies that if awarded an agreement they will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.
CALIFORNIA LABOR CODE SECTION 1771.1 (a)
1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any agreement for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the agreement is awarded.
OFFER AND ACCEPTANCE:
Seller represents his/her acceptance to provide products and/or services as follows: City's offer to purchase products and/or services is expressly conditioned upon Seller's assent to the terms and conditions set forth in City agreement documents, specifications, supporting data, and these articles. Seller agrees that Seller's Order Acknowledgement terms and conditions received prior to, during, or after order placement by City are hereby rejected. City agreements signed by the City's Purchasing Manager or designated agent and issued to Seller constitutes written notification to Seller of City's rejection of any and all of Seller Order Acknowledgements, counter offers and change to the City's terms and conditions.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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5 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
COVID-19 RESPONSE
The City of Modesto is doing our part to slow the spread of COVID-19. The City of Modesto will be broadcasting bid openings electronically via Microsoft Teams at 11:00 a.m. PT on Tuesday, June 29, 2021. The City Clerk Record of Bid document will be available on Planet Bids by the end of day, Tuesday, June 29, 2021.
The public bid opening for RFB PPD20-07RB, On-Call Vegetation Management Services, will be available using the URL link, video system or via phone provided below. By submitting your bid for the above-stated RFB you acknowledge, understand, and agree to this modified bid opening procedure.
URL - https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2/0?context=%7 b%22Tid%22%3a%22125ccacf-fc61-463c-9976-189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997- 4dd7-8984-12cd4deaa705%22%7d
OR
JOIN BY PHONE
+1 469-998-7409 United States, Dallas
Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact Carol Wattle, by email at [email protected] or telephone at (209)577-5406.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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6 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
SUBMITTAL CHECKLIST
BID SUBMITTAL CHECKLIST
The bidder shall provide a complete bid in a sealed envelope before 11:00 A.M. on the bid opening date.
Failure to provide all the required documents may cause the bid to be considered non-responsive.
COMPLETE BID Page No.
. Bid Acknowledgement (Signature Form) ........................................................................ 7 . Pricing Schedule (Signature Form) ............................................................................. 8-10 . Exceptions, Clarifications, Amendments (if applicable) ................................................. 11 . References.................................................................................................................... 12-13 . Financial Interest Disclosure (Signature Form) ....................................................... 14-16 . Support of Local Vendors (if applicable) ......................................................................... 17 . Company History Statement ........................................................................................... 18 . Addenda Acknowledgement Page (if applicable) ........................................................... 19 DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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7 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
BID ACKNOWLEDGEMENT
The City is soliciting bids from qualified Bidders to furnish its requirements per the specifications, terms and conditions contained in the above referenced bid number. This Bid Acknowledgement must be completed, signed by a responsible officer or employee, dated and submitted with the bid response.
Obligations assumed by such signature must be fulfilled.
1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the bid. (b) Quote price as specified in bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.
2. Failure to Submit Bid: If you are not submitting a bid but want to remain on the mailing list and receive future bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.
3. Taxes and Freight Charges: (a) unless otherwise required and specified in the RFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the Agencies; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the Agencies are exempt from certain Federal excise taxes. The Agencies will furnish an exemption certificate.
4. Award: (a) Unless otherwise specified by the bidder or the RFB gives notice of an all-or-none award, the City may accept any item or group of items of any bid. (b) Bids are subject to acceptance at any time within thirty (30) days of opening, unless otherwise specified in the RFB. (c) A valid, written purchase order mailed, or otherwise furnished, to the successful bidder within the time for acceptance specified results in a binding contract without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.
5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un-patented invention, article or appliance furnished or used in connection with the contract or purchase order.
6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test upon request (made when the sample is furnished), be returned at the bidder’s expense.
7. Rights and Remedies of Agencies for Default: (a) In the event any item furnished by the bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the bidder with its bid, the City may reject the same, and it shall thereupon become the duty of the bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the bidder fail, neglect or refuse so to do the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items and to deduct from any moneys due or that may there after come due to vendor the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the bidder. (c) The rights and remedies of the Agencies provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.
8. Discounts: (a) Terms of less than ten (10) days for cash discount will be considered as net. (b) In connection with any discount offered, time will be computed from date of complete, satisfactory delivery of the supplies, equipment or services specified in the RFB, or from date correct invoices are received by the City at the billing address specified, if the latter date is later than the date of delivery. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing the City’s check.
9. California Government Code Section 4552: In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the bidder.
10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded in on this order.
11. Two “Inked” Signed Original Bid Document Requested: Failure to furnish at least one “inked” signed original bid document may result in disqualification.
THE undersigned acknowledges receipt of the referenced RFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the bidder indicated below, in accordance with the specifications, terms and conditions of this RFB and Bid Acknowledgement, for the pricing indicated on the Pricing Schedule.
Firm:
Address:
City/State/Zip:
Signature/Title/Date:
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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8 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
PRICING SCHEDULE
All labor, equipment, fuel, tools, licenses and insurance necessary to perform the required services shall be included in bid pricing. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, Amendments” section on page 11.
The “Estimated Quantity” shown below is provided as an example of services to be requested for bidding purposes only and does not guarantee a quantity of services to be paid. During the agreement period, at any time, the City reserves the right to increase or decrease the quantity of services paid at its discretion.
ESTIMATED QTY x UNIT PRICE = EXTENDED PRICE
**In case of discrepancy between a unit price and an extended price, the unit price will be presumed to be correct, subject, however, to correction to the same extent and in the same manner. **
ITEM DESCRIPTION ESTIMATED
QUANTITY
UNIT OF
ISSUE UNIT PRICE
Payment of Prevailing Wages
Required
EXTENDED PRICE
LABOR:
1 Hourly Rate Tree Trimming Climber 240 HOUR $________ $________________ 2 Hourly Rate Tree Trimming Ground Level 160 HOUR $________ $ 3 Hourly Rate General 160 HOUR $________ $________________ 4 Hourly Rate Herbicide Application 60 HOUR $________ $________________ 5 Certified Equipment Operator 40 HOUR $________ $________________ TREE/STUMP REMOVAL:
6 Chain Link Fencing, Temporary Tree
Protection Installed 500 LF $________ $________________ 7 Snow Fencing with T-Stakes, Temporary
Tree Protection Installed 500 LF $________ $________________ 8 Tree Removal (dia. <12”) 5 EA $________ $________________ 9 Tree Removal (dia. 12” – 24”) 5 EA $________ $________________ 10 Tree Removal (dia. 24” – 36”) 15 EA $________ $________________ 11 Tree Removal (dia. 36” – 48”) 10 EA $________ $________________ 12 Tree Removal (dia. 48” – 60”) 5 EA $________ $________________ 13 Tree Removal (dia. >60”) 3 EA $________ $________________ 14 Tree Stump Grinding (dia. <12”) 5 EA $________ $________________ 15 Tree Stump Grinding (dia. 12” – 24”) 5 EA $________ $________________ DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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9 16 Tree Stump Grinding (dia. 24” – 36”) 15 EA $________ $________________ 17 Tree Stump Grinding (dia. 36” – 48”) 10 EA $________ $________________ 18 Tree Stump Grinding (dia. 48” – 60”) 5 EA $________ $________________ 19 Tree Stump Grinding (dia. >60”) 3 EA $________ $________________ MATERIAL HANDLING:
20 Wood Debris Chipping 120 HOUR $________ $________________ 21 Haul-Off Disposal 120 HOUR $________ $________________ 22 Green Waste 30-Yard Bin w/Haul-Off
Disposal 10 EA $________ $________________
BRUSH/FIELD MANAGEMENT:
23 Brush Grinding 20 HOUR $________ $__________________ 24 Field Mowing 10 ACRE $________ $________________
25 Field Disking 10 ACRE $________ $________________
ARBORIST EVALUATIONS (Cost Per Tree):
26 Arborist Tree Evaluation (1) Single Tree 5 EA $________ $________________ 27 Arborist Tree Evaluation (5-9) Total Trees 15 EA $________ $________________ 28 Arborist Tree Evaluation (10-19) Total Trees 40 EA $________ $________________ 29 Arborist Tree Evaluation (20+) Total Trees 100 EA $________ $________________ ESTIMATED GRAND TOTAL: $________________
ADDITIONAL SERVICE(S):
30 Emergency Response Service – Fixed Fee 5 EA $ $______________________ 31 Overtime Rate – Emergency Service Work 16 HOUR $ $______________________ 32 Double Time Rate – Emergency Service Work 4 HOUR $ $______________________ DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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10 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
PRICING SCHEDULE
City Business/Delivery License No. __________ Expiration Date: __________ DIR Registration No. _______________________________ Expiration Date:
Contractor License No. __________ Expiration Date: __________ Contractor shall have at a minimum an active Contractor’s License with Classification C-61/D-49, or C-27 Pesticide Applicators License No. ___________________________ Expiration Date: _________________ Stated pricing is subject to (______ %) cash discount if invoice is paid within ______ days after acceptance of service.
THE PAYMENT OF PREVAILING WAGES IS REQUIRED FOR ALL MAINTENANCE SERVICES.
A City Business License is not required at the time of the bid, however, please note the Business License No. if bidder should already have one. (See Section 1.12 for further details) Does bidder accept the City’s E-pay Payment Program? Please check one: Yes ____ No ____ Information regarding the program is provided in Section 2.25 Payment.
THE undersigned acknowledges receipt of the referenced RFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the bidder indicated below, in accordance with the specifications, terms and conditions of this RFB and Bid Acknowledgement, for the pricing indicated on the Pricing Schedule.
Company Name (Bidder):
By (Person Submitting Bid): (Print)
By (Person Submitting Bid): (Signature)
Title of Person Submitting Bid:
Business Address
(City/State/Zip):
E-Mail Address:
Telephone Number:
Fax Number:
Date:
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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11 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
EXCEPTIONS, CLARIFICATIONS, AMENDMENTS
Exceptions, Clarifications, Amendments
List requests for bid clarifications and exceptions below, if any, sign and submit with your bid response.
Item
No.
Reference To: Description
Page No. Paragraph No.
Company Name (Bidder):
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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12 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
REFERENCES
All Bidders must provide a list of five (5) current or former clients in the area provided below, identifying prior experience with similar type of services requested by the City under Scope of Work.
References shall have similar volume and requirements to those outlined in these specifications, terms and conditions. Bidders failing to provide references may be deemed as non-responsive.
The City may contact some or all of the references provided in order to determine the bidders’ performance record on work and equipment similar to that described in this bid. The City reserves the right to contact references other than those provided in the response and to use the information gained from them in the award process.
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business:
Date of Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business:
Date of Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business:
Date of Service:
Annual Contract Value $
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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13 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
REFERENCES - CONTINUED
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business:
Date of Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business:
Date of Service:
Annual Contract Value $
Company Name (Bidder):
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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14 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
FINANCIAL INTEREST DISCLOSURE
REQUIRED DISCLOSURE BEGINNING THE COUNCIL MEETING
OF JANUARY 7, 2003
The ordinance requiring financial interest disclosure by all parties having a direct or indirect interest of $2,000 or more (except for certain publicly traded companies) will be effective at the Council meeting of January 7, 2003. This means that any Council action on a contract, agreement or development right must be accompanied by a FINANCIAL INTEREST DISCLOSURE FORM listing by name all parties that have a material financial interest in the agreement, contract or development right.
PLEASE NOTE, any Council action that requires a FINANCIAL INTEREST DISCLOSURE cannot be considered by the City Council until the required reporting is made. That means that Agenda Items without the DISCLOSURE will be removed from the Council Agenda.
FinDisclosure12-19
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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15 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
FINANCIAL INTEREST DISCLOSURE FORM
All persons included within the meaning of either of the following tests have a material financial interest in an agreement, or application for development rights, submitted for approval or disapproval by the City Council, and shall be identified by the applicant, by name, on page 15.
Tests of Materiality:
1. Whether it is foreseeable to a reasonable person that the value of their interest in property available for use by an applicant, or their interest in the applicant itself, may increase or decrease by an amount greater than $2,000.00 as a direct or indirect result of Council action on the applicant’s agreement or application for development rights.
2. Whether it is foreseeable to a reasonable person that the person’s gross income from the applicant may increase or decrease by a sum greater than $2,000.00 as a direct or indirect result of Council action on the agreement or application for development rights.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the agreement or application or development rights is true, correct and complete.
By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both.
Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
By signing this document, I agree to the information contained within.
COMPANY NAME: ____________________________________________________
__________________________________
APPLICANT’S NAME (SIGNATURE):
__________________________________
APPLICANT’S NAME/TITLE (PRINT):
__________________________________
DATE: ____________________________
Applicable Names: (if any, use page 15)
Questions concerning the application of either test to particular facts should be resolved in advance of Council action by agreement with the department head recommending approval of its agreement/application.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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16 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
FINANCIAL INTEREST DISCLOSURE FORM
COMPANY NAME: __________________________________________ NAMES
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
Signature / Print:
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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17 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
SUPPORT OF LOCAL VENDORS
REQUEST FOR DECLARATION
Of
LOCAL BUSINESS
Should the bidder that submits the lowest responsive bid or quote and would otherwise normally qualify to receive the bid pursuant to Sections 8-3.203 and 8-3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest bid or quote submitted by a local business that is within five percent (5%) of the lowest bid or quote, whether or not that bidder is the second lowest bidder, may be deemed to be the lowest bidder if the local bidder agrees to reduce its bid to match the bid or quote of the lowest bidder in writing within five (5) business days after notification by City Purchasing staff, provided that said local bidder is deemed to be a responsible bidder as determined by the Purchasing Manager.
To qualify as a local bidder, the bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
This document is only required should the bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.
I declare I am a local business per the above criteria
SUPPORT OF LOCAL VENDORS
DECLARATION OF ELIGIBILITY
Company Name:
Street Address:
Telephone Number:
Business License Number:
Under penalty of perjury, The Undersigned declares that the foregoing information is true and correct:
Print/Type Name:
Title:
Signature:
Date:
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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18 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
COMPANY HISTORY STATEMENT
Your company shall have been in business for a minimum of three (3) continuous years (immediately prior to the time of the RFB submittal date) providing the types of services requested herein.
The company history statement shall be prepared on company letterhead and provided with the bid submittal.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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19 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
ADDENDA ACKNOWLEDGEMENT
The bidder shall check the RFB listing on the City’s Planet-Bid website, periodically, and in any event, no later than the day prior to bid opening to obtain any addenda information. The changes identified in the addenda modify this request for bid and specifications. The addenda now become a part of this request for bid and specifications. Signing the Bid on the signature portion thereof, the bidder is acknowledging that the bidder has confirmed that he or she has received all addenda issued for this request for bid and specifications, and has included costs for such in the bid submitted. Failure to list and acknowledge all addenda numbers may cause the bid to be considered nonresponsive. Do not attach any of the addenda to this sheet nor include them with the bid.
This document is only required to be returned should addenda have been issued.
The Bid is submitted with respect to the changes to the request for bid and specifications included in addenda numbers:
LIST ALL ADDENDA NUMBERS: _____________________________________________________ Company Name (Bidder):
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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20 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
TECHNICAL SPECIFICATIONS AND REQUIREMENTS
1.1 SCOPE OF WORK:
The City of Modesto, Parks, Recreation and Neighborhoods Department are seeking a qualified contractor for the furnishing of On-Call Vegetation Management Services for the management of green organic waste for various locations throughout the City of Modesto on an “as needed” basis throughout the year.
The successful contractor shall submit pricing for hourly labor, tree removal, stump grinding, tree trimming, material handling, brush and field management, arborist evaluations and additional services with reasonable access to conduct work. Shall access be determined by the City to have limited accessibility, alternative accommodations will be provided. Pricing shall include all labor, materials, equipment, tools, fuel, and insurance necessary to do the work listed.
1.2 GENERAL SPECIFICATIONS:
HOURLY LABOR RATE REQUIREMENTS:
The successful contractor rates shall include all equipment, fuel, mileage and vehicles used to conduct work, full compensation to be paid for labor hours worked. All work shall be done per the International Society of Arboriculture (ISA) tree protection and pruning requirements. https://www.isa-arbor.com/ A. Hourly Rate Tree Trimming, Climber (Bid Line Item #1): A laborer trained and skilled in tree trimming work. A person whom primarily works from an elevated position such as a bucket-lift, or a tree climber, commonly with use of small power tools such as a chainsaw.
B. Hourly Rate Tree Trimming, Ground Level (Bid Line Item #2): A laborer trained and skilled in tree trimming work. A person whom primarily works from a non-elevated position, at ground level, commonly with use of hand tool or small power tools such as pruners or a chainsaw.
C. Hourly Rate General (Bid Line Item #3): A laborer whom works on general tasks such as debris chipping, clean-up, or driving.
D. Hourly Rate Herbicide Application (Bid Line Item #4): A laborer trained and skilled in the application of herbicide. Pesticide applicators license required.
E. Certified Equipment Operator (Bid Line Item #5): A laborer whom is trained and skilled in driving light duty or heavy machinery such as a skid-steer, front loader, backhoe, stump grinder and chip truck.
TREE/STUMP REMOVAL REQUIREMENTS:
The successful contractor shall install temporary fencing to protect vegetation, endangered species and trees that are located in the surrounding area of work being performed. The contractor to install 8.5” x 11” laminated/waterproof signage at minimum every 8’ linear feet. Signage to state; “Vegetation Protect Area, Please Keep Out”. All trees or vegetation to be retained shall be temporarily fenced with temporary 6’ rigid chain link construction fence or temporary 4’ orange snow fencing at the dripline of tree or vegetation to remain, as determined by the City. Locations of trees or vegetation to remain shall be marked on-site or identified in writing by City Representative.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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21 F. Chain Link Fencing Temporary Tree Protection Installed (Bid Line Item #6): Contractor to install a temporary rigid 6’chain link fence. The chain link construction fence shall be installed as deemed necessary by the City Representative. The temporary construction fencing shall be in good condition, staked into ground wherever possible, and installed with a top tension wire. The fence posts shall be two-inch (2”) diameter galvanized steel. The fence fabric shall be 11-gauge, with knuckled barbs on the top edges. Temporary chain link fencing to be removed immediately once work is complete.
G. Snow Fencing with T-Stakes Temporary Tree Protection Installed (Bid Line Item #7): Contractor to install a temporary 4’ orange snow fence. The orange snow fencing shall be installed as deemed necessary by the City Representative. The snow fencing shall be in new or very good condition, attached to 6’ long metal t-stakes driven 24” into the soil. Attachment should be done with heavy duty black zip-ties, at least three zip-ties per post. T-stake post shall have a maximum spacing of 8’.
Temporary orange snow fencing to be removed immediately once tree trimming or removal work is completed.
The Contractor shall cut tree stumps within 6” of finished grade. Full compensation for price to be paid per each tree removed.
H. Tree Removal (Bid Line Items #8-#13): Contractor to completely remove and legally dispose of trees off-site with the trunk from less than 12” to greater than 60” at breast height (DBH). In the case of a multi-trunk specimen the communitive diameter of all trunks at (DBH) should be used.
The Contractor shall grind an existing tree stump measured at 6” above the existing grade and backfilled with soil or chipping materials to completely fill the void and make flush with surrounding grade. Stump shall be ground to below grade and work shall include site material clean-up and debris haul-off.
I. Tree Stump Grinding (Bid Line Items #14-#19): Contractor to complete grinding of an existing tree stump.
MATERIAL HANDLING REQUIREMENTS:
J. Wood Debris Chipping (Bid Line Item #20): The Contractor to complete chipping of woody green waste materials to be stockpiled in place on-site for future use as chipped mulch material. Chipped material pieces not to exceed 6” in length. Piles of debris and logs will vary in size due to variable site conditions. Debris to be chipped not to exceed 12” in diameter.
K. Haul-Off Disposal (Bid Line Item #21): The Contractor to complete loading and haul-off of woody green waste materials which are designated to be removed and legally disposed of off-site. Any incurred debris haul-off dump fees paid by Contractor to be reimbursed at disposal invoice cost, plus 10%.
L. Green Waste 30-Yard Bin, w/Haul-Off Disposal (Bid Line Item #22): The Contractor to delivery an empty 30-yard green waste bin to a project site for use to fill with green waste materials of various sizes and density by others. The contractor to removal and legal disposal of, off-site, green waste materials placed in bin. Any incurred debris haul-off dumps fees paid by Contractor to be reimbursed at disposal invoice cost, plus 10%.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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22 BRUSH/FIELD MANAGEMENT REQUIREMENTS:
M. Brush Grinding (Bid Line Item #23): The Contractor to grind down shrubbery, and sapling trees (less than 2” DBH) to within 2” of finish grade. Removal of roots is not required.
The Contractor shall take care to protect all native trees and shrubs from damage. On each occurrence total area to be field mowed and field disking shall be greater than one (1) acre.
N. Field Mowing (Bid Line Item #24): The Contractor, with use of mechanical equipment, to weed-eat and/or mow down grassland to within 3” of finish grade. The City anticipates 10% or less of the task to consist of weed-eating.
O. Field Disking (Bid Line Item #25): The Contractor, with use of mechanical equipment, to disc grassland in areas identified by City to create fire breaks and/or till soil to overall reduce fire risk.
ARBORIST EVALUATION REQUIREMENTS:
P. Arborist Evaluation (Bid Line Items #26-#29): The Contractor to complete a written professional arborist evaluation report providing at minimum a tree’s current health status, recommendations for any actions which should be taken to improve a trees health, including any necessary trimming to improve safety, estimated number of healthy years likely remaining in the tree’s life and if the tree could jeopardize any capital investments such as playgrounds, buildings, sidewalks, roads, fencing, lighting, personal property or other installed City infrastructure.
ADDITIONAL SERVICES:
Q. Emergency Response Service – Fixed Rate (Bid Line Item #30): Upon the City’s written request for Emergency Response Service, the Contractor shall begin Emergency Response Service work within (24) hours of written request provided by the City. The Contractor shall promptly remedy any immediate safety hazards or concerns presented to the Contractor by the City, full compensation to be paid for each occurrence the City requests Emergency Response Service work. The fixed rate shall be paid in addition to the unit price paid on Bid Line Items #1-#25, #31, #32.
R. Overtime Rate – Emergency Service Work (Bid Line Item #31): Rate per labor hour worked by any Contractor employee identified on Bid Line Items #1-#5 whom is specifically directed by the City to work more than (8) hours per work day, (40) hours within a work week, or (6) consecutive days within a work week. As part of the City’s request for Emergency Response Services work, full compensation to be paid for labor hours worked. Overtime Rate shall override rates listed for Bid Line Items #1-#5.
S. Double Time Rate - Emergency Service Work (Bid Line Item #32): Rate per labor hour worked by any Contractor employee identified on Bid Line Items #1-#5 whom is specifically directed by the City to work more than (12) hours per work day, or (8) hours on the seventh consecutive work day within a work week, or any hour on a Federal listed holiday. As part of the City’s request for Emergency Response Services work, full compensation to be paid for labor hours worked. Double Time Rate shall override rates listed for Bid Line Items #1-#5.
1.3 CONTRACTOR RESPONSIBILITIES:
A. Until the formal acceptance of the work by the City Representative, the Contractor shall be responsible for and have care, custody, and control of the work and of the parts, materials and equipment to be used DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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23 therein, including parts, materials and equipment delivered to the work site. The Contractor shall bear full risk of loss, injury or damage to any part of the work and parts, material or equipment by action of the elements, or from any other cause, whether arising from the execution or non-execution of the work.
The Contractor shall rebuild, repair, restore and make whole, all loss or damage to any portion of the work, parts or materials, before final acceptance, and shall bear the expense thereof, except for such loss or damage caused by the acts of the City, State, or Federal Government, or by an act of God as defined in Section 4150 of the California Government Code.
B. Project Delays: Suspension of work for any cause whatsoever shall not relieve the Contractor of their responsibility for the work or parts and materials as specified on the work request. The Contractor shall be responsible for and remedy all defects arising from faulty, improper or inferior workmanship.
C. The Contractor shall be responsible for and remedy all defects arising from faulty, improper or inferior workmanship, or parts and materials discovered in any part of the work, during one-year after the acceptance of the work.
D. The Contractor shall be responsible for any damage his/her activities cause to adjacent public or private property. The Contractor shall be responsible to correct any damage done as the result of their work at the Contractor’s solo expense. The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the project activities.
E. Site Inspection: Prior to all work, the Contractor shall carefully inspect the entire site and all objects required to be removed. Locate all existing active utility lines traversing the project and site; and determine the requirements for their protection.
F. Underground Service Alert: As necessary, Contractor to evaluate and obtain an Underground Service Alert prior to start of work. Call number #811.
G. Damages Resulting from Work Activity: The Contractor shall be responsible for any damage their activities cause to adjacent public or private property. The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the tree trimming or vegetation management activities. Contractor shall repair any landscape, soft-scape or hard-scape area damaged during the course of the tree trimming and/or vegetation management work.
Prevent movement and settlement of adjacent structures. Install temporary barriers, fences, bracing, planking, barricades, lights, warning signs and other protections required to protect structures, utilities, landscaping and other items that are to remain in place.
H. Equipment: Contractor must be experienced and certified to either own or have immediate access to equipment necessary to do complete all of tree trimming and vegetation management duties indicated.
I. Green and Organic Waste Disposal:
1. Per the State of California regulations SB1383 (https://www.calrecycle.ca.gov/climate/slcp) and AB901 (https://www.calrecycle.ca.gov/laws/rulemaking/archive/2019/ab901reporting) cities and businesses must comply with mandated organic recycling and material reporting (tonnages) requirements which establish methane emissions reduction targets both locally and statewide. To achieve those reduction targets, organics (yard waste, grass, leaves, brush, leaves, trees and tree trimmings, etc., paper waste and food scraps) must be diverted out of landfills into permitted DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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24 recycling facilities. In compliance to the regulatory requirements, cities must ensure that all garbage, recycling, landfills and transfer facilities, landscape companies, material haulers, etc. are bound to the law and transfer the organic materials collected within the City of Modesto to a permitted recycling facility.
2. The Contractor shall dispose of all green waste and organic matter collected as part of this Vegetation Management Services Agreement to the City of Modesto Compost Facility located at 7001 Jennings Road, Modesto, CA 95358; contact telephone number (209) 571-5144 – will receive the organic materials (scale in and weigh) and report the collection tonnages to the City’s Solid Waste administrative offices and to Cal-Recycle on a quarterly and annual basis. The Contractor shall provide invoices/receipts to the City’s Parks Planning and Development Division on a monthly basis for Contractor reimbursement, as applicable.
3. The City of Modesto Compost Facility will charge a receiving tip fee – currently (as of October 2020) $30.35 (within city limits) and $60.00 per ton (outside city limits) - to receive and recycle the organics into compost. The Contractor shall respect the rights of property owners and not enter private property without first obtaining permission from the property owner. Some line sections will be located in easements that may be difficult to access and will require the Contractor to enter private property.
J. The Contractor shall keep complete, accurate records of each day’s operation. Records shall show date of work, type work conducted and any other pertinent information. Log sheets shall be submitted with each invoice.
K. Barricades: The Contractor shall provide and place barricades and/or safety ribbon as necessary to restrict access to the work areas. The Contractor shall be responsible for maintaining access control of the work areas from the time work starts until the time the work site is returned to its pre-project condition, including cleanup.
L. Additional and Emergency Protection: Whenever, in the opinion of the City Representative, the Contractor has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the work area, the City Representative may require immediate action taken and the placement of additional protections.
M. Access and Storage: Prior to commencement of work, the Contractor shall confer with the City for the purposes of determining the exact scope of work. At no time shall materials, soil or equipment be stored or placed within the "dripline" of existing trees to be preserved. At no time shall vehicles be parked within the “dripline” of an existing tree to be preserved.
N. Coordination and Scheduling of Work: All work shall be scheduled and conducted in a cooperative manner in order to give the least possible interference with other work which may be taking place.
O. Stump Grinding: Stumps shall be ground below grade, minimum 12” below grade for stumps up to 24” in diameter, minimum 24” below grade for stumps greater than 24” in diameter.
P. Selective Pruning: Pruning consists of reducing the overall foliage and their branches by no more than 20% to 30% of the total tree canopy in order to trim canopy up for visibility and safety of vehicle and pedestrian traffic. Pruning is to be performed by a method called “drop crotch” pruning which permits the preservation of a natural appearing foliage margin and retains the character of the tree. At no time shall the leader of any tree be pruned or removed. Thinning of trees shall include DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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25 “safety trim”. This involves the removal of all dead branches over 1-1/2 inches in diameter, the removal of broken branches and the removal of over-burdened or conflicting branches as deemed necessary by the City’s Representative.
Cutting tools and saws shall be kept sharpened to a condition that will permit leaving an unabraised cambium edge on final cuts and bark tracings.
Q. Final Pruning: Cuts shall be made without leaving a stub. They shall be made in a manner to favor the earliest possible covering of the wound by callus growth. This requires that the wound be as small as practicable, the cut be within the shoulder ring area, and that the cambial tissues at the edge of the cut be alive and healthy. Extremely flush cuts that produce large wounds and weaken the tree at the cut cannot be made.
R. Cleanup: Prior to requesting a final inspection, the Contractor shall carefully clean up and remove all surplus materials and/or debris of any type resulting from the Contractor’s work from the work area, and shall dispose of all of the materials and debris in a proper legal manner. The work area shall be left clean and neat.
S. Disposal of Materials: All trimmings, stumps, roots, logs, grass clipping or any other form of debris resulting from this work or any work resulting from said operation shall be cleaned up and removed from the site by the Contractor as directed by the City Representative. The Contractor shall certify that any materials and debris removed from the site shall be disposed of in accordance with applicable Federal, State and Local laws, regulations or ordinances.
T. Chemical Spills: Should any chemical spill on the ground, the chemical and affected soil shall be removed and safely and legally disposed of. The area shall be restored to its original condition before the spill. Any damage to the vegetation resulting from misuse or accidental issue of the chemical shall be the responsibility of the Contractor to correct and make whole.
U. Chemical Mixing: Filling of chemical mixing tanks shall be done with an air gap or reduced-pressurezone backflow prevention device, approved by the City prior to use. The Contractor may only draw water from public water supplies when approved in writing by the City.
V. Chemical Reports: The Contractor shall submit chemical “usage reports” reports as required by State law to the Stanislaus County Ag Commissioner.
1.4 CHARACTER OF WORKERS:
If any person employed by the Contractor fails or refuses to carry out the direction of the City Representative or appears to be incompetent or acts in a disorderly or improper manner, that person shall be discharged immediately from the job on the request of the City Representative or Purchasing Manager, and such person shall not again work on any City job.
1.5 LABOR FORCE AND SUPERVISION:
The City requires tree trimming work to be overseen by an ISA Certified Tree Worker / Certified Arborist. The Contractor shall provide sufficient labor at all times to carry out the work properly and shall ensure that competent workers who are skilled in the type of work required are employed. The Contractor shall ensure that supervision is provided at all times while any work under this agreement is being performed. If, in the judgment of the City, any person is incompetent or disorderly, Contractor shall promptly remove such person from the work for the duration of the agreement.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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26 1.6 DELAYS BY THE CITY:
Any act or omission of any kind by the City of Modesto, its officers, agents or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work, but shall give the Contractor no damages for such delay.
1.7 CITY RESPONSIBILITIES:
A. The City shall provide written direction for work to be performed.
B. The City shall assist the Contractor with entering private lands, public lands or right-of-ways.
1.8 REPORTS:
Upon completion of the work, reports shall accompany the invoice, or whenever requested to by the City, the Contractor shall submit electronic copies of log sheets and reports in Excel or other acceptable database format, which show, as a minimum, the following information:
A. The report date(s)
B. Name of site work was completed
C. The date the work was completed
D. Special conditions found by the Contractor’s crew
E. Any reasons for not completing the work as requested
1.9 WORK SCHEDULE:
Services shall be performed Monday through Friday, between the hours from 7:00 A.M. to 5:00 P.M., excluding all major holidays and furlough days. The Contractor may request alternative working days in writing for City review and consideration of acceptance, such as weekends. Service work outside of normal business hours is not required. Unless accepted by the City in writing prior to conducting work, no additional pay will be provided for alternative working days. The City to provide a minimum three (3) business days notice of any service work to be completed by the Contractor. Once service work is requested by the City, the Contractor shall acknowledge the City’s request within three (3) business days and provide an agreeable service work timeline within seven (7) business days. Service work requested to be completed within an agreed time between the City and Contractor prior to start of work.
No On-Call Vegetation Management Service shall be performed until the City has provided a written “Notice to Proceed” to the Contractor for each on-call service task requested by the City. The Contractor shall have the ability to respond to all emergency service calls within twenty-four (24) hours, seven (7) days per week, including holidays.
1.10 CITY REPRESENTATIVE:
Work under any resulting agreement shall be performed under the general technical guidance and direction of the "City Representative". 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 affected only by written change to the agreement, issued by the City of Modesto, Purchasing Division.
1.11 CALIFORNIA LABOR CODE SECTION 1771.1 (a)
1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any agreement for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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27 is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the agreement is awarded.
Workers must be paid no less than the prevailing wage rate as published by the DIR, and Contractor shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.dir.ca.gov, or call the DIR, Labor Research and Statistics Unit, Prevailing Wage Unit at (415)-703-4774.
1.12 REQUIRED LICENSES:
Prior to beginning any service that shall be furnished under this specification, the bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389.
If the bidder is furnishing any labor or service including installation or maintenance, the bidder shall possess the appropriate California Contractor's license(s) at the time the bid is submitted. An agreement shall not be awarded to a bidder that does not possess the appropriate Contractor's license(s). The appropriate Contractor's license(s) is that specified in this request, or if not specified, that which is otherwise required by law, and qualifies the Contractor to do business in the State of California.
1.13 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, 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 via PINS Advantage Insurance Program, 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 and $2,000,000 aggregate. 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.
B. 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.
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.
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 Risk Management via PINS 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, officials, employees, and DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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28 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, officials, 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 additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
For any claims related to this project, the CONTRACTOR’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 Contractor’s insurance and shall not contribute with it.
CONTRACTOR shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or agreement.
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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29 REQUEST FOR BID AND SPECIFICATIONS NO. PPD20-07RB
ON-CALL VEGETATION MANAGEMENT SERVICES
GENERAL TERMS AND CONDITIONS
2.1 BID SUBMITTAL:
Bidders should submit two (2) “inked” (preferably blue ink) signed original bid document, plus two (2) copies of the signed original bid document, and one (1) electronic copy submitted via USB. The original bid document shall be clearly marked. Photocopies do not constitute an original bid.
FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.
It is the responsibility of the bidders to identify information in their bid responses that they consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.
All costs associated with the preparation of this bid shall be borne by the bidder.
All exceptions taken to these specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form. Failure to comply with this provision may deem the bid as nonresponsive.
Please review the Sample Annual Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes.
Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or services with exceptions.
2.1.1 ACCEPTANCE/REJECTION OF IRREGULAR BIDS:
An agreement shall be awarded to the bidder whose bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all bids or to waive any informalities or minor irregularities in a bid.
2.1.2 COMPLETE BID DOCUMENT:
The following forms constitute the makeup of a complete bid document:
Bid Acknowledgement (Signature Form)
Pricing Schedule (Signature Form)
Exceptions, Clarifications, Amendments (if applicable) References
Financial Interest Disclosure Form (Signature Form)
Support of Local Vendors (if applicable)
Company History Statement
Addenda Acknowledgement Page (if applicable)
Failure to furnish any of these documents may result in disqualification.
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30 2.1.3 BID PRESENTATION:
Bid submittals should be presented in the order as listed in Section 2.1.2 Complete Bid Document.
2.2 COMPLIANCE:
Bidders are required to sign the “Pricing Schedule, Bid Acknowledgement and Financial Interest Disclosure Form” of this bid document, thereby acknowledging they are in full compliance with all requirements of Bid No. PPD20-07RB, and any addendum to such bid. Failure to comply may result in disqualification.
The bidder guarantees that the offered equipment, material or services meet all safety requirements applicable in accordance with Cal-OSHA regulations and any other rule or regulation required by the City of Modesto.
All permits and licenses necessary for the prosecution of the scope of work shall be secured and paid for by the Contractor, except those secured by the City and so noted.
2.3 NON-COMPLIANCE:
If you cannot comply with a specification requirement, note on the Exception, Clarifications, Amendments page of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the bidder is not in compliance with the specification, the bid may be rejected.
2.4 PREVAILING WAGES:
The payment of prevailing wages is required for maintenance under this agreement and all provisions of Section
7.04 of the General Provisions contained within the City standards shall apply.
City Standards Website: https://www.modestogov.com/ArchiveCenter/ViewFile/Item/1120
2.5 PRICING FORMAT:
All labor, equipment, fuel, tools, licenses and insurance necessary to perform the required services shall be included in bid pricing.
Unless otherwise stated, the bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pickup materials.
2.6 PRICING SCHEDULE:
Bidders shall use the pricing schedule provided in this document to present bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the “Exception, Clarification, Amendments” section on page 11.
2.7 AWARD OF BID:
Award shall be based on providing the lowest responsive and responsible bid meeting the RFB specifications.
Agreements may be awarded to more than one company in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. The City may elect to award by line item, by group, or by all items.
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31 The City reserves the right to decline to award an agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California.
The City reserves the right to select that bid, which best suits the City’s needs. Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.
2.8 INSPECTION AND ACCEPTANCE:
Whenever the product or service provided by the supplier has been delivered to the Modesto, California, delivery point, the designated agent shall make the final inspection and acceptance.
If upon initial inspection the product or service is found to be defective in its construction or deficient in any of the requirements of this specification, the supplier shall remedy or remove said product in an acceptable manner at the supplier's expense. No compensation shall be allowed for such correction of product, labor, or transportation of product.
2.9 SUPPORT OF LOCAL VENDORS:
Should the bidder that submits the lowest responsive bid or quote and would otherwise normally qualify to receive the bid pursuant to Sections 8-3.203 and 8-3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest bid or quote submitted by a local business that is within five percent (5%) of the lowest bid or quote, whether or not that bidder is the second lowest bidder, may be deemed to be the lowest bidder if the local bidder agrees to reduce its bid to match the bid or quote of the lowest bidder in writing within five (5) business days after notification by City Purchasing staff, provided that said local bidder is deemed to be a responsible bidder as determined by the Purchasing Manager. To qualify as a local bidder, the bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
2.10 TERM OF AGREEMENT:
The term of the agreement shall be for a period of two (2) years, with three (3) one-year extension options at the sole discretion of the City, for a total of up to five (5) years.
A. Pricing shall remain firm for the first two (2) years of any agreement, which may be awarded pursuant to this RFB.
B. Price increases for subsequent agreement years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one (1) agreement year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by The Contractor(s) in writing, ninety (90) days prior to the annual anniversary date of the agreement to be effective for the subsequent year.
2.11 TERMINATION OF SERVICES:
The City reserves the right to discontinue services with the provider upon failure to meet contractual expectations and/or obligations, as recommended by the site supervisor or his/her agent. Cancellation of services shall be determined by the collaborative efforts of the Purchasing Manager, or designee, and using department after reviewing the incident(s) of failure to perform.
The City reserves the right to review the service providers’ performance at any time with or without the knowledge or consent of the provider.
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32 The City may terminate the agreement at any time with or without cause.
2.12 QUANTITIES:
No minimum or maximum is guaranteed or implied.
2.13 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.
2.14 OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant agreement/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.
2.15 NON-DISCRIMINATION:
A. During the performance of this agreement, The Contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), or sexual orientation. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The Contractor and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The Contractor and 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 its 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 all subcontracts to perform work under the contract.
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 twenty-four (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 clause.
2.16 NON-DISCRIMINATION OF THE HANDICAPPED:
CERTIFICATION OF BIDDER REGARDING NON-DISCRIMINATION OF THE HANDICAPPED By executing this agreement, the bidder hereby certifies that he/she is following and 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.
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33 2.17 DRUG FREE WORKPLACE:
Bidder/Contractor certifies that he/she is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act. Every person or organization awarded an agreement/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.
2.18 INDEMNITY:
The Contractor shall hold the city, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Contractor, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this bid. Contractor’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this bid for Contractor to procure and maintain a policy of insurance. In the indemnity clause contained herein Contractor agrees to defend, indemnify and hold city harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of city owned vehicles by Contractor’s employees is apportioned to Contractor in accordance with the provisions contained in indemnity.
2.19 ASSIGNMENT OF RIGHTS:
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 purchase of goods, services, or materials pursuant to this agreement or any sub-agreement. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY tender’s final payment to CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
2.20 CITY PROCESS/PROCEDURE APPROVALS:
CITY approval of any process or procedure shall not relieve the bidder of his/her responsibility to furnish the required items and service meeting all specifications contained herein.
2.21 BIDDER/SELLER REPRESENTATION:
The bidder/seller represents that:
A. He/She has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant purchase order and supporting data, and that he/she has, from the information contained in such documents, specifications, and data, fully acquainted him/her with all conditions relevant to the work.
B. He/She has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work.
C. He/She will complete the work for the compensation stated above.
D. He/She assumes full and complete responsibility for all conditions relevant to the work and all risks in connection therewith.
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34 E. In addition, thereto, the bidder/seller represents that he/she is fully qualified to do the work in accordance with the terms of any Purchase Order or agreement issued within the time specified in it.
2.22 FAILURE TO PERFORM SATISFACTORY:
It is agreed and understood that if the CONTRACTOR fails to perform the work as specified herein, CITY's representative may (1) consent to accept such unsatisfactory service with an appropriate adjustment in agreement price, based on established cost factors, (2) have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or (3) recommend termination of agreement between said CONTRACTOR and the City of Modesto. Those discrepancies and deficiencies in the work 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 work not corrected or completed.
2.23 CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
If CONTRACTOR damages any property belonging to the CITY or private property by the Contractor or his employees or agents, the Contractor will be required to make repairs immediately. The CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or require CONTRACTOR to repair the damage to the satisfaction of the CITY at CONTRACTOR's expense.
2.24 PROTEST AND APPEAL PROCEDURES:
Potential offerors, bidders, contractors, and subcontractors wishing to protest or appeal procurement or contracting decision by the City of Modesto must follow the procedures provided by the section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.
DEFINITIONS
For the purposes of this procedure: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Filing Date" or "Submission Date" means the date of receipt by the City Clerk’s office of the City of Modesto. "Interested Party" means an actual or prospective bidder or offeror, or any contractor or subcontractor identified by name in any bid or proposal.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that an Interested Party may lodge a protest.
Procurements valued at $50,000 or less normally will not have an Announced Decision.
A. PROTEST PROCEDURES
1. Any interested party may lodge a written protest to an Announced Decision with the City of Modesto's Purchasing Manager no later than ten (10) days after the Announced Decision.
2. The protest shall be delivered or sent by registered mail and postmarked by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses.
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35 3. The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS) or in such other sum as the City may establish, made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
4. The protest filed with the Purchasing Manager shall:
a. Include the name, address, and business telephone number of the protestor; b. Identify the project under protest by name, Request for Bid (RFB)/Request for Proposal (RFP) number, and bid/RFP date;
c. Contain a concise statement of the grounds for protest; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
All protests shall either be delivered to:
City Clerk’s Office
Attn: Purchasing Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Purchasing Manager
PO Box 642
Modesto CA 95353
B. PROTEST REVIEW (ANNOUNCED DECISION)
1. Protest to Purchasing Manager
Upon receipt of a complete and timely protest, the Purchasing Manager shall review all the submitted materials and shall create and retain a written record of the review. The Purchasing Manager shall respond at least generally to each material issue raised in the protest not later than ten (10) days after receipt of the protest. Notice of the Purchasing Manager's decision may be given by letter mailed through U.S. Postal Service.
2. Appeal to Deputy City Manager
The Purchasing Manager's decision may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten (10) days after the date of the Purchasing Manager’s Decision.
The scope of the appeal shall be limited by the issues raised in the initial protest to the Purchasing Manager. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written record of the protest review by the Purchasing Manager.
A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of his or her decision to the protestor within ten (10) days after receipt of appeal.
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36 All protest appeals shall either be delivered to:
City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
3. Appeal to City Council
Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than fifteen (15) business days after the date of the Deputy City Manager's decision.
The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05.
The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing, or provide other direction to staff. In such cases, staff cannot reverse a City Council decision.
All protests shall either be delivered to:
City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
C. PROTESTS OF PROCUREMENTS EXCEEDING $250,000.00
Interested parties protesting procurements exceeding $250,000.00 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager, a protestor may request that the protest be heard and decided at an administrative hearing.
A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500.00, (EXCEPT FOR PROTESTS OF FEDERALLY FUNDED PROJECTS; Refer to Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14) payable to the City of Modesto, and shall be received by the Purchasing Manager not later than fifteen (15) days after dispatch of the Purchasing Manager's decision. The request for hearing shall include the specific grounds of the appeal.
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37 The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three (3) days of notice to protestor of the name of the hearing officer.
The protest shall be heard not later than twenty (20) days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not heard in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses.
The decision of the hearing officer shall be deemed as the final decision of the City, and no other appeal to City Staff or body shall be permitted.
D. PROCUREMENTS OBTAINED WITH FEDERAL FUNDS
1. If the protested procurement involves federal funds, e.g., from the Federal Transit Administration (FTA) of the United States, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven (7) business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. Appeals to the Federal Transit Administration (FTA) shall comply with FTA Circular 4220.1E and the amendments and supplements thereto. Additional information regarding protesting procurements obtained with Federal Funds can be found in the Purchasing Procedures Manual for the Transit Division and Federal Transit Administration Funded Purchases, Chapter 14.
2. The City Council is the highest authority of the City of Modesto. It is possible that the City Council may reverse the decision of any City staff member at the hearing before Council on the procurement at hand. In such cases, no internal appeal is possible since staff may in no case reverse a City Council decision. In such an event, a disappointed transit bidder or a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the Federal Transit Administration.
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38 2.25 PAYMENT:
Paper Payment Method:
All invoices shall be paid in full within thirty (30) days after completion and acceptance of the services by the City, and receipt of a properly prepared invoice in duplicate, subject to cash discounts allowed and stated in this bid document.
Electronic Payment Method:
The City of Modesto provides an Epay Program which involves payment of invoices by a secure Visa account number assigned to the supplier after award of bid or contract. Notification of payments and required invoice information are issued to the supplier’s designed Accounts Receivable contact by email remittance advice at time of payment.
During the bid evaluation process preference may be shown to bidders that agree to accept Epay for payment of invoices. Please indicate on the Pricing Schedule whether or not your company will accept the City’s Epay Program.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
2.26 SAMPLE ANNUAL AGREEMENT:
Please review the Sample Annual Agreement. This Agreement may be modified and subject to change.
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39 SAMPLE ANNUAL AGREEMENT
This Agreement, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2021, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Contractor, hereinafter called CONTRACTOR, W I T N E S S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2021-xx authorizing the award of bid and agreement for the ON-CALL VEGETATION MANAGEMENT SERVICES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible bid submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the ON-CALL VEGETATION MANAGEMENT SERVICES as described in RFB PPD20-07RB, attached hereto as Exhibit “C” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. SCOPE OF 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 and workmanlike manner under the direction of and to the satisfaction of the City Representative. c. CONTRACTOR shall perform its duties under this agreement in accordance with the standard(s) of care prevailing in its industry.
d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the agreement.
e. CONTRACTOR shall maintain a CITY business license for the duration of the agreement.
f. CONTRACTOR shall furnish said services at the following agreement rates, not to exceed $_________________ annually.
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40 AGREEMENT PRICING
ITEM DESCRIPTION UNIT OF
ISSUE
Payment of Prevailing Wages
Required
UNIT PRICE
1 Hourly Rate Tree Trimming Climber HOUR $_________________________ 2 Hourly Rate Tree Trimming Ground Level HOUR $_________________________ 3 Hourly Rate General HOUR $_________________________
4 Hourly Rate Herbicide Application HOUR $_________________________ 5 Certified Equipment Operator HOUR $_________________________ 6 Chain Link Fencing, Temporary Tree
Protection Installed LF $_________________________
7 Snow Fencing with T-Stakes, Temporary
Tree Protection Installed LF $_________________________ 8 Tree Removal (dia. <12”) EA $_________________________ 9 Tree Removal (dia. 12” – 24”) EA $_________________________ 10 Tree Removal (dia. 24” – 36”) EA $_________________________ 11 Tree Removal (dia. 36” – 48”) EA $_________________________ 12 Tree Removal (dia. 48” – 60”) EA $_________________________ 13 Tree Removal (dia. >60”) EA $_________________________ 14 Tree Stump Grinding (dia. <12”) EA $_________________________ 15 Tree Stump Grinding (dia. 12” – 24”) EA $_________________________ 16 Tree Stump Grinding (dia. 24” – 36”) EA $_________________________ 17 Tree Stump Grinding (dia. 36” – 48”) EA $_________________________ 18 Tree Stump Grinding (dia. 48” – 60”) EA $_________________________ 19 Tree Stump Grinding (dia. >60”) EA $_________________________ 20 Wood Debris Chipping HOUR $_________________________ 21 Haul-Off Disposal HOUR $_________________________
22 Green Waste 30-Yard Bin w/Haul-Off
Disposal EA $_________________________
23 Brush Grinding HOUR $_________________________
24 Field Mowing ACRE $_________________________
25 Field Disking ACRE $_________________________
26 Arborist Tree Evaluation (1) Single Tree EA $_________________________ 27 Arborist Tree Evaluation (5-9) Total Trees EA $_______________________________ DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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41 28 Arborist Tree Evaluation (10-19) Total Trees EA $__________________________ 29 Arborist Tree Evaluation (20+) Total Trees EA $__________________________ ADDITIONAL SERVICE(S):
30 Emergency Response Service – Fixed Rate EA $_____________________________ 31 Overtime Rate – Emergency Service work HOUR $______________________ 32 Double-time Rate – Emergency Service work HOUR $______________________
2. PREVAILING WAGES:
The payment of prevailing wages is required for maintenance under this agreement and all provisions of Section 7.04 of the General Provisions contained with the City standards shall apply.
DIR Project ID#: _________________
3. CITY REPRESENTATIVE:
City Representative is: ________________________ ________________________ Purchasing Contact: Carol Wattle, Buyer (209)-577-5406
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 (2) years, with three (3) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.
Year 1: 2021 through 2022
Year 2: 2022 through 2023
Year 3: 2023 through 2024
Year 4: 2024 through 2025
Year 5: 2025 through 2026
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the agreement.
Price increases for subsequent agreement years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one agreement year, and shall be negotiated DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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42 through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (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, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a) General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and a $2,000,000 aggregate. 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 CONTRACTOR’S and subcontractors; products and completed operations.
b) 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.
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.
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 Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
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43 The CONTRACTOR’S insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
For any claims related to this project, the CONTRACTOR’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 Provider’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY at a minimum of a monthly basis. All invoices shall be paid in full within thirty (30) days after completion and acceptance of the services by the CITY, and receipt of a properly prepared invoice, subject to cash discounts allowed and stated in this bid document. 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:
Reference Annual Agreement #: _______________
CITY department/division name and address
Billing period
Service hours worked day and week
Service Location
Unit price, extended price, sales tax and total
7. INDEMNITY:
The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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44 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. ARBITRATION:
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, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One arbitrator shall be selected using AAA procedures. The arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.
9. GOVERNING LAW:
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.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proof of insurance (approved by Risk Management); and
Business License; and
Executed Agreement and all exhibits thereto.
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45 11. TERMINATION OF SERVICES:
Termination by CITY for Default of CONTRACTOR
Should CONTRACTOR 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 CONTRACTOR. 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 CONTRACTOR, dishonesty or theft.
Termination by CITY for Convenience
The CITY may also terminate the CONTRACTOR’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 day’s written notice of its intent to terminate the agreement for convenience, and shall endeavor to provide the CONTRACTOR 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 CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and 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 subcontractors but in no event shall recovery by any CONTRACTOR or subcontractor 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, DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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46 specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the work and/or property related to the work;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’S work on the project.
i. The 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 CITY as of the termination date.
CITY will pay CONTRACTOR an amount based on the percentage of satisfactory work 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 work such as subcontractor 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 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.
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 CONTRACTOR to appeal the City Manager, or his/her designee’s, decision to the City Council. The CONTRACTOR shall appeal by notifying the City Clerk in writing within ten (10) calendar days after
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 DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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47 claims or any other claims for delay shall be retroactive to the date of termination selected by the City Manager or his/her designee.
12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and shown upon the plans herein referred to, 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. AGREEMENT DOCUMENTS:
The complete agreement between the parties hereto consists of this agreement and the following documents which are incorporated herein by this reference:
a. Exhibit “A” Resolution No. 2021-_______;
b. Exhibit “B” Bid Submittal;
c. Exhibit “C” RFB
d. Insurance Certificates,
These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division. All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.
14. 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: __________________
__________________
__________________
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.
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48 15. SIGNATOR (IES) FOR CONTRACTOR:
The undersigned signature (ies) for CONTRACTOR warrant(s) and represent(s) those he/she/they is/are legally competent to execute the agreement and has/have full authority to execute this agreement.
16. 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.
17. 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.
18. HEADINGS NOT CONTROLLING:
Headings used in the agreement are for reference purposes only and shall not be considered in construing this agreement.
19. MISCELLANEOUS:
Time is of the essence in every provision of this agreement.
20. 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 proposal are controlling and are deemed accepted by CONTRACTOR by shipment of any article or other commencement of performance hereunder. 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 all the parties.
21. 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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49 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. 2021-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2021 and _____________________has caused this agreement to be duly executed.
CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: __________________________ By: _________________________________ JOSEPH P. LOPEZ, (Signature)
City Manager
By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________ By: _________________________________ STEPHANIE LOPEZ, (Signature)
City Clerk
By: _________________________________
(SEAL) (Name & Title)
Date: _______________________________
APPROVED AS TO FORM:
By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JILES SMITH II,
Risk Manager
Signature Requirements
Corporation:
1. Signature of two (2) officers
Or
2. Signature of one (1) officer plus the
Corporate seal.
Partnership: Signature of one partner
Sole Proprietorship: Signature of proprietor
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D #26..
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
FOR: STEPHANIE LOPEZ, City Clerk
CONSULTANT,
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:
BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:
BY: ____________________________
JILES SMITH II, Risk Manager
Consultant’s Federal ID # ___________
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal.
Partnership - signature of a partner required Sole
Proprietorship - signature of proprietor
required
DocuSign Envelope ID: 921A6E97-456D-47E2-B81E-CD9774EADE4D West Coast Arborist
Patrick Mahoney President
95-3250682
Richard Mahoney Secretary
10/1/2021
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Parks, Recreation and Neighborhoods Department SUBJECT: First Amendment to the Memorandum of Understanding for the King-Kennedy Memorial Center Board of Directors
CONTACT: Ashley Weaver, Recreation and Neighborhoods Manager, [email protected] , 209-577-5428
DESCRIPTION:
Consider approving the First Amendment to the Memorandum of Understanding with the KingKennedy Memorial Center Board of Directors to increase the total financial support by $6,000, from $22,000 to $28,000 by the City. (Funding Source: General 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 King-Kennedy Memorial Center (“Center”) was constructed in 1968 with funding from the United States Department of Housing and Urban Development. In August of 1996, by Resolution No. 96-484, the City and the King-Kennedy Memorial Center Board of Directors (“BOD”) entered into an agreement to provide financial support for community programming and engagement at the Center. This agreement expired in December of 2000. From 2001 to 2018 staff processed individual requests to provide financial assistance in support of the Juneteenth Celebration held at the Center and Dr. Martin Luther King Jr. Park.
In June of 2019, by Resolution No. 2019-255, Council approved the Memorandum of Understanding (“MOU”) outlining the responsibilities and requirements allowing the BOD to utilize the Center to support the community with programming, events and community engagement in West Modesto. In addition to use of the Center, the MOU provided for an annual contribution from the City to financially sponsor community events, including Juneteenth, Thanksgiving Turkey Giveaway, Dr. Martin Luther King Jr. Luncheon and Mother’s Day Brunch. #27..
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City Council, July 11, 2023
First Amendment to Memorandum Of Understanding with King-Kennedy Memorial Center Board of Directors
DISCUSSION:
The MOU with the BOD provides that the City make annual contributions for community events with a maximum financial contribution of $22,000 over five years. To date, the City has provided $14,000. In May 2023, the BOD met with the staff and requested an increase in City funding due to rising costs of goods and services. During the Finance Committee Budget Workshops held in April, staff proposed increasing the annual contribution. This request was also included in the update of Administrative Directive 3.6, Community & Special Event Sponsorships, which was approved by Council on June 6, 2023.
FISCAL IMPACT:
Funding for this item is included in the Recreation Division operating budget.
COMMITTEE RECOMMENDATION:
The item was reviewed by the Safety and Communities Committee on June 12, 2023, and was recommended to be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the First Amendment to the Memorandum of Understanding with the KingKennedy Memorial Center Board of Directors to increase the total financial support by $6,000, from $22,000 to $28,000 by the City, and authorizing the City Manager or his designee to execute the First Amendment.
Approved by:
Laurie A. Smith,
Parks, Recreation and Neighborhoods Director
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. First Amendment to MOU Agreement
3. MOU Agreement
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07/11/2023/PRN/AWeaver/Item X 1 2023-XXX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE FIRST AMENDMENT TO THE
MEMORANDUM OF UNDERSTANDING WITH THE KING-KENNEDY
MEMORIAL CENTER BOARD OF DIRECTORS TO INCREASE THE TOTAL FINANCIAL SUPPORT BY $6,000 FROM $22,000 TO $28,000 BY THE CITY,
AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE THE FIRST AMENDMENT
WHEREAS the King-Kennedy Memorial Center (“Center”) was constructed in 1968 for community programming and engagement, and
WHEREAS, in 1996, Council, by Resolution No. 96-484, approved an agreement with the King-Kennedy Memorial Center Board of Directors (“BOD”) to provide financial support to the BOD, and
WHEREAS, in 2000 the agreement expired and requests for financial assistance in support of the Juneteenth and other events held at the Center and Dr. Martin Luther King Jr. Park continued, and
WHEREAS, in 2019, Council, by Resolution No. 2019-255, approved the Memorandum of Understanding (“MOU”) allowing the BOD’s continued use of the Center and $22,000 in funding over five-year term of the MOU to support the community with programming, events and community engagement in West Modesto, and WHEREAS, due to the rising costs of goods and services, the City agrees to increase the total financial support by $6,000 from $22,000 to $28,000 over the term of the MOU.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the First Amendment to the Memorandum of Understanding with Commented [DC1]: Need to add language to define authorized signer
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07/11/2023/PRN/Weaver/Item XX 2 2023-XX
the King-Kennedy Memorial Center Board of Directors to increase the total financial support by $6,000, from $22,000 to $28,000 by the City.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the First Amendment in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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2023 FIRST AMENDMENT TO MOU
King-Kennedy Memorial Center Board of Directors, Inc.
1 FIRST AMENDMENT MEMORANDUM OF UNDERSTANDING
THIS FIRST AMENDMENT TO THE MEMORANDUM OF
UNDERSTANDING, made and entered into in the City of Modesto, State of California, this ____ day of June 2023, by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "CITY", and the King-Kennedy Memorial Center Board of Directors, Inc., a California non-profit agency, hereinafter referred to as "AGENCY".
R E C I T A L S
WHEREAS, on June 4, 2019, by Resolution No. 2019-255, Council approved the Memorandum of Understanding outlining the responsibilities and requirements allowing the Agency to utilize the King-Kennedy Memorial Center (“Center”) to support the community; and WHEREAS, Exhibit A to the Agreement provides the Outline of Services and Events provided at the Center for the benefit of the community; and WHEREAS, City desires to increase its financial support to the Agency for Agency activities, events and community services.
NOW, THEREFORE, the parties mutually agree as follows:
1. Section 3. COMPENSATION shall be amended to read as follows:
“City will provide financial support to the Agency in an amount not to exceed $4,000 (Four Thousand Dollars) for the first year of this Agreement (“Financial #27..
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2023 FIRST AMENDMENT TO MOU
King-Kennedy Memorial Center Board of Directors, Inc.
2 Support”), and $28,000 (Twenty-Eight Thousand Dollars) for the Term of this Agreement (“Total Financial Support”). Each year thereafter, City may adjust the Financial Support for the succeeding calendar year to account for inflation and other cost of living increases. However, in no event shall the cumulative Financial support paid by the City exceed the Total Financial Support.
Agency shall submit an invoice to the City for the requested amount each calendar year. At such time, Agency shall submit proof of current 501(c)(3) non-profit filing status with the State of California. All payments and reimbursements from the City to the Agency shall be in accordance with the City’s policies and procedures.”
2 Section 4. Obligations of Agency, subsection (b) shall be amended to read:
“Agency shall list the City of Modesto Parks, Recreation and Neighborhoods Department” as co-sponsor on all advertisements, promotional materials, event programs, banners, and other applicable mediums for all Agency programs and activities conducted at the Center or Martin Luther King Jr. Park. 3 Except as modified and amended by this FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING, all other provisions of the MEMORANDUM OF UNDERSTANDING, including all exhibits pertaining thereto, shall remain unchanged and in full force and effect. #27..
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2023 FIRST AMENDMENT TO MOU
King-Kennedy Memorial Center Board of Directors, Inc.
3 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 King Kennedy Community Center Board of Directors, Inc. a California non-profit agency, has caused this First Agreement to be duly executed.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Second Amendment to the Agreement for the Operation of the King-Kennedy Memorial Center
CONTACT: Ashley Weaver, Recreation and Neighborhoods Manager, [email protected] , 209-577-5428
DESCRIPTION:
Consider approving the Second Amendment to the Agreement for the Operation of the KingKennedy Memorial Center with the West Modesto Community Collaborative to extend the Agreement for one (1) year. (Funding Source: General 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 King-Kennedy Memorial Center (“Center”) was constructed in 1968 with funding from the Department of Housing and Urban Development (“HUD”). The City operated, staffed and offered community programming from 1968 until 2008. In 2006, by Resolution No. 2006-317, Council authorized the Parks, Recreation and Neighborhoods Department (“PRND”) to issue a Request for Information (RFI) inviting qualified non-profits to submit “Letters of Interest” to operate the Center. The West Modesto Community Collaborative (“WMCC”) was the only vendor/agency to submit a response. In 2007, by Resolution No. 2007-339, Council authorized PRND to enter negotiations with WMCC for management of the Center. In 2008, by Resolution No. 2008-081, the City of Modesto entered into an agreement with WMCC to manage and operate the Center.
The WMCC provides mental health services, community engagement, after school programming, summer camps, intervention programs and other services information to West Modesto. WMCC also hosts events open to the community for celebrations including Juneteenth.
In 2017, PRND staff established criteria for the outside agency operation of the Center and issued Request for Qualifications (RFQ) 1718-PRN-002 to 435 interested parties qualified to operate the Center. The WMCC was the only vendor/agency to submit a response. In 2018, by Resolution #28..
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City Council, July 11, 2023
Second Amendment to the Agreement for the Operation of the King-Kennedy Memorial Center
No. 2018-303, Council approved the agreement with WMCC to manage and operate the Center.
In 2020, by Resolution No. 2020-079, Council approved the First Amendment to the Agreement to provide access and use of the Center outside regular business hours and authorized WMCC to schedule and coordinate Center usage by the King-Kennedy Memorial Center Board of Directors, National Association for the Advancement of Colored People (NAACP) Modesto Stanislaus Branch 1048, and The Women’s Auxiliary, A Modesto Community Connection for community services.
DISCUSSION:
The Agreement with WMCC is set to expire August 8, 2023. Staff is requesting a one (1) year extension to allow time for the preparation of a Request for Proposal (RFP) for operation of the facility. This extension will provide agencies and community groups ample time to submit proposals for Center operations, provide staff enough time to thoroughly vet submissions and provide continuous programming to the surrounding community throughout the process.
This amendment increases WMCC’s monthly rent payment, to the City, by $50 to $1,250 per month for a total of $15,000 for the year, revises the holiday closures to include Juneteenth and Cesar Chavez Day, and affirms WMCC’s authority to schedule and manage community service use of the Center by other groups, organizations and persons outside of regular business hours.
FISCAL IMPACT:
This amendment increases the monthly rent, paid by WMCC, by $50, from $1,200 to $1,250 per month and generates $15,000 in annual revenue for the Recreation Division operating budget.
COMMITTEE RECOMMENDATION:
The item was reviewed by the Safety and Communities Committee on June 12, 2023, and was recommended to be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Second Amendment to the Agreement for the Operation of the KingKennedy Memorial Center with the West Modesto Community Collaborative to extend the Agreement for one (1) year and authorizing the City Manager or his designee to execute this second amendment.
Approved by:
Laurie A. Smith,
Parks, Recreation and Neighborhoods Director
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Second Amendment to Operations Agreement
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City Council, July 11, 2023
Second Amendment to the Agreement for the Operation of the King-Kennedy Memorial Center
3. First Amendment to Operations Agreement
4. Operations Agreement
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07/11/2023/PRN/AWeaver/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE SECOND AMENDMENT FOR THE
OPERATION OF THE KING-KENNEDY MEMORIAL CENTER WITH THE
WEST MODESTO COMMUNITY COLLABORATIVE TO EXTEND THE
AGREEMENT FOR ONE (1) YEAR AND AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO EXECUTE THIS SECOND AMENDMENT WHEREAS, in 1968, the King-Kennedy Memorial Center (“Center”) was constructed for community programming and engagement, and WHEREAS, from 1968 to 2008, the City operated, staffed and offered community programming at the Center, and
WHEREAS, in 2008, Council, by Resolution No. 2008-081, approved an agreement with West Modesto Community Collaborative (“WMCC”) to manage and operate the Center, and
WHEREAS, WMCC provides mental health services, community engagement, after school programming, summer camps, intervention programs and other services information to West Modesto, and
WHEREAS, in 2017, a Request for Qualifications was completed for interested parties to operate the Center, and
WHEREAS, WMCC was the only organization to respond, and WHEREAS, on August 8, 2018, by Resolution No. 2018-303, Council approved a new agreement with WMCC to manage and operate the Center, and WHEREAS, on February 11, 2020, by Resolution No. 2020-079, Council approved the First Amendment to the Agreement to provide access and use of Center outside of regular business hours and authorized WMCC to schedule and coordinate Center usage by the King-Kennedy Memorial Center Board of Directors, and #28..
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07/11/2023/PRN/AWeaver/Item X 2 2023-XX
WHEREAS, the Agreement needs to be amended to extend the term of the Agreement by one year to provide agencies time to submit proposals for Center operations, staff enough time to thoroughly vet submissions and continuous programming to the surrounding community throughout the process.
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the Second Amendment to the Agreement for the Operation of the King-Kennedy Memorial Center with the West Modesto Community Collaborative to extend the Agreement for one (1) year.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the Second Amendment to the Agreement, approved as to form by the City Attorney.
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07/11/2023/PRN/AWeaver/Item X 3 2023-XXX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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Second Amendment to KKMC Operating Agreement
1 SECOND AMENDMENT TO AGREEMENT FOR THE OPERATION OF THE
KING-KENNEDY MEMORIAL CENTER
THIS SECOND AMENDMENT TO THE 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 referred to as "CITY", and the Stanislaus Multi Cultural Community Health Coalition, a California non-profit agency, D.B.A. West Modesto Community Collaborative, hereinafter referred to as "AGENCY".
R E C I T A L S
WHEREAS, on August 8, 2018, by Resolution No. 2018-303, Council approved the Agreement (“AGREEMENT”) for the Operation of the King-Kennedy Memorial Center to operate and provide community service programming at the KingKennedy Memorial Center, hereinafter referred to as “Facility”; and WHEREAS, on February 11, 2020, by Resolution No. 2020-079, Council approve the First Amendment to the Agreement (“FIRST AMENDMENT”) to provide access and use of Facility outside regular business hours, and authorize AGENCY to schedule and coordinate Facility use by King-Kennedy Memorial Center Board of Directors, NAACP Modesto Stanislaus Branch 1048, and The Women’s Auxiliary, A Modesto Community Connection.
WHEREAS, the AGREEMENT is set to expire on August 8, 2023 and AGENCY and CITY desire to extend the AGREEMENT one (1) year to provide time for #28..
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Second Amendment to KKMC Operating Agreement
2 the City to issue a Request for Qualifications for operation of the Facility and amend the AGENCY’s Scope of Services.
NOW, THEREFORE, the parties mutually agree as follows:
1. Section 2. TERM OF AGREEMENT. is amended to read as follows:
“This Agreement shall commence of August 1, 2018 (“Effective Date”) and continue for a period of three (3) years followed by three (3), one-year renewal options for a total length not exceeding six (6) years from Effective Date. The CITY also retains the right to terminate this Agreement, as provided in Section
12.”
2. Section 3. COMPENSATION. is amended to read as follows:
“ AGENCY shall pay to the CITY, for its right to use and operate the FACILITY under this Agreement, the sum of ONE THOUSAND DOLLARS ($1000.00) per month. On each anniversary of the Effective Date, the monthly rent payment shall increase by FIFTY DOLLARS ($50.00) per month, pursuant to the following schedule:
Year 2: $1,050.00 per month
Year 3: $1,100.00 per month
Year 4: $1,150.00 per month
Year 5: $1,200.00 per month
Year 6: $1,250.00 per month
In advance of the first day of each month during the term hereof, these sums shall be payable without notice or demand and without any deduction, #28..
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Second Amendment to KKMC Operating Agreement
3 offset, or abatement in lawful money of the United States to the CITY at the address stated herein for notices or to such other person so such other places as the CITY may designate in writing.”
3. Exhibit D – GENERAL INFORMATION shall be amended to read as follows:
“1. Agency understands and agrees to abide by the Parks, Recreation and Neighborhoods (PRN) Facility Use Rules and Regulations.
2. Agency’s regular business hours shall be as follows:
Monday – Friday 8:00 AM – 5:00 PM
Any change to regular business hours must be approved by City with a minimum of 2 weeks’ notice and public posting.
Agency shall be responsible for the scheduling and management of facility usage by the King-Kennedy Memorial Center Board of Directors, NAACP Modesto Stanislaus Branch 1048, and The Women’s Auxiliary, A Modesto Community Connection. The usage of the facility by these nonprofit organizations will be considered Agency use and will be covered by the Agency’s insurance and staffed and secured by Agency personnel.
Agency use of the facility outside normal operating hours for their own purposes, will be permitted for the conducting of Community Services only. All such usage by the Agency shall be covered by Agency’s insurance and staffed and secured by Agency personnel.
Agency shall be responsible for the scheduling and management of all facility usage outside normal operating hours by all other person(s) or organizations. All such usage shall be insured by Agency or by user and staffed and secured by Agency personnel.
Agency shall allow City usage of the facility outside normal operating hours for City Functions.
Agency shall submit hours for Community Service programs to City Representative on a quarterly basis. Agency shall post for public display and perform outreach activities for Community Services at the Facility and provide, at a minimum, program marketing publications detailing programs, services, events, and hours of operations. Agency may, be shall not be limited to, listing activities on Agency website. #28..
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Second Amendment to KKMC Operating Agreement
4 3. City reserves the right to sublease any or part of the Facility. Prior to the execution of a sublease, the City agrees to meet with Agency and a prospective lessee to coordinate activities as the facility. If the sublease results in a reduction of program space available to Agency, City and Agency shall meet to discuss whether this Agreement should be amended to provide for an adjustment of a proportional reduction in the minimum Community Services programmatic requirements imposed by this Agreement. An adjustment shall be set forth in writing and signed by the City and Agency. City Manager, or his designee, or, if applicable, City Council approval, shall be required to approve reductions in the required Community Services Program. At City’s sole discretion, City may approve or request requests form Agency to sublease a portion of the Facility.
4. Agency shall not be required to provide services at the Facility on City holidays and other holidays as listed below:
New Year’s Day
Martin Luther King Day
President’s Day
Memorial Day
Cesar Chavez Day
Juneteenth
Independence Day
Labor Day
Thanksgiving Day
Day After Thanksgiving Day
Christmas Day
Agency shall have the right to close the facility during regular business hours as needed.
5. Agency shall cooperate with City in the conduct of any evaluation of Agency’s services. Agency recognizes and agrees that an evaluation of the Agency’s services may be completed after the expiration of the term of this Agreement.
6. Agency will provide reports to the City on the due dates specified in EXHIBIT B. The reports shall be provided in a format specified by city and contain performance measurement results, workload data, budget expense and revenue data, and adequate narration to describe and support measurement data. The City will provide the reporting templates to Agency.”
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Second Amendment to KKMC Operating Agreement
5 4. Except as modified and amended by this SECOND AMENDMENT to AGREEMENT, all other provisions of the AGREEMENT and the FIRST AMENDMENT, including all exhibits pertaining thereto, shall remain unchanged and in full force and effect.
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Second Amendment to KKMC Operating Agreement
6 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal
corporation, has authorized the execution of this Second Amendment to 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 West Modesto Community Collaborative, has caused this Second Amendment to Agreement to be duly executed.
Signatures on Following Page
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 26, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Laurie A. Smith, Director of Parks, Recreation and Neighborhoods Department SUBJECT: PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts
CONTACT: Laurie A. Smith, Director of Parks, Recreation & Neighborhoods, [email protected], 209-577-5437
DESCRIPTION:
Consider ratifying approval of the Agreement with and authorizing payment to PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts in the total amount not to exceed $661,634 over four years. (Funding Source: Golf Fund) STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto 2020-2025 Strategic Plan focus on Quality of Life, Goal D: provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.
BACKGROUND:
Golf Carts are maintained at the City’s two municipal 18-hole golf courses – Dryden Golf Course and Creekside Golf Course. Golf Cart rentals are a critical source of revenue for the courses, annually yielding over $500,000 in revenue.
In 2019, by Resolution 2019-283, Council approved a Master Agreement with Textron Specialized Vehicles, Inc., a Delaware Corporation, for Golf Carts and a Service Vehicle for a four-year lease for a total amount not to exceed $226,455.
In 2020, by Resolution 2020-296, Council approved the First Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $298,399 and extending the term of the Agreement from June 30, 2023, to August 30, 2023. The Agreement was extended to August 2023 to align with the signed lease agreements and extend the Dryden lease by one year.
In 2021, by Resolution 2021-408, Council approved the Second Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a #29..
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City Council, July 11, 2023
PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts Page 2 of 3
revised total amount of $377,623 to extend the Dryden Golf Cart Lease from September 1, 2021, to August 31, 2023. The Agreement was amended to extend the Dryden lease of carts for an additional two years to align with the termination of carts at Creekside on August 31, 2023.
In anticipation of increased lead times for cart delivery to the Golf Courses, staff began the process to issue an Invitation for Bids (IFB) in July 2022. One bid was received from E-Z-Go a Division of Textron Inc.
In 2023, by Resolution 2023-90, Council approved an Agreement for Rental of Golf Carts to E-ZGo a Division of Textron Inc., Mira Loma, CA for an annual estimated amount of $165,408 and a total not to exceed $661,634 over four years.
DISCUSSION:
The current agreement was approved by Council on March 7, 2023. At the time of the agreement, the delivery date of the Golf Carts was uncertain due to shipping concerns and E-Z-Go could not prepare the Lease Agreements that was to accompany the original Agreement.
Staff entered into an agreement with E-Z-Go with the knowledge that the Lease Agreements would be forthcoming once a delivery date was confirmed and set. In late April, staff met with E-Z-Go to confirm the delivery date. E-Z-Go was able to confirm a July 1 delivery date to coincide with the new Fiscal Year and sent the Lease Agreements to staff for signature. At that time, E-ZGo informed the City that the lease agreements would be with PNC Equipment Finance as the leasing agents. Under the terms of the Lease Agreements, the City will be making payments to PNC, not E-Z-Go.
Staff routed both Lease Agreements, one for Creekside Golf Course and one for Dryden Golf Course, for signature. Both lease agreements were fully signed by June 4th. Unfortunately, the March 7, 2023 resolution approving the transaction, did not identify PNC Equipment Finance as a party to the agreements.
Therefore, staff is requesting that Council ratify approval of the lease agreements with PNC Equipment Finance and authorize payments to PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts. The sum of the payments to PNC Equipment is the same amount previously approved by the Council. This action will formally approve the agreement with PNC Equipment Finance and authorize payment since the Council’s approval in March did not reference PNC Equipment Finance.
FISCAL IMPACT:
There is no increase in financial impact from the original agreement approved in March. No additional funding is being requested.
COMMITTEE RECOMMENDATION:
This item did not go to Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution ratifying approval of the Agreement with and authorizing payment to PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts in the total amount not to exceed $661,634 over four years.
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City Council, July 11, 2023
PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the Rental of Golf Carts Page 3 of 3
Approved by:
Laurie A. Smith, Director
Parks, Recreation & Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Lease Agreements
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07/11/2023/PRN/LSmith/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION RATIFYING APPROVAL OF THE AGREEMENT WITH AND
AUTHORIZING PAYMENT TO PNC EQUIPMENT FINANCE ON BEHALF OF E-Z-GO A DIVISION OF TEXTRON INC., FOR THE RENTAL OF GOLF CARTS IN THE TOTAL AMOUNT NOT TO EXCEED $661,634 OVER FOUR YEARS
WHEREAS, in 2019, by Resolution No. 2019-283, Council approved a Master Agreement with Textron Specialized Vehicles, Inc., a Delaware Corporation, for Golf Carts and a Service Vehicle for a four-year lease for a total amount not to exceed $226,455; and
WHEREAS, in 2020, by Resolution No. 2020-296, Council approved the First Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $298,399 and extending the term of the Agreement from June 30, 2023, to August 30, 2023; and WHEREAS, in 2021, by Resolution 2021-408, Council approved the Second Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $377,623 to extend the Dryden Golf Cart Lease from September 1, 2021, to August 31, 2023; and WHEREAS, in anticipation of increased lead times for cart delivery to the Golf Courses, staff began the process to issue an Invitation for Bids (IFB) in July 2022 and one bid was received from E-Z-Go a Division of Textron Inc.; and WHEREAS, on March 7, 2023, by Resolution 2023-90, Council approved an Agreement for Rental of Golf Carts to E-Z-Go a Division of Textron Inc., Mira Loma, CA for an annual estimated amount of $165,408 and a total not to exceed $661,634 over four years; and
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07/11/2023/PRN/LSmith/Item X 2 2023-XX
WHEREAS, at the time of the agreement, the delivery of Golf Carts was uncertain due to shipping concerns and E-Z-Go could not prepare the Lease Agreements that were to accompany the original agreement; and
WHEREAS, staff entered into the agreement with the knowledge that the Lease Agreements would be forthcoming once a delivery date was confirmed and set; and WHEREAS, in late April, staff met with E-Z-Go and were able to confirm a July 1 delivery date to coincide with the new Fiscal Year; and WHEREAS, at that time, E-Z-Go informed the City that the lease agreements would be with PNC Equipment Finance as the leasing agents. Under the terms of the Lease Agreements, the City will be making payments to PNC, not E-Z-Go; and WHEREAS, E-Z-Go sent staff the Lease Agreements for signature which were fully signed by June 4, 2023; and
WHEREAS, staff realized the original agreement with E-Z-Go did not reference PNC Equipment Finance as its Leasing Agent and there was no authority to issue payment to them; and
WHEREAS, staff is requesting ratification of the lease agreements with PNC Equipment Finance and authority to issue payments to PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the rental of Golf Carts.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby ratifies approval of the Agreement with and authorizing payment to PNC Equipment Finance on behalf of E-Z-Go a Division of Textron Inc., for the rental of Golf Carts in the total amount not to exceed $661,634 over four years. #29..
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07/11/2023/PRN/LSmith/Item X 3 2023-XX
BE IT FURTHER RESOLVED that the Finance Director, or her designee, is authorized to execute the agreements.
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07/11/2023/PRN/LSmith/Item X 4 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ___________________________
JOSE M. SANCHEZ, City Attorney
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1 AGREEMENT – SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and E-ZGO a Division of Textron Inc., hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2023-_______ authorizing the Award of Bid and agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE as described in IFB 2122-62, attached hereto as Exhibit “C”, and made a part hereof (hereinafter called IFB).
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative.
DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 7th
90 March
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2 c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount of One Hundred and Sixty-Five Thousand, Four Hundred and Eight Dollars, $165,408. The total amount paid by CITY to CONTRACTOR and shall not exceed $661,634 over the four (4) year term of the agreement. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Attachment 1.
2. CITY REPRESENTATIVE:
Laurie A. Smith
Director of Parks, Recreation and Neighborhoods
P.O Box 642, Modesto, CA 95353
(209) 577-5347
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
3. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of up to four (4) years, extension options at the sole discretion of CITY.
Year 1: 2023 through 2024
Year 2: 2024 through 2025
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3 Year 3: 2025 through 2026
Year 4: 2026 through 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first year of the AGREEMENT. Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the City of Modesto West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
4. LIABILITY INSURANCE:
The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies. a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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4 b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.
If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
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5 The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
5. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR “Net 45 Days via manual check”. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
This AGREEMENT NUMBER - 240195
CITY department/division name and address
Billing period
Service hours worked day and week
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6 Unit price, extended price, sales tax and total
6. INDEMNITY:
The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT.
CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
7. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
8. ATTORNEYS’ FEES:
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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7 shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
9. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced as immediately after receipt of the Notice to Proceed for this AGREEMENT. The Notice to Proceed shall not be issued until the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No.2122-62;
d. Contractor’s City of Modesto business license
10. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the nonbreaching party, or such other time as may be identified in the notice. Failure to correct any nonperformance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT, eitherin whole orin part, at its own discretion and without cause.
Post-Termination Procedure:
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8 Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materialsin 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 anyCONTRACTOR 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 DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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9 related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials;
b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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10 11. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
12. FAILURE TO PERFORM SATISFACTORY WORK:
It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors, b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the
CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence. Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
13. ASSIGNMENT OF RIGHTS:
The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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11 under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
14. CITY PROCESS/PROCEDURE APPROVALS:
CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
15. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
16. NOTICES:
Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: Maryellen Williams
Contracts Administrator
1-401-457-2327
[email protected]
DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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12 CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
17. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
18. QUANTITIES:
No minimum or maximum is guaranteed or implied.
19. FUNDING:
All annual extensions are based upon continuous funding for that purpose by the City Council. Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
20. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
21. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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13 medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full.
b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
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14 e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
22. CONTRACTOR LICENSES & PERMITS:
CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
23. RECORDS:
All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY.
CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
24. FACILITIES AND EQUIPMENT:
Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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15 listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.
25. INDEPENDENT CONTRACTOR; NOT AGENT:
At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent.
CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
26. DRUG FREE WORKPLACE:
CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
27. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
28. WAIVER:
The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
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16 29. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
30. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
31. ENTIRE AGREEMENT:
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.
32. PARTIAL INVALIDITY:
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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17 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and _____________________has caused this Agreement to be duly executed.
DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 7th March
E-Z-Go a Division of Textron Inc.
90 #29..
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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: FA80CA0B-563C-4213-8BEB-04F7D09615C0 E-Z-Go a Division of Textron Inc.
Maryellen Williams Contracts Administrator
05-0315468
3/14/2023
#29..
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03/07/2023PRN/LSmith/Item 9 1 2023-90
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-90
RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT FOR RENTAL OF GOLF CARTS TO E-Z-GO A DIVISION OF TEXTRON INC., MIRA LOMA, CA, FOR FOUR (4) YEARS, FOR AN ANNUAL ESIMATED AMOUNT OF $165,408 AND A TOTAL NOT TO EXCEED $661,634 OVER FOUR YEARS; AND AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, in 2019, by Resolution No. 2019-283, Council approved a Master Agreement with Textron Specialized Vehicles, Inc., a Delaware Corporation, for Golf Carts and a Service Vehicle for a four-year lease for a total amount not to exceed $226,455; and
WHEREAS, in 2020, by Resolution No. 2020-296, Council approved the First Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $298,399 and extending the term of the Agreement from June 30, 2023, to August 30, 2023; and WHEREAS, in 2021, by Resolution 2021-408, Council approved the Second Amendment to the Master Agreement with E-Z-GO, division of Textron, Inc., for leased Golf Carts and Service Vehicle to a revised total amount of $377,623 to extend the Dryden Golf Cart Lease from September 1, 2021, to August 31, 2023; and WHEREAS, the current golf cart lease is set to expire August 31, 2023; and WHEREAS, staff began the process of issuing an Invitation for Bids in July 2022 in anticipation of increased lead times for cart delivery to the Golf Courses; and WHEREAS, on October 31, 2022, the City Manager authorized the Purchasing Manager to issue a formal Invitation for Bids on PlanetBids; and DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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03/07/2023PRN/LSmith/Item 9 2 2023-90
WHEREAS, E-Z-Go a Division of Textron Inc. was the sole bidder and staff found the bid to be responsive and responsible; and
WHEREAS, the new Lease Agreement for Golf Carts is for (100) new Golf Carts and (2) service vehicles for a term of four years; and
WHEREAS, the cost to lease said vehicles shall not exceed $165,409 annually and $661,634 over the four-year lease period; and
WHEREAS, the Director of Parks, Recreation and Neighborhoods is authorized to increase the cost of cart rental fees, as necessary, to cover the cost of the carts; and WHEREAS, staff recommends the award of bid to E-Z-Go a Division of Textron Inc.; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to follow formal bid procedures; an award of bid and Lease Agreement for Golf Carts for Parks, Recreation & Neighborhoods department use to E-Z-Go a Division of Textron Inc., Mira Loma, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and E-Z-Go a Division of Textron Inc. was the lowest responsive and responsible bidder.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the award of bid and Agreement for Rental of Golf Carts to E-ZGo a Division of Textron Inc., Mira Loma, CA, for four (4) years, for an annual estimated amount of $165,408 and a total not to exceed $661,634 over four years.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Agreement in a form approved by the City Attorney.
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1 INVITATION FOR BIDS (“IFB”) NO. 2122-62
FOR
GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
BID OPENING: November 22, 2022, at 11:00 A.M.
CITY OF MODESTO CONTACT: Kathy Crandall, Buyer
E-MAIL ADDRESS: [email protected]
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2 TABLE OF CONTENTS
Page
. Notice to Bidders................................................................................................................ 3 . City Contacts...................................................................................................................... 5 . Calendar of Events............................................................................................................. 5 . Virtual Bid Opening........................................................................................................... 5
GENERAL REQUIREMENTS
. Bid Submittal...................................................................................................................... 7 . Acceptance/Rejection of Irregular Bids............................................................................. 7 . Complete Bid Document.................................................................................................... 7 . Compliance/Non-Compliance............................................................................................ 8 . Pricing Format.................................................................................................................... 8 . Award of Bid...................................................................................................................... 8 . Protest and Appeal Procedures......................................................................................... 10 . Bid Submittal Checklist ................................................................................................... 15 . Payment............................................................................................................................ 17 REQUIRED BID SUBMISSION DOCUMENTS (Sign Wherever Indicated) . Bid Form A – IFB Acknowledgement............................................................................. 16 . Bid Form B – Bidder Company Information................................................................... 19 . Bid Form C - Pricing Schedule........................................................................................ 21 . Bid Form D – Bidder Exceptions, Clarifications, Amendments..................................... 24 . Bid Form E – Bidder Customer References.................................................................... 25 . Bid Form F - Financial Interest Disclosure...................................................................... 27 . Bid Form G – Local Business Preference Declaration.................................................... 29 . Bid Form H – Bidder Company History Statement ....................................................... 30 . Bid Form I - Addenda Acknowledgement....................................................................... 31 . Bid Form J – Bidder Warranty Statements...................................................................... 32 . Bid Form K – Bidder Experience and Certifications....................................................... 33 . Bid Form L - Subcontractors List .................................................................................... 34
TECHNICAL REQUIREMENTS
. Scope of Work.................................................................................................................. 35 . Required Licenses............................................................................................................ 37 .
ATTACHMENTS
. Sample Annual Agreement ............................................................................................. 39 DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids from qualified Bidders for the (Leasing of Golf Carts for Dryden and Creekside Golf Courses) equipment, materials, supplies and/or related services (for the City of Modesto, Parks Recreation & Neighborhood Department).
All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Bidder, included in the Services pricing herein, and not separately charged to the City).
Bidders are highly recommended to download all IFB documents from the City’s Purchasing Division website at http://www.modestogov.com/???/Contracting-Bid-Opportunities; such IFB documents shall include all specifications necessary for Bidders to submit a responsive Bid.
Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to (Tuesday, November 22, 2022) at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.
Bids will be received only at the address shown above, and prior to the time indicated. Any Bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the Bidder unopened.
All Bids, whether delivered by an employee of the Bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated.
The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2122-62.
BID OPENING DATE: NOVEMBER 22, 2022, AT 11:00 A.M”.
Bidder must deliver your Bid by a preferred method to the appropriate location below:
MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK
CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET,
SUITE 6600, MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
5 CALENDAR OF EVENTS
Event Date
IFB Issued October 31, 2022
Written Questions Due via Email November 4, 2022
Addendum Issued (if required) November 14, 2022 (approximate date) Bid Due Date & Time BEFORE 11:00 A.M. on Tuesday, November 22, 2022.
Contract Award Approximately February 2023.
CITY CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted in writing via email to the City’s Purchasing Division contact named on the cover page of this IFB (“City Contact”) by the date listed in the CALENDAR OF EVENTS above. The City will respond to pertinent questions through issuance of an Addendum to be available to all Bidders. All contact between Bidder and the City regarding the Bid process shall be through the City Contact. Attempts by the Bidder to contact other City personnel regarding this IFB and associated process may result in disqualification of the Bidder. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.
BIDDER FAMILIARITY WITH SERVICE CONDITIONS
It is the responsibility of each Bidder to become familiar with all of the specifications, terms and conditions and the site condition (if applicable). The Bidder agrees to and acknowledges all IFB specifications, terms, and conditions and indicates the ability to perform by submission of a Bid. By the submission of a Bid, the Bidder certifies that if awarded a contract it will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.
PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void.
VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, November 22, 2022. The City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.
The public Bid opening for this Invitation for Bids will be available using the URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the abovestated IFB you acknowledge, understand, and agree to this modified Bid opening procedure.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
6 Join on your computer or mobile app
• Click here to join the meeting
•
• Or call in (audio only)
• +1 469-998-7409,,961656049# United States, Dallas
•
• Phone Conference ID: 961 656 049#
•
• https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40th read.v2/0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976- 189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two (2) “inked” (preferably blue ink) signed original Bid documents, plus one (1) copy of the signed original Bid document, and one (1) electronic copy submitted via USB. The original Bid documents shall be clearly marked.
Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN
DISQUALIFICATION.
B. CONFIDENTIAL BIDDER INFORMATION: It is the responsibility of the Bidders to identify information in their Bid submission that they may consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.
C. BIDDER COSTS INCURRED IN RESPONDING TO IFB: All costs associated with the preparation and submission of a Bid shall be borne by the Bidder.
D. BIDDER EXCEPTIONS: All exceptions taken to this IFB and associated specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form.
Failure to comply with this provision may deem the Bid as non-responsive. Please review the Sample Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes. Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or provision of Services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or provision of Services with exceptions.
E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS: An agreement shall be awarded to the Bidder whose Bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed):
• Bid Form A - IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
8 • Bid Form F - Financial Interest Disclosure
• Bid Form G – Local Business Preference Declaration
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L - Subcontractor List – N/A for this project Failure to furnish any of these documents may result in disqualification.
G. NON-COMPLIANCE: If Bidder cannot comply with a specification requirement in this IFB, note on the Exception, Clarifications, Amendments form of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Bidder is not in compliance with the specification, the Bid may be rejected.
H. PROPOSED PRICING FORMAT:
• The cost of labor, equipment, fuel, licenses, bonds, permits, and insurance necessary to perform the required provision of Services shall be included in Bid pricing, along with Bidder’s profit margin and any other cost factors.
• Unless otherwise stated, the Bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
• The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pick up materials.
• Bidder shall use the pricing schedule provided in this IFB to present Bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations may be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the Exception, Clarification, Amendments Form.
I. AWARD OF BID:
• The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
9 • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-
3.203(f). Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.
J. SUPPORT OF LOCAL VENDORS: Should the Bidder that submits the lowest responsive Bid or and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within 5% of the lowest Bid, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid or quote of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager. To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
K. INDEMNITY: The successful Bidder (the “Contractor”) will be required to hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of the Contractor, its agents, officers, employees, and volunteers relating to or during the performance of its obligations under this Bid. Contractor’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement for Contractor to procure and maintain a policy of insurance. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of City-owned vehicles by Contractor’s employees will be apportioned to Contractor in accordance with the provisions contained in indemnity.
L. BIDDER REPRESENTATION: Bidder represents that:
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GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
10 • Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work. • Bidder will complete the proposed provision of Services for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Services and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Services in accordance with the terms of any resultant agreement within the time specified therein.
M. BID PROTEST AND APPEAL PROCEDURES: Bidders wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.
Definitions
For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that a Bidder may lodge a protest.
Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests.
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GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
11 • A Bidder may not rely on the bid protest submitted by another bidder but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor.
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date.
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based. d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.
All protests to the Director of Finance shall either be delivered to:
City Clerk’s Office
Attn: Purchasing Manager
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12 1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Director of Finance
PO Box 642
Modesto CA 95353
b. Appeal to Deputy City Manager: At the protestor’s discretion, the decision of the Director of Finance may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.
Further protest appeals shall either be delivered to:
City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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13 Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.
All protest appeals to the City Council shall either be delivered to:
City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
e. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager a protestor may request that the protest be heard and decided at an administrative hearing.
A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.
The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.
The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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14 officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein.
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15 BID SUBMITTAL CHECKLIST
BID SUBMITTAL CHECKLIST
The Bidder shall provide a complete Bid in a sealed envelope by the required deadline on the Bid Opening Date. Failure to provide all the required documents may cause the Bid to be considered nonresponsive.
Bidder’s Bid must contain the following applicable elements completed and signed as described morefully herein. The following checklist is provided solely for Bidder’s use in reviewing the completeness of your submission:
COMPLETE BID ELEMENTS
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C - Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F - Financial Interest Disclosure
Bid Form G – Local Business Preference Declaration
Bid Form H – Bidder Company History Statement
Bid Form I - Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K – Bidder Experience and Certifications
Bid Form L - Subcontractor List
Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission.
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16 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each “bidder”) to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).
This Bid Acknowledgement must be completed, signed by an authorized responsible officer or employee, dated and submitted with the Bid response. Obligations assumed by such signature will include the following:
1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the Bid. (b) Quote price as specified in Bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.
2. Failure to Submit Bid: If you are not submitting a Bid but want to remain on the mailing list and receive future Bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.
3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the IFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the Bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the City; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the City are exempt from certain Federal excise taxes. The City will furnish an exemption certificate.
4. Award: (a) Unless otherwise specified by the Bidder or the IFB gives notice of an all-or-none award, the City may accept any item or group of items of any Bid. (b) Bids are subject to acceptance by the City at any time within 45 days of opening, unless otherwise specified in the IFB. A Bidder shall not change its bid if accepted within such time. (c) A valid, contract based on the sample agreement attached to the IFB and the submitted bid shall be mailed, or otherwise furnished, to the successful Bidder within the time for acceptance specified, and such contract shall be a binding agreement without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.
5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or unDocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.
6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.
7. Rights and Remedies of City for Default: (a) In the event any item furnished by the Bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the Bidder with its Bid, the City may reject the same, and it shall thereupon become the duty of the Bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Bidder fail, neglect or refuse to do so, the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. City may deduct from any moneys due or that may there after coming due to Bidder, or send an invoice to the Bidder which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the Bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. (c) The rights and remedies of the City provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.
8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
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18 ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder.
Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this IFB.
(b) Option B – Manual Check: On Net 45 Day timing, the City will mail a hardcopy check to Bidder. The payment will be deemed to have been made when the check envelope is mailed via US Postal Service First Class Mail. The timing of the mailing will be at the end of the Net 45 Day period. Additional time should be estimated by the Bidder for the check to be in transit, and to await deposit and clearance by Bidder staff.
9. California Government Code Section 4552: In submitting a Bid to the City, the Bidder offers and agrees that if the Bid is accepted, it will assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Services, materials, or services by the Bidder for sale to the purchasing body pursuant to the Bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Bidder.
10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded under a contract or purchase order resulting from this Bid.
11. Two “Inked” Signed Original Bids Document Required: Failure to furnish two (2) “inked” signed original Bid documents may result in disqualification. These must be accompanied by one (1) copy and one electronic document recorded onto a USB storage device.
12. Minor Irregularities. The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Bid.
The undersigned acknowledges receipt of the referenced IFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the Bidder indicated in Bidder’s Bid Forms A through L, attached hereto and made a part hereof, for the pricing proposed on the Pricing Schedule.
Bidder Company Name:
Bidder Headquarters Address:
City/State/Zip:
Signature/Title/Date:
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19 BID FORM B – BIDDER COMPANY INFORMATION
A. Bidder Company Full
Legal Name
B. Bidder Company
Marketplace (or DBA)
Name
C. Type of Legal Entity: ___ Corporation, registered in ____________________ (State) ___ Limited Liability Company, registered in _________________(State) ___ Partnership, registered in ________________(State)
___ Sole Proprietorship, registered in ____________(State) ___ Other ___________________________________________(Describe) D. Headquarters Address
(Street Address, City,
State, Country, Postal
Code):
E. Website Address: www.___________
F. Contact Person Details: Name:
Title:
Phone (Office):
Phone (Mobile):
Mailing Address (Street Address, City, State, Postal Code):
Fax Number:
G. Federal Taxpayer
Identification Number
(TIN):
H. Dun & Bradstreet
(DUNS) Number:
I. Names and Titles of
Top Three Bidder
Officers:
J. Years in Business:
K. Bidder Office Address
Closest to City of
Modesto (Street
Address, City, State,
Country, Postal Code):
L. City of Modesto
Business License
Number (note –
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20 provide only if
available now - - but
not required until any
contract begins):
M. State of California
Contractor License
Number and Expiration
Date (if available):
N. State of California
Department of
Industrial Relations
(DIR) Registration
Number and Expiration
Date (if available):
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21 BID FORM C - PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, insurance and other expenses necessary for Bidder to perform the required services shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.
The payment of Prevailing Wages (is not) required for this project.
Course Item QTY UOM Unit Price
Monthly
Total
Annual
Total
Creekside
Electric Powered Golf Cart as per
specifications 50 Each $_________ $__________ $_________ Creekside
Gas Powered Range Picker as per
specifications 1 Each $_________ $__________ $_________ Creekside Delivery/Shipment Fees 1 Each $_________ $__________ $_________ Creekside Subtotal $_________
Dryden
Electric Powered Golf Cart as per
specifications 50 Each $_________ $__________ $_________ Dryden
Gas Powered Range Picker as per
specifications 1 Each $_________ $__________ $_________ Dryden Delivery/Shipment Fees 1 Each $_________ $__________ $_________ Dryden Subtotal $_________
ePay
1% Rebate (See page 17 for
this option YES /NO, If no,
please mark a zero in the
column $_________
TOTAL SUM FOR CREEKSIDE AND DRYDEN $______________
Other Fees & Taxes
(Please note below) QTY UOM Unit Price
Monthly
Total
Annual
Total
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
TOTAL SUM OF BID ITEMS FOR ONE YEAR $_______________
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22 Optional Items
(Please note below) QTY UOM Unit Price
Monthly
Total
Annual
Total
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
$_________ $__________ $_________
TOTAL SUM $_______________
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23 Payment Terms:
Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):
Choose One:
• Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or • Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.
THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and offers to furnish the articles and/or services specified, in accordance with the specifications, terms and conditions of this IFB and these Bid documents, for the pricing indicated on the Pricing Schedule.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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24 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS Exceptions to the City of Modesto’s IFB package, sample agreement, and associate specifications are not encouraged and may cause Bidder to be considered not responsible and/or its Bid to be considered not responsive. Therefore, if no exceptions, clarifications or amendments are proposed by Bidder, it is preferred that Bidder so indicate by typing or writing “Not Applicable” in the Description field in the first item row below. Less preferred, Bidder may indicate no exceptions, clarifications or amendments are proposed by leaving this form out of its’ Bid submission.
Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response.
Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.
Item # Reference To: Description
Page # Section or
Paragraph #
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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25 BID FORM E – BIDDER CUSTOMER REFERENCES
Bidder must provide a list of five current or former customers able to discuss prior experience with similar type of services requested by the City in the above-referenced IFB. Bidder’s references shall have similar volume and requirements to the City of Modesto as described in the above-referenced IFB.
Bidders failing to provide references may be deemed as non-responsive.
The City may contact some or all of the references provided in order to determine the Bidder’s performance record on services similar to that described in the above-referenced IFB. The City reserves the right to contact references other than those provided in Bidder’s submission and to use the information gained from them in the award process.
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
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26 City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
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27 BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.
Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract or development right.
PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.
Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.
For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.
Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.
Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-
10.03(h) are satisfied.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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28 Print Names of Persons Having a Financial Interest in Bidder Receiving this Contract:
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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29 BID FORM G - LOCAL BUSINESS PREFERENCE DECLARATION
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within five percent (5%) of the lowest Bid or quote, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager.
Notwithstanding the foregoing, award to the local Bidder must still be approved by the City Council as would have the typical award.
To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
This document is only required should the Bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.
Check here:
I declare I am a local business per the above criteria
Bidder Company Name:
City of Modesto Address (Street,
City, State, Postal Code:
City of Modesto Business License
Number:
Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:
Print/Type Name:
Title:
Signature:
Date:
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30 BID FORM H - BIDDER COMPANY HISTORY STATEMENT
Bidder shall have been in business for a minimum of three continuous years (immediately prior to the time of the City’s solicitation) providing the services described in this Invitation for Bids (IFB).
The Bidder’s company history overview statement shall be approximately one to three pages in length and inserted below:
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Company History Overview Statement Beginning Here:
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AND CREEKSIDE GOLF COURSE
31 BID FORM I - ADDENDA ACKNOWLEDGEMENT
In order to obtain any addenda information, throughout the IFB period, Bidder is responsible for regularly checking the City of Modesto’s Planet Bid website at https://pbsystem.planetbids.com/portal/14999/bo/bosearch for the IFB number listed on the Cover Page and in the header of each subsequent page of this IFB, and in any event, no later than the day prior to Bid opening. The changes identified in any addenda issued will modify this IFB and specifications. The addenda now become a part of this IFB and Bidder’s resultant Bid.
Signing the Bid on the signature portion thereof, the Bidder is acknowledging that the Bidder has confirmed that it has received all addenda issued for IFB and has included costs for such in the Bid submitted. Failure to list and acknowledge all addenda numbers may cause Bidder’s Bid to be considered nonresponsive.
Do not attach any of the addenda to this sheet nor include them with the Bid.
If no addenda have been issued against this IFB solicitation, Bidder may write “Not Applicable” and return this Bid Form as part of its submission. Alternatively, Bidder may leave this Bid Form out of its submission.
But if any addenda have been issued by the City of Modesto this document is required to be completed and returned.
The Bid is submitted with respect to the changes to the IFB included in addenda numbers:
List All Addenda Numbers, Separated by Commas
(“,”):
Bidder Company Name:
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
32 BID FORM J – BIDDER WARRANTY STATEMENTS
As a material part of its Bid, Bidder shall insert below a written statement detailing any materials and workmanship warranties, term and conditions in conformance with the specifications and requirements set forth in this IFB.
Notwithstanding any other provisions of this IFB, Bidder warrants that the materials, supplies, or other services furnished under any contract or purchase order resulting from its Bid shall be on the most suitable grade and meet or exceed the standards set forth in this IFB. Such warranty shall include the following: performance, workmanship, labor, materials, and Bidder design or engineering contributions. If a defect is discovered in any item of the materials, assemblies, components, supplies or services covered in this Bid, Bidder shall correct at its sole expense, all such defects as are reported within 30 days of City’s final acceptance. Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms or any resultant purchase order.
All materials, parts, labor, assemblies and components shall by subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto.
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Warranty Statement Beginning Here:
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
33 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS
Bidder shall provide below a summary covering the following:
A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications and representative experience.
B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
34 BID FORM L - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:
Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
35 TECHNICAL SPECIFICATIONS AND REQUIREMENTS
1.1 SCOPE OF WORK:
The City of Modesto operates two (2) 18-hole municipal golf courses: Creekside Golf Course and Dryden Park Golf Course located in Modesto, CA. The City is seeking a Contractor to provide a four (4) year lease for (2) fleets of golf carts, provide regular maintenance, inspection, service, and repairs (collectively called “service”), and a warranty that will ensure the golf carts will be able to drive 36 holes for the entirety of the lease as described in this scope of work. The existing agreements for Golf Carts expire on August 31, 2023. It is anticipated that the successful contractor would begin operations on August 17, 2023.
Dryden Park Golf Course is a full length, 6,574-yard golf course, built on 140 acres in the late 1950’s. It appeals to golfers of all levels from beginner to expert. It has medium-size tees, average width tree-lined fairways and medium to large greens. There is a full service driving lighted range, practice putting greens and a practice Pitching green. Dryden achieved 29,243 average rounds over the last three fiscal years.
Creekside Golf Course opened for play in September of 1991. It is a championship 18-hole golf course measuring approximately 6,800 yards from the blue (championship) tees and is built on 160 acres. Creekside has three (3) lakes, large undulating greens, large tees, narrow fairways and many sand traps. The course appeals to all levels of golfers from beginner to expert. Two (2) holes are in the bottom of a bluff created by Dry Creek and are adjacent to the undeveloped Dry Creek Regional Park and Trail. The remainder of the course is located above the flood plain. Creekside has averaged 46,146 rounds over the last three fiscal years.
GOLF CART SPECIFICATIONS AND LEASE DETAILS:
1. Quantity and Type
• 100 New Carts
• 2 New Range Pickers
• 2 Accessible Carts (new or used) for disabled persons (optional)
2. Cost of Golf Carts
Using the Pricing Schedule in this RFB, the Contractor will provide the cost of the Golf Carts. The Contractor will provide an operating lease. The operating lease must define the terms of the lease including the monthly payment, and optional purchase price. Lease must include applicable taxes and fees, if any.
3. Battery Solution
The Contractor will provide battery options with a minimum warranty of 48 months. The options must be Lead Acid batteries or Lithium-Ion batteries only.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
36 4. Golf Cart Specifications
a. Golf Carts:
All Golf carts will be new from the factory. Specification sheets are required for each proposed vehicle solution within the bid. At a minimum, each of the following features are required:
i. Standard roof
ii. Standard paint color
iii. Standard wheel package
iv. No windshield
v. Sweater basket
vi. Information holder
vii. Watering system (battery)
viii. Cart numbers
ix. Standard 2-seaters
x. USB connection
City is also interested in the following options but are not required:
i. Geo Fencing
ii. Speed Control
b. Range Pickers:
i. Gas-powered vehicle
ii. Equipped with protective cage
iii. Equipped with headlights and taillights
c. Accessible Golf Carts (optional):
i. Equipped with a swivel seat and/or standup seat
ii. Equipped with hand controls
iii. Condition may be Used
5. Golf Carts should meet the specifications as defined above or have an equivalent thereto. City reserves the right to determine equivalency of equipment.
1.2 SERVICING:
Contractor must provide regular service on all makes and models of golf cart equipment, including, but not limited to, batteries, roofs, seats, body of the cart as well as the driving range pickers, which are heavy-duty vehicles compared to the standard golf cart (collectively called “equipment”). “Service” is defined as DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
37 Regular maintenance, inspection, service, and repairs.
Scheduled service under this agreement shall be performed during regular business hours of each respective course from 8:00 am to 5:00 pm. The rate shall be billed at an hourly rate and a quote will be provided to the Technical Liaison. Materials will be at the Contractor’s landed cost less any earned discounts.
1.3 WARRANTY:
The purpose of servicing the golf carts is to eliminate the existence of warranty claims. City expects the contractor to alert the City if potential problems can be averted and will allow City to correct the problem to avoid voiding the warranty. Contractor must guarantee the entire golf cart, throughout the entirety of the lease. Golf carts must be able to run a minimum of 36 holes per day for the entirety of the lease. If a golf cart cannot run 36 holes per day at any point during the contract, Contractor will correct the deficiency at no charge to the City. Any other exclusions or normal wear and tear items must be disclosed in the bid.
1.4 DELIVERY:
Delivery shall be FOB destination, prepaid and allowed. Full Delivery consists of golf carts onsite at each course as noted in the table below and fully assembled.
Item
Creekside Golf Course
701 Lincoln Ave.
Modesto, CA 95354
Dryden Golf Course
920 Sunset Ave.
Modesto, CA 95351
Golf Cart 50 qty 50 qty
Range Picker 1 qty 1 qty
Total 51 qty 51 qty
Delivery charges shall be included in the Pricing Schedule. Contractor must provide the lead time necessary to deliver the new fleet of golf carts once the contract is signed. The full delivery of the Golf Carts must be completed by August 17, 2023.
1.5 CITY REPRESENTATIVE:
All Services provided under any resulting contract shall be under the general technical guidance and direction of the City of Modesto, Parks, Recreation & Neighborhoods Department. The Parks, Recreation & Neighborhoods Department is not authorized to commit the City to change in specifications, requirements, scope of work, or changes in pricing. Changes of a contractual or business nature shall be affected only by written change to the contract, issued by the City of Modesto, Parks, Recreation & Neighborhoods Department.
1.6 REQUIRED LICENSES:
Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement.
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INVITATION FOR BIDS # 2122-62
GOLF CARTS LEASE FOR DRYDEN
AND CREEKSIDE GOLF COURSE
38 1.7 CALIFORNIA CONTRACTORS LICENSE: Not applicable for this bid.
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39 SAMPLE AGREEMENT
SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the
GOLF CARTS LEASE FOR DRYDEN AND CREEKSIDE GOLF COURSE
as described in IFB 2122-62, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
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40 a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $_________________. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $____________. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
AGREEMENT PRICING
[TBD – Insert Pricing Table Here]
2. CITY REPRESENTATIVE:
CITY Representative is:
________________________ ____________________________
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
3. TERM OF AGREEMENT:
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41 The term of the AGREEMENT shall be for a period of four years, options at the sole discretion of CITY.
Year 1: 2023 through 2024
Year 2: 2024 through 2025
Year 3: 2025 through 2026
Year 4: 2026 through 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.
Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the City of Modesto West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
4. LIABILITY INSURANCE:
The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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42 any automobile for bodily injury and property damage. c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.
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 additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
5. BONDS. Not applicable for this bid.
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43 6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total
7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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44 officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
8. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
9. ATTORNEYS’ FEES. If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced as immediately after receipt of the Notice to Proceed for this AGREEMENT. The Notice to Proceed shall not be issued until the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2022-_______;
b. CONTRACTOR Bid submittal;
c. IFB No.2122-62;
d. Contractor’s City of Modesto business license
11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonDocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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45 performance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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46 f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
12. COMPLIANCE WITH ALL LAWS:
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47 CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK: It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
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).
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48 15. CITY PROCESS/PROCEDURE APPROVALS: CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
16. DIR REGISTRATION: Pursuant to Labor Code section 1771.1, CONTRACTOR may not engage in the performance of the Services set forth in Exhibit “C”, unless currently registered and qualified to perform public work pursuant to Section 1725.5 thereof. As required in Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, that during term of this AGREEMENT, CONTRACTOR shall be registered to perform public work pursuant to Section 1725.5 thereof.
17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES: If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
18. NOTICES:
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: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
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49 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
19. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
20. QUANTITIES: No minimum or maximum is guaranteed or implied.
21. FUNDING: All annual extensions are based upon continuous funding for that purpose by the City Council. Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.
The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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50 Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
24. CONTRACTOR LICENSES & PERMITS: CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
25. RECORDS. All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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51 documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
26. FACILITIES AND EQUIPMENT. Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.
27. INDEPENDENT CONTRACTOR; NOT AGENT. At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
28. DRUG FREE WORKPLACE: CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
29. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
30. WAIVER:
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52 The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
31. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
32. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
33. ENTIRE AGREEMENT:
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
34. PARTIAL INVALIDITY:
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.
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 DocuSign Envelope ID: FA80CA0B-563C-4213-8BEB-04F7D09615C0 #29..
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53 _____________________, 2023 and _____________________has caused this Agreement to be duly executed.
CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: __________________________ By: _________________________________ JOSEPH P. LOPEZ, (Signature)
City Manager
By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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10/15 SE Welcome Letter
May 10, 2023
City of Modesto
Course Name: Dryden Park GC
ATTN: ACCOUNTS PAYABLE, 1010 10th St
MODESTO, CA 95354
RE: Lease Number 1195642-5
To Whom It May Concern:
Thank you for choosing PNC Bank, National Association as your financing source. Enclosed you will find the following documentation:
Lease Agreement: Please sign, print name, title and date. Schedule A (if applicable): Please initial at the bottom of the page. Insurance: Please note the page detailing instructions regarding the certificate of insurance required under the terms of the lease.
Simply forward a copy of the signed page to your insurance carrier, so that they may issue the appropriate certificate on a timely basis.
Resolution and Certificate of Incumbency: Please have all authorized signers (including the individual who signed the documents) sign in the middle section along with the Corporate Secretary or Assistant Secretary, who should complete the bottom section of the document. This person must complete the top and bottom sections of the document. If you have a corporate resolution available, please include that in the return of your documents. If this document does not apply to your business structure, please send a copy of your Operating Agreement, Partnership Agreement or Incorporating documents. Customer Information Form: Please complete and return. Notification of Tax Treatment: Please complete and return.
We appreciate this opportunity to serve you and look forward to working with you in the future. Should you have any questions before sending the documents, please feel free to contact me at [email protected].
Sincerely,
Gillian Wixted
Sales Specialist
C03
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Lease Agreement
Dated as of May 10, 2023
Lease Number: 1195642-5
Lessor: PNC Bank, National Association
655 Business Center Drive
Horsham, Pennsylvania 19044
Lessee: LESSEE FULL LEGAL NAME FEDERAL TAX ID
City of Modesto 946000374
ATTN: ACCOUNTS PAYABLE, 1010 10TH ST
MODESTO, CA 95354
Equipment Description:
Quantity Description Serial No.
50 (50) 2023 E-Z-GO RXV Elite
Lease Term is for 48 months, with Rent payments due in 48 Monthly plus applicable tax; each in the amount of $6,104.50 beginning _______________________.
Lessee shall pay Rent payments exclusively from legally available funds in U.S. currency to Lessor in the amounts and on the dates set forth herein, without notice or demand.
TERMS AND CONDITIONS
1. LEASE. Subject to the terms of this Lease, Lessee agrees to lease from Lessor the equipment (the “Equipment”) described above when Lessor accepts this Lease. Lessee agrees to be bound by all the terms of this Lease.
2. DELIVERY AND ACCEPTANCE OF EQUIPMENT. Acceptance of the Equipment occurs upon delivery. When Lessee receives the Equipment, Lessee agrees to inspect it and to verify by telephone or in writing such information as Lessor may require. Delivery and installation costs are Lessee’s responsibility. If Lessee signed a purchase contract for the Equipment, by signing this Lease Lessee assigns its rights, but none of its obligations under the purchase contract, to Lessor.
3. RENT. Lessee agrees to pay Lessor Rent (plus applicable taxes) in the amount and frequency stated above. If Lessee’s Rent payments are due in Advance, Lessee’s first Rent payment is due on the date Lessee accepts the Equipment under the Lease. Lessor will advise Lessee as to (a) the due date of each Rent payment, and (b) the address to which Lessee must send payments. Rent is due whether or not Lessee receives an invoice from Lessor. Lessee will pay Lessor any required advance rent when Lessee signs this Lease. Lessee authorizes Lessor to change the Rent by not more than 15% due to changes in the Equipment configuration, which may occur prior to Lessor’s acceptance of this Lease. Restrictive endorsements on checks Lessee sends to Lessor will not reduce Lessee’s obligations to Lessor.
NON-APPROPRIATION OF FUNDS. Lessee intends to remit all Rent and other payments to Lessor for the full Lease Term if funds are legally available. In the event Lessee is not granted an appropriation of funds at any time during the Lease Term for the Equipment subject to this Lease and operating funds are not otherwise available to Lessee to pay the Rent and other payments due and to become due under this Lease, and there is no other legal procedure or available funds by or with which payment can be made to Lessor, and the nonappropriation did not result from an act or omission by Lessee, Lessee shall have the right to return the Equipment as provided herein and terminate this Lease on the last day of the fiscal period for which appropriations were received without penalty or expense to Lessee, except as the portion of Rent for which funds shall have been appropriated and budgeted. At least 30 days prior to the end of Lessee’s fiscal year, Lessee’s chief executive officer (or legal counsel) shall certify in writing that (a) funds have not been appropriated for the upcoming fiscal period, (b) such non-appropriation did not result from any act or failure to act by Lessee, and (c) Lessee has exhausted all funds legally available for the payment of Rent.
4. UNCONDITIONAL OBLIGATION. LESSEE AGREES THAT IT IS UNCONDITIONALLY OBLIGATED TO PAY ALL RENT AND ANY
OTHER AMOUNTS DUE UNDER THIS LEASE IN ALL FISCAL YEARS IN WHICH FUNDS HAVE BEEN APPROPRIATED NO MATTER
WHAT HAPPENS, EVEN IF THE EQUIPMENT IS DAMAGED OR DESTROYED, IF IT IS DEFECTIVE OR IF LESSEE HAS TEMPORARY OR PERMANENT LOSS OF ITS USE. LESSEE IS NOT ENTITLED TO ANY REDUCTION OR SET-OFF AGAINST RENT OR OTHER AMOUNTS DUE UNDER THIS LEASE FOR ANY REASON WHATSOEVER.
5. DISCLAIMER OF WARRANTIES. THE EQUIPMENT IS BEING LEASED TO LESSEE IN “AS IS” CONDITION. LESSEE AGREES
THAT LESSOR HAS NOT MANUFACTURED THE EQUIPMENT AND THAT LESSEE HAS SELECTED THE EQUIPMENT BASED UPON LESSEE’S OWN JUDGMENT. LESSEE HAS NOT RELIED ON ANY STATEMENTS LESSOR OR ITS EMPLOYEES HAVE MADE. LESSOR HAS NOT MADE AND DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SUITABILITY, DESIGN, CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR APPLICABLE LAW. Lessee is aware of the name of the Equipment manufacturer. If the manufacturer has provided Lessor with a warranty, Lessor assigns its rights to such warranty to Lessee and Lessee may enforce all warranty rights directly against the manufacturer of the Equipment. Lessee agrees to settle any dispute regarding performance of the Equipment directly with the manufacturer of the Equipment.
July 1, 2023
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6. TITLE AND SECURITY INTEREST. Unless otherwise required by the laws of the state where Lessee is located, Lessor shall have title to the Equipment during the Lease Term.
7. USE, MAINTENANCE AND REPAIR. Lessee will not move the Equipment from the Equipment Location without Lessor’s advance written consent. Lessee will give Lessor reasonable access to the Equipment Location so that Lessor can check the Equipment’s existence, condition and proper maintenance. Lessee will use the Equipment in the manner for which it was intended, as required by all applicable manuals and instructions, and keep it eligible for any manufacturer’s certification and/or standard full-service maintenance contract. At Lessee’s own cost and expense, Lessee will keep the Equipment in good repair, condition and working order, ordinary wear and tear excepted. Lessee will not make any permanent alterations to the Equipment and will remove any alterations or markings from the Equipment before returning to Lessor.
8. TAXES. Unless a proper exemption certificate is provided, applicable sales and use taxes will be added to the Rent. Lessee agrees to pay Lessor, when invoiced, all taxes (including any sales, use and personal property taxes), fines, interest and penalties relating to this Lease and the Equipment (excluding taxes based on Lessor’s net income). Lessee agrees to file any required personal property tax returns and, if Lessor asks, Lessee will provide Lessor with proof of payment. Lessor does not have to contest any tax assessments.
9. INDEMNITY. Lessor is not responsible for any injuries, damages, penalties, claims or losses, including legal expenses, incurred by Lessee or any other person caused by the transportation, installation, manufacture, selection, purchase, lease, ownership, possession, modification, maintenance, condition, operation, use, return or disposition of the Equipment. To the extent permitted by law, Lessee agrees to reimburse Lessor for and defend Lessor against any claims for such losses, damages, penalties, claims, injuries, or expenses. This indemnity continues even after this Lease has expired, for acts or omissions that occurred during the Lease Term.
10. IDENTIFICATION. Lessee authorizes Lessor to insert or correct missing information on this Lease, including serial numbers and any other information describing the Equipment.
11. LOSS OR DAMAGE. Lessee is responsible for any loss of the Equipment from any cause at all, whether or not insured, from the time the Equipment is shipped to Lessee until it is returned to Lessor. If any item of Equipment is lost, stolen or damaged, Lessee will promptly notify Lessor of such event. Then, at Lessor’s option, Lessee will either (a) repair the Equipment so that it is in good condition and working order, eligible for any manufacturer’s certification, or (b) pay Lessor an amount equal to the Net Book Value (as defined herein) of the lost, stolen or damaged Equipment. If Lessee has satisfied their obligations herein, Lessor will forward to Lessee any insurance proceeds which Lessor receives for lost, damaged, or destroyed Equipment. If Lessee is in default, Lessor will apply any insurance proceeds Lessor receives to reduce Lessee’s obligations pursuant to this Lease.
12. INSURANCE. Lessee agrees to (a) keep the Equipment fully insured against loss, naming Lessor as loss payee, and (b) obtain a general public liability insurance policy covering both personal injury and property damage in amounts not less than Lessor may tell Lessee, naming Lessor as additional insured, until Lessee has met all their obligations under this Lease. Lessor is under no duty to tell Lessee if Lessee’s insurance coverage is adequate. The policies shall state that Lessor is to be notified of any proposed cancellation at least 30 days prior to the date set for cancellation. Upon Lessor’s request, Lessee agrees to provide Lessor with evidence of insurance acceptable to Lessor. If Lessee does not provide Lessor with evidence of proper insurance within ten days of Lessor’s request or Lessor receives notice of policy cancellation, Lessor may (but Lessor is not obligated to) obtain insurance on Lessor’s interest in the Equipment at Lessee’s expense.
Lessee will pay all insurance premiums and related charges.
13. DEFAULT. Lessee will be in default under this Lease if any of the following happens: (a) Lessor does not receive any Rent or other payment due under this Lease within ten days after its due date, (b) Lessee fails to perform or observe any other promise or obligation in this Lease and does not correct the default within ten days after Lessor sends Lessee written notice of default, (c) any representation, warranty or statement Lessee has made in this Lease shall prove to have been false or misleading in any material respect, (d) any insurance carrier cancels or threatens to cancel any insurance on the Equipment, (e) the Equipment or any part of it is abused, illegally used, misused, lost, destroyed, or damaged beyond repair, (f) a petition is filed by or against Lessee under any bankruptcy or insolvency laws, or (g) Lessee defaults on any other agreement between it and Lessor (or Lessor’s affiliates).
14. REMEDIES. Upon the occurrence of a default, Lessor may, in its sole discretion, do any or all of the following: (a) provide written notice to Lessee of default, (b) as liquidated damages for loss of a bargain and not as a penalty, declare due and payable, the present value of (i) any and all amounts which may be then due and payable by Lessee to Lessor under this Lease, plus (ii) all Rent payments remaining through the end of the then current fiscal year, discounted at the higher of 3% or the lowest rate allowed by law plus the Fair Market Value (as defined herein) of the Equipment (collectively, the “Net Book Value”) and (c) require Lessee to immediately return the Equipment to Lessor.
Lessor has the right to require Lessee to make the Equipment available to Lessor for repossession during reasonable business hours or Lessor may repossess the Equipment, so long as Lessor does not breach the peace in doing so, or Lessor may use legal process in compliance with applicable law pursuant to court order to have the Equipment repossessed. Lessee will not make any claims against Lessor or the Equipment for trespass, damage or any other reason. If Lessor takes possession of the Equipment Lessor may (a) sell or lease the Equipment at public or private sale or lease without notice, and/or (b) exercise such other rights as may be allowed by applicable law. Although Lessee agrees that Lessor has no obligation to sell the Equipment, if Lessor does sell the Equipment, Lessor will reduce the Net Book Value by the amounts Lessor receives. Lessee will immediately pay Lessor the remaining Net Book Value. Lessee agrees (a) to pay all of the costs Lessor incurs to enforce Lessor’s rights against Lessee, including attorney’s fees, and (b) that Lessor will retain all of Lessor’s rights against Lessee even if Lessor does not choose to enforce them at the time of Lessee’s default.
15. LESSEE’S OPTION AT END OF LEASE. Notwithstanding anything contained in the Lease to the contrary, so long as no default shall have occurred and be continuing, Lessee may, at Lessee's option, purchase the Equipment leased pursuant to this Lease on an "as is, where is" basis, without representation or warranty, express or implied, at the end of the Lease Term at a price equal to the Fair Market Value thereof, plus applicable taxes. Fair Market Value shall be the retail in-place value of the Equipment as determined solely by Lessor. This purchase option as applicable shall only be available if Lessee gives Lessor 90 days’ prior written notice of Lessee's irrevocable intent to exercise such option and Lessor and Lessee shall have agreed to all terms and conditions of such purchase prior to the expiration date of the Lease Term. Until the Equipment is returned as required below, all terms of the Lease shall remain in full force and effect including the obligation to pay Rent calculated on a monthly basis.
16. RETURN OF EQUIPMENT. If (a) default occurs, (b) a non-appropriation of funds occurs as provided herein, or (c) Lessee does not exercise its purchase option at the end of the Lease Term, Lessee will immediately return the Equipment to any location(s) in the continental United States and aboard any carriers(s) Lessor may designate. The Equipment must be properly packed for shipment in accordance with the manufacturer’s recommendations or specifications, freight prepaid and insured, maintained in accordance with this Lease, and in “Average Saleable Condition.” “Average Saleable Condition” means that all of the Equipment is immediately available for use by a thirdparty buyer, user or lessee, other than Lessee named in this Lease, without the need for any repair or refurbishment. Lessee will pay DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
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Lessor for any missing or defective parts or accessories. Lessee will continue to pay Rent calculated on a monthly basis until the Equipment is received and accepted by Lessor.
17. LESSEE’S REPRESENTATIONS AND WARRANTIES. Lessee hereby represents and warrants to Lessor that as of the date of this Lease, and throughout the Lease Term: (a) Lessee is the entity indicated in this Lease; (b) Lessee is a state or a fully constituted political subdivision or agency of the State in which Lessee is located; (c) Lessee is duly organized and existing under the constitution and laws of the state in which they are located; (d) Lessee is authorized to enter into and carry out Lessee’s obligations under this Lease, any documents relative to the acquisition of the Equipment and any other documents required to be delivered in connection with this Lease (collectively, the “Documents”); (e) the Documents have been duly authorized, executed and delivered by Lessee in accordance with all applicable laws, rules, ordinances, and regulations, the Documents are valid, legal, binding agreements, enforceable in accordance with their terms and the person(s) signing the Documents have the authority to do so, are acting with the full authorization of Lessee’s governing body, and hold the offices indicated below their signature, each of which are genuine; (f) the Equipment is essential to the immediate performance of a governmental or proprietary function by Lessee within the scope of Lessee’s authority; (g) Lessee intends to use the Equipment for the entire Lease Term for such function and shall take all necessary action to include in Lessee’s annual budget any funds required to fulfill Lessee’s obligations for each fiscal year during the Lease Term; (h) Lessee has complied fully with all applicable law governing open meetings, public bidding and appropriations required in connection with this Lease and the acquisition of the Equipment; (i) Lessee’s obligations to remit Rent under this Lease constitutes a current expense and not a debt under applicable state law and no provision of this Lease constitutes a pledge of Lessee’s tax or general revenues, and any provision which is so constructed by a court of competent jurisdiction is void from the inception of this lease; and (j) all financial information Lessee has provided to Lessor is true and accurate and provides a good representation of Lessee’s financial condition.
18. LESSEE’S PROMISES. In addition to the other provisions of this Lease, Lessee agrees that during the term of this Lease (a) Lessee will promptly notify Lessor in writing if it moves its principal office or changes its name or legal structure, (b) Lessee will provide to Lessor such financial information as may reasonably request from time to time, and (c) Lessee will take any action Lessor reasonably requests to protect Lessor’s rights in the Equipment and to meet Lessee’s obligations under this Lease.
19. ASSIGNMENT. LESSEE WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE, SUB-LEASE OR PART WITH POSSESSION OF THE EQUIPMENT OR FILE OR PERMIT A LIEN TO BE FILED AGAINST THE EQUIPMENT. Lessee will not attach any of the Equipment to any real estate.
20. ASSIGNMENT BY LESSOR. This Lease, and the rights of Lessor hereunder and in and to the Equipment, may be assigned and reassigned in whole or in part to one or more assignees by Lessor or its assigns at any time without the necessity of obtaining the consent of Lessee Upon an assignment, Lessee agrees to make all payments as designated in the assignment, notwithstanding any claim, defense, setoff or counterclaim whatsoever (whether arising from a breach of this Lease or otherwise) that Lessee may from time to time have against Lessor or Lessor's assigns.
21. COLLECTION EXPENSES, OVERDUE PAYMENT. Lessee agrees that Lessor can, but does not have to, take on Lessee’s behalf any action which Lessee fails to take as required by this Lease, and Lessor’s expenses will be in addition to that of the Rent which Lessee owes Lessor. If Lessor receives any payment from Lessee after the due date, Lessee shall pay Lessor on demand as a late charge 5% of such overdue amount, limited, however, to the maximum amount allowed by law.
22. MISCELLANEOUS. This Lease contains the entire agreement and supersedes any conflicting provision of any equipment purchase order or any other agreement. TIME IS OF THE ESSENCE IN THIS LEASE. If a court finds any provision of Lease to be unenforceable, the remaining terms of this Lease shall remain in effect. THIS LEASE IS A “FINANCE LEASE” AS DEFINED IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. Lessee authorizes Lessor (or Lessor’s agent) to (a) obtain credit reports, (b) make such other credit inquires as Lessor may deem necessary, and (c) furnish payment history information to credit reporting agencies. To the extent permitted by law, Lessor may charge Lessee a fee of $250.00 to cover Lessor’s documentation and investigation costs.
23. NOTICES. All of Lessee’s written notices to Lessor must be sent by certified mail or recognized overnight delivery service, postage prepaid, to Lessor at Lessor’s address stated in this Lease, or by facsimile transmission to Lessor’s facsimile telephone number, with oral confirmation of receipt. All of Lessor’s notices to Lessee may be sent first class mail, postage prepaid, to Lessee’s address stated in this Lease. At any time after this Lease is signed, Lessee or Lessor may change an address or facsimile telephone number by giving notice to the other of the change.
24. ANTI-MONEY LAUNDERING/INTERNATIONAL TRADE COMPLIANCE. Lessee represents, warrants and covenants to Lessor, as of the date of this Lease, the date of each advance of proceeds under the Lease, the date of any renewal, extension or modification of this Lease, and at all times until this Lease has been terminated and all amounts thereunder have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Jurisdiction or in the possession, custody or control of a Sanctioned Person; (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Jurisdiction or Sanctioned Person; (b) the proceeds of this Lease will not be used to fund any unlawful activity; (c) the funds used to repay the Lease are not derived from any unlawful activity; (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws; and (e) no Equipment is or will become Embargoed Property. Lessee covenants and agrees that (a) it shall immediately notify Lessor in writing upon the occurrence of a Reportable Compliance Event; and (b) if, at any time, any Equipment becomes Embargoed Property, in addition to all other rights and remedies available to Lessor, upon request by Lessor, Lessee shall provide substitute Equipment acceptable to Lessor that is not Embargoed Property.
As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means Lessee, its affiliates and subsidiaries, all other obligors, all owners of the foregoing, and all brokers or other agents of Lessee acting in any capacity in connection with this Lease; “Embargoed Property” means any property (a) in which a Sanctioned Person holds an interest; (b) beneficially owned, directly or indirectly, by a Sanctioned Person; (c) that is due to or from a Sanctioned Person; (d) that is located in a Sanctioned Jurisdiction; or (e) that would otherwise cause any actual or possible violation by Lessor of any applicable AntiTerrorism Law if Lessor were to obtain an encumbrance on, lien on, pledge of or security interest in such property or provide services in consideration of such property; “Reportable Compliance Event” means (1) any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
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with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; (2) any Covered Entity engages in a transaction that has caused or may cause Lessor to be in violation of any Anti-Terrorism Laws, including a Covered Entity’s use of any proceeds of the Lease to fund any operations in, finance any investments or activities in, or, make any payments to, directly or indirectly, a Sanctioned Jurisdiction or Sanctioned Person; or (3) any Equipment becomes Embargoed Property; “Sanctioned Jurisdiction” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.
25. USA PATRIOT ACT NOTICE. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each lessee that opens an account. What this means: when the Lessee opens an account, Lessor will ask for the business name, business address, taxpayer identifying number and other information that will allow the Lessor to identify Lessee, such as organizational documents. For some businesses and organizations, Lessor may also need to ask for identifying information and documentation relating to certain individuals associated with the business or organization.
26. WAIVERS. LESSOR AND LESSEE EACH AGREE TO WAIVE, AND TO TAKE ALL REQUIRED STEPS TO WAIVE, ALL RIGHTS TO A JURY TRIAL. To the extent Lessee is permitted by applicable law, Lessee waives all rights and remedies conferred upon a lessee by Article 2A (Sections 508-522) of the Uniform Commercial Code. To the extent Lessee is permitted by applicable law, Lessee waives any rights they now or later may have under any statute or otherwise which requires Lessor to sell or otherwise use any Equipment to reduce Lessor’s damages, which requires Lessor to provide Lessee with notice of default, intent to accelerate amounts becoming due or acceleration of amounts becoming due, intent to sale the Equipment at a public or private sale, or which may otherwise limit or modify any of Lessor’s rights or remedies. Lessor will not be liable for specific performance of this Lease or for any losses, damages, delay or failure to deliver Equipment.
27. IMPORTANT INFORMATION ABOUT PHONE CALLS. By providing telephone number(s) to Lessor, now or at any later time, Lessee authorizes Lessor and its affiliates and designees to contact Lessee regarding Lessee account(s) with Lessor or its affiliates, whether such accounts are Lessee individual accounts or business accounts for which Lessee is a contact, at such numbers using any means, including but not limited to placing calls using an automated dialing system to cell, VoIP or other wireless phone number, or leaving prerecorded messages or sending text messages, even if charges may be incurred for the calls or text messages. Lessee consents that any phone call with Lessor may be monitored or recorded by Lessor.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS LEASE SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. TERMS OR ORAL PROMISES WHICH ARE NOT CONTAINED IN THIS WRITTEN AGREEMENT MAY NOT BE LEGALLY ENFORCED. THE TERMS OF THIS LEASE MAY ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT BETWEEN LESSEE AND LESSOR. LESSEE AGREES TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS LEASE. LESSEE AGREES THAT THE EQUIPMENT WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
LESSEE CERTIFIES THAT ALL THE INFORMATION GIVEN IN THIS LEASE AND LESSEE’S APPLICATION WAS CORRECT AND COMPLETE WHEN THIS LEASE WAS SIGNED. THIS LEASE IS NOT BINDING UPON LESSOR OR EFFECTIVE UNLESS AND UNTIL LESSOR EXECUTES THIS LEASE. THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF THE LESSEE.
City of Modesto
(“Lessee”)
X
Authorized Signature
_______________________________________
Print Name
_______________________________________
Title:
Date
ATTN: ACCOUNTS PAYABLE 1010 10TH ST
MODESTO, CA 95354
PNC Bank, National Association
(“Lessor”)
X
Authorized Signature
_______________________________________
Print Name
_______________________________________
Title:
655 Business Center Drive
Horsham, PA 19044
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 Operations Manager Sr.
Lauren Thompson
6/2/2023
City Manager
Joe Lopez
#29..
- 1686 -
SE Insurance Letter (Lease)
V20220513
May 10, 2023
City of Modesto
Course Name: Dryden Park GC
ATTN: ACCOUNTS PAYABLE, 1010 10TH ST
MODESTO, CA 95354
Attn: Accounts Payable
RE: Insurance Coverage Requirements for Equipment Financing Transaction between PNC Bank, National Association and City of Modesto
Before funding your transaction, PNC Bank, National Association requires evidence of appropriate insurance coverage on the equipment described in your transaction documents. Please forward this request to your insurance company, agent or broker as soon as possible and ask for the evidence of insurance to be sent to the address below.
PNC Bank, National Association will have an insurable interest in the following equipment:
Quantity Description Serial No.
50 (50) 2023 E-Z-GO RXV Elite
As a condition to entering into the equipment financing transaction, PNC Bank, National Association requires the following at all times during the term of the transaction:
1. All of the equipment must be insured for its full insurable value on a 100% replacement cost basis.
2. PNC Bank, National Association must be named as lender loss payee under a property insurance policy insuring all risks to the equipment, including fire, theft, and other customary coverage under an "extended coverage" endorsement.
3. For leases only, PNC Bank, National Association must receive evidence that a comprehensive general liability insurance policy is in place with a minimum coverage of $1,000,000. PNC Bank, National Association must be named as an additional insured under the liability policy.
4. Each property insurance policy must contain a lender's loss payable clause, or special endorsement, in which the insurer agrees that any loss will be payable in accordance with the policy terms, notwithstanding any act or negligence of the insured.
5. Each policy must provide for 30 days’ written notice to PNCEF prior to any cancellation, non-renewal or amendment of the policy.
6. If vehicles, please include comprehensive and collision deductible on certificate.
The evidence of insurance can consist of a Certificate of Insurance form, Evidence of Insurance form, Memorandum of Insurance, binder for insurance, declarations page, or the actual policy and endorsements, in each case naming PNC Bank, National Association as follows:
PNC Bank, National Association, and its successors and assigns, as lender loss payee Attn: Insurance Department
655 Business Center Drive, Suite 250
Horsham, PA 19044
When completed, the evidence of insurance should be emailed to: [email protected] Request for Insurance
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
- 1687 -
E24
05/22 SE Muni Resolution and Cert of Incumbency
RESOLUTION AND CERTIFICATE OF INCUMBENCY
Lease Number 1195642-5
Lessee: City of Modesto
Amount: $293,016.00 (Payment x Term)
WHEREAS, Lessee, a body politic and corporate duly organized and existing as a political subdivision, municipal corporation or similar public entity of the State or Commonwealth (“State”) is authorized by the laws of the State to purchase, acquire and lease certain equipment and other property for the benefit of the Lessee and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, pursuant to applicable law, the governing body of the Lessee (“Governing Body”) is authorized to acquire, dispose of and encumber real and personal property, including, without limitation, rights and interest in property, leases and easements necessary to the functions or operations of the Lessee.
WHEREAS, the Governing Body hereby finds and determines that the execution of one or more Lease Agreements or lease schedules (“Leases”) in the amount not exceeding the amount stated above for the purpose of acquiring the property (“Equipment”) to be described in the Leases is appropriate and necessary to the functions and operations of the Lessee.
WHEREAS, PNC Bank, National Association (“Lessor”) shall act as Lessor under said Leases.
NOW, THEREFORE, Be It Ordained by the Governing Body of the Lessee:
Section 1. Either one of the _______________________ OR _______________________ (each an “Authorized Representative”) acting on behalf of the Lessee, is hereby authorized to negotiate, enter into, execute, and deliver one or more Leases in substantially the form set forth in the document presently before the Governing Body, which document is available for public inspection at the office of the Lessee. Each Authorized Representative acting on behalf of the Lessee is hereby authorized to negotiate, enter into, execute, and deliver such other documents relating to the Lease as the Authorized Representative deems necessary and appropriate. All other related contracts and agreements necessary and incidental to the Leases are hereby authorized.
Section 2. By a written instrument signed by any Authorized Representative, said Authorized Representative may designate specifically identified officers or employees of the Lessee to execute and deliver agreements and documents relating to the Leases on behalf of the Lessee.
Section 3. The Lessee’s obligations under the Leases shall be subject to annual appropriation or renewal by the Governing Body as set forth in each Lease and the Lessee’s obligations under the Leases shall not constitute general obligations of the Lessee or indebtedness under the Constitution or laws of the State.
Section 4. This resolution shall take effect immediately upon its adoption and approval.
NAMES AND TITLES OF AUTHORIZED REPRESENTATIVES: AUTHORIZED LEASE SIGNORS ONLY _______________________________
Name
________________________________
Title
_______________________________
Name
________________________________
Title
ADOPTED AND APPROVED on this ________________, 20__.
Section 5. I, the undersigned Secretary/Clerk identified below, does hereby certify that I am the duly elected or appointed and acting Secretary/Clerk of the above Lessee, a political subdivision duly organized and existing under the laws of the State where Lessee is located, that I have the title stated below, and that, as of the date hereof, the individuals named above are the duly elected or appointed officers of the Lessee holding the offices set forth opposite their respective names.
The undersigned Secretary/Clerk of the above-named Lessee hereby certifies and attests that the undersigned has access to the official records of the Governing Body of the Lessee, that the foregoing resolutions were duly adopted by said Governing Body of the Lessee at a meeting of said Governing Body and that such resolutions have not been amended or altered and are in full force and effect on the date stated below.
LESSEE: City of Modesto
________________________________________________________ Signature of Secretary/Clerk of Lessee
Print Name:_______________________________________________ Official Title:______________________________________________ Date: ________________________________________________
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 23 DeAnna Christensen
DeAnna Christensen
June 2
DeAnna Christensen
Diane Nayares-Perez
City Clerk
Finance Director
6/4/2023
#29..
- 1688 -
PNC Bank, National Association
655 Business Center Drive, Suite 250 · Horsham, PA 19044 Questions? Call (800) 559-2755
Fax: (888) 888-3695
7/19 SE Customer Information Form
CUSTOMER INFORMATION
Lease # 1195642-5
Please provide the following information. By providing such information, you will enable us to ensure prompt payment of your vendor and the correct processing of your lease transaction.
Thank you.
Lessee Information
Full Business Legal Name: City of Modesto Federal Tax ID Number: 946000374 Invoices should be directed to: Attention:
Address City: State: Zip:
Preferred Method of Payment: (Please check)
Monthly Invoice (Mail)
Invoices should be directed to: Attention:
Address City:
Monthly Invoice (Email)
Email:
Billing Contact:
Contact Information
In order to verify receipt of equipment and review terms and conditions of the lease, please provide contact information for one or more staff that can assist in this process.
Contact 1: Phone:
Email:
Contact 2: Phone:
Email:
Signature
X
Date
I hereby attest the above information is accurate.
Email:
[email protected]
Shaunna Souza
PO Box 642 Modesto CA 95353
Accounts Payables Parks, Recreation & Neighborhoods Dept.
Laurie A. Smith 209-577-5347
[email protected]
Jessica Franco
[email protected]
209-577-5278
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 6/2/2023
#29..
- 1689 -
PLEASE COMPLETE AND SIGN FORM
7/19 SE Tax Notification
PNC Bank, National Association (“PNC”), is required to collect and remit sales/use tax in the taxing jurisdiction where your equipment will be located. If you select that you are exempt by marking one of the checkboxes below, you must provide a valid exemption certificate. If you do not provide this certificate prior to the booking of your transaction, you will be responsible for sales tax on all accrued payments.
If tax has been remitted up front and financed into your lease payment, your account will not be marked sales tax exempt if you provide an exemption certificate after your transaction has been booked. If your tax is remitted on a monthly basis, your lease may be marked sales tax exempt for the remaining payments left to be invoiced if you provide a valid exemption certificate after your transaction has been booked. In the event we do not receive a valid sales tax exemption certificate prior to the date your lease commences, you will be charged sales/use tax.
Personal property tax returns will be filed as required by local law. In the event that any tax abatements or special exemptions are available on the equipment you will be leasing from us, please notify us as soon as possible and forward the related documentation to us. This will ensure that your leased equipment will be reported correctly.
Please indicate below if your lease is subject to tax or whether a valid exemption exists.
Sales Tax
¨ I agree that my lease is subject to sales/use tax.
¨ I am exempt from sales/use tax and I have attached a completed exemption certificate to PNC. ¨ I am claiming a partial exemption from tax. I have attached a completed exemption certificate or other documented proof of this partial exemption.
¨ I agree that my business is subject to sales/use tax and I have attached a completed resale certificate. This certificate indicates that I will be responsible for collection and remittance of sales/use tax based on the subsequent re-rental of the property.
If applicable to the tax rates in your state, are you outside the city limits or in an unincorporated area? ¨ Inside city limits ¨ Outside city limits ¨ Unincorporated area Property Tax
¨ I have a valid abatement or property tax exemption (documentation attached). ¨ Location: State
Taxing District
Additional comments:
Lease Number 1195642-5
Lessee: City of Modesto
Signature:
X
Print Name:
Title:
Date:
Notification of Tax Treatment
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 DeAnna Christensen
6/2/2023
DeAnna Christensen
X
Finance Director
#29..
- 1690 -
10/15 SE Welcome Letter
May 10, 2023
City of Modesto
Course Name: Creelside GC
ATTN: ACCOUNTS PAYABLE, 1010 10th St
MODESTO, CA 95354
RE: Lease Number 1195642-4
To Whom It May Concern:
Thank you for choosing PNC Bank, National Association as your financing source. Enclosed you will find the following documentation:
Lease Agreement: Please sign, print name, title and date. Schedule A (if applicable): Please initial at the bottom of the page. Insurance: Please note the page detailing instructions regarding the certificate of insurance required under the terms of the lease.
Simply forward a copy of the signed page to your insurance carrier, so that they may issue the appropriate certificate on a timely basis.
Resolution and Certificate of Incumbency: Please have all authorized signers (including the individual who signed the documents) sign in the middle section along with the Corporate Secretary or Assistant Secretary, who should complete the bottom section of the document. This person must complete the top and bottom sections of the document. If you have a corporate resolution available, please include that in the return of your documents. If this document does not apply to your business structure, please send a copy of your Operating Agreement, Partnership Agreement or Incorporating documents. Customer Information Form: Please complete and return. Notification of Tax Treatment: Please complete and return.
We appreciate this opportunity to serve you and look forward to working with you in the future. Should you have any questions before sending the documents, please feel free to contact me at [email protected].
Sincerely,
Gillian Wixted
Sales Specialist
C03
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
- 1691 -
Muni Short Form Lease Pkg FMV (Taxable $500k under)
V20221109
Lease Agreement
Dated as of May 10, 2023
Lease Number: 1195642-4
Lessor: PNC Bank, National Association
655 Business Center Drive
Horsham, Pennsylvania 19044
Lessee: LESSEE FULL LEGAL NAME FEDERAL TAX ID
City of Modesto 946000374
ATTN: ACCOUNTS PAYABLE, 1010 10TH ST
MODESTO, CA 95354
Equipment Description:
Quantity Description Serial No.
50 (50) 2023 E-Z-GO RXV Elite
Lease Term is for 48 months, with Rent payments due in 48 Monthly plus applicable tax; each in the amount of $6,104.50 beginning ___________________.
Lessee shall pay Rent payments exclusively from legally available funds in U.S. currency to Lessor in the amounts and on the dates set forth herein, without notice or demand.
TERMS AND CONDITIONS
1. LEASE. Subject to the terms of this Lease, Lessee agrees to lease from Lessor the equipment (the “Equipment”) described above when Lessor accepts this Lease. Lessee agrees to be bound by all the terms of this Lease.
2. DELIVERY AND ACCEPTANCE OF EQUIPMENT. Acceptance of the Equipment occurs upon delivery. When Lessee receives the Equipment, Lessee agrees to inspect it and to verify by telephone or in writing such information as Lessor may require. Delivery and installation costs are Lessee’s responsibility. If Lessee signed a purchase contract for the Equipment, by signing this Lease Lessee assigns its rights, but none of its obligations under the purchase contract, to Lessor.
3. RENT. Lessee agrees to pay Lessor Rent (plus applicable taxes) in the amount and frequency stated above. If Lessee’s Rent payments are due in Advance, Lessee’s first Rent payment is due on the date Lessee accepts the Equipment under the Lease. Lessor will advise Lessee as to (a) the due date of each Rent payment, and (b) the address to which Lessee must send payments. Rent is due whether or not Lessee receives an invoice from Lessor. Lessee will pay Lessor any required advance rent when Lessee signs this Lease. Lessee authorizes Lessor to change the Rent by not more than 15% due to changes in the Equipment configuration, which may occur prior to Lessor’s acceptance of this Lease. Restrictive endorsements on checks Lessee sends to Lessor will not reduce Lessee’s obligations to Lessor.
NON-APPROPRIATION OF FUNDS. Lessee intends to remit all Rent and other payments to Lessor for the full Lease Term if funds are legally available. In the event Lessee is not granted an appropriation of funds at any time during the Lease Term for the Equipment subject to this Lease and operating funds are not otherwise available to Lessee to pay the Rent and other payments due and to become due under this Lease, and there is no other legal procedure or available funds by or with which payment can be made to Lessor, and the nonappropriation did not result from an act or omission by Lessee, Lessee shall have the right to return the Equipment as provided herein and terminate this Lease on the last day of the fiscal period for which appropriations were received without penalty or expense to Lessee, except as the portion of Rent for which funds shall have been appropriated and budgeted. At least 30 days prior to the end of Lessee’s fiscal year, Lessee’s chief executive officer (or legal counsel) shall certify in writing that (a) funds have not been appropriated for the upcoming fiscal period, (b) such non-appropriation did not result from any act or failure to act by Lessee, and (c) Lessee has exhausted all funds legally available for the payment of Rent.
4. UNCONDITIONAL OBLIGATION. LESSEE AGREES THAT IT IS UNCONDITIONALLY OBLIGATED TO PAY ALL RENT AND ANY
OTHER AMOUNTS DUE UNDER THIS LEASE IN ALL FISCAL YEARS IN WHICH FUNDS HAVE BEEN APPROPRIATED NO MATTER
WHAT HAPPENS, EVEN IF THE EQUIPMENT IS DAMAGED OR DESTROYED, IF IT IS DEFECTIVE OR IF LESSEE HAS TEMPORARY OR PERMANENT LOSS OF ITS USE. LESSEE IS NOT ENTITLED TO ANY REDUCTION OR SET-OFF AGAINST RENT OR OTHER AMOUNTS DUE UNDER THIS LEASE FOR ANY REASON WHATSOEVER.
5. DISCLAIMER OF WARRANTIES. THE EQUIPMENT IS BEING LEASED TO LESSEE IN “AS IS” CONDITION. LESSEE AGREES
THAT LESSOR HAS NOT MANUFACTURED THE EQUIPMENT AND THAT LESSEE HAS SELECTED THE EQUIPMENT BASED UPON LESSEE’S OWN JUDGMENT. LESSEE HAS NOT RELIED ON ANY STATEMENTS LESSOR OR ITS EMPLOYEES HAVE MADE. LESSOR HAS NOT MADE AND DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SUITABILITY, DESIGN, CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR APPLICABLE LAW. Lessee is aware of the name of the Equipment manufacturer. If the manufacturer has provided Lessor with a warranty, Lessor assigns its rights to such warranty to Lessee and Lessee may enforce all warranty rights directly against the manufacturer of the Equipment. Lessee agrees to settle any dispute regarding performance of the Equipment directly with the manufacturer of the Equipment.
July 1, 2023
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
- 1692 -
Muni Short Form Lease Pkg FMV (Taxable $500k under)
V20221109
6. TITLE AND SECURITY INTEREST. Unless otherwise required by the laws of the state where Lessee is located, Lessor shall have title to the Equipment during the Lease Term.
7. USE, MAINTENANCE AND REPAIR. Lessee will not move the Equipment from the Equipment Location without Lessor’s advance written consent. Lessee will give Lessor reasonable access to the Equipment Location so that Lessor can check the Equipment’s existence, condition and proper maintenance. Lessee will use the Equipment in the manner for which it was intended, as required by all applicable manuals and instructions, and keep it eligible for any manufacturer’s certification and/or standard full-service maintenance contract. At Lessee’s own cost and expense, Lessee will keep the Equipment in good repair, condition and working order, ordinary wear and tear excepted. Lessee will not make any permanent alterations to the Equipment and will remove any alterations or markings from the Equipment before returning to Lessor.
8. TAXES. Unless a proper exemption certificate is provided, applicable sales and use taxes will be added to the Rent. Lessee agrees to pay Lessor, when invoiced, all taxes (including any sales, use and personal property taxes), fines, interest and penalties relating to this Lease and the Equipment (excluding taxes based on Lessor’s net income). Lessee agrees to file any required personal property tax returns and, if Lessor asks, Lessee will provide Lessor with proof of payment. Lessor does not have to contest any tax assessments.
9. INDEMNITY. Lessor is not responsible for any injuries, damages, penalties, claims or losses, including legal expenses, incurred by Lessee or any other person caused by the transportation, installation, manufacture, selection, purchase, lease, ownership, possession, modification, maintenance, condition, operation, use, return or disposition of the Equipment. To the extent permitted by law, Lessee agrees to reimburse Lessor for and defend Lessor against any claims for such losses, damages, penalties, claims, injuries, or expenses. This indemnity continues even after this Lease has expired, for acts or omissions that occurred during the Lease Term.
10. IDENTIFICATION. Lessee authorizes Lessor to insert or correct missing information on this Lease, including serial numbers and any other information describing the Equipment.
11. LOSS OR DAMAGE. Lessee is responsible for any loss of the Equipment from any cause at all, whether or not insured, from the time the Equipment is shipped to Lessee until it is returned to Lessor. If any item of Equipment is lost, stolen or damaged, Lessee will promptly notify Lessor of such event. Then, at Lessor’s option, Lessee will either (a) repair the Equipment so that it is in good condition and working order, eligible for any manufacturer’s certification, or (b) pay Lessor an amount equal to the Net Book Value (as defined herein) of the lost, stolen or damaged Equipment. If Lessee has satisfied their obligations herein, Lessor will forward to Lessee any insurance proceeds which Lessor receives for lost, damaged, or destroyed Equipment. If Lessee is in default, Lessor will apply any insurance proceeds Lessor receives to reduce Lessee’s obligations pursuant to this Lease.
12. INSURANCE. Lessee agrees to (a) keep the Equipment fully insured against loss, naming Lessor as loss payee, and (b) obtain a general public liability insurance policy covering both personal injury and property damage in amounts not less than Lessor may tell Lessee, naming Lessor as additional insured, until Lessee has met all their obligations under this Lease. Lessor is under no duty to tell Lessee if Lessee’s insurance coverage is adequate. The policies shall state that Lessor is to be notified of any proposed cancellation at least 30 days prior to the date set for cancellation. Upon Lessor’s request, Lessee agrees to provide Lessor with evidence of insurance acceptable to Lessor. If Lessee does not provide Lessor with evidence of proper insurance within ten days of Lessor’s request or Lessor receives notice of policy cancellation, Lessor may (but Lessor is not obligated to) obtain insurance on Lessor’s interest in the Equipment at Lessee’s expense.
Lessee will pay all insurance premiums and related charges.
13. DEFAULT. Lessee will be in default under this Lease if any of the following happens: (a) Lessor does not receive any Rent or other payment due under this Lease within ten days after its due date, (b) Lessee fails to perform or observe any other promise or obligation in this Lease and does not correct the default within ten days after Lessor sends Lessee written notice of default, (c) any representation, warranty or statement Lessee has made in this Lease shall prove to have been false or misleading in any material respect, (d) any insurance carrier cancels or threatens to cancel any insurance on the Equipment, (e) the Equipment or any part of it is abused, illegally used, misused, lost, destroyed, or damaged beyond repair, (f) a petition is filed by or against Lessee under any bankruptcy or insolvency laws, or (g) Lessee defaults on any other agreement between it and Lessor (or Lessor’s affiliates).
14. REMEDIES. Upon the occurrence of a default, Lessor may, in its sole discretion, do any or all of the following: (a) provide written notice to Lessee of default, (b) as liquidated damages for loss of a bargain and not as a penalty, declare due and payable, the present value of (i) any and all amounts which may be then due and payable by Lessee to Lessor under this Lease, plus (ii) all Rent payments remaining through the end of the then current fiscal year, discounted at the higher of 3% or the lowest rate allowed by law plus the Fair Market Value (as defined herein) of the Equipment (collectively, the “Net Book Value”) and (c) require Lessee to immediately return the Equipment to Lessor.
Lessor has the right to require Lessee to make the Equipment available to Lessor for repossession during reasonable business hours or Lessor may repossess the Equipment, so long as Lessor does not breach the peace in doing so, or Lessor may use legal process in compliance with applicable law pursuant to court order to have the Equipment repossessed. Lessee will not make any claims against Lessor or the Equipment for trespass, damage or any other reason. If Lessor takes possession of the Equipment Lessor may (a) sell or lease the Equipment at public or private sale or lease without notice, and/or (b) exercise such other rights as may be allowed by applicable law. Although Lessee agrees that Lessor has no obligation to sell the Equipment, if Lessor does sell the Equipment, Lessor will reduce the Net Book Value by the amounts Lessor receives. Lessee will immediately pay Lessor the remaining Net Book Value. Lessee agrees (a) to pay all of the costs Lessor incurs to enforce Lessor’s rights against Lessee, including attorney’s fees, and (b) that Lessor will retain all of Lessor’s rights against Lessee even if Lessor does not choose to enforce them at the time of Lessee’s default.
15. LESSEE’S OPTION AT END OF LEASE. Notwithstanding anything contained in the Lease to the contrary, so long as no default shall have occurred and be continuing, Lessee may, at Lessee's option, purchase the Equipment leased pursuant to this Lease on an "as is, where is" basis, without representation or warranty, express or implied, at the end of the Lease Term at a price equal to the Fair Market Value thereof, plus applicable taxes. Fair Market Value shall be the retail in-place value of the Equipment as determined solely by Lessor. This purchase option as applicable shall only be available if Lessee gives Lessor 90 days’ prior written notice of Lessee's irrevocable intent to exercise such option and Lessor and Lessee shall have agreed to all terms and conditions of such purchase prior to the expiration date of the Lease Term. Until the Equipment is returned as required below, all terms of the Lease shall remain in full force and effect including the obligation to pay Rent calculated on a monthly basis.
16. RETURN OF EQUIPMENT. If (a) default occurs, (b) a non-appropriation of funds occurs as provided herein, or (c) Lessee does not exercise its purchase option at the end of the Lease Term, Lessee will immediately return the Equipment to any location(s) in the continental United States and aboard any carriers(s) Lessor may designate. The Equipment must be properly packed for shipment in accordance with the manufacturer’s recommendations or specifications, freight prepaid and insured, maintained in accordance with this Lease, and in “Average Saleable Condition.” “Average Saleable Condition” means that all of the Equipment is immediately available for use by a thirdparty buyer, user or lessee, other than Lessee named in this Lease, without the need for any repair or refurbishment. Lessee will pay DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
- 1693 -
Muni Short Form Lease Pkg FMV (Taxable $500k under)
V20221109
Lessor for any missing or defective parts or accessories. Lessee will continue to pay Rent calculated on a monthly basis until the Equipment is received and accepted by Lessor.
17. LESSEE’S REPRESENTATIONS AND WARRANTIES. Lessee hereby represents and warrants to Lessor that as of the date of this Lease, and throughout the Lease Term: (a) Lessee is the entity indicated in this Lease; (b) Lessee is a state or a fully constituted political subdivision or agency of the State in which Lessee is located; (c) Lessee is duly organized and existing under the constitution and laws of the state in which they are located; (d) Lessee is authorized to enter into and carry out Lessee’s obligations under this Lease, any documents relative to the acquisition of the Equipment and any other documents required to be delivered in connection with this Lease (collectively, the “Documents”); (e) the Documents have been duly authorized, executed and delivered by Lessee in accordance with all applicable laws, rules, ordinances, and regulations, the Documents are valid, legal, binding agreements, enforceable in accordance with their terms and the person(s) signing the Documents have the authority to do so, are acting with the full authorization of Lessee’s governing body, and hold the offices indicated below their signature, each of which are genuine; (f) the Equipment is essential to the immediate performance of a governmental or proprietary function by Lessee within the scope of Lessee’s authority; (g) Lessee intends to use the Equipment for the entire Lease Term for such function and shall take all necessary action to include in Lessee’s annual budget any funds required to fulfill Lessee’s obligations for each fiscal year during the Lease Term; (h) Lessee has complied fully with all applicable law governing open meetings, public bidding and appropriations required in connection with this Lease and the acquisition of the Equipment; (i) Lessee’s obligations to remit Rent under this Lease constitutes a current expense and not a debt under applicable state law and no provision of this Lease constitutes a pledge of Lessee’s tax or general revenues, and any provision which is so constructed by a court of competent jurisdiction is void from the inception of this lease; and (j) all financial information Lessee has provided to Lessor is true and accurate and provides a good representation of Lessee’s financial condition.
18. LESSEE’S PROMISES. In addition to the other provisions of this Lease, Lessee agrees that during the term of this Lease (a) Lessee will promptly notify Lessor in writing if it moves its principal office or changes its name or legal structure, (b) Lessee will provide to Lessor such financial information as may reasonably request from time to time, and (c) Lessee will take any action Lessor reasonably requests to protect Lessor’s rights in the Equipment and to meet Lessee’s obligations under this Lease.
19. ASSIGNMENT. LESSEE WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE, SUB-LEASE OR PART WITH POSSESSION OF THE EQUIPMENT OR FILE OR PERMIT A LIEN TO BE FILED AGAINST THE EQUIPMENT. Lessee will not attach any of the Equipment to any real estate.
20. ASSIGNMENT BY LESSOR. This Lease, and the rights of Lessor hereunder and in and to the Equipment, may be assigned and reassigned in whole or in part to one or more assignees by Lessor or its assigns at any time without the necessity of obtaining the consent of Lessee Upon an assignment, Lessee agrees to make all payments as designated in the assignment, notwithstanding any claim, defense, setoff or counterclaim whatsoever (whether arising from a breach of this Lease or otherwise) that Lessee may from time to time have against Lessor or Lessor's assigns.
21. COLLECTION EXPENSES, OVERDUE PAYMENT. Lessee agrees that Lessor can, but does not have to, take on Lessee’s behalf any action which Lessee fails to take as required by this Lease, and Lessor’s expenses will be in addition to that of the Rent which Lessee owes Lessor. If Lessor receives any payment from Lessee after the due date, Lessee shall pay Lessor on demand as a late charge 5% of such overdue amount, limited, however, to the maximum amount allowed by law.
22. MISCELLANEOUS. This Lease contains the entire agreement and supersedes any conflicting provision of any equipment purchase order or any other agreement. TIME IS OF THE ESSENCE IN THIS LEASE. If a court finds any provision of Lease to be unenforceable, the remaining terms of this Lease shall remain in effect. THIS LEASE IS A “FINANCE LEASE” AS DEFINED IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. Lessee authorizes Lessor (or Lessor’s agent) to (a) obtain credit reports, (b) make such other credit inquires as Lessor may deem necessary, and (c) furnish payment history information to credit reporting agencies. To the extent permitted by law, Lessor may charge Lessee a fee of $250.00 to cover Lessor’s documentation and investigation costs.
23. NOTICES. All of Lessee’s written notices to Lessor must be sent by certified mail or recognized overnight delivery service, postage prepaid, to Lessor at Lessor’s address stated in this Lease, or by facsimile transmission to Lessor’s facsimile telephone number, with oral confirmation of receipt. All of Lessor’s notices to Lessee may be sent first class mail, postage prepaid, to Lessee’s address stated in this Lease. At any time after this Lease is signed, Lessee or Lessor may change an address or facsimile telephone number by giving notice to the other of the change.
24. ANTI-MONEY LAUNDERING/INTERNATIONAL TRADE COMPLIANCE. Lessee represents, warrants and covenants to Lessor, as of the date of this Lease, the date of each advance of proceeds under the Lease, the date of any renewal, extension or modification of this Lease, and at all times until this Lease has been terminated and all amounts thereunder have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Jurisdiction or in the possession, custody or control of a Sanctioned Person; (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Jurisdiction or Sanctioned Person; (b) the proceeds of this Lease will not be used to fund any unlawful activity; (c) the funds used to repay the Lease are not derived from any unlawful activity; (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws; and (e) no Equipment is or will become Embargoed Property. Lessee covenants and agrees that (a) it shall immediately notify Lessor in writing upon the occurrence of a Reportable Compliance Event; and (b) if, at any time, any Equipment becomes Embargoed Property, in addition to all other rights and remedies available to Lessor, upon request by Lessor, Lessee shall provide substitute Equipment acceptable to Lessor that is not Embargoed Property.
As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means Lessee, its affiliates and subsidiaries, all other obligors, all owners of the foregoing, and all brokers or other agents of Lessee acting in any capacity in connection with this Lease; “Embargoed Property” means any property (a) in which a Sanctioned Person holds an interest; (b) beneficially owned, directly or indirectly, by a Sanctioned Person; (c) that is due to or from a Sanctioned Person; (d) that is located in a Sanctioned Jurisdiction; or (e) that would otherwise cause any actual or possible violation by Lessor of any applicable AntiTerrorism Law if Lessor were to obtain an encumbrance on, lien on, pledge of or security interest in such property or provide services in consideration of such property; “Reportable Compliance Event” means (1) any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
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Muni Short Form Lease Pkg FMV (Taxable $500k under)
V20221109
with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; (2) any Covered Entity engages in a transaction that has caused or may cause Lessor to be in violation of any Anti-Terrorism Laws, including a Covered Entity’s use of any proceeds of the Lease to fund any operations in, finance any investments or activities in, or, make any payments to, directly or indirectly, a Sanctioned Jurisdiction or Sanctioned Person; or (3) any Equipment becomes Embargoed Property; “Sanctioned Jurisdiction” means a country subject to a sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.
25. USA PATRIOT ACT NOTICE. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each lessee that opens an account. What this means: when the Lessee opens an account, Lessor will ask for the business name, business address, taxpayer identifying number and other information that will allow the Lessor to identify Lessee, such as organizational documents. For some businesses and organizations, Lessor may also need to ask for identifying information and documentation relating to certain individuals associated with the business or organization.
26. WAIVERS. LESSOR AND LESSEE EACH AGREE TO WAIVE, AND TO TAKE ALL REQUIRED STEPS TO WAIVE, ALL RIGHTS TO A JURY TRIAL. To the extent Lessee is permitted by applicable law, Lessee waives all rights and remedies conferred upon a lessee by Article 2A (Sections 508-522) of the Uniform Commercial Code. To the extent Lessee is permitted by applicable law, Lessee waives any rights they now or later may have under any statute or otherwise which requires Lessor to sell or otherwise use any Equipment to reduce Lessor’s damages, which requires Lessor to provide Lessee with notice of default, intent to accelerate amounts becoming due or acceleration of amounts becoming due, intent to sale the Equipment at a public or private sale, or which may otherwise limit or modify any of Lessor’s rights or remedies. Lessor will not be liable for specific performance of this Lease or for any losses, damages, delay or failure to deliver Equipment.
27. IMPORTANT INFORMATION ABOUT PHONE CALLS. By providing telephone number(s) to Lessor, now or at any later time, Lessee authorizes Lessor and its affiliates and designees to contact Lessee regarding Lessee account(s) with Lessor or its affiliates, whether such accounts are Lessee individual accounts or business accounts for which Lessee is a contact, at such numbers using any means, including but not limited to placing calls using an automated dialing system to cell, VoIP or other wireless phone number, or leaving prerecorded messages or sending text messages, even if charges may be incurred for the calls or text messages. Lessee consents that any phone call with Lessor may be monitored or recorded by Lessor.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS LEASE SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. TERMS OR ORAL PROMISES WHICH ARE NOT CONTAINED IN THIS WRITTEN AGREEMENT MAY NOT BE LEGALLY ENFORCED. THE TERMS OF THIS LEASE MAY ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT BETWEEN LESSEE AND LESSOR. LESSEE AGREES TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS LEASE. LESSEE AGREES THAT THE EQUIPMENT WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
LESSEE CERTIFIES THAT ALL THE INFORMATION GIVEN IN THIS LEASE AND LESSEE’S APPLICATION WAS CORRECT AND COMPLETE WHEN THIS LEASE WAS SIGNED. THIS LEASE IS NOT BINDING UPON LESSOR OR EFFECTIVE UNLESS AND UNTIL LESSOR EXECUTES THIS LEASE. THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF THE LESSEE.
City of Modesto
(“Lessee”)
X
Authorized Signature
_______________________________________
Print Name
_______________________________________
Title:
Date
ATTN: ACCOUNTS PAYABLE, 1010 10TH ST
MODESTO, CA 95354
PNC Bank, National Association
(“Lessor”)
X
Authorized Signature
_______________________________________
Print Name
_______________________________________
Title:
655 Business Center Drive
Horsham, PA 19044
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 Lauren Thompson
Operations Manager Sr.
City Manager
Joe Lopez
6/2/2023
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SE Insurance Letter (Lease)
V20220513
May 10, 2023
City of Modesto
Course Name: Creekside GC
ATTN: ACCOUNTS PAYABLE, 1010 10TH ST
MODESTO, CA 95354
Attn: Accounts Payable
RE: Insurance Coverage Requirements for Equipment Financing Transaction between PNC Bank, National Association and City of Modesto
Before funding your transaction, PNC Bank, National Association requires evidence of appropriate insurance coverage on the equipment described in your transaction documents. Please forward this request to your insurance company, agent or broker as soon as possible and ask for the evidence of insurance to be sent to the address below.
PNC Bank, National Association will have an insurable interest in the following equipment:
Quantity Description Serial No.
50 (50) 2023 E-Z-GO RXV Elite
As a condition to entering into the equipment financing transaction, PNC Bank, National Association requires the following at all times during the term of the transaction:
1. All of the equipment must be insured for its full insurable value on a 100% replacement cost basis.
2. PNC Bank, National Association must be named as lender loss payee under a property insurance policy insuring all risks to the equipment, including fire, theft, and other customary coverage under an "extended coverage" endorsement.
3. For leases only, PNC Bank, National Association must receive evidence that a comprehensive general liability insurance policy is in place with a minimum coverage of $1,000,000. PNC Bank, National Association must be named as an additional insured under the liability policy.
4. Each property insurance policy must contain a lender's loss payable clause, or special endorsement, in which the insurer agrees that any loss will be payable in accordance with the policy terms, notwithstanding any act or negligence of the insured.
5. Each policy must provide for 30 days’ written notice to PNCEF prior to any cancellation, non-renewal or amendment of the policy.
6. If vehicles, please include comprehensive and collision deductible on certificate.
The evidence of insurance can consist of a Certificate of Insurance form, Evidence of Insurance form, Memorandum of Insurance, binder for insurance, declarations page, or the actual policy and endorsements, in each case naming PNC Bank, National Association as follows:
PNC Bank, National Association, and its successors and assigns, as lender loss payee Attn: Insurance Department
655 Business Center Drive, Suite 250
Horsham, PA 19044
When completed, the evidence of insurance should be emailed to: [email protected] Request for Insurance
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 #29..
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E24
05/22 SE Muni Resolution and Cert of Incumbency
RESOLUTION AND CERTIFICATE OF INCUMBENCY
Lease Number 1195642-4
Lessee: City of Modesto
Amount: $293,016.00 (Payment x Term)
WHEREAS, Lessee, a body politic and corporate duly organized and existing as a political subdivision, municipal corporation or similar public entity of the State or Commonwealth (“State”) is authorized by the laws of the State to purchase, acquire and lease certain equipment and other property for the benefit of the Lessee and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, pursuant to applicable law, the governing body of the Lessee (“Governing Body”) is authorized to acquire, dispose of and encumber real and personal property, including, without limitation, rights and interest in property, leases and easements necessary to the functions or operations of the Lessee.
WHEREAS, the Governing Body hereby finds and determines that the execution of one or more Lease Agreements or lease schedules (“Leases”) in the amount not exceeding the amount stated above for the purpose of acquiring the property (“Equipment”) to be described in the Leases is appropriate and necessary to the functions and operations of the Lessee.
WHEREAS, PNC Bank, National Association (“Lessor”) shall act as Lessor under said Leases.
NOW, THEREFORE, Be It Ordained by the Governing Body of the Lessee:
Section 1. Either one of the _______________________ OR _______________________ (each an “Authorized Representative”) acting on behalf of the Lessee, is hereby authorized to negotiate, enter into, execute, and deliver one or more Leases in substantially the form set forth in the document presently before the Governing Body, which document is available for public inspection at the office of the Lessee. Each Authorized Representative acting on behalf of the Lessee is hereby authorized to negotiate, enter into, execute, and deliver such other documents relating to the Lease as the Authorized Representative deems necessary and appropriate. All other related contracts and agreements necessary and incidental to the Leases are hereby authorized.
Section 2. By a written instrument signed by any Authorized Representative, said Authorized Representative may designate specifically identified officers or employees of the Lessee to execute and deliver agreements and documents relating to the Leases on behalf of the Lessee.
Section 3. The Lessee’s obligations under the Leases shall be subject to annual appropriation or renewal by the Governing Body as set forth in each Lease and the Lessee’s obligations under the Leases shall not constitute general obligations of the Lessee or indebtedness under the Constitution or laws of the State.
Section 4. This resolution shall take effect immediately upon its adoption and approval.
NAMES AND TITLES OF AUTHORIZED REPRESENTATIVES: AUTHORIZED LEASE SIGNORS ONLY _______________________________
Name
________________________________
Title
_______________________________
Name
________________________________
Title
ADOPTED AND APPROVED on this ________________, 20__.
Section 5. I, the undersigned Secretary/Clerk identified below, does hereby certify that I am the duly elected or appointed and acting Secretary/Clerk of the above Lessee, a political subdivision duly organized and existing under the laws of the State where Lessee is located, that I have the title stated below, and that, as of the date hereof, the individuals named above are the duly elected or appointed officers of the Lessee holding the offices set forth opposite their respective names.
The undersigned Secretary/Clerk of the above-named Lessee hereby certifies and attests that the undersigned has access to the official records of the Governing Body of the Lessee, that the foregoing resolutions were duly adopted by said Governing Body of the Lessee at a meeting of said Governing Body and that such resolutions have not been amended or altered and are in full force and effect on the date stated below.
LESSEE: City of Modesto
________________________________________________________ Signature of Secretary/Clerk of Lessee
Print Name:_______________________________________________ Official Title:______________________________________________ Date: ________________________________________________
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 DeAnna Christensen
DeAnna Christensen
June 1
DeAnna Christensen
23 Diane Nayares-Perez
6/4/2023
Finance Director
City Clerk
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PNC Bank, National Association
655 Business Center Drive, Suite 250 · Horsham, PA 19044 Questions? Call (800) 559-2755
Fax: (888) 888-3695
7/19 SE Customer Information Form
CUSTOMER INFORMATION
Lease # 1195642-4
Please provide the following information. By providing such information, you will enable us to ensure prompt payment of your vendor and the correct processing of your lease transaction.
Thank you.
Lessee Information
Full Business Legal Name: City of Modesto Federal Tax ID Number: 946000374 Invoices should be directed to: Attention:
Address City: State: Zip:
Preferred Method of Payment: (Please check)
Monthly Invoice (Mail)
Invoices should be directed to: Attention:
Address City:
Monthly Invoice (Email)
Email:
Billing Contact:
Contact Information
In order to verify receipt of equipment and review terms and conditions of the lease, please provide contact information for one or more staff that can assist in this process.
Contact 1: Phone:
Email:
Contact 2: Phone:
Email:
Signature
X
Date
I hereby attest the above information is accurate.
Email:
Accounts Payables Parks, Recreation & Neighborhoods Dept.
PO Box 642 Modesto CA 95353
Shaunna Souza
[email protected]
Laurie A. Smith
[email protected]
209-577-5347
Jessica Franco
[email protected]
209-577-5278
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 6/2/2023
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PLEASE COMPLETE AND SIGN FORM
7/19 SE Tax Notification
PNC Bank, National Association (“PNC”), is required to collect and remit sales/use tax in the taxing jurisdiction where your equipment will be located. If you select that you are exempt by marking one of the checkboxes below, you must provide a valid exemption certificate. If you do not provide this certificate prior to the booking of your transaction, you will be responsible for sales tax on all accrued payments.
If tax has been remitted up front and financed into your lease payment, your account will not be marked sales tax exempt if you provide an exemption certificate after your transaction has been booked. If your tax is remitted on a monthly basis, your lease may be marked sales tax exempt for the remaining payments left to be invoiced if you provide a valid exemption certificate after your transaction has been booked. In the event we do not receive a valid sales tax exemption certificate prior to the date your lease commences, you will be charged sales/use tax.
Personal property tax returns will be filed as required by local law. In the event that any tax abatements or special exemptions are available on the equipment you will be leasing from us, please notify us as soon as possible and forward the related documentation to us. This will ensure that your leased equipment will be reported correctly.
Please indicate below if your lease is subject to tax or whether a valid exemption exists.
Sales Tax
¨ I agree that my lease is subject to sales/use tax.
¨ I am exempt from sales/use tax and I have attached a completed exemption certificate to PNC. ¨ I am claiming a partial exemption from tax. I have attached a completed exemption certificate or other documented proof of this partial exemption.
¨ I agree that my business is subject to sales/use tax and I have attached a completed resale certificate. This certificate indicates that I will be responsible for collection and remittance of sales/use tax based on the subsequent re-rental of the property.
If applicable to the tax rates in your state, are you outside the city limits or in an unincorporated area? ¨ Inside city limits ¨ Outside city limits ¨ Unincorporated area Property Tax
¨ I have a valid abatement or property tax exemption (documentation attached). ¨ Location: State
Taxing District
Additional comments:
Lease Number 1195642-4
Lessee: City of Modesto
Signature:
X
Print Name:
Title:
Date:
Notification of Tax Treatment
DocuSign Envelope ID: 47F115BA-60D8-40BA-81FC-2D1E252ADBE9 DeAnna Christensen
DeAnna Christensen
6/2/2023
Finance Director
X
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
July 11, 2023
Date: June 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: Adjustments to Various Airport Rates and Fees
CONTACT: Gabe da Silva, Airport Manager, [email protected], 209-577-5319 DESCRIPTION:
Consider approving adjustments to various airport rates and fees for specific activities and services at the Modesto City-County Airport, effective July 12, 2023, and rescinding Resolution No. 2020-350. (Funding Source: Airport Operating Fund)
STRATEGIC PLAN ELEMENT:
This item is in conformance with the City of Modesto Strategic Plan Area: Economic Vitality Goals and Strategies. “Retain and attract residential, commercial, and industrial development to meet the community’s needs today and for the next generation”; Goal E: “Drive the success of a vibrant and economically sustainable business climate”.
BACKGROUND:
From time to time, Council adjusts the Modesto City-County Airport (Airport) rates and fees with the most recent adjustment occurring on September 1, 2020 using the National Consumer Price Index (CPI) for All Urban Consumers, West Urban, published by the United States Department of Labor, Bureau of Labor Statistics. Per Resolution 2020-350 “Rates and fees for the Airport may be adjusted from time to time by resolution of the Modesto City Council”. As the age of the airport, hangars, and facilities increases so too does the maintenance costs associated with their upkeep. Expenses for maintenance and supplies have grown monumentally over the past two years causing a much larger impact on the revenues generated from leasing airport facilities.
The Airport must provide a facility that complies with Federal Aviation Administration (FAA) operational standards. To ensure these operating standards continue, opportunity for additional revenues must be considered to cover increasing operating expenses. Increasing revenues will increase the ability to maintain hangars and facilities, providing longevity for these Airport assets.
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City Council, July 11, 2023
Adjustments to Various Airport Rates and Fees